United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
CONNELLSVILLE, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-720
Issued: October 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from a January 7, 2009 decision of
the Office of Workers’ Compensation Programs regarding an overpayment and affirming an
April 3, 2008 forfeiture determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant forfeited his
right to compensation benefits for the period December 19, 2005 through March 19, 2007;
(2) whether the Office properly found that appellant received a $37,862.30 overpayment of
compensation during the period of the forfeiture; and (3) whether the Office properly found that
appellant was at fault in the creation of the overpayment and, therefore, the overpayment was not
subject to waiver.
On appeal, appellant, through his attorney, asserted that government agents entrapped
him into selling artwork on August 30, 2006, that he promptly notified the Office of the sale, and
that he did not operate an art business.

FACTUAL HISTORY
The Office accepted that on August 9, 2004 appellant, then a 35-year-old part-time
flexible letter carrier, sustained a lumbar strain, bilateral knee sprains and a partial tear of the
right anterior cruciate ligament when he fell off a loading dock. He stopped work that day and
did not return.
Appellant received compensation on the daily rolls beginning on
September 24, 2004. On December 1, 2004 he underwent an arthroscopic reconstruction of the
right anterior cruciate ligament and a partial lateral meniscectomy. Appellant then received
compensation on the periodic rolls. The Office later expanded the claim to accept an aggravation
of preexisting bipolar disorder.
Appellant’s physicians released him to full-time light-duty work as of January 11, 2005.
Beginning in February 2005, appellant participated in vocational rehabilitation.1 He began an
approved associate’s degree program in computer security in late 2006. Appellant withdrew
from school at the Office’s request as he failed two introductory computer and internet classes
and had unspecified medical issues. The vocational rehabilitation counselor commented that
appellant had extremely poor computer skills that did not improve with tutoring and related
administrative supports.2
In a September 5, 2006 telephone memorandum, the Office noted that appellant called
that day “to report that he sold a piece of furniture out of his home for $600.00. [It] told
[appellant] that was fine, and it will not interfere with his [compensation] benefits. Therefore no
return calls necessary.”
On March 19, 2007 appellant signed an affidavit of earnings and employment (Form CA1032) in which he stated he was not employed or self-employed during the prior 15 months.
This form advised him that a “false or evasive answer to any question, or the omission of an
answer, may be grounds for forfeiting your compensation benefits” and subject him to civil or
criminal penalties.
In a February 5, 2008 memorandum, the Department of Labor’s Office of the Inspector
General described its investigation of appellant’s activities as an artist. On February 9, 2006
agents found two internet sites on which appellant posted approximately 25 images of his
artwork, with three listed for sale. An undercover agent posing as an art collector telephoned
appellant’s home on August 29, 2006 and expressed interest in purchasing artwork. Appellant
agreed to meet the agent at his house the following day. On August 30, 2006 the agent came to
appellant’s residence. Appellant displayed a variety of drawings and carved canes then left the
room. The agent asked appellant’s wife to price the artwork. Appellant’s wife “suggested
$25.00 each” for three drawings. The agent then offered $600.00 in cash for the three pieces.

1

On July 22, 2005 the Office obtained a second opinion from Dr. Charles S. Stone, a Board-certified orthopedic
surgeon, who found appellant capable of sedentary work.
2

By notice dated November 9, 2007, the Office proposed to reduce appellant’s compensation under 5 U.S.C.
§ 8106 and § 8115, based on his ability to perform the selected position of Dispatcher -- Maintenance Services.
There is no final wage-earning capacity determination of record.

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Appellant’s wife accepted the money and provided a receipt.3 The agent asked appellant to carve
a custom wood cane for her mother. Appellant agreed, stating he would charge $1.00 an hour for
labor. The agent returned to purchase the finished cane on November 6, 2006 for $150.00.
Appellant told the agent that, since she purchased his drawings in August, he earned $50.00 a
month selling his art but provided no receipts or other proof of sales. On September 7, 2007 the
agent and a colleague went to appellant’s home, revealed that they were agents and disclosed the
investigation. Appellant contended that he reported the $600.00 sale of art shortly after
August 30, 2006 and was told he did not have to report the income on his compensation forms.
By decision dated April 3, 2008, the Office found that under 5 U.S.C. § 8106, the
compensation paid to appellant from December 19, 2005 to March 19, 2007 was “declared
forfeit due to lack of reporting/underreporting earnings on [his] Form(s) 1032 from the selling of
[his] artwork and custom canes.” The Office found that appellant did not disclose the sale of
$600.00 of artwork on August 30, 2006 on the Form CA-1032 signed on March 19, 2007.
Therefore, the compensation paid for the 15-month period prior to the March 19, 2007 form was
forfeit.
By notice dated April 3, 2008, the Office advised appellant of its preliminary
determination that an overpayment of $37,862.30 was created in his case as he was “selfemployed and earning money” as an artist while receiving compensation for total disability. The
Office made the preliminary finding that appellant was at fault in creation of the overpayment
because he made deliberate factual misrepresentations and omissions by failing to report the
August 30, 2006 sale of art. The Office afforded appellant 30 days to provide financial
information and request a hearing.
Appellant requested a telephonic hearing, held September 23, 2008. At the hearing,
appellant’s attorney contended that appellant sold no art other than to the undercover agent and
that the agent’s conduct constituted entrapment. Also, appellant and his wife stated that they
called the Office on September 5, 2006 and reported the $600.00 August 30, 2006 transaction.
They were told that the sale of appellant’s art did not need to be reported to the Office. The
attorney noted that the September 5, 2006 telephone memorandum noted a sale of furniture
rather than artwork, but this could be explained as clerical error or misunderstanding. Appellant
asserted that any internet prices for his artwork appeared in error as he was unfamiliar with
computers and the internet and the art sites filled in prices automatically.
After the hearing the employing establishment submitted printouts from two websites
where appellant offered a total of three artworks for sale among approximately 30 pieces. The
employing establishment also submitted an October 30, 2006 e-mail in which he stated he would
charge the agent $150.00 for the cane. The employing establishment also submitted an
October 16, 2008 letter noting that, on October 9, 2008, the investigating agents interviewed the
Office employee who spoke with him on September 5, 2006 and wrote the telephone
memorandum. The employee initially did not recall the conversation as it happened more than
two years previously. She later remembered that she thought it unusual at the time that a
3

Exhibit 11 of the investigative memorandum is a handwritten receipt for the “purchase of 3 art pieces: “pulling
in all directions,” “heart of tired,” and “trapped” for the amount of $600.00 cash. Artwork by [appellant]. Sold by
[appellant’s wife]” with the notation “received by [appellant’s wife] August 30, 2006.”

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claimant would inquire about selling furniture and that she sought out a supervisor to help her
answer the question. When asked, the employee did not recall if appellant mentioned being an
artist or selling artwork.
In an October 20, 2008 letter, appellant’s attorney contended that the investigative
memoranda were hearsay and should not be given greater weight than appellant’s sworn
testimony. Also, appellant was not given the opportunity to question the Office employee who
wrote the September 5, 2006 telephone memorandum.
By decision dated and finalized January 7, 2009, an Office hearing representative
finalized the preliminary overpayment determination and affirmed the April 3, 2008 forfeiture
decision. He found that appellant “was involved in a business, creating and selling artwork.”
The representative found appellant’s arguments that he listed prices for his art in error
unconvincing. He also found that the September 5, 2006 telephone memorandum regarding the
sale of furniture did not establish that appellant reported a sale of artwork. The hearing
representative further found that appellant was at fault in creation of the overpayment because he
willingly omitted information that he should have known to be material. Therefore, the
overpayment was not subject to waiver. As appellant failed to “provide financial information to
establish a repayment schedule,” the hearing representative directed the Office to “demand
repayment of the debt in full.”
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act provides that an employee
who fails to make an affidavit or report when required or knowingly omits or understates any
part of his earnings, forfeits his right to compensation with respect to any period for which the
affidavit or report was required.4
The Board has held that it is not enough merely to establish that there were unreported
earnings or unemployment. A claimant can be subjected to the forfeiture provisions of 5 U.S.C.
§ 8106(b) only if he knowingly failed to report employment or earnings.5 The term “knowingly
“as defined in the Office’s implementing regulations, means with knowledge, consciously,
willfully or intentionally.6 In determining whether a claimant knowingly failed to report
earnings, Office procedures provide that the circumstances of the case should be carefully
evaluated with respect to the nature of the employment/earnings involved and any other relevant
factors.7

4

5 U.S.C. § 8106(b).

5

Barbara L. Kanter, 46 ECAB 165 (1994).

6

20 C.F.R. § 10.5(n).

7

Harold F. Franklin, 57 ECAB 387 (2006).

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Section 10.5(g) of the Office’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack or profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”8
ANALYSIS -- ISSUE 1
The Office found that appellant forfeited his right to compensation for the period
December 19, 2005 through March 19, 2007 because he knowingly failed to report the
August 30, 2006 sale of $600.00 in artwork on a Form EN1032 covering this period. Appellant
signed the EN1032 form on March 19, 2007. On the form, he indicated that he was not
employed and did not engage in self-employment. Investigative agents from the Department of
Labor’s Office of the Inspector General found that appellant listed three of his artworks for sale
on the internet. An undercover agent then purchased three of appellant’s drawings from
appellant’s wife. Although appellant’s wife asked for $25.00 each, the agent offered $600.00 in
cash. Appellant’s wife accepted this amount and issued a receipt.
Appellant can be subject to the forfeiture provision of section 8106(b) only if he
knowingly failed to report the sale of his artwork. The Office has the burden of proof to
establish that a claimant did, either with knowledge, consciously, willfully, or intentionally, fail
to report earnings from employment.9 It predicated the April 3, 2008 forfeiture determination on
appellant’s failure to report the $600.00 sale of artwork on the Form EN1032 he signed on
March 19, 2007. There is evidence; however, that appellant did report the sale to the Office.
The record contains a September 5, 2006 Office telephone memorandum, noting that
appellant called that day “to report that he sold a piece of furniture out of his home for $600.00.”
Although the memorandum says “furniture” and not drawings or artwork, the memorandum does
report the sale of items from appellant’s home for $600.00. The August 30, 2006 sale of artwork
occurred in appellant’s home and was in the amount of $600.00. The memorandum thus
corroborates the amount and location of the art transaction. Also, it was written less than a week
after the August 30, 2006 sale.

8

20 C.F.R. § 10.5(g); P.M., 60 ECAB ___ (Docket No. 07-2169, issued March 3, 2009).

9

20 C.F.R. § 10.5(n).

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Critical to the forfeiture issue is the Office’s finding that appellant knowingly failed to
report the August 30, 2006 sale to the Office, but in the September 5, 2006 memorandum, the
Office told appellant that the $600.00 sale “was fine, and it will not interfere with his
[compensation] benefits.” Appellant later asserted that he did not list the sale of his art on
EN1032 forms as the Office told him not to. The investigative agents noted that, when they
revealed the investigation on September 7, 2007, appellant contended that he reported the
$600.00 sale and was told he did not have to include it on his compensation forms. The
telephone memorandum corroborates that appellant reported a $600.00 sale shortly after
August 30, 2006 and that he was told it would not affect his compensation benefits. This
indicates that appellant did not knowingly omit the sale from the March 19, 2007 Form EN1032.
Rather, the Office instructed appellant that the sale of his artwork did not affect his compensation
benefits.
In an October 16, 2008 letter, the employing establishment noted that, on October 9,
2008, the investigating agents interviewed the Office employee who spoke to appellant on
September 5, 2006. The employee first stated that she did not remember appellant’s call. Upon
further questioning, she recalled that appellant asked about selling furniture but could not
remember if he also asked about making or selling artwork. There is no direct statement of
record from the Office employee. The Board notes that the interviewing agents investigated
appellant for two years and had a significant interest in his prosecution. Considering the
incomplete nature of the employee’s recollections and the possibility of bias by the investigative
agents, the Board finds that the October 16, 2008 letter does not establish that appellant did not
ask about selling artwork on September 5, 2006. The letter indicates only that the employee did
not remember whether appellant asked about artwork or not. The Board finds that, under the
circumstances of this case, the September 5, 2006 telephone memorandum is sufficient to
establish that appellant notified the Office about the August 30, 2006 sale of artwork for $600.00
and that he was advised that the sale would not affect his compensation benefits. Therefore, the
Office’s finding that appellant failed to report these earnings was in error.
The Office hearing representative further found that appellant forfeited his right to
compensation for the period December 19, 2005 to March 19, 2007 as he failed to report his
participation in a business. The business was defined as appellant’s listing three of his artworks
for sale on the internet as of February 9, 2006. No internet sales were asserted or proven. The
hearing representative found appellant’s argument that he listed prices in error as he was
unfamiliar with computers was not persuasive. However, there is significant evidence of record
that appellant had limited computer skills. As part of vocational rehabilitation in late 2006, after
the February 2006 internet postings, appellant took community college classes in introductory
computer security and internet skills. He failed both courses despite tutoring and other
interventions. This tends to support appellant’s assertion that the price listings were mistakes
due to his unfamiliarity with computers. The Board therefore finds that the price entries
appearing on the two internet sites on February 9, 2006 do not, in and of themselves, establish

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that appellant participated in a business.10 While appellant allegedly told the investigative agent
on November 6, 2006 that he earned $50.00 a month selling his art since August 30, 2006, there
is no proof of record of such sales and the forfeiture determination was not predicated on such
transactions. Also, these sales would have occurred after the Office advised appellant on
September 5, 2006 that sales of his artwork would not affect his compensation. As the Office
did not establish that appellant participated in a business, it cannot penalize appellant for failing
to disclose business activities.
On appeal, appellant, through his attorney, contends that the Office’s finding of forfeiture
was in error as appellant notified the Office that he sold artwork on August 30, 2006 and did not
otherwise participate in an art business. As set forth above, the Office failed to meet its burden
of proof to establish that appellant forfeited his right to compensation for the period
December 19, 2005 to March 19, 2007. The record does not establish that appellant participated
in a business or that he failed to report selling $600.00 of artwork on August 30, 2006.
ANALYSIS -- ISSUES 2 and 3
As the Office failed to establish forfeiture, the second and third issues regarding an
overpayment of compensation predicated on the forfeiture are moot.
CONCLUSION
The Board finds that the Office has not established that appellant forfeited his right to
compensation benefits for the period December 19, 2005 through March 19, 2007. Therefore,
the Office has not established an overpayment of compensation.

10

Cf. C.O., Docket No. 07-136 (issued September 6, 2007) (the Board affirmed the Office’s forfeiture
determination where the claimant, while receiving compensation for temporary total disability, operated an ongoing
business enterprise making large quantities of wood crafts, maintaining booths at several monthly craft fairs and
taking custom orders. The claimant admitted that he deliberately failed to report this business or his earnings on
Forms CA-1032); Joan Ross, 57 ECAB 694 (2006) (While receiving compensation for temporary total disability,
the claimant regularly sold personal grooming implements at trade shows, took orders, demonstrated products and
participated in the financial management of the business. The claimant failed to report her earnings and activities on
Forms CA-1032. The Board upheld the Office’s finding of forfeiture); Jane A. Pastva, 54 ECAB 230 (2002) (while
receiving compensation for temporary total disability, the claimant manufactured and sold wooden lawn decorations,
offered a catalog of available items, filled custom orders, and advertised by posting signs and distributing business
cards. The claimant also hired and paid others to paint items for sale. She failed to report her earnings and income
on Forms CA-1032. The Board upheld the Office’s finding of forfeiture.)

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 7, 2009 and April 3, 2008 are reversed.
Issued: October 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 18-1407
Issued: February 14, 2019

Case Submitted on the Record

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

JURISDICTION
On July 12, 2018 appellant filed a timely appeal from a July 2, 2018 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated November 21, 2011, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On August 21, 2011 appellant, then a 27-year-old general equipment mechanic helper, filed
an occupational disease claim (Form CA-2) alleging that he developed carpal tunnel syndrome due
1

5 U.S.C. § 8101 et seq.

to operating air chisel jackhammers and torque wrenches in the performance of duty. He noted
that he had to lie on his back and lift the housing up, and use air wrenches and torque wrenches to
install the housing. Appellant indicated that he first became aware of his condition and its relation
to his federal employment on March 7, 2008.
In a development letter dated August 16, 2011, OWCP requested additional factual and
medical evidence in support of appellant’s occupational disease claim. It afforded him 30 days to
respond.
On June 1, 2011 appellant completed a narrative statement and described his job duties of
utilizing an air chisel jackhammer as well as torque wrenches to disassemble parts. He again noted
that he was required to lie on his back to lift up housings on equipment and to use torque wrenches
to tighten up the housing. Appellant further noted that he was required to work 11 hours a day, 6
days a week.
On August 2 and 16, 2010 Dr. Morton S. Rickless, an orthopedic surgeon, reported that
appellant had pain and decreased sensation in his right hand. He noted that appellant’s job duties
required repetitive use of power and hand tools, including wrenches and jackhammers.
Dr. Rickless diagnosed carpal tunnel syndrome based on an electromyogram (EMG) and physical
examination. He concluded, “It is in the opinion of this office that since appellant did repetitive
work with his hands that the carpal tunnel is related to his job at the [employing establishment].”
In an October 4, 2010 attending physician’s report, (Form CA-20) Dr. Rickless diagnosed
carpal tunnel syndrome. He checked a box marked “yes” to indicate that appellant’s condition
was caused or aggravated by employment activities. In a note dated November 16, 2010,
Dr. Rickless repeated his diagnosis of carpal tunnel syndrome.
On September 15, 2011 the employing establishment controverted appellant’s claim
asserting that he had not reported hand symptoms or carpal tunnel syndrome to his supervisor at
any time during his employment from December 18, 2006 through October 14, 2008.
On November 1, 2011 OWCP conducted a conference call with appellant. Appellant
reported that he had not worked in any capacity since he stopped work at the employing
establishment in October 2008.
By decision dated November 21, 2011, OWCP denied appellant’s occupational disease
claim finding that the report of Dr. Rickless failed to provide medical rationale establishing causal
relationship between his diagnosed carpal tunnel syndrome and the accepted factors of his federal
employment.
Appellant submitted an October 2, 2013 treatment note from Dr. Stanley W. Jett, a family
practitioner, diagnosing shoulder pain. In a January 22, 2014 note, Dr. Jett diagnosed chronic
shoulder pain and carpal tunnel syndrome and median nerve neuropathy. On April 1, May 7, and
July 30, 2014 he again diagnosed shoulder pain and carpal tunnel syndrome.
On June 21, 2018 appellant requested reconsideration of the November 21, 2011 OWCP
decision.

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On March 20 and 30, 2013 Dr. Rickless noted that appellant reported decreased sensation
in his hands and diagnosed carpal tunnel syndrome. He examined appellant on September 30,
2014 and found decreased sensation in the median nerve distribution. Dr. Rickless diagnosed
carpal tunnel syndrome and recommended surgery. In a note dated November 9, 2015, he
diagnosed bilateral carpal tunnel syndrome and right shoulder pain. Dr. Rickless reported that
carpal tunnel syndrome was known to be associated with using a jackhammer and that this
condition was related to appellant’s employment.
Jerry L. Klug, a physical therapist, completed a note on January 4, 2018.
On October 4, 2016 Dr. Jett diagnosed bilateral carpal tunnel syndrome and opined that
this condition was the result of appellant’s repetitive operation of an air chisel jackhammer in the
performance of his federal job duties.
By decision dated July 2, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.3 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).4 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.6
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP7 and is positive, precise, and explicit, and manifests on its

2

5 U.S.C. § 8128(a); A.F., Docket No. 18-0645 (issued October 26, 2018).

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

5

A.F., supra note 2; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

A.F., id.; M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 4 at
Chapter 2.1602.5(a) (February 2016) (the term clear evidence of error is intended to represent a difficult standard).
7
J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006); Dean D. Beets,
43 ECAB 1153 (1992).

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face that OWCP committed an error.8 The evidence must not only be of sufficient probative value
to create a conflict in medical opinion or demonstrate a clear procedural error, but must also shift
the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough merely
to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
By letter received by OWCP on June 21, 2018, appellant requested reconsideration of the
November 21, 2011 decision. OWCP’s regulations10 and procedures11 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision. The
last merit decision on this issue was the November 21, 2011 decision. Appellant had one year
from the date of this decision to make a timely request for reconsideration, i.e., November 21,
2012, to request reconsideration with OWCP. As he request for reconsideration was received on
June 21, 2018 more than one year after the November 21, 2011 decision, the Board finds that his
request for reconsideration was untimely filed.12 Consequently, appellant must demonstrate clear
evidence of error by OWCP in the denial of his occupational disease claim.
The Board has reviewed the record and finds that the evidence submitted does not raise a
substantial question as to the correctness of OWCP’s last merit decision and is therefore
insufficient to demonstrate clear evidence of error. The underlying issue in appellant’s claim was
medical in nature with respect to causal relationship. The Board notes that the term clear evidence
of error is intended to represent a difficult standard.13 Even a detailed, well-rationalized medical
report, which would have created a conflict in medical opinion requiring further development if
submitted prior to issuance of the denial decision, is insufficient to demonstrate clear evidence of

8

J.W., id.; Leona N. Travis, 43 ECAB 227 (1991).

9

J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010);
Robert G. Burns, supra note 7.
10

20 C.F.R. § 10.607(a); Alberta Dukes, 56 ECAB 247 (2005).

11

Supra note 4 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

12

20 C.F.R. § 10.607(a).

13
Supra note 4 at Chapter 2.1602.5 (February 2016); P.W., Docket No. 18-0638 (issued October 9, 2018); Dean
Beets, supra note 7.

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error.14 It is not enough to show that evidence could be construed so as to produce a contrary
conclusion.15
The Board further finds that appellant has failed to demonstrate clear evidence of error in
the termination of his compensation benefits. The evidence submitted to the record following the
November 21, 2011 merit OWCP decision consisted of several medical reports. To demonstrate
clear evidence of error in the denial of the claim, the new evidence had to establish the underlying
issue of causal relationship. Dr. Jett’s January 22, April 1, May 7, and July 30, 2014 notes did not
address causal relationship. Appellant also provided notes from Mr. Klug, his physical therapist.
These notes are immaterial as physical therapists and physician assistants are not considered
physicians under FECA.16 Their reports and opinions do not constitute probative medical evidence
sufficient to demonstrate error by OWCP.17
The only medical reports discussing causal relationship, the underlying merit issue in this
case, are the November 9, 2015 note from Dr. Rickless and the October 4, 2016 note from Dr. Jett.
Dr. Rickless reported that carpal tunnel syndrome was known to be associated with using a
jackhammer and that this condition was related to appellant’s employment. Dr. Jett diagnosed
bilateral carpal tunnel syndrome and opined that this condition was the result of appellant’s
repetitive operation of an air chisel jackhammer in the performance of his federal job duties. While
these opinions are generally supportive of causal relationship, the notes do not demonstrate clear
evidence of error on the part of OWCP in rendering its November 21, 2011 merit decision.18
Appellant has not submitted medical evidence sufficient to shift the weight of the evidence
in his favor or raise a substantial question as to the correctness of OWCP’s decision. Consequently,
the Board finds that he has failed to demonstrate clear evidence of error on the part of OWCP such
that it abused its discretion in denying merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding it was untimely filed and failed to demonstrate clear evidence of error.

14

See id. at Chapter 2.1602.5(a) (February 2016); P.W., id.

15

P.W., supra note 13.

16

T.M., Docket No. 17-0318 (issued May 29, 2017).

17

Id.

18

See P.W., supra note 13; C.D., Docket No. 17-1915 (issued February 21, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the July 2, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 14, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.F., Appellant
and
U.S. POSTAL SERVICE, KEY WEST
POST OFFICE, Key West, FL, Employer
__________________________________________

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

Docket No. 08-1246
Issued: October 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from a February 19, 2008 decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a left knee injury in the
performance of duty.
FACTUAL HISTORY
On January 7, 2008 appellant, then a 59-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that he injured his left knee at work on January 5, 2008 while rising from a
chair. He did not stop work.
Dr. Robert Catana, an attending osteopathic physician Board-certified in orthopedic
surgery, submitted January 7, 2008 reports noting that appellant experienced left knee pain when

he stood up on January 5, 2008. He diagnosed a left knee sprain and meniscal tear. Dr. Catana
checked a box “yes” indicating his support for causal relationship. He noted work restrictions.
In a January 14, 2008 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish his claim. It emphasized the importance of corroborating
the claimed incident and submitting rationalized medical evidence explaining how and why that
incident would cause the claimed injury. Appellant was afforded 30 days to submit additional
evidence.
Appellant submitted a January 14, 2008 employing establishment form letter discussing
continuation of pay and leave matters.
By decision dated February 19, 2008, the Office denied appellant’s claim on the grounds
that fact of injury was not established. It found that appellant established that the January 5,
2008 incident occurred as alleged. However, appellant submitted insufficient medical evidence
establishing that the incident caused the claimed left knee injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
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 on
a traumatic injury or an occupational disease.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
jointly. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the alleged employment incident.4 Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.5

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Gary J. Watling, 52 ECAB 278 (2001).

5

Deborah L. Beatty, 54 ECAB 340 (2003).

2

ANALYSIS
Appellant claimed that he injured his left knee on January 5, 2008 while getting out of a
chair at work. The Office accepted that the incident occurred as alleged, but the Office denied
the claim on the grounds that the medical evidence submitted was insufficiently rationalized to
establish that the accepted incident caused the claimed injury.
Dr. Catana, an attending osteopathic physician Board-certified in orthopedic surgery,
checked a box “yes’ indicating that arising from a chair caused a left knee injury. Appellant did
not provide medical rationale explaining how and why the accepted January 5, 2008 incident
would cause the diagnosed left knee sprain and meniscal tear. When a physician’s opinion on
causal relationship consists only of checking yes to a form question, without explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.6
The Office advised appellant by letter dated January 14, 2008 of the need to submit
rationalized medical evidence explaining how and why the accepted January 5, 2008 incident
would cause the claimed left knee injury. Appellant did not submit such evidence. Therefore, he
did not meet his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained a left knee injury in
the performance of duty.

6

D.D., 57 ECAB 734 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 19, 2008 is affirmed.
Issued: October 7, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Pittsburgh, PA,
Employer
__________________________________________

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

Docket No. 10-1756
Issued: April 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from a December 29, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on May 21, 2009.
FACTUAL HISTORY
On May 21, 2009 appellant, then a 53-year-old lock and dam equipment mechanic, filed
a (Form CA-1) traumatic injury claim alleging that a nurse improperly inserted a needle into a
1

5 U.S.C. § 8101 et seq.

left arm nerve during a blood drawing on that day. He claimed pain, trembling and tingling
radiating to his fingertips. Appellant’s supervisor signed the Form CA-1 on May 21, 2009 and
noted that appellant did not stop work. The employing establishment did not controvert the
claim.
The Office informed appellant in a June 4, 2009 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit medical reports describing the
history of injury, diagnosis, symptoms, test results, period and extent of disability, treatment
provided and prognosis and offering a physician’s reasoned opinion as to how the May 21, 2009
employment incident caused a left arm condition.
In a May 29, 2009 progress note, Dr. Robert Olexo, an osteopath and Board-certified
family practitioner, advised that appellant presented burning, tingling and numbness in the left
arm due to the May 21, 2009 blood drawing. On examination, he observed decreased sensation
in the left hand dorsum and mild tenderness to palpation in the left antecubital area. Dr. Olexo
diagnosed localized left arm neuropathy and status post “lab[oratory] work/blood drawn.” He
detailed in a May 29, 2009 duty status report that a nurse contacted a nerve in appellant’s left
arm upon drawing blood for an annual physical examination on May 21, 2009. Dr. Olexo
reported localized neuropathy for the diagnosis due to injury. He added that appellant did not
miss work.
Appellant’s June 23, 2009 response letter denied any preexisting injuries and noted that
the blood drawing occurred off the employing establishment premises but was mandated by the
employing establishment. It also contained a signed statement from Dane Summerville that he
witnessed the incident and observed that appellant “was in pain and had numbness.”
In a June 29, 2009 report, Dr. Olexo related that appellant sustained left wrist numbness
immediately following a May 21, 2009 blood drawing for a physical done at work. A May 29,
2009 examination, which included a neurological evaluation, revealed mild tenderness to
palpation in the left antecubital area and decreased sensation to light touch and filament testing
in the left hand dorsum distal to the wrist. Dr. Olexo commented that appellant’s arm did not
exhibit any rash, blister, bleeding, bruising or erythema. He “found no true disability associated
with this work injury” and pointed out that appellant continued to work.
In a July 10, 2009 telephone memorandum, the employing establishment confirmed that
appellant was in the performance of duty as it sanctioned his medical appointment on
May 21, 2009.
By decision dated July 10, 2009, the Office denied appellant’s claim, finding the medical
evidence was insufficient to establish a causal relation between any left arm neuropathy
diagnosed medical condition and the May 21, 2009 work incident. It accepted that the blood
draw was required by the employer.
On August 11, 2009 the Office received an undated prescription note signed by
Dr. Olexo, which stated that appellant sustained left wrist neuropathy “due to trauma” on
May 21, 2009 involving “lab[oratory] work/needle stick.”

2

Appellant timely requested an oral telephonic hearing, which was held on
November 6, 2009. At the hearing, he testified that a nurse “hit a motor nerve” during a
mandatory blood draw, causing arm discomfort and difficulty gripping and holding things.
Appellant went to his doctor when the pain did not go away after three days.
By decision dated December 29, 2009, an Office hearing representative affirmed the
July 10, 2009 denial. She found that there was “no doubt” that appellant “suffered some
symptomatology after the blood draw during his work physical” but the record was unclear as to
the diagnosis.
LEGAL PRECEDENT
An employee seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,2
including that he is an “employee” within the meaning of the Act and that he filed his claim
within the applicable time limitation.3 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.4
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 he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6

2

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

3

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

4

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

5

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

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Office denied appellant’s claim on the basis that the medical evidence did not
sufficiently demonstrate a causal relationship between a diagnosed medical condition and the
May 21, 2009 work event. Although causal relationship generally requires a rationalized
medical opinion, a claim may be accepted without a medical opinion when one or more of the
following criteria, as set forth in the Office’s procedure manual, are satisfied:
“(1) The condition reported is a minor one which can be identified on visual
inspection by a lay person (e.g., burns, lacerations, insect stings or animal bites);
“(2) The injury was witnessed or reported promptly and no dispute exists as to the
fact of injury; and
“(3) No time was lost from work due to disability.”7
In the present case, the evidence supports that one of appellant’s left arm nerves was
improperly punctured during a May 21, 2009 blood drawing for the annual employment physical
examination. Mr. Summerville, a witness, provided a signed statement in appellant’s June 23,
2009 letter that he witnessed the blood drawing and observed him in immediate pain. The
condition was minor, as the Form CA-1 and Dr. Olexo’s May 29 and June 29, 2009 medical
reports indicated that appellant did not incur any time loss from work due to his diagnosed left
arm neuropathy. Thus, the first and third criteria are satisfied.
The second criterion is also met since appellant’s supervisor signed the Form CA-1 on
May 21, 2009, the same day as the employment incident, demonstrating that the injury was
promptly reported. As mentioned, Mr. Summerville attested to the employment incident.
Furthermore, no dispute exists as to the fact of injury.
Because all three of the enumerated criteria are satisfied, a medical opinion on causal
relationship is not necessary.8 The Board also notes that Dr. Olexo’s medical reports listed an
accurate history of the injury, reported findings on examination and diagnosed localized
neuropathy due to the work incident.9 Dr. Olexo did not list any other cause for appellant’s
symptoms. Accordingly, the Board finds that appellant sustained a traumatic injury in the
performance of duty.10

7

Jussara L. Arcanjo, 55 ECAB 281 (2004); See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3(d)(1) (September 2010); M.A., Docket No. 08-2510 (issued July 16, 2009).
8

The Board notes that a claimant need not establish all three factors to prevail. Pearlene Morton, 52 ECAB 493
(2001); Timothy D. Douglas, 49 ECAB 558 (1998); see, e.g., M.A., supra note 7.
9

Although the hearing representative denied the claim because she questioned whether a diagnosis was provided,
Dr. Olexo clearly diagnosed localized neuropathy and noted findings on examination to support the diagnosis.
10

This is also consistent with Office procedures which state that deleterious effects such as injury while
undergoing periodic medical examination are compensable. See Federal (FECA) Procedure Manual, Part 2 -Claims, Performance of Duty, Chapter 2.804.19(a) (March 1994).

4

Because the Office did not address appellant’s entitlement to medical benefits, the case
will be remanded for the Office to make appropriate findings on the issue. After such further
development as it considers necessary, the Office shall issue a de novo decision on appellant’s
entitlement to benefits under the Act.
CONCLUSION
The Board finds that appellant established that he sustained a traumatic injury in the
performance of duty on May 21, 2009.11
ORDER
IT IS HEREBY ORDERED THAT the December 29, 2009 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for further action
consistent with this decision.
Issued: April 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

The Board notes that appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Richard Daniels, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1186
Issued: July 9, 2019

Case Submitted on the Record

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

JURISDICTION
On May 18, 2018 appellant, through counsel, filed a timely appeal from a November 29,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the November 29, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP abused its discretion by denying authorization for thoracic
outlet surgery.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On July 8, 1997 appellant, then a 41-year-old mail processor, filed a traumatic injury claim
(Form CA-1) alleging that on June 27, 1997 he strained his neck while in the performance of duty,
when a rack he was pulling came unhinged and fell down. He stopped work on July 3, 1997.
OWCP assigned the claim File No. xxxxxx505, and by decision dated September 15, 1997,
accepted the claim for cervical strain. It later expanded acceptance of the claim to include cervical
radiculopathy and herniated disc at C6-7. OWCP paid appellant wage-loss compensation until he
returned to work on January 6, 1998. On September 15, 2000 appellant underwent OWCPauthorized cervical surgery.
On March 2, 2005 appellant was separated from federal employment due to his “physical
inability to perform duties of position and/or [leave without pay] for 365 days.”
On April 11, 2008 appellant filed an occupational disease claim (Form CA-2). OWCP
assigned this latter claim File No. xxxxxx565. It accepted the occupational disease claim for
aggravation of bilateral thoracic outlet syndrome. OWCP administratively combined appellant’s
traumatic injury and occupational disease claims, with File No. xxxxxx505 designated as the
master file.
OWCP subsequently received a series of medical reports by Dr. Avraam Karas, a Boardcertified cardiothoracic surgeon. In an initial April 21, 2004 report, Dr. Karas reviewed
appellant’s history and conducted an examination. He reported that transaxillary examination of
appellant’s thoracic outlet over the first rib was intolerable and painful on both sides. Adson’s and
Roos’ test maneuvers were positive on both sides. Dr. Karas diagnosed cervical disc disease,
status post cervical fusion, ulnar neuropathy bilaterally, bilateral carpal tunnel syndrome, and
severe bilateral thoracic outlet syndrome. He continued to treat appellant and provided medical
reports. In a June 17, 2004 report, Dr. Karas opined that appellant’s symptomatology was so
severe and longstanding that surgical decompression of the thoracic outlet syndrome would be the
only treatment to benefit him.
On February 25, 2009 OWCP referred appellant’s case, along with a statement of accepted
facts (SOAF) and the medical record, to Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and OWCP district medical adviser, to determine whether thoracic outlet surgery was
medically necessary to treat appellant’s accepted condition. In a March 10, 2009 report,
Dr. Berman indicated that although appellant’s condition was accepted for aggravation of thoracic
4

Docket No. 15-1961 (issued September 7, 2016); Docket No. 13-1157 (issued May 15, 2014).

2

outlet syndrome bilaterally, he did not believe that this was necessarily the correct diagnosis. He
recommended a repeat magnetic resonance imaging scan of appellant’s cervical spine and a repeat
electromyography (EMG) study. Dr. Berman concluded that, based on the medical record,
thoracic outlet surgery was not medically indicated as he did not think that the diagnosis of thoracic
outlet syndrome had been established.
On March 31, 2009 appellant underwent EMG and nerve conduction velocity (NCV)
testing. The report did not contain any impression of findings.
On April 7, 2010 appellant also underwent an upper extremity vascular arterial stress,
which was indicative of thoracic outlet syndrome. The report noted that he was not able to fully
get into the correct position, so his condition may likely be more severe than shown.
OWCP referred appellant’s case, along with the SOAF and the medical record, to
Dr. Robert Draper, Jr., a Board-certified orthopedic surgeon and second opinion examiner, to
determine whether he continued to suffer residuals of, and remained disabled as a result of his
work-related injuries, and whether thoracic outlet surgery was medically necessary to treat
appellant’s accepted conditions. In a May 21, 2010 report, Dr. Draper discussed appellant’s
medical records and provided examination findings. He reported that examination of appellant’s
bilateral upper extremities showed negative Tinel’s sign and Adson’s test. Dr. Draper related that
appellant had no motor or sensory deficits in the upper extremities, which would suggest or be
compatible with thoracic outlet syndrome. He noted that there was no indication to perform
surgery for thoracic outlet syndrome as the physical examination findings did not show a finding
of thoracic outlet syndrome.
By decision dated December 23, 2010, OWCP again denied authorization for thoracic
outlet surgery. It found that the weight of the medical evidence rested with Dr. Draper’s May 21,
2010 and Dr. Berman’s March 10, 2009 medical reports, which determined that appellant did not
have thoracic outlet syndrome, and accordingly, that he did not need surgery.
Following the initial denial, appellant filed multiple requests for reconsideration and/or
appeals.5
In its most recent decision dated September 7, 2016, the Board set aside and remanded
OWCP’s July 30, 2015 decision, which denied authorization for thoracic outlet surgery. It found
that the June 15, 2011 and July 14, 2014 reports of Dr. Donald Haskins, a Board-certified
orthopedic surgeon and impartial medical examiner,6 were of insufficient probative value to carry
the special weight of the medical evidence afforded to an impartial medical report. The Board
noted that Dr. Haskins did not conduct a thorough examination for his July 14, 2014 report, and
essentially conducted a review of the record. It also determined that his reports lacked probative
5
The procedural history of appellant’s request for authorization for thoracic outlet surgery has been set forth in
detail in the Board’s prior decision, and is incorporated herein by reference.
6

In a March 18, 2011 decision, an OWCP hearing representative set aside and remanded the December 23, 2010
decision because a conflict in medical opinion evidence existed regarding whether thoracic outlet surgery was
necessary to treat appellant’s accepted condition(s). Accordingly, it referred appellant’s claim to Dr. Haskins for an
impartial medical examination in order to resolve the conflict.

3

value because he provided insufficient medical rationale for his conclusion that OWCP should not
authorize thoracic outlet surgery.7 The Board remanded the case to OWCP for referral to a new
impartial medical examiner followed by a de novo decision.
On remand, OWCP referred appellant, along with the medical record, and an updated
SOAF, to Dr. Michael Mitrick a Board-certified orthopedic surgeon, for an impartial medical
examination in order to resolve the conflict on whether it was medically necessary for appellant to
undergo thoracic outlet surgery.8
In a February 8, 2017 report, Dr. Mitrick reviewed appellant’s history and related that
according to the updated SOAF, OWCP had accepted appellant’s claim for cervical strain, cervical
radiculopathy, and herniated cervical disc at C6-7 as a result of a June 27, 1997 work injury. He
noted that, according to an April 11, 2008 occupational disease claim, OWCP had also accepted
that appellant sustained aggravation of thoracic outlet syndrome as a result of his employment
duties. Dr. Mitrick related that appellant’s chief complaints were of pain between his shoulder
blades radiating down both arms and numbness in his fingers. Upon physical examination of
appellant’s cervical spine, he observed no evidence of any muscle spasms. Dr. Mitrick related that
she complained of tenderness all the way down to T12 and more laterally in the area of the thoracic
spine. He reported range of motion findings of extension to 20 degrees, lateral rotation to 30
degrees on each side, lateral flexion to 15 degrees, and no forward flexion. Dr. Mitrick noted that
appellant complained of neck tenderness at every level in the cervical spine and of trapezius
tenderness. He reported that he was unable to get him to distinguish whether there was any altered
sensation in either upper extremity because appellant simply insisted that his arms felt “stingy.”
Phalen’s test was negative bilaterally. Tinel’s test resulted in appellant complaining of a tingling
slightly up the forearm. Dr. Mitrick reported that Roos’ test showed no pain, weakness, or
numbness down appellant’s arms. He also noted that Adson’s test showed no diminution of
appellant’s right and left radial pulses.
In response to OWCP’s questionnaire, Dr. Mitrick opined that he could not find any
evidence of thoracic outlet syndrome. He explained that appellant had no evidence of
radiculopathy in the lower extremities and had normal reflexes and good strength in the upper
extremities. Dr. Mitrick reported that he found absolutely no muscle atrophy in either upper
extremity and found no evidence of any thoracic outlet. He also related that an EMG study dated
April 10, 2002, showed no evidence of other peripheral nerve injury or entrapment, cervical
radiculopathy, brachial plexus lesion, or thoracic outlet. Dr. Mitrick noted that this examination
was within two years of appellant’s surgery, so he did not see how appellant could have developed
thoracic outlet after that time. He further explained that appellant’s symptoms of neck pain, upper

7

The Board noted that Dr. Haskins determined that, based on his examination findings, appellant did not have
thoracic outlet syndrome. The Board related that, although Dr. Haskins acknowledged that appellant had abnormal
diagnostic results, he failed to give any medical explanation as to how appellant’s physical examination and history
negated the abnormal diagnostic testing.
8

OWCP noted that a conflict in medical opinion evidence existed between Dr. Karas, appellant’s treating physician,
who recommended surgery, and Dr. Robert Draper, a second-opinion examiner, who determined that appellant did
not have thoracic outlet syndrome, and accordingly, that thoracic outlet syndrome was not medically necessary.

4

thoracic pain, and bilateral shoulder pain did not go along very well with thoracic outlet.
Dr. Mitrick concluded that appellant had no evidence of thoracic outlet.
Appellant also received medical treatment from Dr. Constantine A. Misoul, a Boardcertified orthopedic surgeon. In a September 19, 2016 report, Dr. Misoul related that appellant
continued to have difficulty with aching pain in his neck and upper back radiating to his arms after
a June 27, 1997 employment injury. Upon physical examination of appellant’s cervical spine, he
observed tenderness over the paracervical musculature, dorsoscapular musculature, and trapezii.
Dr. Misoul also noted supraclavicular tenderness with positive Tinel’s sign over the
supraclavicular region. Adson’s and Roos’ maneuvers were positive. Dr. Misoul recommended
that appellant be reevaluated by Dr. Karas, a thoracic outlet syndrome specialist. He continued to
treat appellant and provide medical reports.
In a decision dated February 24, 2017, OWCP again denied appellant’s request for
authorization of thoracic outlet surgery. It found that the special weight of the medical evidence
rested with Dr. Mitrick, as the impartial medical examiner, who determined in his February 8,
2017 report that appellant did not have thoracic outlet syndrome, and accordingly, that he did not
need surgery.
On March 3, 2017 appellant, through counsel, requested a hearing before a representative
from OWCP’s Branch of Hearings and Review.9 A hearing was held on September 15, 2017.
OWCP received June 5 and August 28, 2017 reports and an October 30, 2017 letter by
Dr. Misoul. Dr. Misoul noted a date of injury of June 27, 1997 and related that appellant was
diagnosed with thoracic outlet syndrome by Dr. Karas, a thoracic outlet syndrome specialist, based
on physical examination and vascular studies back in 2004 and 2007. He noted that every
physician that OWCP had sent appellant to was not a thoracic outlet surgeon or specialist. Upon
physical examination of appellant’s cervicothoracic spine, Dr. Misoul observed tenderness over
the paracervical and dorsoscapular musculature and positive Tinel’s sign in the supraclavicular
region. Adson’s and Roos’ maneuvers were positive bilaterally. Dr. Misoul also noted decreased
sensation in the little and ring fingers, bilaterally. He reported that appellant’s current work-related
diagnoses included neck sprain, brachial neuritis, intervertebral disc disorder with myelopathy
cervical region, and thoracic outlet syndrome. Dr. Misoul recommended that appellant follow-up
with Dr. Karas regarding surgical options for his thoracic outlet syndrome.
By decision dated November 29, 2017, OWCP’s hearing representative affirmed the
February 24, 2017 decision. She found that the special weight of medical opinion evidence rested
with Dr. Mitrick, as the impartial medical examiner, who determined in a February 7, 2017 report
that appellant no longer suffered from thoracic outlet syndrome, and accordingly, surgery was not
medically necessary.

9

Appellant resubmitted various medical reports by Dr. Misoul dated December 7, 2015 to January 23, 2017.

5

LEGAL PRECEDENT
Section 8103(a) of FECA10 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.11 In interpreting this section of FECA, the Board has recognized that OWCP has
broad discretion in determining whether a particular type of treatment is likely to cure or give
relief.12 The only limitation on OWCP’s authority is that of reasonableness.13
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.14
To be entitled to reimbursement of medical expenses, a claimant has the burden of proof
to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition.15 Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.16 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the procedure was for a condition related to the
employment injury and that the surgery was medically warranted.17 Both of these criteria must be
met in order for OWCP to authorize payment.18
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.19 This is called a referee examination and OWCP will select a physician
10

Supra note 2.

11

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

12

R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-812 (issued April 3, 2009).

13

D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).

14

E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007);
Daniel J. Perea, 42 ECAB 214 (1990).
15

J.T., Docket No. 18-0503 (issued October 16, 2018); Debra S. King, 44 ECAB 203, 209 (1992).

16

C.L., Docket No. 17-0230 (issued April 24, 2018); M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB
282 (1986).
17

J.R., Docket No. 18-0603 (issued November 13, 2018); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981);
John E. Benton, 15 ECAB 48, 49 (1963).
18

J.L., Docket No. 18-0990 (issued March 5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331,
333 (2000).
19
5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).

6

who is qualified in the appropriate specialty and who has no prior connection with the case.20
When there exists opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.21
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report.22
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant sustained aggravated thoracic outlet syndrome as a result
of his repetitive employment duties as a mail processor. Dr. Karas, appellant’s treating physician,
requested authorization for surgery to treat his thoracic outlet syndrome. OWCP determined that
a conflict in medical opinion existed regarding whether thoracic outlet surgery was necessary to
treat appellant’s accepted condition. Following the Board’s September 7, 2016 decision, it
referred his claim to Dr. Mitrick, an impartial medical examiner, for review and examination in
order to resolve the conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a). In February 24
and November 29, 2017 decisions, OWCP denied authorization for thoracic outlet surgery based
on Dr. Mitrick’s February 8, 2017 impartial medical report.
In his February 8, 2017 report, Dr. Mitrick concluded that thoracic outlet surgery was not
medically necessary to treat appellant’s accepted conditions. He noted that based on his physical
examination, he found no evidence of thoracic outlet syndrome. In determining the probative
value of an impartial medical examiner’s medical report, the Board considers such factors as the
opportunity for and thoroughness of examination performed by the physician, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, the care of analysis
manifested and the medical rationale expressed by the physician on the medical issues addressed
to him or her by OWCP.23
In this case, the Board finds that Dr. Mitrick provided insufficient medical rationale for his
conclusion that OWCP should not authorize thoracic outlet surgery. In his February 8, 2017
report, Dr. Mitrick opined that he could not find any evidence of thoracic outlet syndrome. He
related that physical examination showed good strength, normal reflexes, and no muscle atrophy
in appellant’s upper extremities. Dr. Mitrick also related that an April 10, 2002 EMG showed no
evidence of other peripheral nerve injury or entrapment, brachial plexus lesion, or thoracic outlet.
20

20 C.F.R. § 10.321.

21

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

22

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
23

James T. Johnson, 39 ECAB 1252, 1256 (1988).

7

The Board notes that although Dr. Mitrick’s February 8, 2017 report provides more recent physical
examination findings, he utilized stale medical evidence.24 Dr. Mitrick did not explain why he
relied on an EMG study from 2002, particularly since appellant was not diagnosed with thoracic
outlet syndrome until April 2004 when he was treated by Dr. Karas. In addition, he failed to
address the more recent April 7, 2010 arterial stress test, which was indicative of thoracic outlet
syndrome and a more recent March 31, 2009 EMG/NCV study. The Board notes that Dr. Mitrick
failed to utilize the most recent clinical studies and did not reconcile appellant’s subjective
complaints with his examination findings.25 Dr. Mitrick failed to provide a medical explanation
as to how appellant no longer had thoracic outlet syndrome despite his history of abnormal
diagnostic testing. The Board has found that when an impartial medical examiner fails to provide
medical reasoning to support his or her conclusory statements about a claimant’s condition, it is
insufficient to resolve a conflict in the medical evidence.26
Because Dr. Mitrick’s report lacked probative value, the Board finds that OWCP erred in
relying on his February 8, 2017 report as the basis for denying authorization for thoracic outlet
surgery.27 When OWCP obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report.28 As it referred appellant to Dr. Mitrick for an impartial medical examination,
it has a duty to obtain a report sufficient to resolve the issues raised and the questions posed to the
specialist.29 The case will be remanded to OWCP for further development of the medical evidence,
including obtaining new diagnostic testing to assess the extent of appellant’s accepted thoracic
outlet condition, followed a supplemental opinion from Dr. Mitrick. Following this and any other
development as OWCP deems necessary, OWCP shall issue de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

24

The Board has held that stale medical evidence cannot form the basis for current evaluation of residual
symptomology, disability determination, or other medical determinations. G.M., Docket No. 14-2057 (issued
May 12, 2015).
25

See W.P., Docket No. 16-1229 (issued April 12, 2017).

26
See A.R., Docket No. 12-0443 (issued October 9, 2012); see also P.F., Docket No. 13-0728 (issued
September 9, 2014).
27

See C.C., Docket No. 08-2485 (issued September 15, 2009).

28

Supra note 22.

29

Melvin James, 55 ECAB 406 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the November 29, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this opinion of the Board.
Issued: July 9, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1682
Issued: February 17, 2012

Case Submitted on the Record

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

JURISDICTION
On July 8, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated February 3, 2011, which denied her
claim for an emotional condition. The Board also has jurisdiction over a May 24, 2011 decision
which denied further merit review. 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
developed an emotional condition in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for reconsideration under section 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 22, 2010 appellant, then a 44-year-old sheet metal worker, filed a
traumatic injury claim alleging that on May 27, 2010 she sustained post-traumatic stress.
Appellant’s supervisor, Edwin Lindsey, indicated that he could not confirm or dispute
appellant’s claim as he was on leave at the time of the alleged incident. Appellant did not stop
work.
On September 30, 2010 OWCP advised appellant that the evidence was not sufficient to
establish that she experienced any incidents or employment factors alleged to cause injury. It
noted that she did not describe how the claimed injury occurred. OWCP requested that appellant
submit additional information including a detailed description of the employment factors or
incidents which she believed had contributed to her claimed illness and a comprehensive medical
report from her treating physician which included a reasoned explanation as to how the specific
work factors or incidents identified by her had contributed to her claimed emotional condition.
Appellant submitted an August 12, 2010 incident report noting that, on May 27, 2010,
while working on her computer, a coworker told her that she did not know what she was doing
and could not perform her work duties, that she was stupid and did not have a brain and that it
was a good day for a killing and she was a likely candidate. She alleged that she experienced
stress and anxiety from the threats and referenced a witness named Bob.2 In the medical
provider section, Dr. Marvin Taylor, a physiatrist, indicated that appellant was treated on
August 12, 2010 for anxiety from a threat that exacerbated her post-traumatic stress disease.
In a June 30, 2010 report, Dr. Deepti Bhasin, a Board-certified psychiatrist, noted that
appellant was unable to work outside the home until July 6, 2010 due to post-traumatic stress
symptoms. On July 6, 2010 he returned her to work on July 12, 2010. On August 9, 2010
Dr. Bhasin diagnosed post-traumatic stress disorder exacerbated by recent events at work and
recommended that appellant not be in proximity to a coworker who threatened her. In reports
dated September 9 and 14, 2010, he noted that she was suffering from aggravated post-traumatic
stress disorder and should be placed in a permanent light-duty position away from the flight line.
Appellant submitted medical evaluation of work status forms prepared by Dr. Taylor dated
August 12 to September 30, 2010. Dr. Taylor noted that she was to avoid stress and should not
work in close proximity to the coworker specified in the incident of May 27, 2010.
In a decision dated November 8, 2010, OWCP denied appellant’s claim finding that
appellant had not established that the claimed events occurred as alleged.
On November 18, 2010 appellant requested reconsideration. She submitted a January 11,
2011 report from Dr. Bhasin, who diagnosed major depressive disorder, single episode with
psychotic features. Dr. Bhasin noted that one of the primary causes of her depression was
workplace sexual and verbal harassment by a coworker on May 27, 2010. He opined that to a
reasonable degree of medical certainty the workplace stress and perceived harassment intensified
appellant’s experience with depression and led to a decreased ability to function.
2

The last name of the witness is illegible.

2

In a decision dated February 3, 2011, OWCP denied modification of the
November 8, 2010 decision. It found that appellant had not provided a detailed description of
the incidents that she believed caused or contributed to her condition and did not establish a
compensable employment factor.
On May 11, 2011 appellant requested reconsideration. She submitted an April 29, 2011
report from Dr. Bhasin who diagnosed major depressive disorder, single episode with psychotic
features, post-traumatic stress disorder and panic disorder. Dr. Bhasin related that appellant
reported that the cause of her post-traumatic stress disorder was harassment by her coworker on
May 27, 2010. Appellant reported receiving assurances from her supervisors that they would
restrict the movements of the coworker or remove him from her workspace; however, no action
was taken. Dr. Bhasin opined that to a reasonable degree of medical certainty the workplace
stress and perceived harassment and ongoing lack of response intensified her experience with
depression and led to a decreased ability to function.
In a May 24, 2011 decision, OWCP denied appellant’s reconsideration request finding
that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.3
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,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.5 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
by the employing establishment or by the nature of the work.6 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.7 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
3

George H. Clark, 56 ECAB 162 (2004).

4

28 ECAB 125 (1976).

5

See Robert W. Johns, 51 ECAB 137 (1999).

6

Lillian Cutler, supra note 4.

7

J.F., 59 ECAB 331 (2008).

3

probative and reliable evidence.8 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.9 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 her frustration from
not being permitted to work in a particular environment or to hold a particular position.10
In cases involving emotional 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 the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, OWCP 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 the
matter establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.12
ANALYSIS -- ISSUE 1
Appellant alleged an emotional condition as a result of being harassed, ridiculed and
threatened by a coworker and working in a hostile work environment. The Board must thus,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. Appellant has not attributed her emotional
condition to the regular or specially assigned duties of her position as a sheet metal worker.
Therefore, she has not alleged a compensable factor under Cutler.13
Appellant alleged that on May 27, 2010 an unidentified coworker told her that she did not
know what she was doing, unable to perform her work duties, was stupid and threatened her
stating that it was a good day for a killing and she was a likely candidate. To the extent that
incidents alleged as constituting harassment or a hostile environment by a coworker are
established as occurring and arising from her performance of her regular duties, these could
constitute employment factors.14 For harassment to give rise to a compensable disability under

8

M.D., 59 ECAB 211 (2007).

9

Roger Williams, 52 ECAB 468 (2001).

10

See Lillian Cutler, supra note 4.

11

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

12

Id.

13

See supra note 4.

14

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

4

FECA, there must be evidence that harassment did in fact occur.
harassment are not compensable under FECA.15

Mere perceptions of

The factual evidence fails to support appellant’s claim for harassment. The evidence
currently of record does establish that she was harassed or worked in a hostile work environment.
General allegations of harassment are not sufficient.16 In this case, appellant failed to submit
sufficient evidence to establish harassment by her coworker.17 Although she generally alleged
that a coworker ridiculed, harassed and verbally abused her, she did not identify the coworker or
submit evidence from any other coworkers who may have witnessed the interactions alleged on
May 27, 2010.18 On September 30, 2010 OWCP asked appellant to provide a detailed
description of the incident but, other than the August 12, 2010 incident report, she did not
provide any factual evidence further describing the incident that gave rise to the claimed injury.
Appellant did not identify the person who harassed her or give any additional context regarding
the claimed incident. She did not explain why she did not report the alleged incident for over
two months. Appellant provided no other evidence detailing how the claimed incident occurred,
who it involved and who may have witnessed it. The medical evidence, such as reports from
Dr. Bhasin, merely noted that work stress and harassment contributed to her condition. No
report provided any further detail about the May 27, 2010 incident sufficient to corroborate or
establish a compensable work factor. Appellant has not established a compensable employment
factor under FECA with respect to the claimed harassment or hostile work environment.
To the extent that appellant alleged a verbal abuse and threats by a coworker, the Board
has recognized the compensability of physical threats or verbal abuse in certain circumstances.
This does not imply, however, that every statement uttered in the workplace will give rise to
coverage under FECA.19 The Board finds that the facts of the case, noted above in the analysis
of the allegation of harassment, does not support that appellant was threatened by a coworker.
Appellant did not provide a detailed statement describing the claimed incident and she did not
provide corroborating evidence such as witness statements to establish her allegations.20 She has
not otherwise shown how a coworkers comments or actions rose to the level of verbal abuse or
otherwise fell within coverage of FECA.21

15

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). 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).
16

See Paul Trotman-Hall, 45 ECAB 229 (1993).

17

See Joel Parker, Sr., supra note 15.

18

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
19

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

20

See William P. George, supra note 18.

21

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).

5

Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.22
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,23 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(2) Advances a relevant legal argument not previously considered by [OWCP]; or
(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”24
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.25
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim because she submitted insufficient factual information
regarding the alleged May 27, 2010 incident to establish a compensable employment factor. On
May 24, 2011 it denied her May 11, 2011 reconsideration request, without a merit review. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
The Board finds that appellant did not provide any relevant or pertinent new evidence to
the issue of whether she established a compensable employment factor. Appellant did not
submit evidence to show that OWCP erroneously applied or interpreted a specific point of law or
advance a relevant legal argument not previously considered.
In her May 11, 2011 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law and she did not advance a new and
relevant legal argument. She placed a checkmark next to the work “reconsideration” but she did
22

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
23

5 U.S.C. § 8128(a).

24

20 C.F.R. § 10.606(b)(2).

25

Id. at § 10.608(b).

6

not explain why she sought reconsideration and she did not provide any statement or evidence
responsive to why OWCP denied her claim, the lack of factual information describing the
claimed May 27, 2010 incident.
Although appellant submitted an April 29, 2011 report from Dr. Bhasin, asserting that her
condition was employment related, the underlying issue in the case is not medical in nature. As
she failed to establish a compensable employment factor, medical evidence regarding the cause
of her condition is not relevant.26 Therefore, OWCP properly determined that this evidence did
not constitute a basis for reopening the case for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). OWCP properly denied merit review of the 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 the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty. The Board further finds that OWCP properly denied her
request for reconsideration.

26

See supra note 22.

7

ORDER
IT IS HEREBY ORDERED THAT the May 24 and February 3, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8