United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 17-0246
Issued: April 23, 2018

Case Submitted on the Record

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

JURISDICTION
On November 14, 2016 appellant filed a timely appeal from an August 18, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On July 11, 2016 appellant, then a 56-year-old office automation assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on July 8, 2016, she experienced anxiety and stress as a
1

5 U.S.C. § 8101 et seq.

result of being assaulted by her coworker T.R. She contended that T.R. threw a folder that hit her
face and threatened her with further physical harm. T.R. told appellant that if she complained,
nothing would happen to her (T.R.), but that the employing establishment would get rid of
appellant.
On the reverse-side of the claim form, the employing establishment controverted the claim.
It noted that an investigation failed to confirm appellant’s contentions regarding the alleged July 8,
2016 incident. The employing establishment further noted that there were no witnesses to the
incident. A staff registered nurse who heard appellant and the coworker arguing could not verify
appellant’s allegations.
By letter dated July 14, 2016, OWCP informed appellant of the deficiencies in her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
In a statement dated August 4, 2016, appellant contended that the claimed July 8, 2016
incident occurred while she was assisting a staff member renew her personal identity verification
(PIV) card as instructed by M.K., chief of critical services. Appellant reiterated that T.R. threw a
folder, which struck her in the face, and that T.R. was also verbally abusive, using offensive
language and threatening further bodily harm. Appellant immediately contacted the employing
establishment police as well as her supervisor, union, and the human resources office before the
situation escalated.
In a July 22, 2016 medical report, Dr. R. Anthony Moore, a Board-certified psychiatrist
and neurologist, conducted an examination and diagnosed post-traumatic stress disorder (PTSD)
and major depressive episode on Axis I, an on-the-job injury on Axis IV, and a global assessment
functioning score of 30 on Axis V. He noted that a diagnosis was not applicable on Axis II and
Axis III. Appellant explained to him that on July 8, 2016 T.R. threw a folder that hit her face and
threatened her with further physical harm. Dr. Moore advised that this very verbally
confrontational and physically violent situation led appellant to feel very vulnerable, frightened,
and scared. Appellant was unable to return to work. She was also hypervigilant and flooded with
anxiety, fear of returning to work, and isolation because she feared being outside.
An employing establishment investigative report dated July 26, 2016 indicated that on
July 8, 2016, it was alleged that a coworker threw papers at appellant’s face and made threats
towards her. The coworker denied making threats and contended that the papers never touched
appellant. The report noted that witnesses were being sought and a follow-up investigation would
be conducted.
In a July 8, 2016 e-mail, T.R. noted that on July 7, 2016 she asked appellant to assist H.M.,
an employee-customer, obtain a PIV card application for another staff member. Appellant refused
to assist him and referred him to another employee. T.R. again asked appellant to help H.M. and
she yelled at both of them. On July 8, 2016 she asked appellant to give M.A., a registered nurse,
an application to renew her PIV card. Appellant placed a folder on the edge of T.R.’s desk and
told nurse M.A. to fill out the PIV card application and then walked away. T.R. asked appellant if
she was just going to leave the folder on her desk. In response, appellant yelled at T.R. T.R.
refused to deal with appellant’s behavior and walked away. T.R. returned and threw the folder
towards appellant’s work area. T.R. maintained that the folder hit a wall. She again left the work

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area and returned to assist nurse M.A. with her application. M.A. informed T.R. that appellant had
refused to help her and walked out of the office. T.R. noted that she was embarrassed that both
incidents occurred in front of staff. She was tired of being bullied, yelled at, and embarrassed by
appellant.
An e-mail dated July 12, 2016 from M.A. indicated that on July 8, 2016 she sought
assistance with renewing her PIV card. She was greeted by T.R., who directed her to appellant for
assistance. M.A. related that the second woman retrieved a folder and placed it on top of a ledge
next to a computer where T.R. sat at her desk. Appellant handed M.A. the application from the
folder and provided instructions for completion. M.A. noted that while she was seated in a chair
and completing her application, she noticed something going on between the two women. The
women exchanged words, but M.A. indicated that the conversation was not clear to her. She
thought it sounded like they were fighting. M.A. related that when she asked appellant a question
about the application, she responded as if she were mad. She completed the application and asked
T.R. what she should do with it. T.R. did not respond and left the room.
By decision dated August 18, 2016, OWCP denied appellant’s emotional condition claim,
finding that the weight of the evidence had not established that the July 8, 2016 incident occurred
as alleged. It further found that appellant had not submitted any rationalized medical evidence to
establish a medical diagnosis in connection with the incident.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.2 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her 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. There are situations where an injury or an illness
has some connection with the employment but, nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.4 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

2

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

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

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his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.6 However,
the Board has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7 In
determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
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 a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.9 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 record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.
Appellant has not attributed her emotional condition to the performance of her regular or
specially assigned duties as an office automation assistant under Cutler.11 Rather, appellant has
attributed her emotional condition to being physically assaulted, verbally abused, and threatened
with further physical assault by T.R., a coworker, on July 8, 2016. Appellant contended that T.R.
threw a folder that hit her face, yelled at her, and threatened her with additional physical harm.
Harassment and discrimination by supervisors and coworkers, if established as occurring and

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
7

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

8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

Dennis J. Balogh, 52 ECAB 232 (2001).

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Id.

11

Supra note 4.

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arising from the performance of work duties, can constitute a compensable work factor.12 A
claimant, however, must substantiate allegations of harassment and discrimination with probative
and reliable evidence.13 Additionally, 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.14
The Board finds that the factual evidence of record fails to support appellant’s allegations
of physical assault, verbal abuse, and physical threat. Appellant submitted a witness statement
from M.A. who observed a conversation between appellant and T.R. on July 8, 2016. However,
she did not provide any detailed description of actions that could be considered verbal abuse or a
threat of physical assault by T.R. While M.A. indicated that it sounded like the women were
fighting, she did not have enough information to determine whether the women were engaged in
an argument or identify the nature of their argument.
In a July 8, 2016 e-mail, T.R. denied hitting appellant in the face with a folder and instead
contended that appellant yelled at her on that day after she had asked appellant to give nurse M.A.
a PIV card application and questioned why appellant did not directly give the application to her.
She noted that she refused to deal with appellant’s behavior and walked away. T.R. indicated that
when she returned she threw the folder towards appellant’s work area, but denied that the folder
was thrown at or struck appellant. She again left the work area and when she returned to assist
nurse M.A. with her application, nurse M.A. told her that appellant had refused to help her and
walked out of the office. T.R. noted that appellant also yelled at her and H.M., a coworker, on
July 7, 2016 after she had asked appellant to give H.M. a PIV card application. Appellant refused
to help him. T.R. related that she was tired of being bullied, yelled at, and embarrassed by
appellant in front of her coworkers. The employing establishment’s July 26, 2016 investigative
report also noted that T.R. had denied that she threatened or physically assaulted appellant on
July 8, 2016. Based on the evidence of record, the Board finds that appellant has not established
a factual basis for her allegations of physical assault, verbal abuse, and threat of physical assault
by T.R. The evidence submitted does not establish that the folder struck appellant as she alleged.
While the evidence supports that there was a verbal dispute between appellant and T.R., the Board
finds insufficient evidence of record to establish that this rose to the level of a compensable factor
of employment.15 Appellant did not provide probative evidence that such actions occurred as
alleged.16 The Board finds, therefore, that she has not met her burden of proof to establish a
compensable employment factor with respect to physical assault, verbal abuse, or physical threat
by her coworker.

12

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

13

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

14

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

15

See id.; C.T., Docket No. 08-2160 (issued May 7, 2009) (a raised voice in the course of a conversation does not,
in and of itself, warrant a finding of verbal abuse).
16

James E. Norris, 52 ECAB 93 (2000).

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As appellant failed to establish a compensable employment factor, the Board need not
address the medical evidence of record.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish an
emotional condition while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.18
Issued: April 23, 2018
Washington, DC

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

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

17

Karen K. Levene, 54 ECAB 671 (2003).

18
Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board, effective
December 11, 2017.

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

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

Docket No. 17-0496
Issued: May 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 3, 2017 appellant filed a timely appeal from a July 18, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
effective July 19, 2016 based on his capacity to earn wages in the selected positon of cashier.
FACTUAL HISTORY
On February 10, 2010 appellant, then a 52-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 9, 2010 he strained his left knee falling on icy
steps. OWCP accepted the claim for a left knee contusion, lumbosacral sprain, left hip sprain,
1

5 U.S.C. § 8101 et seq.

and an aggravation of preexisting localized left hip osteoarthritis. It paid wage-loss
compensation for total disability beginning April 4, 2010. On June 8, 2010 appellant underwent
an authorized total left hip arthroplasty.
Appellant returned to modified employment on December 13, 2010, but stopped on
December 31, 2010. OWCP again paid wage-loss compensation for total disability. On
March 29, 2012 it referred appellant for vocational rehabilitation. The rehabilitation counselor
advised in July 2013 that appellant was obstructing vocational rehabilitation. OWCP closed
vocational rehabilitation in December 2014 after the death of the rehabilitation counselor. It
noted that there was no recent medical evidence in the record.
By letter dated September 13, 2015, appellant advised that in May 2014 he had a total
right hip replacement and would need back surgery in the future.
On December 30, 2015 OWCP referred appellant to Dr. James Rutherford, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated January 13,
2016, Dr. Rutherford discussed appellant’s history of injury and current complaints of low back
and left hip pain and numbness in the left buttocks, leg, and foot. On examination he found a
loss of sensation in the left buttock and tenderness over the lateral left hip area with reduced
motion. Dr. Rutherford advised that appellant had continued tenderness and loss of motion after
an authorized left hip replacement and back tenderness and reduced motion due to his accepted
lumbosacral sprain. He related, “Because of these residual symptoms and clinical findings
related to the left hip arthroplasty which was done under the industrial claim, [appellant] can do
only intermittent standing and walking, meaning a total of four hours out of an eight[-]hour day.
He can lift and carry only up to 15 pounds occasionally. Appellant can do no stooping, climbing,
or crawling for work activity.” In a January 13, 2016 work restriction evaluation, Dr. Rutherford
indicated that appellant could not resume his usual employment, but could perform full-time
sedentary work walking and standing up to four hours per day, pushing and pulling up to 20
pounds for two and a half hours per day, and lifting up to 15 pounds for two and a half hours per
day.
OWCP, on February 19, 2016, again referred appellant for vocational rehabilitation. It
advised that Dr. Rutherford’s report was the only medical evidence addressing his injury-related
condition in over three years and established that he was able to resume work with restrictions.
On February 24, 2016 the rehabilitation counselor advised that appellant told him that he
did not want to be “rushed” into vocational rehabilitation and might need back surgery in the
future.
In a letter dated February 25, 2016, appellant advised OWCP that he might need surgery
and requested information about a schedule award.
By letter dated February 25, 2016, OWCP notified appellant that he was impeding
vocational rehabilitation. It informed him of the penalty for refusing to cooperate with
vocational rehabilitation and provided him 30 days to contact both OWCP and the rehabilitation
counselor and agree to participate with good effort. OWCP advised appellant that if he believed
that he had good cause for not participating he should provide such reasons in writing with

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supporting documentation. If he did not cooperate with vocational rehabilitation or show good
cause, it would reduce his compensation based on what it would have been had he participated
with vocational rehabilitation.
In a vocational rehabilitation report dated February 28, 2016, the rehabilitation counselor
noted that appellant related that he was unable to look at a computer screen without becoming
nauseated. Appellant told her by telephone that he did not think a company would hire him and
noted that he could retire at any time. On March 2, 2016 the rehabilitation counselor advised
OWCP that he wanted to obtain retirement benefits from the Office of Personnel Management
(OPM) rather than participate with vocational rehabilitation.
OWCP, by letter dated March 3, 2016, requested that appellant formally elect between
OPM benefits and workers’ compensation. In another letter dated March 3, 2016, appellant was
advised to cooperate with vocational rehabilitation until he underwent back surgery or until his
retirement with OPM became effective.
The rehabilitation counselor, on March 9, 2016, related that appellant had the physical
ability and experience necessary to work as a receptionist and cashier. In a March 16, 2016 job
classification, he indicated that the positon of cashier 1 was sedentary and required occasional
lifting of up to 10 pounds.2 The Department of Labor, Dictionary of Occupational Titles
described the duties of a cashier 1 as sedentary with a specific vocational preparation of six
months to a year. The rehabilitation counselor found that appellant met the specific vocational
preparation for the positon based on his work as a supply clerk in the military for 4 years and his
32 years of work experience. He indicated that the position was reasonably available within his
commuting area with weekly wages of $362.40 according to state labor market information.
On March 15, 2016 appellant elected retirement benefits with OPM effective
April 3, 2016.
In a March 28, 2016 vocational rehabilitation report, the rehabilitation counselor noted
that appellant had advised that he was retiring and did not want to participate in vocational
rehabilitation.
An OWCP rehabilitation specialist closed vocational rehabilitation on April 6, 2016 as
appellant had elected OPM benefits. Nonetheless, the specialist noted that he should be rated
based on the approved job goal. On April 22, 2016 the employing establishment provided
OWCP with updated pay rate information.
OWCP, on June 9, 2016, notified appellant of its proposed reduction of his compensation
based on his capacity to earn wages as a cashier at a rate of $362.40 per week. It provided him
30 days to submit additional evidence or argument regarding its proposed reduction.
In telephone calls dated June 13 and July 13, 2016, appellant requested a referral for an
impairment rating.
2

In an initial job classification dated March 8, 2016, the rehabilitation counselor mistakenly indicated that the
position required light rather than sedentary physical ability.

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By decision dated July 18, 2016, OWCP reduced appellant’s compensation effective
July 19, 2016 as he had the capacity to earn wages as a cashier. It applied the formula set forth
in Albert C. Shadrick3 in determining his loss of wage-earning capacity.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.4 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent his wage-earning capacity,
or if the employee has no actual earnings, his wage-earning capacity is determined with due
regard to the nature of the injury, the degree of physical impairment, his usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors or
circumstances which may affect wage-earning capacity in his disabled condition.5
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age, and prior experience.6 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Shadrick7 will result in the percentage of the employee’s loss of wageearning capacity.
ANALYSIS
Appellant received compensation for total disability beginning April 4, 2010 due to his
accepted left knee contusion, lumbosacral sprain, left hip sprain, and aggravation of preexisting
localized left hip arthritis. He underwent a left total hip arthroplasty in June 2010.
OWCP initially referred appellant for vocational rehabilitation in March 2012, but closed
rehabilitation in December 2014 after the death of the vocational rehabilitation counselor. As the
record did not contain current medical evidence, on December 30, 2015 it referred him to
Dr. Rutherford for a second opinion examination.

3

Albert C. Shadrick, 5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403.

4

T.O., 58 ECAB 377 (2007).

5

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

6

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

7

See supra note 3.

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On January 13, 2016 Dr. Rutherford found that appellant had continued tenderness and
reduced motion due to his lumbosacral sprain and left total hip replacement. He found that
appellant could not return to his usual employment, but could work full time with restrictions on
lifting and carrying up to 15 pounds for two and a half hours per day, walking and standing up to
four hours per day, and pushing and pulling up to 20 pounds for two and a half hours per day.
Dr. Rutherford opined that appellant could not stoop, climb, or crawl. OWCP properly referred
appellant for vocational rehabilitation as Dr. Rutherford’s report established that he was no
longer totally disabled due to residuals of his employment injury.8
OWCP further properly found that appellant had the capacity to perform the duties of a
cashier 1. The position is classified as sedentary work requiring occasional lifting of up to
10 pounds, which is within the restrictions set forth by Dr. Rutherford. Following its proposed
reduction of his compensation, appellant requested a referral for an impairment evaluation, but
did not submit any medical evidence showing that he was unable to perform the sedentary
position. The medical evidence, consequently, establishes that he has the requisite physical
ability to earn wages as a cashier 1.9
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account work experience, age, mental capacity,
and educational background.10 The rehabilitation counselor determined that appellant had the
skills necessary to perform the position of cashier 1 based on his work as a supply clerk in the
military and 32 years of work experience. He further found that the position was reasonably
available within the appropriate geographical area at a wage of $362.40 per week. As the
rehabilitation counselor is an expert in the field of vocational rehabilitation, OWCP may rely on
his opinion in determining whether the job is vocationally suitable and reasonably available.11
The Board finds that OWCP considered the proper factors, including the availability of suitable
employment, appellant’s physical limitations, and employment qualifications in determining that
he had the capacity to perform the position of cashier 1.12 OWCP further properly determined
his loss of wage-earning capacity in accordance with the formula developed in Shadrick and
codified at 20 C.F.R. § 10.403.13 It, therefore, properly found that the position of cashier 1

8

See N.J., 59 ECAB 171 (2007).

9

See S.J., Docket No. 14-1455 (issued October 23, 2014); S.S., Docket No. 13-0011 (issued March 21, 2013).

10

Id.

11

Dorothy Jett, 52 ECAB 246 (2001); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.816.6(c) (June 2013).
12

See supra note 8.

13

See supra note 3. OWCP divided appellant’s employment capacity to earn wages of $362.40 a week by his
current pay rate of the position held when injured of $1,143.29 per week to find a 32 percent wage-earning capacity.
It multiplied the pay rate at the time of injury of $1,043.30 by the 32 percent wage-earning capacity percentage. The
resulting amount of $333.869 was subtracted from appellant’s date-of-injury pay rate of $1,043.30 which provided a
loss of wage-earning capacity of $709.44 per week. OWCP multiplied this amount by the appropriate compensation
rate of three-fourths which yielded $532.08 or $2,321.00 every four weeks after adjustments for cost of living.

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reflected appellant’s wage-earning capacity effective July 18, 2016 despite his prior election of
OMP retirement.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence of argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
effective July 19, 2016 based on his capacity to earn wages in the selected positon of cashier.
ORDER
IT IS HEREBY ORDERED THAT the July 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 25, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, JOHN WAYNE
AIRPORT, Irvine, CA, Employer
__________________________________________

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

Docket No. 09-12
Issued: February 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 30, 2008 appellant filed a timely appeal from February 27 and August 6,
2008 decisions of the Office of Workers’ Compensation Programs, denying her 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 she sustained cervical, lumbar, left
arm and left knee injuries in the performance of duty on December 22, 2007.
FACTUAL HISTORY
On December 23, 2007 appellant, then a 55-year-old security screener, filed a traumatic
injury claim (Form CA-1) alleging that on December 22, 2007 she tripped and fell on a floor

mat, striking her left wrist and left knee and injuring her neck and low back. A coworker
corroborated appellant’s account of the incident.
In a January 25, 2008 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish her claim. It emphasized the importance of submitting a
rationalized report from her attending physician explaining how and why the identified incident
would cause the claimed conditions.
In a December 26, 2007 report, Dr. John G. Miller, an attending Board-certified
radiologist specializing in family practice, related that appellant fell at work on December 22,
2007 and sustained a lumbar strain, left hip contusion and a left knee injury with possible
collateral ligament tear. Appellant was instructed to keep the leg elevated.
In a January 18, 2008 note, Dr. Douglas A. Di Siena, an attending chiropractor, held
appellant off work through February 15, 2008. He submitted reports through February 12, 2008
diagnosing a lumbar sprain cervical and thoracic strains and lumbar disc syndrome.
In a February 20, 2008 report, Dr. Bijan Zardouz, an attending Board-certified
neurologist, stated that appellant had findings indicative of left cervical and left ulnar
neuropathy. He requested authorization for electrodiagnostic testing.
By decision dated February 27, 2008, the Office denied the claim on the grounds that
causal relationship was not established. It accepted that the December 22, 2007 incident
occurred at the time, place and in the manner alleged. However, appellant submitted insufficient
rationalized medical evidence to establish that the incident caused the claimed injuries.
In a May 2, 2008 letter, appellant requested reconsideration. She submitted additional
evidence.
In a February 22, 2008 report, Dr. Zardouz provided a detailed history of injury and
treatment. He related appellant’s account of lumbar weakness and left upper and lower
extremity pain. On examination, Dr. Zardouz found a positive Tinel’s sign at the left wrist and
elbow. He obtained electromyography and nerve conduction velocity testing showing moderate
left carpal tunnel syndrome and bilateral S1 sensory root dysfunction. Dr. Zardouz diagnosed
status post fall, landing on the left elbow, left knee and left side of the body, musculoligamentous
sprain/strain of the left cervical, shoulder and lumbar regions, possible C8-T1 sensory root
dysfunction causing dysesthesias in the left hand and left median and ulnar nerve dysfunction.
In a March 5, 2008 report, Dr. John D. Dorsey, an attending Board-certified orthopedic
surgeon, provided a history of injury and treatment and reviewed the medical record. On
examination he found pain with cervical range of motion, paracervical spasm and a positive
compression test, normal range of motion of all joints of the left upper extremity, normal lumbar
range of motion but with complaints of pain. Dr. Dorsey obtained x-rays showing degenerative
disc disease at C4-5, C5-6 and L5-S1. He diagnosed cervical sprain/strain with aggravation of
degenerative disc disease, C6-7 dysfunction in the left upper extremity, left elbow and wrist
contusions with electrodiagnostic evidence of carpal tunnel syndrome, lumbosacral sprain/strain
with aggravation of degenerative disc disease, radiculopathy in the left lower extremity and a

2

resolving left knee contusion. Dr. Dorsey opined that the December 22, 2007 fall was the direct
cause of all the diagnosed conditions. He found appellant disabled for work due to her injuries.
Dr. Di Siena released appellant to full duty on a part-time basis as of June 24, 2008. He
found appellant permanent and stationary as of July 29, 2008.
By decision dated August 6, 2008, the Office denied modification on the grounds that
causal relationship was not established. It found that appellant submitted insufficient
rationalized medical evidence establishing that the December 22, 2007 incident caused the
claimed injuries. The Office further found that Dr. Di Siena did not qualify as a physician under
the Federal Employees’ Compensation Act as he failed to diagnose a spinal subluxation by x-ray.
LEGAL PRECEDENT
An employee seeking benefits under the 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
ANALYSIS
The Office accepted as factual that, on December 22, 2007, appellant tripped and fell on a
floor mat, striking her left arm, leg and the left side of her body. It denied appellant’s claim for
neck, low back, left arm and left knee injuries on the grounds that causal relationship was not
established. The Board notes, however, that the medical evidence submitted by appellant
generally supports that she sustained cervical, lumbar, left arm and left leg injuries in the
December 22, 2007 fall.
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).

3

Dr. Miller, an attending Board-certified radiologist specializing in family practice,
submitted a December 26, 2007 report noting the December 22, 2007 incident. He opined that
appellant sustained a lumbar strain, left hip contusion and a left knee injury as a result of the fall.
Dr. Zardouz, an attending Board-certified neurologist, submitted February 20 and 22,
2008 reports providing a detailed account of the December 22, 2007 incident and subsequent
treatment. He opined that the December 22, 2007 fall caused left cervical, shoulder and lumbar
sprains and left median and ulnar nerve dysfunction.
Dr. Dorsey, an attending Board-certified orthopedic surgeon, provided a March 5, 2008
report noting a history of injury and treatment and reviewing the medical record. He performed
a detailed clinical examination and obtained x-rays. Dr. Dorsey diagnosed cervical and lumbar
strains with aggravation of degenerative disc disease, C6-7 dysfunction in the left upper
extremity, left elbow and wrist contusions, left carpal tunnel syndrome, radiculopathy in the left
leg and a left knee contusion. He opined that all diagnosed conditions directly resulted from the
December 22, 2007 fall.
Appellant also submitted reports from Dr. Di Siena, a chiropractor, who did not diagnose
a spinal subluxation by x-ray. Therefore, Dr. Di Siena does not qualify as a physician under the
Act for the purpose of this case. His opinion carries no medical weight.6
Although the opinions of Dr. Dorsey, Dr. Miller and Dr. Zardouz are not sufficiently
rationalized7 to meet appellant’s burden of proof in establishing her claim, they stand
uncontroverted in the record and are, therefore, sufficient to require further development of the
case by the Office.8 In particular, Dr. Dorsey and Dr. Zardouz both evinced a detailed
knowledge of the December 22, 2007 incident and reviewed the medical record. They
performed extensive clinical examinations and obtained test results showing objective
pathologies. However, the Office did not undertake further development of the medical record,
such as referring the record to an Office medical adviser or referring appellant for a second
opinion examination. In view of the above evidence, the Board finds that the Office should have
referred the matter to an appropriate medical specialist to determine whether appellant sustained
neck, low back, left arm, left leg or other injuries as a result of the accepted December 22, 2007
incident.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence. It has the obligation to see

6

Section 8101(2) of the Act provides that the term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2). See Thomas W. Stevens, 50 ECAB 288 (1999);
George E. Williams, 44 ECAB 530 (1993).
7

See Frank D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978).

4

that justice is done.9 Accordingly, once the Office undertakes to develop the medical evidence
further, it has the responsibility to do so in a proper manner. Therefore, the Board finds that the
case must be remanded to the Office for preparation of a statement of accepted facts concerning
appellant’s working conditions and referral of the matter to an appropriate medical specialist,
consistent with Office procedures, to determine whether appellant may have developed right
carpal tunnel syndrome as a result of performing his employment duties. Following this and any
other development deemed necessary, the Office shall issue an appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to the Office for further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 6 and February 27, 2008 are set aside and the case
remanded for further development consistent with this decision.
Issued: February 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB
852 (1988).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, LANIER CARRIER
ANNEX, Cumming, GA, Employer
__________________________________________

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

Docket No. 17-1872
Issued: March 8, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 5, 2017 appellant filed a timely appeal from an April 13, 2017 merit
decision and an August 8, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined the date of maximum medical
improvement (MMI) for payment of appellant’s schedule award; and (2) whether OWCP
properly denied appellant’s request for a review of the written record as untimely filed pursuant
to 5 U.S.C. § 8124.
On appeal appellant contends that OWCP incorrectly determined the date of her MMI.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 22, 2012 appellant, then a 53-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral basal joint arthritis from her repetitive
work duties. She indicated on the form that she did not stop work. OWCP initially accepted
appellant’s claim for bilateral thumb osteoarthritis and subsequently expanded acceptance of the
claim to include right thumb contracture and injury to other unspecified right upper extremity
nerves.
OWCP authorized a series of surgical procedures. On November 27, 2012 appellant
underwent a right hand suspensionplasty; on July 15, 2013 a left hand suspensionplasty and right
thumb tenolysis of the extensor tendon; and on January 20, 2014 tenolysis of the right extensor
pollicis brevis and abductor pollicis brevis, and neurolysis of the radial and median nerves. She
also underwent a left thumb carpal metacarpal arthroplasty on April 13, 2015.
Appellant received intermittent wage-loss compensation benefits on the supplemental
rolls from November 27, 2012 until July 27, 2013, on the periodic rolls from July 28, 2013 until
June 1, 2014, and then intermittent wage-loss compensation benefits on the supplemental rolls
until August 5, 2015.
On October 23, 2015 appellant filed a claim for a schedule award (Form CA-7).
In an October 1, 2015 report, Dr. Edward Holliger, a treating Board-certified orthopedic
and hand surgeon, diagnosed right thumb osteoarthritis and provided examination findings. He
concluded that under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)2 appellant had 20 percent left upper
extremity permanent impairment and 11 percent right upper extremity permanent impairment.
However, Dr. Holliger did not explain how he had rated appellant’s permanent impairment. He
listed October 1, 2015 as the date of MMI.
On February 24, 2016 a district medical adviser (DMA) reviewed Dr. Holliger’s
October 1, 2015 impairment rating. The DMA opined that the opinion could not be used for a
schedule award determination as it was based on the fifth edition of the A.M.A., Guides, and did
not properly explain how the permanent impairment was rated. He recommended appellant be
referred for a second opinion evaluation to determine appellant’s permanent impairment using
the sixth edition of the A.M.A., Guides.
On March 16, 2016 OWCP referred appellant to Dr. Eric S. Furie, a Board-certified
orthopedic surgeon for an impairment rating under the sixth edition of the A.M.A., Guides.3 In
an April 5, 2016 report, Dr. Furie, based upon a review of the medical records and a physical
examination, concurred with Dr. Holliger’s impairment rating of 11 percent right upper
extremity permanent impairment and 20 percent left upper extremity permanent impairment. In
reaching the impairment determination, he referenced Table 15-2, pages 392 and 393 and
2

A.M.A., Guides (5th ed. 2001).

3

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

2

Table 15-31, page 470. Dr. Furie assigned January 20, 2015 as the date of MMI as it was one
year following her last surgery of January 20, 2014.
On May 19, 2016 the DMA reviewed Dr. Furie’s report and opined that the second
opinion physician provided insufficient detail supporting entitlement to a schedule award. He
noted that Dr. Furie provided no narrative, worksheet, or calculations explaining how he arrived
at his impairment determination. Due to the lack of sufficient detail, the DMA recommended
referral to another second opinion physician for an impairment rating.
On August 10, 2016 OWCP referred appellant to Dr. Raju M. Vanapalli, a Boardcertified orthopedic surgeon, to provide an impairment rating using the sixth edition of the
A.M.A., Guides.
In a report dated December 15, 2016, Dr. Vanapalli, based upon a review of the medical
records, statement of accepted facts, and a physical examination, diagnosed osteoarthritis of the
trapeziometacarpal joints status post suspension arthroplasty of the bilateral trapeziometacarpal
joint. He noted that OWCP had accepted the claim for right thumb fracture and bilateral thumb
osteoarthritis. Dr. Vanapalli completed impairment evaluation forms. Using Table 15-2 on page
393 of the sixth edition of the A.M.A., Guides, he identified the diagnosis as class 2 based on the
diagnosis of thumb CMC dislocation. Dr. Vanapalli applied a grade modifier of 3 for functional
history and physical examination and a grade modifier of 2 for clinical studies, resulting in a net
adjustment of 2. Next, he used Table 15-11 on page 420, to find nine percent left upper
extremity permanent impairment and six percent right upper extremity permanent impairment.
Dr. Vanapalli advised that appellant had reached MMI in April 2016, which was one year
following her last surgery on April 13, 2015.
On January 4, 2017 a different DMA reviewed Dr. Vanapalli’s report and opined that the
doctor incorrectly rated the key diagnostic factor and that the impairment rating should be
recalculated. The DMA using Table 15-2 on page 394 identified the diagnosis as class 3 with a
default value C based on the diagnosis of thumb CMC arthroplasty with residual symptoms and
consistent objective findings. He applied a grade modifier of 3 for functional history and
physical examination. The DMA noted that clinical studies were not applicable. Applying the
net adjustment formula, he found a net adjustment of 0 or 30 percent thumb impairment. Using
Table 15-12 on page 321, the DMA found that 30 percent thumb impairment resulted in 11
percent permanent impairment of each upper extremity. He determined the date of MMI to be
December 15, 2016, the date of Dr. Vanapalli’s report.
On March 24, 2017 OWCP requested clarification regarding the date of MMI. It noted
that Dr. Vanapalli examined appellant on October 3, 2016, but did not prepare his report until
December 15, 2016.
In the March 29, 2017 report, the DMA clarified his opinion regarding appellant’s date of
MMI. He determined the date of MMI was October 3, 2016, the date Dr. Vanapalli examined
appellant.
By decision dated April 13, 2017, OWCP granted appellant a schedule award for 11
percent permanent impairment of the right upper extremity and 11 percent permanent

3

impairment of the left upper extremity. The period of the award was for October 3, 2016 to
January 26, 2018, for a total of 68.64 weeks of compensation.
In a form dated July 4, 2017 and postmarked July 6, 2017, appellant requested a review
of the written record by a representative of OWCP’s Branch of Hearings and Review.
By decision dated August 8, 2017 OWCP’s hearing representative denied appellant’s
request for review of the written record. It found that as appellant’s request for review of the
written record was postmarked July 6, 2017, it was not made within 30 days of the April 13,
2017 decision. Appellant was not entitled to a review of the written record as a matter of right;
however, OWCP exercised its discretion and determined that the issue involved could be
addressed by a request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Permanent impairment is to be rated according to the A.M.A., Guides, and only after the
status of MMI is determined. Before a schedule award can be awarded, it must be medically
determined that no further improvement can be anticipated and the impairment must reach a
fixed and permanent state, which is known as MMI.4 MMI means that the physical condition of
the injured member of the body has stabilized and will not improve further.5
Impairment should not be considered permanent until a reasonable time has passed for
the healing or recovery to occur. This will depend on the nature of underlying pathology, as the
optimal duration for recovery may vary considerably. The clinical findings must indicate that
the medical condition is static and well stabilized for the person to have reached MMI.6
The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one that depends upon the medical findings in the record. The determination of such date
is to be made in each case upon the basis of the medical evidence in that case.7 The date of MMI
is usually considered to be the date of the medical examination that determined the extent of the
impairment.8

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3a(1) (January 2010);
see also P.L., Docket No. 13-1340 (issued October 28, 2013).
5

Adela Hernandez-Piris, 35 ECAB 839 (1984).

6

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until MMI -- meaning that the physical condition of the injured member of the body has stabilized and will not
improve further -- has been reached); see R.I., Docket No. 09-1559 (issued August 23, 2010).
7

Peter C. Belkind, 56 ECAB 580 (2005); Marie J. Born, 27 ECAB 623 (1976).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010).

4

The Board has also noted a reluctance to find a date of MMI which is retroactive to the
award, as retroactive awards often result in payment of less compensation benefits. The Board,
therefore, requires persuasive proof of MMI if OWCP selects a retroactive date.9
ANALYSIS -- ISSUE 1
On appeal appellant does not contest the percentage of permanent impairment of her
schedule award. Rather, she contests the date the schedule award began, contending that the
period of her award should have begun as of October 1, 2015, the date of Dr. Holliger’s initial
impairment report. The Board will therefore review whether OWCP properly determined the
date of MMI.
As the Board noted, the date of MMI is usually considered to be the date of the medical
examination that determined the extent of the impairment.10 That DMA determined that the date
of MMI for appellant’s schedule award was October 3, 2016, the date Dr. Vanapalli examined
and rated appellant’s permanent impairment.
Appellant argued that the date of MMI should be October 1, 2015, the date that
Dr. Holliger provided an impairment rating. Utilizing the fifth edition of the A.M.A., Guides,
Dr. Holliger concluded that appellant had 20 percent permanent impairment of the left upper
extremity, and 11 percent permanent impairment of the right upper extremity. He, however, did
not provide any explanation as to how he arrived at the impairment rating. Dr. Holliger’s report
was therefore insufficient to establish permanent impairment.
OWCP referred appellant for a second opinion evaluation to determine her impairment
using the sixth edition of the A.M.A., Guides along with reference the tables used and how the
calculations were made. Dr. Vanapalli provided sufficient explanation regarding appellant’s
physical examination findings and diagnoses to allow OWCP’s DMA to calculate that appellant
had 11 percent permanent impairment of each upper extremity.
MMI means that the physical condition of the injured member of the body has stabilized
and will not improve further. This date, which is determined through evaluation of the medical
evidence, is usually considered to be the date of the evaluation accepted as definitive by
OWCP.11 October 3, 2016 was the date that Dr. Vanapalli conducted a comprehensive
evaluation of appellant’s upper extremity conditions. There is no medical evidence which
supports that appellant’s accepted conditions had stabilized prior to Dr. Vanapalli’s impairment
rating evaluation. The Board has noted a reluctance to find a date of MMI which is retroactive to

9

C.W., Docket No. 13-1501 (issued November 15, 2013).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7(b) (February 2013).
11

Supra note 7.

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the award and the record does not contain the persuasive proof required for finding such a
retroactive date.12
For the above reasons, the Board finds that OWCP properly identified the date of MMI as
October 3, 2016. The Board will thus affirm the April 13, 2017 decision.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for
either an oral hearing or a review of the written record.13 A request for a hearing or review on
the written record must be submitted, in writing, within 30 days of the date of the decision for
which a hearing is sought.14 If the request is not made within 30 days, a claimant is not entitled
to a hearing or a review of the written record as a matter of right. OWCP regulations further
provide that the claimant must not have previously submitted a reconsideration request (whether
or not it was granted) on the same decision.15 Although a claimant who has previously sought
reconsideration is not, as a matter of right, entitled to a hearing or review of the written record,
the Branch of Hearings and Review may exercise its discretion to either grant or deny a hearing
following reconsideration.16 Similarly, the Branch of Hearings and Review may exercise its
discretion to conduct a hearing or review the written record where a claimant requests a second
hearing or review on the written record on the same issue.17
ANALYSIS -- ISSUE 2
Appellant’s request for a review of the written record was dated July 4, 2017 and
postmarked July 6, 2017. OWCP issued its last merit decision on April 13, 2017. The
regulations provide that the hearing request must be sent within 30 days of the date of the
decision for which a hearing is sought. Because appellant’s request dated July 4, 2017 was sent
on July 6, 2017 it was untimely filed. She therefore was not entitled to a review of the written
record as a matter of right. A representative of OWCP’s Branch of Hearings and Review also
denied appellant’s request because it found that the issue of her permanent impairment could be
equally well addressed by requesting reconsideration before OWCP. The Board finds that the

12

C.S., Docket No. 12-1574 (issued April 12, 2013); P.C., 58 ECAB 539 (2007); James E. Earle, 51 ECAB
567 (2000).
13

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

14

Id. at 10.616(a).

15

Id.

16

D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006).

17

20 C.F.R. § 10.616(a).

6

hearing representative properly exercised her discretionary authority in denying appellant’s
request for a review of the written record by an OWCP hearing representative.18
CONCLUSION
The Board finds that OWCP properly identified the date of MMI. The Board also finds
that OWCP did not abuse its discretion by denying appellant’s request for review of the written
record as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 8 and April 13, 2017 are affirmed.
Issued: March 8, 2018
Washington, DC

Christopher J. Godfrey, 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

18

Mary B. Moss, 40 ECAB 640 (1989). 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 known facts. See André Thyratron, 54 ECAB 257 (2002).

7


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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1133
Issued: December 19, 2016

Case Submitted on the Record

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

JURISDICTION
On May 6, 2016 appellant, through counsel, filed a timely appeal from a December 2,
2015 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant sustained an injury on February 28, 2014 in the
performance of duty; and (2) whether she sustained an emotional condition on February 28, 2014
in the performance of duty.
FACTUAL HISTORY
On March 4, 2014 appellant, then a 33-year-old retail sales associate, filed a traumatic
injury claim (Form CA-1) alleging that on February 28, 2014 she experienced neck, chest, and
shoulder pain while in the performance of duty. She stopped work on March 1, 2014.
In a statement dated March 1, 2014, appellant advised that on February 28, 2014 while
she was letting exiting customers out of the door a customer asked to come in to get a package.
She told the customer the location was closed. The customer asked to see appellant’s supervisor
but, her supervisor, told the customer he was busy and that the station was closed. When she let
more exiting customers out, the individual stopped the door from closing with her foot and yelled
that she was coming inside. Appellant related, “She started to push me and we began to tussle in
the doorway of the [employing establishment]. Then she ran to the other side of the door to get
in.” Appellant telephoned the police and told the woman that she was not going to open the
door. The customer screamed at appellant and another customer yelled at appellant indicating
that he wanted to get out. He kicked the glass out of the door. The police came and took
appellant’s statement. She related that she did not feel safe at work and that her chest, arms, and
upper body were “sore from trying to stop the lady from getting in.”
On March 3, 2014 Dr. Arthur Pinkhasov, an internist, related that appellant was under his
care and could return to work on March 17, 2014.
L.M., a supervisor, related in a March 5, 2014 e-mail that appellant did not mention that
she was injured on March 1, 2014 and performed her usual work.
In an e-mail dated March 5, 2014, C.V. related, “On Friday, February 28, 2014 while
[appellant] was locking the lobby door she was allegedly bumped by a customer. I did [not] see
anything, as I was at the pick-up window. Later on, she mentioned that a customer bumped her
while locking the door.” He indicated that appellant did not mention an injury to him on
March 1, 2014.
By letter dated March 13, 2014, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim, including a detailed medical report from a
psychologist or psychiatrist addressing the causal relationship between any diagnosed condition
and the identified employment incident.
Dr. Glenn Jakobsen, an osteopath and Board-certified physiatrist, advised on March 18,
2014 that appellant was unable to work. He diagnosed a cervical condition, a right shoulder
condition, and right arm pain. Dr. Jakobsen noted that appellant experienced an altercation at
work on February 28, 2014.

2

In a report dated March 21, 2014, Dr. Jonathan Levinson, a psychologist, related that
while at work on February 28, 2014 appellant was “assaulted by an irate customer” causing neck
and shoulder pain. Appellant also experienced insomnia, flashbacks of the attack, irritability,
depression, and mild auditory and visual hallucinations. Dr. Levinson diagnosed severe major
depressive disorder with psychotic features, panic disorder with agoraphobia, chronic posttraumatic stress disorder, and a pain disorder due to a general medical condition. He opined that
appellant was totally disabled and that her psychological symptoms were “causally related to the
accident she had while on the job.”
Appellant, in a statement dated April 4, 2014, related that a female customer stopped a
door from closing after she refused to let the customer in to get a package. The customer pushed
her in the chest and grabbed her shoulders. Appellant related, “We started fighting in the
doorway of the [employing establishment] hurting my neck, shoulders, chest, and arms.”
On April 7, 2014 Dr. Levinson related that appellant “has experienced significant levels
of depression, anxiety, and pain due to the assault she sustained at work.” He diagnosed severe
major depressive disorder with psychotic features, panic disorder with agoraphobia, chronic
post-traumatic stress disorder, and a pain disorder due to a general medical condition.
Dr. Levinson asserted that appellant was unable to work for a minimum of 90 days.
Dr. Jakobsen, in a report dated April 8, 2014, related that he had been treating appellant
for shoulder and neck pain. He advised, “[She] sustain[ed] the injury at work, she stated she was
attacked by a customer.” Dr. Jakobsen diagnosed a shoulder contusion and opined that appellant
was totally disabled. In an undated attending physician’s report (Form CA-20), he diagnosed
shoulder derangement and a cervical contusion and checked a box marked “yes” that the
conditions were caused or aggravated by employment.
In an e-mail dated April 9, 2014, L.M. advised that appellant was letting out customers
after closing when a customer blocked the door with her foot and yelled that she was going to
come inside for a package. The supervisor related, “She started to push [appellant] and they
began to tussle, she immediately came inside put the keys down and called the police.”
Appellant worked the following day but on March 3, 2014 indicated that her chest, arms, and
upper body “were sore from trying to stop [the] lady from coming in.”
On the questionnaire provided by OWCP, appellant advised that the employing
establishment’s police had investigated the incident, but she did not have a copy of the report.
By decision dated April 23, 2014, OWCP denied appellant’s claim after finding that she
had not established that the February 28, 2014 incident occurred at the time, place, and in the
manner alleged.
In a report dated April 16, 2014, received by OWCP on April 28, 2014, Dr. Jakobsen
advised that he was treating appellant for chest and bilateral shoulder pain as a result of her
February 28, 2014 work injury. He found that she could not work until May 16, 2014. In a
Form CA-20 report dated April 28, 2014, Dr. Jakobsen diagnosed a bilateral shoulder sprain and

3

cervical radiculitis. He checked a box marked “yes” that the condition was caused or aggravated
by employment, providing as a rationale that she was “attacked while at work.”3
Dr. Levinson, in an April 20, 2014 report, discussed appellant’s work injury and
symptoms and noted that he had referred her to Dr. Max Brandt, a psychiatrist, for an evaluation.
He related that psychological testing did not show malingering. Dr. Levinson advised that
appellant had no history of a prior psychiatric problem but did see a therapist after “the sudden
death of her husband 13 years ago.” He related, “[She] is suffering from significant levels of
anxiety, depression, panic, restrictions of mobility outside of her home, and post-traumatic stress
as evidenced by her test results and supported by a structured clinical interview.” Dr. Levinson
diagnosed severe major depressive disorder with psychotic features, panic disorder with
agoraphobia, chronic post-traumatic stress disorder, and a pain disorder. He described how he
reached the diagnoses from the test results and examination. Dr. Levinson opined, “It is this
writer’s clinical opinion, that the psychological symptoms [appellant] is experiencing currently
are causally related to being assaulted on the job.” He advised that she was totally disabled.
Appellant, on April 28, 2014, requested an oral hearing before an OWCP hearing
representative. In a May 6, 2014 statement, she related that the police report indicated that the
dispute was verbal. The officers stopped in the middle of questioning appellant and asked if
employing establishment inspectors should be contacted as it was a federal building. She asked
her supervisor who responded affirmatively and they allegedly went to talk with the police
officers. After a few more questions the officers left. Appellant received the police report on
March 3, 2014 and telephoned the employing establishment. She learned that it had not
contacted the employing establishment’s inspectors.
On May 13, 2014 OWCP received a copy of the police report regarding the February 28,
2014 incident. The police indicated that a clerk at the employing establishment “had a verbal
dispute with an unknown female customer and locked the glass doors to detain the customer until
police arrived.” At that point a male customer kicked the door breaking the glass and left the
scene.4
In a report dated May 14, 2014, Dr. Brandt related that he had obtained a history of
appellant being attacked by a customer and sustaining injuries to her arms and chest on
February 28, 2014. Appellant continued to work until March 3, 2014. Dr. Brandt noted that
appellant experienced chest and arm pain, insomnia, anxiety, and a loss of concentration. He
diagnosed an adjustment disorder with mixed anxiety and depressed mood which he attributed to
her work injury. Dr. Brandt opined that appellant was totally disabled.
At the telephone hearing, held on June 23, 2014, appellant related that her husband was
murdered in 2003.5 On February 28, 2014 she tried to get a customer who grabbed her in the
3

In an April 25, 2014 duty status report (Form CA-17), Dr. Jakobsen listed work restrictions.

4

A coworker provided a statement on May 13, 2014 relating that on February 28, 2014 appellant had “an
altercation with a female customer.”
5

In a disability certificate dated June 25, 2014, Dr. Jakobsen advised that appellant continued to have pain due to
her February 28, 2014 injury and was totally disabled.

4

doorway to let go and she banged against the glass door. Appellant called the police but a man
broke the glass door and the woman who assaulted her left. She had never seen the female
customer before that day. The police told her that inspectors with the employing establishment
were in charge as it was a federal building.
In a decision dated August 1, 2014, OWCP’s hearing representative affirmed the
April 23, 2014 decision. He found that appellant had not established a physical or emotional
condition as a result of the February 28, 2014 work incident.
Appellant, in a statement dated August 18, 2014, related that she did not work for 13
months following her husband’s murder in January 2003 in order to care for her infant son. She
had not received psychological treatment after 2004 until the February 28, 2014 incident.
Appellant asserted that the location of the employing establishment was dangerous.
In a report dated August 27, 2014, Dr. Levinson questioned why OWCP was concerned
that he had not referred to the murder of appellant’s husband. He noted that she worked for 10
years after her husband died, raised a child, worked through her bereavement with a short round
of therapy. Dr. Levinson related, “Now, due to the assault at work, [appellant] is having
difficulty returning to the [employing establishment], because of the threat of being attacked
again -- either by the assailant or someone else.” He attributed her psychological symptoms
solely to the attack at work.
On September 2, 2014 appellant, through counsel, requested reconsideration. He
contended that the murder of her husband was not pertinent to the issue at hand as she had not
received any psychological treatment for 10 years prior to the work incident.
OWCP, in a decision dated March 11, 2015, denied modification of its August 1, 2014
decision. It accepted that on February 28, 2014 a female customer blocked the door with her
foot and a male customer kicked out part of the glass door. OWCP found that appellant had not
established that the female customer grabbed her shoulders or pushed her as the police report
indicated that they engaged in a verbal dispute. It determined that the medical evidence of
record was insufficient to show that she sustained a physical or emotional condition due to the
accepted work factors of a female customer putting her foot in the door and preventing her from
closing the door and a male customer breaking glass to get outside. OWCP further noted that
Dr. Levinson did not explain why the February 28, 2014 incident resulted in appellant’s
symptoms given that her husband had been murdered.
On September 3, 2015 OWCP again received the September 2, 2014 reconsideration
request. In a decision dated December 2, 2015, it denied modification of its March 11, 2015
decision.
On appeal counsel maintains that she sustained physical and emotional injuries due to the
February 28, 2014 incident and that OWCP denied the claim because of her husband’s death 10
years ago.

5

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim, including the fact that the individual is an “employee of the United States”
within the meaning of FECA; that the claim was filed within the applicable time limitation; 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.6 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.7
The phrase sustained while in the performance of duty is regarded as the equivalent of the
coverage formula commonly found in workers’ compensation laws, namely, arising out of and in
the course of employment.8 In the course of employment relates to the elements of time, place,
and work activity.9 To arise in the course of employment, an injury must occur at a time when
the employee may reasonably be said to be engaged in her master’s business, at a place when she
may reasonably be expected to be in connection with her employment, and while she was
reasonably fulfilling the duties of her employment, or engaged in doing something incidental
thereto. As to the phrase in the course of employment, the Board has accepted the general rule of
workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to and
from work, before or after work hours or at lunch time, are compensable.10
Assaults arise out of the employment either if the risk of assault is increased because of
the nature or setting of the work or if the reason for the assault was a quarrel having its origin in
the work. Assaults for private reasons do not arise out of the employment unless, by facilitating
an assault that would not otherwise be made, the employment becomes a contributing factor.11
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.12 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or

6

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

8

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
9

D.L., 58 ECAB 667 (2007).

10

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

11

S.S., Docket No. 13-318 (issued March 26, 2013).

12

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

6

condition for which compensation is claimed.13 An employee may establish that the employment
incident occurred as alleged, but fail to show that her disability and/or condition relates to the
employment incident.14
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.15 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and her subsequent course of action.16 An employee has
not met her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.17 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast doubt on an employee’s statements in determining whether a
case has been established.18 However, an employee’s statement regarding the occurrence of an
employment incident is of great probative force and will stand unless refuted by strong or
persuasive evidence.19
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an injury to her neck, chest, and shoulder on
February 28, 2014 as the result of an assault by a customer. At the time of the alleged incident,
she was performing her regular work duties at her designated work location during her regular
duty hours. There is no evidence that the alleged assault occurred as a result of an animosity or
dispute imported in employment from appellant’s domestic and private life but instead arose as a
result of the setting of her work. Thus, the alleged incident occurred while she was in the
performance of duty.20
OWCP found that appellant established that on February 28, 2014 a female customer
stopped the door with her foot and a male customer broke glass to get out a locked door, but that
13

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

14

Id.

15

See Louise F. Garnett, 47 ECAB 639 (1996).

16

See Betty J. Smith, 54 ECAB 174 (2002).

17

Id.

18

Linda S. Christian, 46 ECAB 598 (1995).

19

Gregory J. Reser, 57 ECAB 277 (2005).

20

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

7

she had not established an assault by the female customer. The Board finds, however, that
appellant has established that she engaged in a physical altercation with a customer on
February 28, 2014. Appellant related that she was letting exiting customers out of a door when a
female customer approached the entrance to pick up a package. The next time she let customers
outside, the woman stopped the door with her foot and yelled that she was coming in. The
female customer pushed appellant and they engaged in a physical confrontation. The customer
ran to the opposite side of the door, telephoned the police, and refused to open the door. Another
customer kicked the glass out of the door and he and the female customer then left.
Appellant advised the supervisor working on February 28, 2014, C.V., of the incident
immediately after it occurred. On March 5, 2014 C.V. related that he did not witness the
February 28, 2014 incident but that she mentioned that a customer “bumped her while locking
the door.” He noted that appellant did not complain of an injury. In an April 9, 2014 e-mail,
L.M. advised that a female customer pushed appellant, yelled, and blocked the door with her
foot. On March 3, 2014 appellant informed L.M. that her chest, upper body, and arms were sore
due to the altercation with the customer. The evidence from the employing establishment thus
generally supports that she engaged in a physical confrontation with a customer.
Appellant stopped work on March 1, 2014, and completed a claim form on
March 3, 2014. She sought medical treatment on March 3, 2014. Appellant also provided a
consistent history of experiencing an assault on February 28, 2014 to Dr. Jakobsen and
Dr. Levinson. The police report indicated that she had a verbal dispute with a customer.
Appellant, however, explained that before the police finished questioning her, the officers asked
whether the investigation should be conducted by inspectors with the employing establishment.
She discussed the matter with her supervisor and the police left. Appellant explained that she
believed that inspectors with the employing establishment were investigating the matter.
As noted, an employee’s statement alleging that an injury occurred at a given time and in
a given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.21 The record contains no strong or persuasive evidence sufficient to cast doubt on the
validity of the claim.22 The Board thus finds that appellant has established that the altercation
with the customer occurred as alleged.
The next issue is whether the medical evidence establishes that appellant sustained an
injury as a result of this incident.23 The Board finds that the medical evidence of record is
insufficient to establish that she sustained a cervical, shoulder, or chest condition due to the
February 28, 2014 employment incident.

21

Caroline Thomas, 51 ECAB 451 (2000).

22

See Betty J. Smith, 54 ECAB 174 (2002).

23

See T.H., 59 ECAB 388 (2008) (the employee must submit medical evidence to establish that the employment
incident caused a personal injury).

8

Dr. Pinkhasov indicated that he had treated appellant beginning March 3, 2014 and that
she could resume work on March 17, 2014. He did not, however, provide a diagnosis or opinion
on causal relationship and thus his opinion is of little probative value.24
On March 18, 2014 Dr. Jakobsen diagnosed a cervical condition, a right shoulder
condition, and right arm pain. He opined that appellant was unable to work. Dr. Jakobsen
indicated that she injured her neck and right shoulder after a February 28, 2014 altercation at
work. He did not, however, provide any rationale for his opinion explaining the basis for his
opinion regarding causal relationship. Consequently, Dr. Jakobsen’s report is insufficient to
meet appellant’s burden of proof.25 On April 8, 2014 he diagnosed a shoulder contusion and
noted that appellant related a history of the injury occurring at work when she was attacked by a
customer. Dr. Jakobsen advised that she was totally disabled. While he obtained appellant’s
history of injury, he did not provide an independent explanation regarding how her shoulder
contusion occurred as a result of the attack by a customer. A physician’s report is of little
probative value when it is based on a claimant’s belief rather than the doctor’s independent
judgment.26
Dr. Jakobsen, in an undated form report, diagnosed shoulder derangement and a cervical
contusion and checked a box marked “yes” that the conditions were caused or aggravated by
employment. In a form report dated April 28, 2014, he diagnosed cervical radiculitis and a
bilateral shoulder sprain and checked a box marked “yes” that the conditions were aggravated by
employment when she was attacked at work. The Board has held, however, that when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale, that opinion has little probative value and is insufficient to
establish a claim.27 On April 16, 2014 Dr. Jakobsen indicated that he was treating appellant for
chest and bilateral shoulder pain as a result of her February 28, 2014 work injury. He, however,
did not provide any rationale for his opinion. A mere conclusion without the necessary rationale
explaining how and why the physician believes that a claimant’s accepted exposure could result
in a diagnosed condition is not sufficient to meet a claimant’s burden of proof.28
On appeal counsel contends that appellant sustained a physical condition due to the
February 28, 2014 work incident. As discussed, however, the medical evidence of record is
insufficient to establish that she experienced a neck, chest, or shoulder injury causally related to
the February 28, 2014 work injury.

24

See T.O., Docket No. 16-0423 (issued June 20, 2016); S.E., Docket No. 08-2214 (issued May 6, 2009).

25

See T.M., Docket No. 08-0975 (a medical report is of limited probative value on the issue of causal relationship
if it contains a conclusion regarding causal relationship which is unsupported by medical rationale).
26

See Earl David Seale, 49 ECAB 152 (1997).

27

Deborah L. Beatty, 54 ECAB 3234 (2003).

28

See Beverly A. Spencer, 55 ECAB 501 (2004).

9

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 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.29 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.30
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.31 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.32
ANALYSIS -- ISSUE 2
As discussed, appellant has established that on February 28, 2014 a female customer
blocked a door with her foot, yelled at her, and engaged in a physical altercation. She telephoned
the police and a male customer who was exiting the facility broke through the glass. Appellant
did not know the female customer and thus the assault was not imported into the workplace. At
the time the incident occurred, she was performing her usual work duties. Consequently,
appellant has established a compensable work factor under Cutler.33
Dr. Levinson, in reports dated March 21 and April 7, 2014, discussed appellant’s history
of an assault by an angry customer on February 28, 2014. He diagnosed severe major depressive
disorder with psychotic features, panic disorder with agoraphobia, chronic post-traumatic stress
disorder, and a pain disorder. Dr. Levinson attributed appellant’s diagnosed conditions to the
work injury and found that she was totally disabled. In a report dated April 20, 2014, he advised
that psychological testing did not reveal malingering. Dr. Levinson noted that appellant briefly
saw a therapist after her husband died 13 years earlier. He diagnosed severe major depressive
disorder with psychotic features, panic disorder with agoraphobia, chronic post-traumatic stress
29

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

30

Gregorio E. Conde, 52 ECAB 410 (2001).

31

Jimmy A. Hammons, 51 ECAB 219 (1999).

32

20 C.F.R. § 10.121.

33

See supra note 28.

10

disorder, and a pain disorder and attributed the conditions to the assault at work. Dr. Levinson
explained how he arrived at each diagnosis based on the results of testing and his examination.
On August 27, 2014 he questioned why OWCP was concerned that he did not refer to the murder
of appellant’s husband. Dr. Levinson advised that she worked 10 years after her husband died
and raised a child, receiving only a short period of therapy. He noted that appellant now feared
being attacked again and determined that her condition arose only from work factors.
In a report dated May 14, 2014, Dr. Brandt reviewed appellant’s history of an attack by a
customer on February 28, 2014 with injuries to her arms and chest. He diagnosed an adjustment
disorder with mixed anxiety and depressed mood which he attributed to her work injury.
Dr. Brandt found that appellant was totally disabled.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.34 The
Board has reviewed the reports from Dr. Levinson and Dr. Brandt and finds that the physicians
provided detailed examination findings and a clear opinion on causation. Their reports are
supportive, unequivocal, contemporaneous in time, and based on a firm diagnosis and an
accurate work history. While neither Dr. Levinson nor Dr. Brandt provided sufficient rationale
to establish appellant’s emotional condition claim, they are sufficient to require further
development by OWCP.35 Accordingly, the Board will remand the case to OWCP. On remand,
it should further develop the medical record to determine whether appellant sustained an
emotional condition on February 28, 2014 in the performance of duty and, if so, any periods of
disability. Following this and such further development as deemed necessary, OWCP should
issue a de novo decision.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury to her
neck, chest, or shoulder on February 28, 2014 in the performance of duty. The Board further
finds that the case is not in posture for decision regarding whether she sustained an emotional
condition in the performance of duty on February 28, 2014.

34

See A.F., Docket No. 15-1687 (issued June 9, 2016); Phillip L. Barnes, 55 ECAB 426 (2004).

35

Id.

11

ORDER
IT IS HEREBY ORDERED THAT the December 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: December 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12