United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-0975
Issued: March 10, 2022

Case Submitted on the Record

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

JURISDICTION
On June 11, 2021 appellant filed a timely appeal from a June 4, 2021 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 stress-related
conditions in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained a series o f conditions due to workrelated stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated
cholesterol, and diabetes. She indicated that she started working as a paralegal specialist for
the employing establishment on October 20, 2014. Appellant maintained that her supervisor,
L.M., created a stressful and hostile work environment over time, and indicated that there were
“Equal Employment Opportunity Commission (EEOC) issues.” She asserted that L.M. did not
like the way she communicated and asked her if she would quit her job. Appellant noted that
she first became aware of her claimed conditions on October 20, 2014 and first realized their
relation to her federal employment on July 31, 2018. She stopped work on July 17, 2017.
In a June 10, 2019 statement, appellant further discussed her claimed employment-related
conditions and again claimed that her work environment aggravated her health. She maintained
that L.M. intentionally exposed her to a hostile work environment and asked if she was going to
quit “due to circumstances surrounding my employment.”
Appellant submitted medical evidence in support of her claim, including reports of
Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified
family practitioner. She also submitted time and attendance summary reports from July and
September 2018.
In a June 25, 2019 development letter, OWCP notified appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence. In response, appellant asserted that L.M. treated her differently on purpose due to her
race and that the harassment was continuous. She claimed that L.M. retaliated against her for
filing an EEOC complaint in 2016.
Appellant submitted documents relating to the EEOC complaint she filed in 2016. In
the complaint, she claimed that in October 2015 she was improperly instructed not to take sick
leave for the rest of the year and that in December 2015 she was denied compensatory time.
Appellant also alleged that on December 24, 2015 L.M. accused her of “gaming the system” when
she tried to change her schedule and that on February 15, 2016 she wrongly did not receive holiday
pay. She further claimed that on March 1, 2016 she was approved for reasonable
accommodation that did not address her needs and that on March 30, 2016 L.M. called her
“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal
reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date
her work duties were wrongly reduced and her work was delegated to another employee.
2

Docket No. 20-1271 (issued March 9, 2021).

2

Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal
of a September 28, 2017 final decision denying her claims of discrimination. In this decision,
an EEOC official addressed each of her above-noted claims and found that it had been properly
determined in the prior decision dated September 28, 2017 that the employing establishment
did not subject her to discrimination or other wrongdoing. The official found that the employing
establishment provided reasonable accommodation to appellant for her bipolar disorder by
allowing her to change her schedule and that it appropriately handled matters relating to sick leave,
holiday pay, and compensatory time. The official indicated that the evidence revealed that L.M.
denied that she called appellant stupid on March 30, 2016 after appellant improperly sent out a
draft in portable document format (PDF), but that she indicated she might have commented that
it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was “gaming the system” on December 24, 2015, when appellant attempted
to change her schedule in the middle of a pay period to get more holiday time. She noted it was
established that on September 8, 2016 L.M, told appellant that she should be careful about what
she said to people. In addition, it was established that L.M. asked appellant whether she intended
to quit and that, when appellant stated that she did not, L.M. responded by saying, “Good.” The
official concluded that, when considering L.M.’s comments and actions in context, it had not been
shown that L.M. subjected appellant to discrimination or created a retaliatory or hostile work
environment. 3
By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related
emotional condition. It determined that she had not established a compensable employment factor.
On August 5, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that
L.M. threw a stapler at her on October 20, 2014. Appellant indicated that L.M. asked her whether
she was going to quit and asserted that her working conditions caused or worsened her medical
conditions.
After the hearing, additional documents were added to the case record, including the
employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive
absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017
affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10,
2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.
In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable accommodation to
appellant by approving appellant’s request regarding telework days. She noted that the human
resources office advised her that she could not approve appellant’s request to change appellant’s
schedule on short notice in order to receive pay for federal holidays. L.M. indicated that in
December 2015 appellant sent out a draft document as a PDF document despite the fact that such
documents are normally sent out in Microsoft Word format. She noted that she had a conversation
with appellant, who indicated that she had intentionally sent the document as a PDF document
because she thought it was a good idea. L.M. reported that she did not call appellant stupid
but might have stated that it would be stupid to send the draft in the wrong format. With regard to
appellant’s allegation that she was accused of “gaming the system” with respect to her request to
3

Appellant also submitted additional medical evidence in support of her claim.

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change her work schedule, L.M. explained that she told appellant that it would be improper and
gaming the system, to change her schedule in the middle of a pay period in order to receive pay
for a holiday. She claimed that she treated appellant fairly with respect to leave matters.
In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,
appellant contested L.M.’s assertions with respect to schedule changes. She claimed that L.M.
did, in fact, call her stupid with respect to the matter involving the PDF document, and expressed
her belief that L.M. was accusing her of theft when she stated that she was gaming the system.
Appellant also generally contested L.M.’s assertions that she had properly handled matters relating
to leave usage and work assignments.
In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant
on September 8 and 15, 2016 and denied that she acted improperly. She noted that during the
September 15, 2016 meeting she advised appellant that she needed to be careful about what she
stated to people and consider their points of view. L.M. indicated that this comment was made
in the context of the other paralegal having felt that appellant made various accusations against her.
She also noted that, during this meeting, she asked appellant if she was considering quitting
because of the communication issues and overlapping schedule problems among the clerks.
When appellant indicated that she was not quitting, L.M. noted that she replied, “Good.” She
noted that she later apologized to appellant and told appellant that she was trying to speak
openly and plainly. L.M. indicated that she did not recall telling appellant that a certain work
assignment was none of her business.
In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that
a work assignment involving redaction of information was none of her business. She restated her
belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she
made improper comments about her communication skills.
The case record was also supplemented to include the original September 28, 2017 final
EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the
full evidentiary record did not establish that L.M. subjected appellant to discrimination or created
a retaliatory or hostile work environment. She found that the employing establishment provided
reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled
matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M.
explained that she reassigned some of appellant’s tasks to another employee because the work
schedule of that employee made it more suitable for her to perform those tasks. She indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated
that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was gaming the system, and that she should be careful about what she stated
to people. In addition, the EEOC decision established that L.M. asked appellant whether she
intended to quit and that, when appellant stated that she did not, L.M. responded by saying,
“Good.” The official concluded that, when considering L.M.’s comments and actions in context,
no improper actions were committed.

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By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31,
2019 decision. Appellant appealed to the Board and, by decision dated March 9, 2021,4 the Board
affirmed the April 1, 2020 decision.
On March 9, 2021 appellant requested reconsideration of the denial of her emotional
condition claim. In support of her reconsideration request, she submitted two e-mails from the
Office of Personnel Management (OPM), a February 16, 2021 e-mail advising her that a disability
earnings survey had opened and a February 28, 2021 e-mail informing her that it had received her
response to an OPM disability eligibility survey. Appellant also submitted a March 11, 2020
notification of personnel action (Standard Form (SF) 50) memorializing her retirement from the
employing establishment on disability retirement. In an accompanying statement, she argued that
the fact that she retired on disability proved that managers committed wrongdoing and that she
was subjected to a hostile work environment.
By decision dated June 4, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is 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
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 8
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
4

Supra note 2.

5

Supra note 1.

6

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
8

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

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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. 9 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 10
A claimant has the burden of proof to establish 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 employment factors. 11 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors. 12
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. 13 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, it must base its decision on an analysis of the medical evidence. 14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
The Board preliminarily notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 1, 2020 decision, which was considered by the
Board in its March 9, 2021 decision. Findings made in prior Board decisions are res judicata
absent further merit review by OWCP under section 8128 of FECA. 15
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at her place of work. Therefore, the Board must initially review whether these alleged
9

Lillian Cutler, 28 ECAB 125 (1976).

10

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

11

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

13

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

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incidents and conditions are covered employment factors under the terms of FECA. The Board
notes that appellant’s claim does not directly relate to her regular or specially assigned duties
under Lillian Cutler.16 Rather, appellant claimed that her supervisor, L.M., committed error and
abuse with respect to various administrative/personnel matters. She also claimed that L.M.
subjected her to harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that L.M.
mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable
accommodation requests, and the assignment of work tasks. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.17 However, the Board has also 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.18 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. 19
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted two e-mails from
OPM, a February 16, 2021 e-mail advising her that a disability earnings survey had opened, and a
February 28, 2021 e-mail informing her that it had received her response to an OPM disability
eligibility survey. She also submitted a March 11, 2020 SF 50 memorializing her disability
retirement from the employing establishment on disability retirement. Appellant argued that the
fact that she retired on disability retirement proved that managers committed wrongdoing.
However, this evidence would not in any way show that management committed error or abuse
with respect to administrative or personnel matters. Appellant has not otherwise presented
evidence, such as a final decision of an administrative body, to show that L.M. or other managers
committed error or abuse with respect to administrative or personnel matters.20 In addition, the
mere fact that appellant retired on disability retirement would not support her claims regarding
administrative/personnel matters. Although appellant expressed dissatisfaction with the actions of
L.M., the Board has held that mere dislike or disagreement with certain supervisory actions will
not be compensable absent error or abuse on the part of the supervisor. 21 Therefore, she has not
established a compensable employment factor with respect to administrative or personnel matters.
Appellant also alleged harassment and discrimination by L.M. and claimed that she created
a stressful hostile work environment. She asserted that L.M. treated her differently on purpose
16

See supra note 9.

17

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
18

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

19

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

20

See generally M.R., Docket No. 18-0304 (issued November 13, 2018).

21

T.C., Docket No. 16-0755 (issued December 13, 2016).

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due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also
claimed that L.M. made comments and engaged in actions that rose to the level of harassment and
discrimination. To the extent that disputes and incidents alleged as constituting harassment are
established as occurring and arising from an employee’s performance of his or her regular duties,
these could constitute employment factors. 22 The Board has held that unfounded perceptions of
harassment do not constitute an employment factor.23 Mere perceptions are not compensable
under FECA and harassment can constitute a factor of employment if it is shown that the
incidents constituting the claimed harassment actually occurred.24
As noted above, appellant submitted February 16 and 28, 2021 e-mails from OPM and
a March 11, 2020 SF 50. She argued that the fact that she retired on disability retirement proved
that she was subjected to a hostile work environment. However, these docum ents do not
support appellant’s claims of harassment and discrimination and the mere f act that she
retired on disability retirement also would not support her claims of harassment/
discrimination . Appellant has not submitted sufficient documentary evidence to show that
L.M. subjected her to harassment or discrimination. 25 Therefore, she has not established a
compensable employment factor with respect to the claimed harassment and discrimination. As
the Board finds that appellant has not established a compensable employment factor, it is not
necessary to consider the medical evidence of record. 26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

22

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

See id.

25

See B.S., Docket No. 19-0378 (issued July 10, 2018).

26

See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors). See also Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stamford, CT, Employer
__________________________________________

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Appearances:
David P. McCormack, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1699
Issued: December 18, 2018

Case Submitted on the Record

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

JURISDICTION
On August 1, 2017 appellant, through counsel, filed a timely appeal from a February 17,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated February 1, 2018, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 17-1699 (issued February 1, 2018).

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 31 percent
permanent impairment of his right lower extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
On June 21, 2013 appellant, then a 59-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed permanent acceleration of osteoarthritis of his right
hip due to factors of his federal employment. He underwent right total hip replacement surgery
on March 5, 2012. By decision dated October 2, 2013, OWCP accepted the claim for aggravation
of preexisting osteoarthritis of the right hip.
On October 22, 2013 appellant filed a claim for a schedule award (Form CA-7).
In a February 27, 2013 report, Dr. Frank A. DiFazio, a Board-certified orthopedic surgeon,
found that appellant’s right hip examination showed a well-healed surgical scar and no swelling,
erythema, warmth, or focal tenderness. He advised that appellant was capable of working with
restrictions of no prolonged standing, walking, or lifting greater than 40 pounds. Dr. DiFazio
opined that appellant had reached maximum medical improvement (MMI) and had 37 percent
permanent impairment of the right lower extremity based on the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
On October 10, 2013 Dr. Byron V. Hartunian, an orthopedic surgeon, opined that appellant
had 37 percent permanent impairment of the right lower extremity using the sixth edition of the
A.M.A., Guides.5 He concurred with Dr. DiFazio that appellant had reached MMI as of
February 27, 2013. Dr. Hartunian diagnosed status post right total hip replacement for end-stage
degenerative arthritis. He measured appellant’s range of motion (ROM) of the right hip using a
goniometer three times with the highest range recorded for flexion 98 degrees, abduction 26
degrees, and adduction 20 degrees. On combined flexion and rotation appellant experienced some
mild right groin discomfort. Based on the sixth edition of the A.M.A., Guides, Dr. Hartunian
calculated that appellant’s total hip replacement condition was consistent with a class 3 diagnosis
because there was a mild motion deficit in flexion and rotations, per Table 16-24. There were no
other physical findings documented so he found that a grade modifier for physical examination
(GMPE) was not applicable. Dr. Hartunian found that a grade modifier for clinical studies
(GMCS) was not applicable because x-rays taken approximately one year after surgery confirmed
the diagnosis. He assigned a grade modifier of zero for functional history (GMFH) because there
was no antalgic limp. Dr. Hartunian assigned a grade modifier of 3 for severe deficit based on the
American Academy of Orthopaedic Surgeons (AAOS) Lower Limb Questionnaire completed by
appellant. He indicated that the A.M.A., Guides indicated that the higher grade modifier of 3 was
to be used in the calculation and therefore the net adjustment formula resulted in a class 3, grade
C impairment, equaling a 37 percent impairment rating for the right lower extremity.

4

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

5

Id. at (6th ed. 2009).

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Appellant submitted a copy of his AAOS Lower Limb Questionnaire dated May 9, 2013.
On November 12, 2013 Dr. Robert Y. Pick, a Board-certified orthopedic surgeon and
OWCP district medical adviser (DMA), reviewed the medical evidence of record and opined that
appellant’s right total hip replacement on March 5, 2012 was unrelated to his accepted condition
or factors of his federal employment.
On March 27, 2014 another DMA, Dr. Morley Slutsky, a Board-certified occupational
medicine specialist, disagreed with Dr. Pick and found that appellant’s March 5, 2012 surgery was
warranted and necessitated by his accepted work-related condition. Based on the sixth edition of
the A.M.A., Guides, he calculated that appellant had a class 3 diagnosis for status post right hip
surgery with good results because his hip ROM had a mild deficit, the hardware had good
placement, and there was no hip instability. Dr. Slutsky assigned a grade modifier of zero for
physical examination because there was no tenderness, swelling, erythema, or increased warmth
and a grade modifier of zero for functional history because appellant did not have an antalgic gait
requiring the use of a single gait aid or external orthotic device for stabilization. Dr. Slutsky noted
that there was no documentation of a positive Trendelenburg’s sign. He found that Dr. Hartunian’s
grade modifier of 3 secondary to appellant’s AAOS score was unreliable and would not be used
for impairment calculations because the score was 3 grade modifiers greater than the GMFH of
zero. Dr. Slutsky concurred with Dr. Hartunian that a grade modifier for clinical studies was not
applicable because there were no studies presented at MMI that were specific to the diagnosis
being rated. He concluded that appellant had 31 percent permanent impairment of the right lower
extremity.
In an April 7, 2014 letter, OWCP provided a copy of Dr. Slutsky’s March 27, 2014 report
to Dr. Hartunian and requested a supplemental report providing an opinion about appellant’s workrelated condition and any resulting impairment. Dr. Hartunian did not respond.
OWCP referred appellant to Dr. Balazs B. Somogyi, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In his December 9, 2014 report, Dr. Somogyi found that appellant
reported right hip pain and difficulties with getting on a bed due to soreness “stiffness.” The ROM
of the left hip was full and painless and the ROM of the right hip revealed flexion performed to 90
degrees. Extension was full and abduction was somewhat restricted. Rotational movements were
significantly restricted. There were no palpatory findings. Dr. Somogyi determined that appellant
reached MMI in March 2013, one year after his right hip surgery. He calculated that appellant had
a default impairment of 37 percent for his diagnosis of status post right total hip replacement
surgery. Dr. Somogyi assigned a grade modifier of 2 for functional history and physical
examination because appellant had moderate problems with his right lower extremity. He stated
that a grade modifier for clinical studies was not applicable in this case. Dr. Somogyi concluded
that appellant had 31 percent permanent impairment of the right lower extremity.
In a supplemental report dated March 9, 2015, Dr. Somogyi asserted that his opinion was
based upon the available information at the time, including the contents of a previously completed
second opinion examination regarding appellant’s case.
By decision dated July 30, 2015, OWCP awarded appellant a schedule award for 31 percent
permanent impairment of the right lower extremity. The award ran for 89.28 weeks for the period
February 27, 2013 to November 13, 2014 and a fraction of a day.
3

On August 5, 2015 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated November 23, 2015, an OWCP hearing representative found that the
case was not in posture for a hearing and vacated the prior decision because further development
of the medical evidence was warranted as Dr. Somogyi’s second opinion evaluation lacked
probative value. The hearing representative found that Dr. Somogyi failed to identify the tables
and pages of the A.M.A., Guides he used to calculate appellant’s impairment rating and a specific
date of MMI for schedule award purposes.
In a supplemental report dated February 23, 2016, Dr. Somogyi indicated that he relied on
Table 16-4, page 515, of the A.M.A., Guides. He stated that appellant’s impairment rating was
based on a class 3 impairment of the hip as identified on page 515. Dr. Somogyi assigned a grade
modifier of one for functional history and physical examination for mild problems. He calculated
that the net adjustment was two, which resulted in an impairment of 31 percent permanent
impairment of the right lower extremity for degenerative arthritis and total hip replacement.
Dr. Somogyi determined that appellant’s date of MMI was February 27, 2013.
On March 20, 2016 Dr. Herbert White, a Board-certified internist and occupational
medicine specialist serving as a DMA for OWCP, reviewed the medical evidence of record and
concurred with Dr. Somogyi’s impairment rating. Utilizing Table 16-4, page 515, of the A.M.A.,
Guides, Dr. White calculated that appellant had a default impairment rating of 37 percent for his
diagnosis of total right hip replacement. He assigned a grade modifier of one for functional history
for his antalgic gait. Dr. White found that a grade modifier for physical examination was excluded
because it was used to determine the class and he assigned a grade modifier of zero for clinical
studies because “none available.” Using the net adjustment formula of (GMFH - CDX) + (GMPE
- CDX) + (GMCS - CDX), Dr. White calculated that appellant had a net adjustment of (1-3) + (not
applicable) + (0-2) = -4, which he equated to 31 percent permanent impairment of the right lower
extremity.
By de novo decision dated March 22, 2016, OWCP again awarded appellant a schedule
award for 31 percent permanent impairment of the right lower extremity. The award ran for 89.28
weeks for the period February 27, 2013 to November 13, 2014 and a fraction of a day.
On August 1, 2016 counsel requested reconsideration.
In a July 21, 2016 report, Dr. Hartunian reviewed the medical evidence of record and
concurred that appellant had a class 3 diagnosis and that a grade modifier for physical examination
was properly excluded. Regarding the functional history, he found that appellant had a gait
derangement score of 1. Dr. Hartunian noted that the AAOS score supported a grade modifier for
functional history of 3 and he stated that the A.M.A., Guides required that the higher AAOS score
be used. He found, however, that the higher AAOS score differed by 2 or more from that of the
physical examination and the clinical studies and; therefore, the functional history (not the AAOS
score) was properly excluded as unreliable. Regarding the clinical studies, Dr. Hartunian found
that it was also properly excluded for the additional reason that the diagnostic reports merely
confirmed appellant’s diagnosis. Using the net adjustment formula of (GMFH - CDX) + (GMPE
- CDX) + (GMCS - CDX), Dr. White calculated that appellant had a net adjustment of (not

4

applicable) + (not applicable) + (not applicable) = 0, yielding a class 3, grade C diagnosis, which
equated to 37 percent permanent impairment of the right lower extremity.
On September 27, 2016 and February 7, 2017 Dr. White confirmed that he excluded
physical and clinical studies from appellant’s impairment rating calculation.
In a December 28, 2016 report, Dr. White further clarified that he disagreed with
Dr. Hartunian’s interpretation of the A.M.A., Guides. He stated that appellant’s antalgic gait
would not be usual with a total hip replacement and, as a result, the functional history score for an
antalgic gait would be assigned a functional history of one. Dr. White explained that if the rating
physician had rated functional history as three, then it could be excluded for the reasons
Dr. Hartunian outlined. However, to exclude functional history in appellant’s case would indicate
that he did not have an antalgic gait. In addition, Dr. White noted that excluding functional history
because of appellant’s unreliability using the AAOS score instead of a score in which the AAOS
is used to assist in determining the functional history would actually benefit him, which he did not
think was the intention of the A.M.A., Guides. He concluded that appellant had a functional
history of one (1). Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX), Dr. White calculated that appellant had a net adjustment of (1-3) + (not
applicable) + (not applicable) = -2, yielding a class 3, grade A diagnosis, which equated to 31
percent permanent impairment of the right lower extremity.
By decision dated February 17, 2017, OWCP denied modification of the March 22, 2016
schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members
of the body. FECA, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of OWCP. For consistent results and to ensure equal justice under the
law for all claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable
to all claimants.8 The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.9 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in
2009.10

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a); see also F.V., Docket No. 18-0427 (issued November 9, 2018).

9

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

10
See D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

5

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX) condition, which is then adjusted by grade modifiers based on GMFH, GMPE,
and GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.13
ANALYSIS
The Board finds that appellant has not established greater than 31 percent permanent
impairment of the right lower extremity for which he previously received a schedule award.
OWCP properly referred appellant to Dr. Somogyi for a second opinion evaluation to determine
the nature and extent of his employment-related permanent impairment. In his December 9, 2014
report, Dr. Somogyi noted that appellant reported right hip pain and difficulties with getting on a
bed due to soreness “stiffness.” The ROM of the left hip was full and painless and the ROM of
the right hip revealed flexion performed to 90 degrees. Extension was full and abduction was
somewhat restricted. Rotational movements were significantly restricted. There were no
palpatory findings. In his supplemental report dated February 23, 2016, Dr. Somogyi indicated
that he relied on Table 16-4, page 515, of the A.M.A., Guides. He stated that appellant’s
impairment rating was based on a class 3 impairment of the hip as identified on page 515.
Dr. Somogyi assigned a grade modifier of one for functional history and physical examination for
mild problems. He calculated that the net adjustment was two, which resulted in an impairment
of 31 percent permanent impairment of the right lower extremity for degenerative arthritis and
total hip replacement.
Dr. Somogyi determined that appellant’s date of MMI was
February 27, 2013.
In accordance with its procedures, OWCP properly referred the evidence of record to its
OWCP medical adviser, Dr. White, who reviewed the clinical findings of Dr. Somogyi and
determined that appellant had 31 percent permanent impairment of the right lower extremity under
the sixth edition of the A.M.A., Guides. Dr. White concurred with Dr. Somogyi’s class 3, grade
A diagnosis of right total hip replacement based on Table 16-4, page 515, of the sixth edition of
the A.M.A., Guides. He assigned a grade modifier of one (1) for functional history for appellant’s
antalgic gait. Dr. White excluded a grade modifier for physical examination because it was used
to determine the class and he excluded a grade modifier for clinical studies because none were
applicable in this case. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX), he calculated that appellant had a net adjustment of (1-3) + (not applicable) +
(not applicable) = -2, yielding a class 3, grade A diagnosis, which equated to a 31 percent
permanent impairment of the right lower extremity. Dr. White discussed how he arrived at his
conclusion by listing specific tables and pages in the A.M.A., Guides. He properly interpreted
Table 16-4 to find that appellant qualified for 31 percent permanent impairment of the right lower
11
A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
12

Id. at 494-531.

13

See R.V., Docket No. 10-1827 (issued April 1, 2011).

6

extremity. Thus, the Board finds that OWCP properly relied upon the opinion of its medical
adviser in denying appellant’s claim for an additional schedule award.
Appellant submitted a July 21, 2016 report from Dr. Hartunian who opined that appellant
had class 3, grade C diagnosis, which equated to 37 percent permanent impairment of the right
lower extremity. Dr. Hartunian determined that physical examination and clinical studies were
properly excluded. He found that appellant had a gait derangement score of 1. Dr. Hartunian
argued, however, that functional history should be excluded as unreliable because the higher
AAOS score of 3 differed by 2 or more from that of the physical examination and the clinical
studies. Thus, he calculated that appellant had a net adjustment of zero, equaling 37 percent
permanent impairment of the right lower extremity. The Board has held that when the attending
physician fails to provide an estimate of impairment conforming to the A.M.A., Guides or does
not discuss how he or she arrives at the degree of impairment based on physical findings, his or
her opinion is of diminished probative value in establishing the degree of impairment and OWCP
may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings reported
by the attending physician.14 Dr. White explained that if he had rated functional history as three,
then it could be excluded for the reasons Dr. Hartunian outlined. However, to exclude functional
history in appellant’s case would indicate that he did not have an antalgic gait. The Board finds
that OWCP’s medical adviser in this case properly applied the standards of the A.M.A., Guides.
His opinion is the weight of medical evidence and supports that appellant does not have a greater
right upper extremity impairment than the 31 percent previously awarded.
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has more than 31 percent permanent impairment
of the right lower extremity. Accordingly, appellant has not established that he is entitled to a
schedule award greater than that previously awarded.15
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 31
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.

14

See John L. McClanic, 48 ECAB 552 (1997); L.M., Docket No. 12-0868 (issued September 4, 2012).

15

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability. 5 U.S.C.
§ 8108; 20 C.F.R. § 10.404(c).

7

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0678
Issued: March 3, 2020

Case Submitted on the Record

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

JURISDICTION
On February 9, 2018 appellant, through counsel, filed a timely appeal from a November 16,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a cervical condition
causally related the accepted September 16, 2016 employment incident.
FACTUAL HISTORY
On September 21, 2016 appellant, then a 59-year-old electrician, filed a traumatic injury
claim (Form CA-1) alleging that on September 16, 2016 he strained his left shoulder when
climbing and working onboard a ship while in the performance of duty. He did not stop work.
Appellant came under the treatment of Dr. Eric W. Schwarz, an osteopath Board-certified
in family practice, on September 21, 2016, for left upper extremity pain with burning paresthesias
into the middle ring finger. Dr. Schwarz reported working 16 hours a day on electrical systems on
large ships and his symptoms were aggravated by work. He noted appellant’s history was
significant for rotator cuff repair of the bilateral shoulders and type II diabetes mellitus controlled.
Dr. Schwarz noted examination findings of normal strength of the left upper extremity, positive
impingement of the left shoulder, positive Spurling’s sign into the left forearm, positive Tinel’s
test at the left elbow, reflexes were equal, and sensation was intact. He diagnosed left cervical
radiculopathy and left ulnar neuropathy, and placed appellant off work for 10 days.
In a development letter dated October 12, 2016, OWCP advised appellant that when his
claim was originally received it was considered a simple, uncontroverted case which resulted in
minimal or no time loss from work. It indicated that his claim was administratively handled to
allow limited medical payments, but the merits of the claim had not been formally adjudicated.
OWCP advised that, because of appellant’s request to authorize additional diagnostic testing, his
claim would be formally adjudicated. It requested that he submit additional factual and medical
information in support of his claim including a comprehensive medical report from his treating
physician regarding how specific work incidents contributed to his left shoulder strain. OWCP
afforded appellant 30 days to respond.
In a report dated September 29, 2016, Dr. Schwarz found normal strength of the left upper
extremity, positive impingement of the left shoulder, positive Spurling’s sign into the left forearm,
positive Tinel’s test at the left elbow, reflexes were equal, and sensation was intact. He diagnosed
left cervical radiculopathy and left ulnar neuropathy, and placed appellant off work for 10 days.
In a report dated October 20, 2016, Dr. Schwarz noted examination findings consistent with
cervical nerve root impingement. Appellant reported working 16 hours per day on a ship doing
electrical work in awkward and strenuous positions. He explained that on September 16, 2016 he
was bundling wires all day, over his head, which put a lot of stress on his neck and shoulders.
Dr. Schwarz noted his history was significant for a prior left shoulder rotator cuff injury and repair
as well as diabetes. There were, however, no clinical signs that these conditions were aggravating
his neck problem. Dr. Schwarz advised that it was likely that appellant had some degree of
degeneration in his cervical spine prior to this injury, but opined that the radicular pain and
weakness was acute and consistent with repetitive trauma related to the type and scope of work he
had been doing.

2

Appellant sought treatment from Dr. Pulak Ray, a Board-certified neurologist. In reports
dated October 17 and November 10, 2016, Dr. Ray noted complaints of neck pain and stiffness
and left arm pain. Appellant reported that on September 16, 2016, while working onboard a ship,
he experienced neck pain radiating down his shoulder and bicep to his digits after he braced himself
from a fall which he believed placed a strain on his upper extremities. Dr. Ray noted findings on
examination of intact cranial nerves, intact reflexes, normal strength in the upper and lower
extremities, intact sensory examination, and a positive Spurling’s test. He noted appellant’s
history was significant for diabetes mellitus. Dr. Ray advised that a magnetic resonance imaging
(MRI) scan of the cervical spine revealed multilevel degenerative disc disease with reversal of the
cervical lordosis and multilevel foraminal stenosis from C3-7. He diagnosed cervical
radiculopathy into the left arm secondary to cervical spondylotic changes and cervicalgia. Dr. Ray
noted that appellant underwent a steroid injection without significant improvement and
recommended an electromyogram (EMG) and a computerized tomography (CT) scan of the
cervical spine. In an October 17, 2016 prescription note, he diagnosed radiculopathy of the
cervical region and referred appellant for physical and aqua therapy.
In response to OWCP’s questionnaire, appellant indicated that on September 16, 2016 he
was working on a ship banding bundles of wires in an overhead position and experienced shoulder
pain, but continued to work. He reported working long hours to complete the ship’s electrical
system and had placed his body in a contorted and compromised position which aggravated his
shoulder. Appellant thought he pulled a muscle in his left shoulder and that rest would relieve his
symptoms, but the pain progressed and he sought medical treatment. He indicated that he never
experienced pain down his arm and back until the employment incident on September 16, 2016.
By decision dated November 22, 2016, OWCP denied the claim finding that appellant had
failed to establish an injury or medical condition causally related to the accepted September 16,
2016 employment incident.
On December 23, 2016 appellant requested reconsideration.
In a December 1, 2016 report, Dr. Ray noted appellant’s continued complaints of neck pain
and left arm pain with numbness and tingling. He noted that appellant received physical therapy
for six weeks and one injection with little improvement in his condition. Dr. Ray noted the history
of injury and provided examination findings of intact cranial nerves, reflexes, and strength in the
upper and lower extremities and a sensory examination revealed left arm numbness and tingling,
and a positive Spurling’s test. He noted a November 23, 2016 EMG revealed chronic motor unit
changes, a left C6 and C7 radicular pattern, and mild bilateral carpal tunnel syndrome. Dr. Ray
also noted a CT scan of the cervical spine revealed severe foraminal stenosis, worse at C5-6 and
C6-7. He indicated that appellant presented with progressive cervical spondylotic myeloradiculopathy which was exacerbated after an injury at work. Dr. Ray advised that conservative
treatment failed and he recommended anterior cervical discectomy and fusion at C5-7. He opined
that it was more likely than not that appellant’s injuries related to his work as an electrician.
In a letter dated December 17, 2016, Dr. Schwarz opined that, based on reasonable medical
probability, appellant’s injury occurred while at work. He explained that based upon his own
opinion, and that of a neurosurgeon, the claim should not be questioned. Dr. Schwarz explained
that although it was more difficult to understand a repetitive injury than a traumatic injury, it was

3

highly unlikely that appellant would have injured his neck had he been working at a desk and not
doing the strenuous work in awkward positions while working at the ship yard.
In a letter dated February 21, 2017, Dr. Zeena Dorai, a Board-certified neurologist, opined,
within a reasonable degree of medical certainty and based on history, physical examination, and
MRI scan studies that appellant’s cervical spine injury was due to a work-related injury.
By decision dated March 23, 2017, OWCP denied modification of its November 22, 2016
decision.
On August 22, 2017 appellant, through counsel, requested reconsideration.
In support of his request for reconsideration, appellant resubmitted Dr. Ray’s December 1,
2016 report, Dr. Schwarz’ December 17, 2016 report, and Dr. Dorai’s February 21, 2017 letter.
A November 23, 2016 EMG revealed chronic C6 and C7 radiculopathy on the left, C7
radiculopathy on the right, ulnar neuropathy across the left elbow (cubital tunnel syndrome), and
bilateral carpal tunnel syndrome.
On February 10, 2017 Dr. Dorai performed a C4-5, C5-6, and C6-7 anterior cervical
discectomy with arthrodesis and diagnosed cervical stenosis.
In reports dated March 1 and April 26, 2017, a physician assistant treated appellant for
routine postoperative follow-up visits status post anterior cervical discectomy and fusion from
C4-7. She noted that appellant was progressing well and the left upper extremity pain had almost
completely resolved.
By decision dated November 16, 2017, OWCP denied modification of it March 23, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

3

Id.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

4

the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.8 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that a disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to the accepted September 16, 2016 employment incident.
In support of his claim, appellant submitted reports from Dr. Schwarz dated September 21
and 29, 2016, which noted that he presented with left upper extremity pain with burning
paresthesias. Dr. Schwarz diagnosed left cervical radiculopathy and left ulnar neuropathy.
Although he provided examination findings and diagnosed cervical conditions, he did not offer an
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
8

H.B., Docket No. 18-0781 (issued September 5, 2018).

9

D.H., Docket No. 18-1410 (issued March 21, 2019).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).

5

opinion as to causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.11 These reports, therefore, are insufficient to establish appellant’s claim.
In a report dated October 20, 2016, Dr. Schwarz noted appellant’s examination was
consistent with cervical nerve root impingement. He advised that it was likely that appellant had
some degree of degeneration in his cervical spine prior to this injury, but opined that the radicular
pain and weakness was acute and consistent with repetitive trauma related to the type and scope
of work he had been performing. Similarly, in his letter dated December 17, 2016, Dr. Schwarz
noted that, based on reasonable medical probability, appellant’s injury had occurred while at work.
The Board finds that, although Dr. Schwarz supported causal relationship, he did not provide
medical rationale explaining the basis of his conclusory opinions. The Board has held that 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.12
Dr. Schwarz did not sufficiently explain the process by which performing electrical work,
including bundling wires overhead and in awkward positions, would cause or aggravate the
diagnosed conditions nor did he provide an explanation as to why his conditions were not due to
age-related degenerative changes from his preexisting conditions. These reports are thus
insufficient to establish appellant’s claim.
Appellant submitted reports from Dr. Ray dated October 17 and November 10, 2016.
Dr. Ray diagnosed cervical radiculopathy into the left arm secondary to cervical spondylotic
changes and cervicalgia. These reports do not contain an opinion on the issue of causal relationship
and therefore are of no probative value as to that issue.13
In a December 1, 2016 report, Dr. Ray noted appellant’s history of a September 16, 2016
employment incident onboard a ship. He noted that appellant presented with progressive cervical
spondylotic myeloradiculopathy which was exacerbated after an injury at work. Dr. Ray opined
that it was “more likely than not” that appellant’s injuries related to his work as an electrician. The
Board finds that this report is not provided with certainty and is merely speculative. It has long
been held that medical opinions that are speculative or equivocal in character have little probative
value.14 Therefore, this report is insufficient to establish appellant’s claim.
Appellant submitted a February 21, 2017 report from Dr. Dorai, who noted within a
reasonable degree of medical certainty, that, based upon the history of injury, physical examination
findings, and MRI scan studies appellant’s cervical spine injury was due to a work-related injury.
The Board finds that although Dr. Dorai supported causal relationship, she did not provide medical

11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017);
C.M., Docket No. 14-0088 (issued April 18, 2014); T.M., Docket No. 08-0975 (issued February 6, 2009).
13

Supra note 11.

14

N.B., Docket No. 19-0221 (issued July 15, 2019); T.M., supra note 12.

6

rationale explaining the basis of her conclusory opinion regarding the causal relationship.15 She
did not explain the process by which performing his electrician duties would cause or aggravate
the diagnosed conditions and therefore this report is insufficient to establish appellant’s claim.
The record also contains records from a physician assistant dated March 1 and
April 26, 2017. The reports from the physician assistant have no probative medical value on the
issue of causal relationship as physician assistants are not considered “physicians” as defined under
FECA.16 Consequently, the medical findings and/or opinions of a physician assistant are of no
probative value for purposes of establishing entitlement to compensation benefits.17
The remainder of the medical evidence including an EMG scan report, a CT scan report,
and Dr. Dorai’s operative report lack probative value as they do not provide a physician’s opinion
on whether there is a causal relationship between appellant’s accepted employment incident and
his diagnosed cervical radiculopathy, cervical spondylotic, and cervicalgia.18 For this reason, this
evidence is insufficient to meet his burden of proof.
The Board finds that appellant has not submitted sufficient medical evidence to meet his
burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish cervical
conditions causally related to the accepted September 16, 2016 employment incident.

15

Supra note 8.

16

5 U.S.C. § 8101(2). B.K., Docket No. 19-0829 (issued September 25, 2019); T.C., Docket No. 19-0227 (issued
July 11, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (under FECA
the term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by the applicable state law). Federal (FECA)
Procedure Manual, supra note 10 at Chapter 2.805.3a(1) (January 2013).
17

N.R., Docket No. 19-1366 (issued December 6, 2019); S.S., Docket No. 18-1488 (issued March 11, 2019).

18

Supra note 16.

7

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VETERANS AFFAIRS
MEDICAL CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 19-0378
Issued: July 10, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On December 10, 2018 appellant filed a timely appeal from a November 9, 2018 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.2

1
2

5 U.S.C. § 8101 et seq.

The record contains a March 7, 2019 OWCP decision in which OWCP denied appellant’s request for review of
the merits of the denial of her emotional condition claim. Appellant filed her appeal with the Board on December 10,
2018 and under the principles discussed in Douglas E. Billings, 41 ECAB 880 (1990), OWCP’s March 7, 2019
decision, issued while the Board had jurisdiction over the matter in dispute, is null and void. See J.R., Docket No.
18-1079 (issued January 15, 2019) (finding an OWCP nonmerit decision null and void because it was issued while
the Board had jurisdiction over the matter in dispute).

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On May 29, 2018 appellant, then a 69-year-old registered nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained several emotional/stress-related conditions
in the performance of duty, including depression, anxiety, increased blood pressure, and sleep
deprivation. She asserted that she worked in a hostile work environment that exposed her to
intimidation, hostility, and abuse. Appellant claimed that management gave her unreasonable
work assignments, mishandled her leave requests, and wrongly denied her computer access to sick
leave records. She asserted that she first became aware of her claimed condition on December 1,
2015 and first realized it was related to her federal employment on June 15, 2017. Appellant did
not stop work.
By development letter dated June 14, 2018, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation regarding the cause of her claimed emotional condition. It provided an attached
questionnaire for her completion, which posed various questions regarding the employmentrelated incidents and conditions which she believed caused her claimed illness. OWCP afforded
appellant 30 days to respond.3
In response, appellant submitted a September 28, 2018 statement in which she further
discussed that incidents and conditions at work which she believed caused her emotional condition.
She asserted that her prior attempt to file a workers’ compensation claim in 2017 was improperly
delayed by management. Appellant indicated that, after reporting symptoms of stress and
depression to her immediate supervisor, S.R., she was referred to the Employee Assistance
Program. She asserted that it was improper for S.R. to make the referral because the reported
stress was employment related and not personal. Appellant asserted that she was the subject of an
investigation by the employing establishment, but she was not informed of the allegations until
she received instructions to appear at a meeting of the employing establishment’s Administrative
Investigation Board. She felt that management failed to present clear and compelling evidence
during the meeting.
Appellant further claimed that on June 15, 2017 a management official, J.D., improperly
removed her from office, took back facility keys, and informed her that her access to agency
computers would be restricted. She maintained that S.R. wrongly directed a coworker to write a
report of contact that was subsequently used in an administrative action relating to her
performance. Appellant asserted that she was improperly suspended for one week without pay for
refusing to open an employee gymnasium due to her concerns that the gymnasium contained

3

On June 14, 2018 OWCP also requested additional information from the employing establishment which was to
be submitted within 30 days. There is no indication that the employing establishment responded to the request within
the allotted time.

2

health/safety violations.4 She claimed that management subjected her to retaliation and
discriminated against her by threatening to eliminate her position due to her refusal to open an
employee gymnasium. Appellant claimed that management failed to adequately respond to her
health/safety concerns due to the fact that the coworker next to her kept dirty clothes in his work
space.
Appellant submitted several e-mails and memoranda detailing communications she had
with management and union officials in 2016 and 2017. In these documents, she expressed her
concerns about such matters as her request for mediation with a management official regarding an
administrative action and a perceived delay in management’s handling of her prior workers’
compensation claim.5 Appellant also submitted numerous low-quality black and white
photocopies of photographs depicting her work area.
Appellant submitted several medical reports in support of her claim, including a June 28,
2018 report of Dr. Mina W. Ma, an attending Board-certified internist, and August 2, 2017 and
May 22, 2018 reports of Dr. Jeffrey R. Spina, another attending Board-certified internist.
By decision dated November 9, 2018, OWCP denied appellant’s emotional condition
claim, finding that she had not established a compensable employment factors.6
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.7 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.8
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
4
Appellant asserted that management threatened her with discipline after she refused to open another employee
gymnasium.
5

Appellant also submitted a July 2016 memorandum in which a coworker detailed his concerns about the
cleanliness of her work space.
6

In a portion of the decision, OWCP indicated that appellant established employment factors and advised that her
claim was denied for failure to establish injury in the performance of duty. However, appellant’s claim was actually
denied due to her failure to establish any compensable employment factors as OWCP provided a detailed discussion
of why she failed to establish such factors.
7

Lillian Cutler, 28 ECAB 125 (1976).

8

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

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adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.10
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.11 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at work. The Board must initially review whether these incidents and conditions are
covered employment factors under the terms of FECA. The Board notes that appellant’s claim
does not directly relate to her regular or specially assigned duties under Lillian Cutler.13 Rather,
appellant primarily claimed that management committed error and abuse with respect to various
administrative/personnel matters. She also claimed that management subjected her to harassment
and discrimination.
The Board notes that with respect to administrative or personnel matters, appellant claimed
that management officials improperly delayed a prior workers’ compensation claim she filed in
2017 and mishandled an investigation against her which included a meeting with the employing
establishment’s Administrative Investigation Board. Appellant claimed that the employing
establishment improperly disciplined her regarding her refusal to open an employee gymnasium,
ignored her health/safety concerns about her work space, gave her unreasonable work assignments,
mishandled her leave requests, and wrongly restricted her computer access. She also claimed that
her immediate supervisor, S.R., mishandled her referral to the Employee Assistance Program and

9

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

10

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11

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

12

Id.

13

See supra note 7.

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improperly directed a coworker to write a report of contact that was subsequently used in an
administrative action relating to her performance.
The Board has held that administrative and personnel matters, although generally related
to the employee’s employment, are administrative functions of the employer rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.14 However,
the Board has also 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.15 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.16
The Board notes that appellant did not submit sufficient evidence to establish the abovenoted claims about administrative/personnel matters. She submitted e-mails and memoranda
which concerned some of these administrative/personnel matters, but the communications did not
show that the employing establishment committed error or abuse with respect to these matters.17
There is no indication that appellant filed a grievance with the employing establishment regarding
these matters or otherwise obtained a final determination from an administrative body showing
that the employing establishment committed error or abuse. Although appellant has expressed
dissatisfaction with the actions of several superiors, the Board has held that mere dislike or
disagreement with certain supervisory actions will not be compensable absent error or abuse on
the part of the supervisor.18 She did not substantiate any error or abuse committed by the
employing establishment in the above-noted matters and therefore she has not established a
compensable employment factor with respect to administrative or personnel matters.
Appellant asserted that management officials created a hostile work environment that
exposed her to intimidation, hostility, and abuse. She also claimed that management officials
subjected her to retaliation and discriminated against her by threatening to eliminate her position
due to her refusal to open an employee gymnasium. To the extent that disputes and incidents
alleged as constituting harassment and discrimination by supervisors are established as occurring
and arising from appellant’s performance of her regular duties, these could constitute employment
factors.19 The Board has held that unfounded perceptions of harassment do not constitute an

14

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
15

S.K., Docket No. 18-1648 (issued March 14, 2019); William H. Fortner, 49 ECAB 324 (1998).

16

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

17

Appellant also submitted numerous low-quality black and white photocopies of photographs depicting her work
area. She ostensibly submitted the photocopies to support her claim that the employing establishment ignored her
health/safety concerns about her work area. However, the submission of these documents would not be sufficient to
show that the employing establishment committed error or abuse with respect to this matter.
18

T.C., Docket No. 16-0755 (issued December 13, 2016).

19

David W. Shirey, 42 ECAB 783, 795-96 (1991).

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employment factor.20 Mere perceptions are not compensable under FECA and harassment can
constitute a factor of employment if it is shown that the incidents constituting the claimed
harassment actually occurred.21
Appellant did not submit substantive evidence to establish her claims of harassment or
discrimination. For example, she did not submit witness statements showing that the claimed
harassment/discrimination actually occurred. In addition, appellant did not submit the final
findings of any grievance or complaint she might have filed with respect to these matters, such as
a grievance filed with the employing establishment or a complaint filed with the Equal
Employment Opportunity (EEO) Commission.22 Therefore, she has not established a compensable
employment factor with respect to the claimed harassment and discrimination.
For these reasons, the Board finds that appellant has not established a compensable
employment factor. Given the Board’s finding on the factual aspect of her case, it is not necessary
to consider the medical evidence of record.23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

20

See F.K., Docket No. 17-0179 (issued July 11, 2017).

21

See id.

22
Appellant indicated that she had filed a grievance and an EEO matter, but there is no final decision in either
matter showing that error and abuse actually occurred. See M.R., Docket No. 18-0304 (issued November 13, 2018).
23

See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors). See also Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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