United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Malden, MA, Employer
__________________________________________

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Appearances:
Benjamin Zimmermann, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0795
Issued: January 18, 2018

Case Submitted on the Record

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

JURISDICTION
On February 28, 2017 appellant, through counsel, filed a timely appeal from a
December 19, 2016 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 the case.3

1

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

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules of
Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated July 27, 2017, the Board denied the
request for oral argument as the issue on appeal could be fully addressed on the record. Order Denying Request for
Oral Argument, Docket No. 17-0795 (issued July 27, 2017).

ISSUE
The issue is whether appellant has established permanent impairment of his lower
extremities warranting a schedule award.
On appeal, counsel alleges that errors were made in the evaluation of the medical
evidence. He contends that OWCP erred in not providing the referral physicians the definitions
of causation, contribution, and acceleration as defined by OWCP’s procedures. Counsel also
contends that the opinions of OWCP’s medical adviser, the second opinion physician, and the
impartial medical examiner must be rejected because they are contrary to medical principles and
Board precedent. Last, he also contends that due process was contravened because appellant’s
claim was denied while other federal workers had their claims accepted in nearly identical
circumstances.
FACTUAL HISTORY
On April 2, 2013 appellant, then a 60-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he suffered permanent acceleration of his osteoarthritis of his
bilateral hips and right plantar fasciitis as a result of his federal duties.4 He did not stop work.
In an accompanying statement, appellant noted that he began having pain in both of his
hips seven years prior. He noted that he delivered mail on both residential and commercial
routes, and that 90 percent of his routes were walking and 10 percent of his route involved relay
truck delivery. Appellant indicated that he spent approximately five hours a day walking and the
remaining three hours casing, arranging, and sorting mail. He noted that his duties involved
lifting, carrying, sitting, standing, walking, climbing, bending, stooping, twisting, pushing,
pulling, and driving a postal truck. Appellant noted that he performed these duties for 32 years.
In support of his claim appellant submitted a March 22, 2013 report wherein Dr. David C.
Morley, Jr., a Board-certified orthopedic surgeon, noted that he examined appellant and reviewed
his medical records and job duties. Dr. Morley diagnosed bilateral advanced hip arthritis,
lumbosacral multiple level degenerative disc disease, degenerative joint disease, and right plantar
fasciitis. He opined that the repetitive heavy physical activities of appellant’s employment
resulted in increased stresses through appellant’s back and lower extremities which contributed
to his arthritic condition with respect to his lumbosacral spine and hips. Dr. Morley noted that,
while there was no history of traumatic incident involving appellant’s back or lower extremities,
it was his opinion that the most likely cause of his arthritic/inflammatory condition was
degenerative and causally related to appellant’s arduous physical duties as a letter carrier, which
he described. He noted that there was no question that the demanding physical activities of
appellant’s job as a letter carrier affected his degenerative joint disease and permanently and
irrevocably hastened and accelerated the existing arthritis in a material and substantial fashion.
Accordingly, Dr. Morley opined that there was a direct causal relationship between appellant’s
laborious work and the current state of his back and lower extremities. He also opined that this
4

Although appellant’s claim form indicates that he suffered from plantar fasciitis as a result of his federal duties
and although Dr. Morley addresses this condition on multiple occasions, in a June 11, 2013 letter, counsel contends
that appellant did not intend to claim an injury due to plantar fasciitis in this case.

2

acceleration was permanent and not temporary, noting that appellant’s x-ray showed that he had
end stage arthritis in both hips as well as advanced multiple level degenerative changes in his
lumbosacral spine.
On June 11, 2013 OWCP accepted appellant’s claim for aggravation of osteoarthritis,
bilateral hips.
On July 18, 2013 appellant filed a claim for a schedule award (Form CA-7).
In a June 26, 2013 report, Dr. Morley indicated that appellant’s duties as a letter carrier
had a contributory negative affect on his degenerative arthritis by causing a further permanent
acceleration of the preexisting lower extremity degenerative arthritis. He opined that the
accelerated loss of the articular surface caused by the performance of laborious physical duties
(such as those of letter carrier) on a joint already afflicted with arthritis was of a permanent
nature, noting that as the articular surface of the joint continued to wear the joint space and this
diminishment was permanent and would not reverse itself. Applying the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)5, Dr. Morley
opined that appellant had 50 percent lower extremity impairment due to his left hip injury. He
also noted that appellant had 50 percent impairment to his right lower extremity due to his hip
injury and 5 percent right lower extremity impairment due to his plantar fasciitis, which resulted
in 51 percent permanent impairment of the right lower extremity.
In a September 11, 2013 letter, Dr. Morley indicated again that the acceleration and
hastening of the underlying arthritic process by appellant’s arduous physical duties of his federal
employment was permanent rather than temporary. He also indicated that there was no such
thing as a temporary acceleration because it was a completed process once it occurred.
Dr. Morley opined that impact loading on the weight bearing lower extremity joints in a patient
suffering from hip arthritis would bring that patient to end stage sooner, thereby requiring
arthroplasty sooner than one who does not engage in such loading activities.
In a June 11, 2014 report, OWCP’s medical adviser indicated that the aggravation of
appellant’s bilateral hip symptoms by factors of his employment were of a temporary, selflimiting nature and magnitude, and did not accelerate his bilateral hip osteoarthritis process. He
opined that factors of his federal employment may have caused a temporary, symptomatic
aggravation of his underlying preexisting bilateral hip osteoarthritis. The medical adviser noted
that there was no validation or substantiation that appellant’s factors of employment accelerated
his bilateral hip osteoarthritis process. He noted that it was more probable than not that had he
stopped working prior to the accepted injury, his arthritic condition would have progressed in the
same fashion, nature, rate, and magnitude.
On January 12, 2015 OWCP referred appellant to Dr. Christopher B. Geary, a Boardcertified orthopedic surgeon, for a second opinion. It sent him an attachment containing FECA
definitions of causation, including definitions for direct causation, aggravation, temporary
aggravation, permanent aggravation, acceleration, and precipitation. In an April 6, 2015 opinion
Dr. Geary opined that appellant’s osteoarthritis of both hips was a chronic degenerative
5

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

3

condition, which was not related to appellant’s employment as a federal letter carrier. He noted
that there was no evidence of any discrete injury and he believed that the arthritis would have
progressed in a similar fashion regardless of appellant’s employment as a federal letter carrier.
Dr. Geary noted that appellant’s work activities would have caused temporary aggravations of
his symptoms, but no permanent acceleration of his condition, and certainly there was no
causation. He therefore opined that, as there was no permanent functional loss, that appellant
was not entitled to a schedule award.
By letter dated June 8, 2015, OWCP found that a conflict existed between Dr. Morley
and Dr. Geary with regard to the extent of appellant’s accepted condition. Accordingly, it
referred appellant to Dr. Murray Goodman, a Board-certified orthopedic surgeon, for an
impartial medical examination. OWCP forwarded to Dr. Goodman a copy of the case file. In a
June 15, 2015 report, Dr. Goodman noted that appellant was an obese man standing 75 inches
tall weighing 322 pounds and diagnosed advanced osteoarthritis of both hips. He opined that
appellant suffered from primary osteoarthritis of both hips that was not causally related to his
occupation as a letter carrier. Dr. Goodman noted that the natural progression of osteoarthritis of
the hips resulted in increasing symptoms. He also noted that temporary relief could be obtained
through oral medications or intraarticular steroid injections, however, the only permanent cure
was a total hip arthroplasty. Dr. Goodman opined that increased activity could temporarily
aggravate appellant’s symptoms and rest could help relieve the symptoms somewhat. However,
in the absence of a discrete traumatic event, he further opined that increased physical activity
would not cause a permanent aggravation or acceleration of this condition. Dr. Goodman
concluded that the present level of symptoms was causally related to the natural progression of
the disease rather than any permanent aggravation or acceleration causally related to appellant’s
employment.
By decision dated February 22, 2016, OWCP denied appellant’s claim for a schedule
award because the requirements had not been met for entitlement to a schedule award.
On November 10, 2016 appellant, through counsel, requested reconsideration. Counsel
argued that new evidence, including a new medical report by Dr. Morley, required a finding that
the employment-related aggravation and acceleration of appellant’s hip arthritis was permanent.
He contended that appellant’s statement as to how his injury occurred was entitled to the weight
of the evidence unless refuted by strong and persuasive evidence. Counsel also argued that it
was an error of law to give any probative value to the opinion of the impartial medical examiner
because his opinion contradicted applicable legal and medical standards and precedent. He
argued that OWCP never provided the impartial medical examiner a definition of acceleration
and permanent aggravation as contained in OWCP procedures. Counsel also contended that
precedent indicated that injured federal employees with similar job duties had their claims
approved, and that it would be a miscarriage of justice to not approve appellant’s claim.
In a May 13, 2015 medical report, Dr. Steven J. Schroeder, a Board-certified
neurosurgeon, noted that appellant was complaining of left hip pain. He diagnosed bilateral hip
osteoarthritis. Dr. Schroeder determined that appellant should have a total hip replacement at
some time in the future, but he should lose weight preoperatively to decrease risks.

4

Counsel also submitted multiple treatment notes from Dr. Young-Min Kwon, a Boardcertified orthopedic surgeon. In an August 26, 2015 progress note, Dr. Kwon indicated that xrays showed osteoarthritis of bilateral hips and right joint space narrowing and osteophyte
formation. In an April 27, 2016 report, he noted that appellant had gastric sleeve surgery which
resulted in weight loss of 60 pounds. Dr. Kwon noted that appellant continued to have bilateral
hip pain with 9/10 intensity. On June 13, 2016 he performed a right total hip arthroplasty. In an
August 3, 2016 note, Dr. Kwon noted that appellant was progressing well after his right total hip
replacement, but that his left hip was increasingly becoming symptomatic. On August 26, 2016
he performed a left total hip arthroplasty.
In an October 19, 2016 report, Dr. Morley reiterated his prior opinion that appellant’s
progressive and end-stage bilateral hip osteoarthritis was causally related to the prolonged heavy
physical demands of his occupation as a letter carrier. He indicated that a traumatic event was
not required for appellant’s work activities to accelerate or aggravate arthritis. Dr. Morley
indicated that, although there may be a temporary worsening of the inflammation associated with
the osteoarthritis, the deterioration of the hyaline cartilage was permanent and irrevocable and
could not improve. He noted that, because of appellant’s persistent hip osteoarthritic symptoms,
he eventually underwent bilateral hip replacement.
In a November 4, 2016 statement, appellant provided a further description of his work
duties.
By decision dated December 19, 2016, OWCP noted the medical opinions of record,
including the opinion of Dr. Goodman, the impartial medical examiner, and determined that the
evidence was not of sufficient probative value to modify the decision dated February 22, 2016.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.6 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides, as the uniform standard applicable to all claimants.7 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.8

6

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found.
7

20 C.F.R. § 10.404(a).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).

5

Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.9 The Board notes that before applying the A.M.A., Guides, OWCP must
determine whether the claimed impairment of a scheduled member is causally related to the
accepted work injury.10 The claimant has the burden of proving that the condition for which a
schedule award is sought is causally related to his or her employment.11
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.12 The implementing regulations state
that, if a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.13 In situations where there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.14
ANALYSIS
OWCP accepted that appellant sustained an aggravation of his underlying condition of
bilateral osteoarthritis in his hips as a result of his federal employment duties. Appellant
requested a schedule award. For entitlement to a schedule award, he has the burden of proof to
establish that the condition for which compensation is sought is causally related to his
employment.15
The Board finds that this case is not in posture for decision.
In support of his claim for a schedule award, appellant submitted multiple medical reports
by Dr. Morley on the issue of the nature and extent of his permanent impairment. Dr. Morley
opined that the acceleration of appellant’s underlying arthritic process was related to appellant’s
arduous physical duties and resulted in a permanent impairment to his bilateral lower extremities.
In a report dated June 26, 2013, after applying the A.M.A., Guides, he indicated that appellant
9

Thomas P. Lavin, 57 ECAB 353 (2006).

10

Michael S. Mina, 57 ECAB 379, 385 (2006).

11

Veronica William, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).
12

R.C., Docket No. 12-0437 (issued October 23, 2012).

13

20 C.F.R. § 10.321.

14

F.C., Docket No. 14-0560 (issued November 12, 2015).

15

Supra note 7 at Chapter 2.808.11 (February 2013).

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had 51 percent permanent impairment to his right lower extremity and 50 percent permanent
impairment to his left lower extremity.
OWCP undertook further development of appellant’s schedule award claim by referring
him to an OWCP medical adviser. The medical adviser disagreed with Dr. Morley’s assessment
of a permanent impairment due to the accepted condition. Rather, he opined that appellant’s
federal employment duties may have caused a temporary, symptomatic aggravation of his
underlying, preexisting bilateral hip osteoarthritis, but that there was no substantiation that
appellant’s employment factors accelerated his bilateral hip osteoarthritis process.
OWCP then referred appellant for a second opinion with Dr. Geary, who in an April 6,
2015 opinion, provided a conclusory opinion that appellant’s osteoarthritis of both hips was a
chronic degenerative condition which was not related to his employment as a federal letter
carrier.16 Dr. Geary noted that, although appellant’s work activities would have caused a
temporary aggravation of his symptoms, he believed that there was no permanent acceleration of
his condition, and therefore appellant was not entitled to a schedule award. The Board finds that,
while he provided an opinion on his own physical examination, he did not provide any medical
rationale as to how or why appellant’s specific employment duties were insufficient to cause or
permanently aggravate appellant’s bilateral hip osteoarthritis.17 Dr. Geary’s report is therefore of
limited probative value and is insufficient to create a conflict in medical opinion with Dr. Morley
as to the permanency of the accepted employment condition.18
Due to a purported conflict between Drs. Morley and Geary, OWCP scheduled appellant
for an examination with Dr. Goodman. As the Board has found the opinion of Dr. Geary
insufficient to create a conflict, the opinion of Dr. Goodman is not that of an impartial medical
specialist. However, his report may be reviewed for its own probative value on the issue of the
permanency of the accepted employment condition.19
In a June 15, 2015 report, Dr. Goodman opined that appellant suffered from primary
osteoarthritis of both hips that was not causally related to his occupation as a letter carrier. He
opined that increased activity could temporarily aggravate appellant’s symptoms, but that in the
absence of a traumatic event, physical activity would not cause a permanent aggravation or
acceleration of his condition. However, Dr. Goodman did not provide any medical rationale or
support for his opinion that a traumatic event, as opposed to cumulative employment duties, is
necessary to aggravate or accelerate hip osteoarthritis. He concluded that appellant’s present
level of symptoms was causally related to the natural progression of the disease (osteoarthritis)

16
J.D., Docket No. 14-2016 (issued February 27, 2015) (a mere conclusory opinion provided by a physician,
without the necessary rationale explaining how and why the work factors were insufficient to result in diagnosed
medical conditions, is insufficient to be granted the weight of the evidence).
17

R.M., Docket No. 16-0147 (issued June 17, 2016).

18

C.H., Docket No. 16-1806 (issued March 9, 2017).

19

D.M., Docket No. 07-1050 (issued September 24, 2007).

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rather than any permanent aggravation or acceleration causally related to his employment. This
conclusion is found to be conclusory in nature and thus of limited probative value.20
Appellant submitted additional medical reports and treatment notes in support of his
claim. These medical records were from Drs. Schroeder and Kwon, but they have limited
probative value as they do not provide any opinion as to the cause of appellant’s hip conditions.21
In response to the opinion of Dr. Goodman, appellant also submitted an opinion of Dr. Morley,
contained in an October 19, 2016 report, that the bilateral hip osteoarthritis suffered by appellant
was causally related to the prolonged heavy physical demands of his occupation as a letter
carrier. Dr. Morley contradicted Dr. Goodman’s assertion that a traumatic event was required to
accelerate or aggravate arthritis, noting that demands of the postal carrier position over many
years were sufficient for a progressive onset and worsening of his medical conditions, including
hip osteoarthritis. He indicated that, although there may be a temporary worsening of the
inflammation associated with the osteoarthritis, the deterioration of the hyaline cartilage was
permanent and irrevocable.
After consideration of the medical evidence of record, the Board finds that, while
Drs. Geary and Goodman opined that appellant’s bilateral hip osteoarthritis was not a permanent
condition, their opinions were merely conclusory as they did not provide medical rationale or
other support for a finding of a lack of causation, aggravation, or acceleration resulting in a
permanent impairment. Furthermore, Dr. Goodman opined that because appellant had not
sustained a prior traumatic work injury that his arthritic condition could not have been
aggravated due to his employment duties. The Board finds that Dr. Goodman did not
specifically address how or why the accepted duties, activities, and responsibilities of appellant’s
federal employment, as set forth in the statement of accepted facts dated April 2, 2014, were
insufficient to result in a permanent aggravation of his bilateral hip osteoarthritis, nor did he
provide a well-reasoned explanation as to how a progressed arthritic condition would be
temporary in nature or return to a baseline condition once aggravated.
It is well established that, proceedings under FECA are not adversarial in nature and that
while the employee has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence in order to see that justice is done.22
Once OWCP undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.23 After undertaking
development by scheduling medical examinations with Drs. Geary and Goodman on the issue of
the permanency of the accepted condition, OWCP was responsible for obtaining rationalized
medical opinion evidence necessary to resolve the issue. As neither selected physician has
provided such a reasoned opinion, either Dr. Geary or Dr. Goodman should be requested to
provide probative medical rationale in support of his medical opinion. If neither physician is

20

Supra note 17.

21

J.G., Docket No. 15-1468 (issued October 7, 2015).

22

Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

23

See B.C., Docket No. 15-1853 (issued January 19, 2016).

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able or willing to do so, a new second opinion examination should be scheduled in accordance
with OWCP procedures.24
Following this and any necessary further development on this issue, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2016 is set aside and the case is remanded for
further development consistent with this opinion of the Board.
Issued: January 18, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
24
OWCP’s procedures provide that, if a second opinion specialist submits an opinion which is equivocal, lacks
rationale, or fails to address the specified medical issues, the claims examiner should seek clarification or further
rationale from that physician. When OWCP undertakes to develop the evidence by referring the case to an Officeselected physician, it has an obligation to seek clarification from its physician upon receiving a report that did not
adequately address the issues that OWCP sought to develop. As such, the claims examiner should seek clarification
from the referral physician and request a supplemental report to clarify specifically-noted discrepancies or
inadequacies in the initial second opinion report. Only if the second opinion physician does not respond, or does not
provide a sufficient response after being asked, should the claims examiner request scheduling with another
physician. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.9(j) (September 2010).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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Appearances:
Matt Pierce, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1609
Issued: December 4, 2017

Case Submitted on the Record

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

JURISDICTION
On July 19, 2017 appellant, through her representative, filed a timely appeal from a
January 25, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days elapsed from OWCP’s last merit decision, dated January 14, 2016, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.

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 OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 13, 1997 appellant, then a 33-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging a right knee condition that she first became aware of on
January 30, 1997. She indicated that her right knee hurt when she walked up and down stairs,
walked for long distances, or carried her mailbag. Appellant stopped work on January 31, 1997
and returned to light-duty work shortly thereafter.
On June 11, 1998 OWCP accepted appellant’s claim for a right knee strain.
Appellant stopped work on March 26, 1999. On that same date, Dr. Alan P. Newman, an
attending Board-certified orthopedic surgeon, performed OWCP-authorized right knee surgery,
including right partial medial and lateral meniscectomies. OWCP subsequently expanded the
accepted conditions to include medial and lateral meniscus tears of the right knee.
On April 12, 1999 appellant returned to light-duty work at the employing establishment
for four hours per day and, on July 12, 1999, she returned to light-duty work for eight hours per
day.
Appellant stopped work again on September 12, 2000. On that same date, Dr. Newman
performed OWCP-authorized right knee surgery, including a right partial lateral meniscectomy.
On December 12, 2000 she began another light-duty job for the employing establishment and, in
an October 18, 2002 decision, OWCP adjusted her compensation to reflect its determination
regarding her loss of wage-earning capacity based on her ability to earn wages in that position.
Appellant again stopped work on January 20, 2004. On that same date, Dr. Newman
performed OWCP-approved right knee surgery, including right medial meniscectomy with
anterior cruciate ligament reconstruction (patellar tendon autograft).3 On March 24, 2004
OWCP accepted the additional condition of anterior cruciate ligament tear of the right knee.
On April 29, 2004 appellant returned to work in a light-duty job and, on July 14, 2005,
she filed a claim for a schedule award (Form CA-7). By an April 27, 2006 decision, OWCP
granted her a schedule award for 16 percent permanent impairment of her right lower extremity.4
In December 2011 appellant began working in a light-duty job on a part-time basis.
In a June 27, 2013 report, Dr. Lindsey S. Martinson, an attending Board-certified
occupational medicine physician, indicated that appellant had permanent work restrictions of
3

Appellant received disability compensation on the daily rolls beginning January 20, 2004.

4

In a Form CA-7 received on May 31, 2011 appellant claimed an additional schedule award. By an August 26,
2011 decision, OWCP denied modification of its April 27, 2006 schedule award determination.

2

lifting, carrying, pushing, and pulling no more than 10 pounds; performing sedentary desk work
only; sitting, standing, and walking as tolerated; and using an ergonomic chair. She noted that, if
such modified activity was not accommodated by the employing establishment, appellant would
then be considered temporarily and totally disabled from work and a separate off-work order
would not be required.
Appellant stopped work on January 27, 2014. On February 11, 2014 she filed a claim for
compensation (Form CA-7) alleging that she was totally disabled from work for the period
January 27 to February 7, 2014 due to her accepted work injuries. Appellant filed additional
CA-7 forms claiming disability for the period February 7 to October 31, 2014. She claimed that
she sustained such disability because the employing establishment failed to provide her with
light-duty work within her work restrictions.
In an August 5, 2014 decision, OWCP denied appellant’s claim for wage-loss
compensation beginning January 27, 2014 and continuing. It found that she failed to submit
sufficient medical evidence to establish a worsening of her work-related medical condition which
prevented her from working on or after January 27, 2014.
On October 7, 2014 appellant requested reconsideration. She continued to argue that she
sustained disability beginning January 27, 2014 because the employing establishment failed to
provide her with light-duty work within her work restrictions.
In an October 31, 2014 decision, OWCP denied modification of its August 5, 2014
decision. It found that appellant had not established her claim for ongoing wage-loss
compensation beginning January 27, 2014 because she had failed to submit sufficient medical
evidence to establish a worsening of her work-related medical condition which prevented her
from working on or after January 27, 2014.5
On October 30, 2015 appellant, through her representative, again requested
reconsideration. He noted that appellant’s work restrictions had not changed and argued that she
sustained disability beginning January 27, 2014 because the employing establishment failed to
provide her with light-duty work within her work restrictions.
Appellant submitted a November 12, 2015 report from Dr. Martinson who indicated that
she had permanent work restrictions of lifting, carrying, pushing, and pulling no more than 10
pounds; performing sedentary desk work only; sitting, standing, and walking as tolerated; and
using an ergonomic chair.6
In a January 14, 2016 decision, OWCP denied modification of its October 31, 2014
decision. It found that appellant had not established her claim for wage-loss compensation
beginning January 27, 2014 because she failed to submit sufficient medical evidence to establish
5

The record reflects that appellant returned to work for the employing establishment in late-October 2014.

6

Dr. Martinson noted that, if such modified activity was not accommodated by the employing establishment,
appellant would then be considered temporarily and totally disabled from work and a separate off-work order would
not be required.

3

a worsening of her work-related medical condition which prevented her from working on or after
January 27, 2014.
In a January 14, 2017 letter, received by OWCP on January 16, 2017, appellant’s
representative requested reconsideration of OWCP’s January 14, 2016 decision on behalf of
appellant. He indicated that OWCP had repeatedly denied appellant’s claim for disability
beginning January 27, 2014 because she failed to provide medical evidence establishing a
worsening of her work-related medical condition. The representative noted, however, that
appellant was working on a part-time basis and claimed disability not because her work-related
medical condition had worsened, but rather because the employing establishment failed to
provide her with full-time modified work within her current medical restrictions. He asserted
that appellant was willing to work during the claimed period of disability, but noted that in
January 2014 the employing establishment only provided her part-time work with variable hours
that was not within her work restrictions. This lack of availability of appropriate work continued
until the employing establishment located full-time modified work within appellant’s restrictions
in October 2014. The representative indicated that appellant’s work-related condition and
medical restrictions had not changed. He noted that appellant had continued to work on a fulltime basis performing modified work from late-October 2014 through to the present.
The representative also noted that the record contained several job offers the employing
establishment made to appellant beginning in February 2014 which did not provide full-time
work and were not within her work restrictions. He asserted that OWCP did not address this
evidence in its decisions denying appellant’s disability claim. The representative indicated that
the record also contained CA-7 forms, produced during the period of appellant’s claimed
disability, in which an employing establishment manager acknowledged that full-time modified
work was not available for appellant. He asserted that the relevant precedent dictated that
appellant was due wage-loss compensation beginning January 27, 2014 due to the employing
establishment’s failure to provide her full-time modified work within her medical restrictions.
Appellant submitted several documents in support of her reconsideration request,
including a document describing a modified assignment offered by the employing establishment
on August 11, 2016.
In a January 9, 2017 narrative report, Dr. Amy Kerfoot, an attending Board-certified
occupational medicine physician, described the findings of an examination performed on that
date, diagnosed stable right knee arthritis, and indicated that appellant had permanent work
restrictions. In a January 9, 2017 duty status report (Form CA-17), she detailed those
restrictions, including no lifting more than 20 pounds, no standing or walking for more than four
hours per day, and no climbing, kneeling, bending, or twisting.
Appellant also resubmitted a copy of the November 12, 2015 report in which
Dr. Martinson, an attending physician, delineated her permanent work restrictions.
In a January 25, 2017 decision, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It found that
appellant failed to file a timely request for reconsideration because her request for
reconsideration was not received until January 16, 2017, more than one year after issuance of its

4

January 14, 2016 merit decision. OWCP also determined that appellant had not demonstrated
clear evidence of error on its part in issuing its January 14, 2016 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his or her own motion or on
application. The Secretary, in accordance with the facts found on review, may end, decrease or
increase the compensation awarded; or award compensation previously refused or discontinued.7
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.8 Timeliness is determined
by the document receipt date (i.e., the “received date” in OWCP’s Integrated Federal Workers’
Compensation System.9 However, OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s application for review shows
clear evidence of error on the part of OWCP in its most recent merit decision. 10 To demonstrate
clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. The evidence must be positive, precise, and explicit and must be manifest on its face
that OWCP committed an error.11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.12 The Board
notes that clear evidence of error is intended to represent a difficult standard.13 Evidence that
does not raise a substantial question concerning the correctness of OWCP’s decision is
insufficient to demonstrate clear evidence of error.14 It is not enough merely to establish that the
evidence could be construed so as to produce a contrary conclusion.15 This entails a limited
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

10

OWCP’s regulations provide that, where the request for reconsideration is untimely and fails to demonstrate
clear evidence of error, OWCP will deny the application for reconsideration without reopening the case for a review
on the merits. 20 C.F.R. § 10.608(b).
11

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

12

Annie L. Billingsley, 50 ECAB 210 (1998).

13

R.K., Docket No. 16-0355 (issued June 27, 2016).

14

Jimmy L. Day, 48 ECAB 652 (1997).

15

Id.

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review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.16 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.17
ANALYSIS
OWCP accepted that appellant sustained several occupational right knee injuries,
including a strain, medial and lateral meniscus tears, and anterior cruciate ligament tear, and it
approved right knee surgeries which were performed in 1999, 2000, and 2004. Appellant
claimed that she had disability beginning January 27, 2014 due to her accepted employment
conditions. In decisions dated August 5 and October 31, 2014 and January 14, 2016, OWCP
denied appellant’s claim, finding that she failed to submit sufficient medical evidence to
establish a worsening of her work-related medical condition which prevented her from working
on or after January 27, 2014. On January 16, 2017 appellant requested reconsideration of
OWCP’s January 14, 2016 decision.
In a January 25, 2017 decision, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error. It found that she failed to
file a timely request for reconsideration because her request for reconsideration was not received
until January 16, 2017, more than one year after issuance of its January 14, 2016 merit decision.
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.18 As appellant’s request for
reconsideration was not received by OWCP until January 16, 2017, more than one year after
issuance of its January 14, 2016 merit decision, it was untimely filed.19 Consequently, she must
demonstrate clear evidence of error by OWCP in its January 14, 2016 decision.
In its January 25, 2017 decision, OWCP also determined that appellant failed to
demonstrate clear evidence of error on its part in issuing its January 14, 2016 decision. In
making this determination, it did not provide any discussion of the evidence and argument
appellant submitted in connection with her request for reconsideration or provide any reasoning
for its determination that she had failed to demonstrate clear evidence of error on its part in
issuing its January 14, 2016 decision.
In connection with her reconsideration request, appellant submitted a January 14, 2017
letter from her representative which contained extensive argument in support of her claim for
work-related disability beginning January 27, 2014. In its January 25, 2017 decision denying
merit review, OWCP did not address the argument presented by appellant’s representative.
16

Id.

17

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

18

See supra note 8.

19

The 365-day period for filing a timely request for reconsideration ended on Friday, January 13, 2017.

6

Appellant submitted documents in support of her reconsideration request, including several
medical reports and an offer of light-duty work. However, OWCP also failed to address this
evidence in its January 25, 2017 decision.
The Board finds that OWCP did not provide adequate facts and findings in its January 25,
2017 decision explaining its reasoning for determining that appellant failed to demonstrate clear
evidence of error on its part with respect to its January 14, 2016 decision. In deciding matters
pertaining to a given claimant’s entitlement to compensation benefits, OWCP is required by
statute and regulation to make findings of fact.20 OWCP procedure further specifies that a final
decision of OWCP “should be clear and detailed so that the reader understands the reason for the
disallowance of the benefit and the evidence necessary to overcome the defect of the claim.”21
These requirements are supported by Board precedent.22
Given its lack of adequate factual findings, OWCP’s January 25, 2017 decision would
not allow appellant to understand the reason for the disallowance of the benefit or the evidence
necessary to overcome the defects of her claim.23 In its January 25, 2017 decision, OWCP did
not discuss the evidence submitted, or explicitly provide the basis for its finding that the
evidence was insufficient to require reopening of appellant’s claim for merit review.24 For these
reasons, the case must be remanded to OWCP for further development to include the issuance of
an appropriate decision containing adequate factual findings with respect to appellant’s untimely
reconsideration request.
CONCLUSION
The Board finds that the case is not in posture for decision.

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
20

21

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e)
(February 2013).
22

See James D. Boller, Jr., 12 ECAB 45, 46 (1960). OWCP procedures provide that, if clear evidence of error
has not been presented, the request should be denied according to 20 C.F.R. § 10.608(b) and OWCP’s claims
examiner should deny the application by letter decision, which includes a brief evaluation of the evidence submitted
and a finding that clear evidence of error has not been shown. See Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.5b (February 2016).
23

See supra note 19.

24

As noted above, OWCP procedures provide that a decision finding that clear evidence of error has not been
shown should include a discussion of the evidence submitted in support of the request for reconsideration. See
supra note 20.

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ORDER
IT IS HEREBY ORDERED THAT the January 25, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: December 4, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
U.S. ARMY, U.S. ARMY MEDICAL
RESEARCH INSTITUTE OF INFECTIOUS
DISEASES, Fort Detrick, MD, Employer
__________________________________________

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

Docket No. 15-0807
Issued: August 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 26, 2015 appellant filed a timely appeal from the September 3, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has established expansion of her claim to include a right
shoulder condition or any other condition causally related the July 23, 2012 accepted work
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 23, 2012 appellant, a 47-year-old biologist, sustained a traumatic injury in the
performance of duty when she received a routine smallpox vaccination. She developed a large
blister at the site, which required drainage on two occasions. On August 9, 2012 appellant
presented with localized redness, pain, warmth, and firmness at the site. She was found to have a
localized allergic reaction to the vaccination.
On August 29, 2012 Dr. Renata J.M. Engler, a Board-certified allergist and
immunologist, related appellant’s history and symptoms and findings on physical examination.
In addition to fatigue, shoulder myalgia and myositis, and hypertension (systemic), she assessed
generalized myalgias with features of arthralgias and joint stiffness. “Onset linked with cytokine
peaks triggered by potent THl cytokine responses to vaccinia immunization.… Symptoms may
have been confounded by overlapping drug reaction….” Dr. Engler also assessed dermatitis due
to drugs and medicines, generalized. She noted a generalized rash with onset temporally
associated to peak vaccinia reactions following immunization “but etiology confounded by
addition of antibiotic.” Dr. Engler added that appellant’s response to corticosteroids suggested
immune mediated rash rather than other infection as the source.
OWCP accepted appellant’s claim for contact dermatitis due to drugs or medicines in
contact with skin.
Given the chronicity of her right shoulder pain, OWCP referred appellant, together with
her medical record and a statement of accepted facts, to Dr. Jonathan R. Van Meter, a Boardcertified dermatologist. Dr. Van Meter examined her on November 15, 2013. It was his opinion
that, as he observed no current rash on examination, there was no need for continuing active
treatment and as the skin reaction had resolved, continuing physical therapy was not required.
OWCP also referred appellant to Dr. Ulgan I. Sila, a Board-certified allergist and
immunologist, for the purpose of determining whether the smallpox vaccine could cause a
shoulder condition. Dr. Sila related appellant’s history. He noted that on April 30, 2013 she
received a routine tuberculosis skin test on her left forearm, to which she had a severe reaction
with warmth and erythema. The left arm was painful and moderately swollen and during this
time, there was a significant flare up of appellant’s right arm and shoulder pain. Dr. Sila
described his findings on physical examination. The right shoulder had no gross limitation of
motion, but the neck and right upper shoulder were sensitive to touch.
Dr. Sila diagnosed an adverse reaction to a smallpox vaccination characterized by an
exaggerated local reaction, generalized pruritic dermatitis, and chronic pain syndrome involving
the shoulder area. Asked if a smallpox vaccination would cause a severe allergic reaction, he
explained that it could cause an immediate allergic or hypersensitivity reaction, most likely due
to the vaccine or its various components, such as antibiotics that are present in the vaccine. Such
immediate reactions were usually IgE mediated, occurred within several hours after the
administration of the vaccine, and were characterized by generalized dermatitis, pruritus, and
symptoms of anaphylaxis, such as hypertension, breathing difficulties, cardiac abnormalities, and
abdominal pain. Dr. Sila explained that a hypersensitivity reaction could also be delayed

2

Type III reaction, such as serum sickness or Arthus reaction.2 Arthus reaction could occur
within a few hours and was a local reaction involving pain, redness, swelling, and sometime
tissue damage. Serum sickness was a generalized reaction occurring 7 to 21 days after an
injection of the antigen and was characterized by generalized rash, fever, lymph node
enlargement, and sometimes urinary problems. Dr. Sila reiterated that a hypersensitivity reaction
could involve the local vaccination site or become systemic, or both.
OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified orthopedic
surgeon. He noted that appellant’s condition appeared to resolve gradually over time, but at one
point there was concern that because of the rather severe reaction to the vaccination there might
be an underlying abscess or encroachment into the deep structures around the shoulder joint. An
imaging study proved to be benign, however. Appellant nonetheless continued to complain of
severe pain about her shoulder, which she stated involved both of her arms, causing weakness
and muscle pain. “Apparently, [appellant] has some concern that she has other types of
conditions such as thoracic outlet syndrome or chronic regional pain syndrome related to this
incident.”
Dr. Smith described his findings on physical examination. It was obvious to him that
appellant was sensitive to these types of vaccination procedures, but it did not appear that she
had any identifiable chronic destruction of her right shoulder joint. He confirmed that contact
dermatitis was the correct and appropriate diagnosis for her case. Dr. Smith could find no
evidence of any musculoskeletal involvement with regard to the right shoulder joint that would
require an additional diagnosis being added to the accepted medical conditions. He observed:
“In my opinion, [appellant’s] symptoms are difficult to explain at this point from an objective
[perspective] given her relatively benign examination and essentially normal structural studies.”
In a decision dated March 14, 2014, OWCP denied an expansion of the accepted
conditions in appellant’s case.
Appellant requested a review of the written record by an OWCP hearing representative.
She noted that in May 2013 she received a tuberculin skin test on her left arm that exacerbated
her hyperimmune inflammatory response.
Dr. Jay R. Montgomery, a Board-certified family physician specializing in allergy and
immunology, advised on March 31, 2014 that it was his opinion that appellant’s right upper
extremity findings were suggestive of brachial plexus neuritis. Brachial plexus neuritis
following immunization against smallpox had been reported. Dr. Montgomery explained that the
exact etiology of postvaccination brachial plexus neuritis was unknown, but an aberrant
autoimmune possibility existed, rather than direct injury to the nerve. “Given the continued
weakness documented most recently by the US Hansen’s Center, [brachial plexus neuritis] seems
all the more a possibility.” In the absence of other causes, using the World Health
Organization’s most current Protocol of Assessing Vaccine Adverse Event Causally, the
evidence presented in appellant’s case would be adjudged “consistent with a causal association
to immunization.”
2

Dr. Sila noted that appellant had previously received a smallpox vaccination as a child.

3

Appellant submitted reference materials relating brachial plexus neuropathy and its
clinical presentation, smallpox vaccinations and adverse reactions, acute brachial neuropathy,
and brachial plexus neuritis following genital human papillomavirus vaccination.
Dr. Patricia I. Dillon, Chief of the Medical Biosurety Program at the Barquist Army
Health Clinic, related appellant’s history on May 20, 2013. After receiving the smallpox
vaccination, appellant demonstrated hypersensitivity to medications. The immune-triggered
inflammatory process tended to occur in the right shoulder area involving the joint and overlying
muscles. X-ray studies confirmed that there was an inflammatory reaction in the bursa region of
the shoulder joint. Appellant continued to experience chronic pain. Dr. Dillon advised that it
was their working diagnosis that the smallpox vaccination triggered a hypersensitivity immune
cascade. On April 1, 2014 she noted that appellant would be following up with the
immunologists at the Walter Reed National Military Medical Center with the goal of identifying
what did and what did not cause her hyperimmune response in order to better identify the
component of her immune system that had become hyperresponsive. Dr. Dillon indicated that,
although testing for an underlying medical condition had thus far been negative, appellant’s
symptoms were consistent with brachial neuritis secondary to the smallpox vaccination.
In a decision dated September 3, 2014, an OWCP hearing representative affirmed the
March 14, 2014 decision denying an expansion of the accepted medical conditions in appellant’s
case due to the lack of any substantial medical findings.
On appeal appellant argues that contact dermatitis was only one of the numerous
symptoms she exhibited after the smallpox vaccination. Because of the complex nature of her
reaction, she was evaluated by a number of medical specialists, and their consensus was that her
condition was due to an injury triggered by the smallpox vaccination, which resulted in an
inflammatory joint and nerve condition. Appellant points to Dr. Engler’s August 29, 2012 report
as to how the injury resulted in her diagnosed conditions. She points to comments made by an
advanced practice registered nurse on September 23, 2012. Appellant also points to a
December 20, 2013 letter written by Dr. Dillon in which she takes issue with a nonphysician
evaluating the probative value of medical opinions and she takes issue with the hearing
representative’s discussion of the evidence.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,3 including that he or she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he or she claims compensation is causally related to that employment injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

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

5

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

4

physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
OWCP is not a disinterested arbiter but rather performs the role of adjudicator on the one
hand and gatherer of the relevant facts and protector of the compensation fund on the other, a
role that imposes an obligation on OWCP to see that its administrative processes are impartially
and fairly conducted.9 Although the claimant has the burden of establishing entitlement to
compensation, OWCP shares responsibility in the development of the evidence.10 Once OWCP
starts to procure medical opinion evidence, it must do a complete job.11 It has the responsibility
to obtain from its referral physician an evaluation that will resolve the issue involved in the
case.12
ANALYSIS
OWCP accepted that appellant sustained a traumatic injury in the performance of duty on
July 23, 2012 when she received a routine smallpox vaccination. The early medical evidence
made clear that appellant had developed a large blister at the site with localized redness, pain,
warmth, and firmness. Appellant was found to have a localized allergic reaction to the
vaccination. Dr. Engler, the attending allergist and immunologist, diagnosed dermatitis due to
drugs and medicines. She noted a generalized rash with onset temporally associated to peak
vaccinia reactions following immunization. Thus, OWCP accepted appellant’s claim for contact
dermatitis due to drugs or medicines in contact with skin.
Appellant claims, however, that the vaccination caused more than dermatitis. She argues
that it also caused an inflammatory joint and nerve condition or hyperimmune inflammatory
response. Appellant bears the burden of proof to establish the essential elements of causal
relationships. Causal relationship requires a rationalized medical opinion explaining, to a
reasonable degree of medical certainty and based on objective clinical findings, how her
smallpox vaccination caused a firmly diagnosed inflammatory joint and nerve condition or
hypersensitivity reaction.
6

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

7

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

8

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

9

Thomas M. Lee, 10 ECAB 175 (1958).

10

William J. Cantrell, 34 ECAB 1233 (1983); Gertrude E. Evans, 26 ECAB 195 (1974); see John J. Carlone, 41
ECAB 345, 358 (1989) (finding that the medical evidence was not sufficient to discharge claimant’s burden of proof
but remanding the case for further development of the medical evidence given the uncontroverted inference of causal
relationship).
11

William N. Saathoff, 8 ECAB 769 (1956).

12

Mae Z. Hackett, 34 ECAB 1421, 1426 (1983); Richard W. Kinder, 32 ECAB 863, 866 (1981) (noting that the
report of OWCP referral physician did not resolve the issue).

5

The record contains several medical opinions that are supportive of appellant’s claim.
Dr. Engler noted that the onset of appellant’s diagnosed generalized myalgias, with features of
arthralgias and myositis, was linked with cytokine peaks triggered by potent Th1 cytokine
responses to the vaccinia immunization. OWCP referred appellant to Dr. Sila, another allergist
and immunologist, for the purpose of determining whether the smallpox vaccine could cause a
shoulder condition. He answered in the affirmative. Dr. Sila diagnosed an adverse reaction to a
smallpox vaccination characterized by an exaggerated local reaction, generalized pruritic
dermatitis, and chronic pain syndrome involving the shoulder area. He confirmed that the
vaccination appellant received could cause an allergic or hypersensitivity reaction, which could
involve the local vaccination site or become systemic, or both. The characteristic symptoms he
described appeared to reflect appellant’s reaction. Although this tended to support the linkage
Dr. Engler observed between appellant’s chronic pain condition and the vaccination, OWCP did
not ask Dr. Sila to comment on Dr. Engler’s opinion or to address whether the July 23, 2012
smallpox vaccination had indeed caused a medical condition other than contact dermatitis.
Further support for appellant’s claim came from Dr. Montgomery, another allergist and
immunologist. He believed that her right upper extremity findings were suggestive of brachial
plexus neuritis. Brachial plexus neuritis following immunization against smallpox had been
reported and although the exact etiology of postvaccination brachial plexus neuritis was
unknown, an aberrant autoimmune possibility existed, as opposed to a direct injury to the nerve.
Given appellant’s continued documented weakness, Dr. Montgomery believed brachial plexus
neuritis was all the more a possibility. It was his opinion that in the absence of other causes,
using the World Health Organization’s most current Protocol of Assessing Vaccine Adverse
Event Causally, the evidence presented in appellant’s case would be adjudged consistent with a
causal association to immunization.
Appellant submitted reference materials relating brachial plexus neuropathy and its
clinical presentation, smallpox vaccinations and adverse reactions, acute brachial neuropathy,
and brachial plexus neuritis following genital human papillomavirus vaccination.13
It was also Dr. Dillon’s opinion that appellant’s symptoms were consistent with brachial
neuritis secondary to the smallpox vaccination. Chief of the Medical Biosurety Program at the
Barquist Army Health Clinic, Dr. Dillon noted that appellant demonstrated hypersensitivity to
medications. The immune-triggered inflammatory process tended to occur in the right shoulder
area involving the joint and overlying muscles. X-ray studies confirmed that there was an
inflammatory reaction occurring in the bursa region of the shoulder joint. Appellant continued to
experience chronic pain. It was Dr. Dillon’s working diagnosis that the smallpox vaccination
triggered a hypersensitivity immune cascade.
There is no medical opinion to the contrary. That is, no physician has taken issue with
any of the opinions offered by Drs. Engler, Sila, Montgomery, and Dillon. Dr. Van Meter, the
referral dermatologist, merely confirmed that appellant had no current rash on examination and
13

Medical texts and excerpts from publications are of no evidentiary value in establishing the necessary causal
relationship as they are of general application and are not determinative of whether the specific condition claimed was
causally related to the particular employment injury involved. Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S.
Vansick, 31 ECAB 1132 (1980).

6

that her skin reaction had resolved and Dr. Smith, the referral orthopedic surgeon, noted that
while it was obvious to him that appellant was sensitive to these types of vaccination procedures,
it did not appear that she had any identifiable chronic destruction of her right shoulder joint.
From an orthopedic perspective, he could find no evidence of any musculoskeletal involvement.
Neither of these reports contradicted the opinions given by the specialists in allergy and
immunology.
The Board will set aside OWCP’s September 3, 2014 decision and will remand the case
for a supplemental opinion from Dr. Silas. OWCP should ask Dr. Silas to comment on the
opinions given by Drs. Engler, Montgomery, and Dillon and to offer his own opinion on whether
appellant’s smallpox vaccination caused an identifiable medical condition other than right
shoulder contact dermatitis. Following such further development as may become necessary,
OWCP shall issue a de novo decision on appellant’s claim. On appeal appellant points to
comments made by an advanced practice registered nurse on September 23, 2012. However, a
nurse is not a “physician” within the meaning of FECA and is therefore not competent to give a
medical opinion on the matter.14 Appellant also references on appeal a letter from Dr. Dillon.
However, that letter is not found in the case record.
CONCLUSION
The Board finds that this case is not in posture for decision on whether the July 23, 2012
work injury caused a right should condition or any other condition. Further development of the
medical opinion evidence is warranted.

14

Vicky L. Hannis, 48 ECAB 538 (1997); see 5 U.S.C. § 8101(2) (the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by state law).

7

ORDER
IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: August 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, FORT WASHINGTON
POST OFFICE, Fort Washington, MD, Employer
__________________________________________

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

Docket No. 11-166
Issued: September 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 26, 2010 appellant, through his attorney, filed a timely appeal of the May 26
and September 9, 2010 merit decisions of the Office of Workers’ Compensation Programs
(OWCP) denying his emotional condition claim. Pursuant to the Federal Employees’
Compensation Act (FECA)1 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 established that he sustained an emotional condition in the
performance of duty.
On appeal, counsel contends that OWCP’s decisions are contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was before the Board on a prior appeal with respect to a recurrence of disability
claim under OWCP File No. xxxxxx567.2 In a January 20, 2011 decision, the Board affirmed
OWCP’s March 11, 2010 decision finding that appellant did not sustain a recurrence of disability
commencing September 11, 2008 causally related to his accepted employment-related lumbar
sprain/strain.
On March 29, 2010 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim under OWCP File No. xxxxxx901 alleging that on March 25, 2010 he experienced a
severe headache and high blood pressure from stress, anxiety and depression due to a hostile
work environment. His work hours had been reduced four times during the past six months
which did not give him adequate time to prepare for his current financial situation. On the date
of injury, Darryl Jones, an acting postmaster, informed appellant that his work hours would be
reduced again because no work was available. Appellant contended that management failed to
accommodate his medical restrictions which violated union policies and procedures. He
contended that Postmaster Jones combatively argued with him on a daily basis about his
restrictions which caused him to constantly feel pressured. Postmaster Jones refused appellant’s
request for documentation regarding the reduction of his work hours. Appellant tried to
complete his work duties and sought medical treatment for his severe headache. He stated that
the Equal Employment Opportunity (EEO) complaints he filed against the employing
establishment and retaliation by management had taken its toll on him. Appellant stopped work
on March 31, 2010.
Medical records dated March 26 and April 1, 2010, found that appellant had anxiety and
insomnia. Appellant was totally disabled for work through June 2, 2010.
By letter dated April 26, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested additional factual and medical evidence.
In a May 17, 2010 letter, appellant alleged that after April 2009 Postmaster Jones became
upset and verbally abusive as appellant was not able to physically perform assignments within
his restrictions. Postmaster Jones told appellant that he was not needed if he could not perform
these assignments. He overrode assignments given to appellant by his supervisor and insisted
that appellant perform regular letter carrier duties. Postmaster Jones denied appellant’s request
for light-duty assignments and continued to provide work outside his restrictions which
exacerbated his employment-related back condition. Appellant was the only light-duty employee
subjected to harassment and verbal abuse about his daily work performance. He was also the
only employee who did not have a daily work schedule. Appellant exhausted his annual leave to
receive a full paycheck when his work hours were reduced. He was verbally abused by
coworkers who mocked his physical disability as they witnessed management’s unprofessional
tactics and verbal abuse from Postmaster Jones and Darryl Pryor, a customer service manager,
directed towards him. In June 2009, Postmaster Jones approached appellant in a threatening
manner and stated that he could not go to his daughter’s graduation. Appellant stated that this
2

Docket No. 10-1272 (issued on January 20, 2011).

2

incident was witnessed by a shop steward. On October 5, 2009 he submitted a light-duty work
form to Postmaster Jones and was advised to report to work on October 6, 2009 at 2:00 p.m.
Appellant begged Postmaster Jones to allow him to finish the week as a full-time employee, but
his request was denied. A few days later Postmaster Jones told a Mr. Treadwell, a union
representative, that appellant’s work hours were reduced because it took him three hours to
deliver three express packages. Appellant contended that this was not true. Postmaster Jones
allowed a Mr. Bolder, a clerk, to cross crafts and deliver express packages, which was a function
removed from appellant’s daily work activities that were authorized by supervisors as being
within his restrictions. As a result appellant’s work hours were reduced while Mr. Bolder, a
nondisabled employee, was given additional hours to perform light-duty work. Appellant noted
that Mr. Bolder was a white male approximately 50 years old while he was a black male of the
same age. Mr. Pryor stated that appellant was an unproductive employee due to his physical
disability. He asked Mr. Treadwell, a union representative, why appellant, a nonproductive
employee, was on the workroom floor. Several employees and union members stated that they
heard Mr. Pryor had a problem with appellant.
When appellant reported to work on several occasions, supervisors left mail for delivery
in a U-cart with his name on it in the foyer of the building. He was humiliated as his coworkers
questioned him about these incidents.
On October 28, 2009 at 4:40 p.m. appellant and Bruce Greenwood, an employee, were at
the time clock when Dharam S. Goraya, a coemployee, yelled that light-duty employees were
worthless, not good and needed to stop work. Mr. Greenwood questioned why Mr. Goraya made
the comment. Appellant replied that he did not know, but stated that was not the first time
Mr. Goraya had directed derogatory comments towards him. He and Mr. Goraya had a heated
exchange about whether Mr. Goraya had a problem with him. A Ms. Ford interrupted them and
told them to calm down. She stated that they were both at fault. On November 28, 2009 the
employing establishment issued a letter to appellant suspending him for 14 days regarding the
October 28, 2009 incident. Appellant stated that Mr. Goraya was not disciplined. During an
interview with Ms. Ford and Craig Baker, a union representative, appellant explained that
Mr. Goraya’s conduct provoked the entire incident. He stated that neither a complete
investigation nor an interview of Mr. Goraya was conducted. Appellant noted that on April 17,
2010 Mr. Goraya became very upset and disruptive about carrying out a “bump.” Management
rewarded Mr. Goraya’s behavior by allowing someone else to carry out the “bump.” Mr. Goraya
was loud and very unprofessional when stating that he should leave and go out on stress leave.
Appellant contended that Mr. Goraya’s comment was a direct reference to him and a personal
attack on his current medical situation. Management refused to discipline Mr. Goraya for his
comment.
On November 4, 2009 appellant advised a Ms. Strohman that he was unable to report to
work due to mechanical problems with his car. He needed to obtain a special part for his car.
Ms. Strohman did not request any type of documentation for his absence. When appellant
reported for duty, Ms. Ford, a supervisor, asked him for documentation that he purchased the
part for his car.
On November 9, 2009 appellant reported to work at 2:00 p.m. and Yolanda Henry, a
supervisor, instructed him to deliver mail on Route 24. This would take 1 hour and 45 minutes

3

to complete which was approximately 45 minutes over his restrictions.
Ms. Henry
acknowledged to appellant that the assignment exceeded his restrictions. Postmaster Jones
approached him in a hostile manner and demanded that he deliver the mail. Appellant responded
that the task exceeded his restrictions and that he would carry mail for one hour as advised by his
physician. When he returned from delivering the mail, he was told by Ms. Henry that she was
instructed by Postmaster Jones to send him home after working two hours because Postmaster
Jones was upset that he did not work beyond his restrictions.
On two occasions appellant was not informed about an appreciation luncheon for
employees that was sponsored by a company that maintained vending machines at the employing
establishment. After the first incident, he approached Postmaster Jones about his exclusion from
the luncheon. Postmaster Jones responded that he would inform appellant about the next
luncheon. Appellant stated that neither Postmaster Jones nor any other manager informed him
about the second luncheon.
Appellant filed several grievances regarding the above-noted incidents eight months ago
and there had been no resolutions or restitution. On April 8, 2010 the employing establishment
acknowledged and accepted amendments to appellant’s EEO complaint. The issues accepted for
investigation included his allegation of discrimination based on his African-American race,
color, sex, age, physical disability related to his accepted back condition and retaliation for his
prior EEO activity when he was subjected to verbal sexual harassment on September 23, 2009,
his work hours were reduced on October 8, 2009 and the employing establishment issued its
November 28, 2009 letter suspending him for 14 days for unacceptable conduct. The amended
issues included appellant’s allegation of discrimination based on physical disability related to his
accepted back condition and retaliation for prior EEO activity which subjected him to a hostile
work environment that resulted in a denial of reasonable accommodation, the reduction of his
work hours from six to four hours per day on March 25, 2010, management’s failure to provide
him with a light-duty assignment within his medical restrictions and placement on leave without
pay on March 25, 2010.
Medical records dated December 21, 2009 and March 10 and 16, 2010 noted appellant’s
complaint of work-related stress and anxiety due to the reduction of his work hours. Appellant
was diagnosed as having depression, elevated blood pressure, sleeplessness and cervical
radiculopathy. His accepted lumbar condition was exacerbated by working outside his
restrictions.
In a May 26, 2010 decision, OWCP denied appellant’s claim. It found that the factual
evidence was sufficient to establish that incidents occurred as alleged. OWCP, however, found
that the medical evidence was insufficient to establish that appellant sustained an emotional
condition causally related to the accepted employment factors.
On June 4, 2010 appellant requested reconsideration. Medical records dated June 3
through July 31, 2010, stated that he had employment-related stress, depression and anxiety.
In a September 9, 2010 decision, OWCP modified the May 26, 2010 decision to reflect
that appellant did not sustain an emotional condition in the performance of duty as he failed to
establish any compensable employment factors.

4

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 claims compensation was caused or
adversely affected by factors of his federal employment.3 To establish that he 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
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.4
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.5 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 his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 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.8
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.9
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
3

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

4

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

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

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

7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
8

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

9

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

5

providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.10 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.11
ANALYSIS
Although appellant initially filed a traumatic injury claim for an incident at work on
March 25, 2010, he subsequently alleged that he sustained an emotional condition as a result of
multiple work incidents and conditions leading up to the March 25, 2010 incident. OWCP
denied his emotional condition claim on the grounds that he did not establish any compensable
employment factors. The Board must initially review whether these alleged incidents and
conditions of employment are covered employment factors under the terms of FECA.
Appellant alleged that Postmaster Jones improperly reduced his work hours by
reassigning his light-duty work to Mr. Bolder, a nondisabled employee, not allowing him to
finish working as a full-time employee during the week of October 5, 2009 after he submitted a
light-duty work form and instructing Ms. Henry to send him home two hours earlier on
November 9, 2009 because he refused to fully perform his assigned duties. He stated that he was
the only light-duty employee who did not have a daily work schedule. Appellant alleged that
Postmaster Jones required him to work outside his physical restrictions by overriding his lightduty work assignments and assigning him regular letter carrier duties which violated union
policies and procedures. He contended that he acted unreasonably in not allowing him to attend
his daughter’s graduation in June 2009. Appellant further contended that supervisors wrongly
placed a U-cart containing his work and his name in the building foyer. Ms. Strohman acted
unreasonably in requesting documentation for his absence from work on November 4, 2009 due
to his need to replace a broken car part. Appellant also contended that Ms. Henry acted
unreasonably on November 9, 2009 when she instructed him to deliver mail on a route which
exceeded his restrictions by 45 minutes. He asserted that the employing establishment
improperly issued a letter of suspension only to him on November 28, 2009 for the verbal
confrontation with Mr. Goraya. Appellant filed grievances for the above-stated actions.
Appellant’s allegations regarding the reduction of his work hours,12 the assignment of
work, dislike of a supervisory or managerial action,14 denial of leave,15 request for
13

10

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

11

Id.

12

Janice I. Moore, 53 ECAB 777 (2002).

13

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

14

See Marguerite J. Toland, 52 ECAB 294 (2001).

15

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

6

documentation for his absence from work, issuance of a disciplinary letter16 and the filing of
grievances17 are administrative matters and not compensable absent a showing of error or abuse
on the part of the employing establishment. Although he has alleged error by management, he
did not submit any probative evidence establishing error or abuse regarding the above-noted
administrative matters. Appellant stated that Postmaster Jones’s statement to Mr. Treadwell that
his work hours were reduced because he took three hours to deliver three express packages was
false. However, he did not submit any evidence to support this contention. Regarding
appellant’s EEO complaints, the record does not contain a final decision finding that the
employing establishment committed error or abuse in handling the above administrative and
personnel matters. Appellant did not submit any evidence establishing error or abuse by the
employing establishment in the handling of the other administrative and personnel matters. The
Board finds, therefore, that he has failed to establish a compensable employment factor.
With regard to the allegation of work outside physical limitation, this could constitute a
compensable factor if substantiated by the record.18 Although appellant stated that Ms. Henry
admitted that she assigned him work that exceeded his physical restrictions, he did not submit a
statement from her to corroborate his contention. The Board finds that this allegation is not
established as a compensable employment factor.
Appellant contended that he was harassed, discriminated against and verbally abused at
the employing establishment in the above-noted incidents. Actions of a claimant’s supervisor or
coworker which the claimant characterizes as harassment may constitute a compensable factor of
employment. However, for harassment to give rise to a compensable disability under FECA,
there, must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions
or feelings of harassment do not constitute a compensable factor of employment.19 An
employee’s charges that he or she was harassed or discriminated against, is not determinative of
whether or not harassment or discrimination occurred.20 To establish entitlement to benefits, a
claimant must establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.21 Appellant contended that Postmaster Jones was verbally
abusive and argued with him on a daily basis about his physical restrictions and inability to
perform his work duties due to his accepted back condition. Postmaster Jones told appellant that
he was not needed if he could not perform his assignments. Appellant stated that he was the only
light-duty employee subjected to harassment and verbal abuse regarding his daily work
performance. He contended that Postmaster Jones approached him in a threatening manner as he
denied his request to attend his daughter’s graduation. Appellant asserted that Postmaster Jones
and other managers failed to inform him about an employee appreciation luncheon. He further
16

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
17

Michael A. Salvato, 53 ECB 666, 668 (2002).

18

David C. Lindsey, Jr., 56 ECAB 263 (2005); Diane C. Bernard, 45 ECAB 223, 227 (1993).

19

Lorraine E. Schroeder, 44 ECAB 323 (1992).

20

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

21

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

7

asserted that he was verbally abused by his coworkers regarding his physical disability and
treated differently by management. Appellant alleged that Mr. Goraya directed derogatory
comments towards him regarding his light-duty status on October 28, 2009 that went unpunished
while he was suspended for 14 days for his response to him. He noted that Mr. Goraya’s
disruptive behavior on April 17, 2010 regarding his refusal to perform an assignment was
successful as management assigned someone else to perform the task and he was not disciplined
for his action. Appellant alleged that Mr. Pryor referred to him as an unproductive employee due
to his physical disability in the presence of Mr. Treadwell. He was humiliated when asked by his
coworkers as to why the U-cart was left in the building foyer for him.
Although appellant asserted that employees and union members heard Mr. Pryor’s
statement that he had a problem with him, the record is devoid of any statement from these
witnesses corroborating his version of the noted incidents. Further, he did not submit any
witness statements from witnesses to support his allegation of harassment, discrimination and
verbal abuse by Postmaster Jones and Mr. Goraya. The Board finds that appellant has not
established a factual basis for his allegations that he was harassed, discriminated against and
verbally abused by the employing establishment. Therefore, appellant has failed to establish a
compensable factor of employment.22
On appeal, appellant’s attorney contended that OWCP’s decisions were contrary to fact
and law. For reasons noted, the Board finds that appellant did not submit sufficient evidence
establishing that he sustained an emotional condition in the performance of duty.
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 establish that he sustained an emotional
condition in the performance of duty, as alleged.

22

As appellant has not substantiated a compensable factor of employment as the cause of his emotional condition,
the medical evidence regarding his emotional condition need not be addressed. Karen K. Levene, 54 ECAB
671 (2003).

8

ORDER
IT IS HEREBY ORDERED THAT the September 9 and May 26, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 22-0500
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 14, 2022 appellant filed an appeal from a July 14, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0500.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 14, 2021 decision was January 10, 2022. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
July 14, 2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0500 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained his failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the ap peal docketed
as No. 22-0500, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0500 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2