United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Knoxville, TN,
Employer
__________________________________________

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

Docket No. 19-1566
Issued: March 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On July 16, 2019 appellant filed a timely appeal from a May 10, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 10, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left foot condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 14, 2019 appellant, then a 37-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed a stress fracture in her left foot due to
factors of her federal employment including excessive walking. She indicated that she first became
aware of the condition on July 1, 2017 and first attributed the condition to factors of her federal
employment on July 18, 2017. Appellant noted that she delayed filing her occupational disease
claim as she was told that she would be dismissed if she filed a claim within the first 90 days of
her employment. She stopped work on February 13, 2019.
In a July 18, 2017 report, Dr. James Engblom, a podiatrist, noted that appellant had begun
work at the employing establishment and walked several miles a day on concrete. He related that
appellant reported having some pain and swelling of the dorsum of the left foot since July 12, 2017.
Dr. Engblom reviewed anteroposterior, oblique, and lateral view x-rays of appellant’s left foot and
found some internal cortical changes to the distal and midshaft levels of metatarsals 2 and 3. He
diagnosed a stress fracture of the left foot and provided a referral for a pneumatic boot walker.
Dr. Engblom recommended that appellant use the pneumatic boot outside of work and rest as much
as possible.
In a March 4, 2019 narrative statement, appellant indicated that her foot pain began in
July 2017. She related that she was diagnosed with a stress fracture of the left foot on multiple
occasions despite wearing a walking boot. Appellant noted that as the walking boot was not
healing the stress fracture and as all other options had been exhausted, she was scheduled for
surgery. She alleged that her stress fracture of the left foot was caused by the excessive walking
required to perform her job function and duties. Appellant reported that she walked on concrete
as well as the hard floor of the employing establishment’s building for 8 to 12 hours a day up to 7
days a week.
In a development letter dated March 18, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
Thereafter, OWCP received appellant’s response to its development questionnaire dated
April 1, 2019. Appellant noted that she had been working as a mail handler since May 2017 and
that her employment duties required excessive walking. She also indicated that she had no left
foot injury or medical condition prior to her federal employment.
OWCP also received a series of medical reports. In an August 29, 2017 report,
Dr. Engblom noted appellant’s concern that she could not wear her walking boot at work for fear
of losing her position. He examined anteroposterior, oblique, and lateral view x-rays of appellant’s

2

left foot and found no acute interval changes. Dr. Engblom opined that appellant remained
symptomatic and again diagnosed a stress fracture of the left foot.
In a September 13, 2017 report, Dr. Zachary Jumper, a Board-certified diagnostic
radiologist, examined a magnetic resonance imaging (MRI) scan of appellant’s left foot. He
compared the MRI scan with August 29, 2017 x-rays of appellant’s left foot and found no fracture
line or full-thickness tendon tearing. Dr. Jumper indicated that no acute stress fracture was
observed.
In an October 9, 2017 report, Dr. Engblom reviewed anteroposterior, oblique, and lateral
view x-rays of appellant’s left foot and the September 13, 2017 MRI scan and found no obvious
stress fracture. He opined that appellant had an inferiorly positioned cuboid and instability of the
left foot joint. Dr. Engblom diagnosed cuboid subluxation syndrome of appellant’s left foot.
In an April 17, 2018 report, Dr. Engblom noted appellant’s complaints of increased pain in
her left foot. He reviewed an x-ray of appellant’s left foot and noted that it was unremarkable.
Dr. Engblom examined the cuboid, third metatarsal, and cuneiform of appellant’s left foot and
diagnosed a stress fracture of the left foot.
In a June 12, 2018 report, Dr. Engblom saw appellant for a recheck of her left foot stress
fracture. He examined x-rays of appellant’s left foot and indicated that it seemed to be improved.
Dr. Engblom noted that appellant currently had isolated pain to the fourth and fifth metatarsal
cuboid articulation.
In an August 17, 2018 report, Dr. Engblom noted appellant’s complaints of continued,
daily left foot pain. He reviewed x-rays of appellant’s left foot and found no discernable changes.
However, on examination Dr. Engblom noted that appellant had cuboid and third cuneiform pain
consistent with a stress reaction fracture. He advised appellant that surgery was likely the best
long-term option and discussed the procedure with her.
In a January 2, 2019 report, Dr. Engblom noted that appellant reported having constant left
foot pain with intermittent worsening. Appellant related that her left foot pain was keeping her up
at night and was causing her terrible pain at work. Dr. Engblom reviewed x-rays of appellant’s
left foot and found sclerosis to the dorsal margin of the cuboid when compared to prior studies.
He noted that the findings were consistent with a chronic stress reaction fracture to the cuboid and
third cuneiform of appellant’s left foot. Dr. Engblom further found distal stressing of the fourth
and fifth metatarsal cuboid joint and some increased sclerosis to the cuboid. He recommended
surgery if appellant remained symptomatic.
In a January 30, 2019 report, Dr. Engblom reported that he saw appellant to discuss
possible surgical intervention. He reviewed x-rays of her left foot and found increased sclerosis
to the margins of the third cuneiform, but no acute signs of fracture or advanced degenerative
changes. Dr. Engblom noted that appellant remained symptomatic. He informed her about the
possible benefits of surgery and discussed potential complications.
By decision dated May 10, 2019, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish a causal relationship between her left foot condition
and the accepted factors of her federal employment.
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LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.10

3

Supra note 1.

4

E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7
See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
8

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

E.W., supra note 4; Gary L. Fowler, 45 ECAB 365 (1994).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left foot
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a medical report from her treating podiatrist,
Dr. Engblom, dated July 18, 2017. Dr. Engblom diagnosed a stress fracture of the left foot and
indicated that she reported having pain and swelling in her left foot due to extensive walking.
Although he identified that appellant’s duties as a mail handler required her to walk several miles
per day on concrete, he failed to directly relate her stress fracture to the accepted factors of her
federal employment. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11 The Board has held that a medical opinion must provide an explanation of how
specific employment factors physiologically caused or aggravated the diagnosed conditions.12
Without offering his own rationalized medical opinion explaining causal relationship, this report
from Dr. Engblom is insufficient to establish appellant’s claim.13
In his remaining medical reports, Dr. Engblom provided diagnoses and possible treatment
options related to appellant’s left foot condition. However, he did not offer an opinion on causal
relationship in any of these reports. As previously noted, medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.14 These reports are, therefore, insufficient to establish appellant’s claim.
Appellant also submitted a diagnostic imaging study in the form of a left foot MRI scan
report from Dr. Jumper dated September 13, 2017. The Board has held that a diagnostic study
lacks probative value on the issue of causal relationship as Dr. Jumper does not provide an opinion
on causal relationship between accepted employment factors and a claimant’s diagnosed
conditions.15 As such, this evidence is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence explaining the causal
relationship between her diagnosed left foot condition and the accepted factors of her federal
employment, the Board finds that she has not met her burden of proof.
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.

11

L.C., supra note 5; Y.S., Docket No. 18-0366 (issued January 22, 2020); L.B., Docket No. 18-0533 (issued
August 27, 2018).
12

See A.P., Docket No. 18-1690 (issued December 12, 2019).

13

K.G., Docket No. 18-1598 (issued January 7, 2020); see A.B., Docket No. 16-1163 (issued September 8, 2017).

14

L.C., supra note 5; Y.S., Docket No. 18-0366 (issued January 22, 2020).

15

L.C., supra note 5; J.F., supra note 8.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left foot
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 6, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, MILL NECK POST
OFFICE, Mill Neck, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0575
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 March 7, 2022 appellant filed an appeal from a January 13, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0575.
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 January 13, 2021 decision was July 12, 2021. As appellant
did not file an appeal with the Board until March 7, 2022, more than 180 days after the
January 13, 2021 OWCP decision, the Board finds that the appeal docketed as No. 2 2 -05 75 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained her failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
1

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

2

Id. at § 501.3(e).

within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 22-0575, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0575 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Cleveland, OH, Employer
__________________________________________

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

Docket No. 08-570
Issued: June 20, 2008

Case Submitted on the Record

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

JURISDICTION
On November 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 18, 2007, denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a transient ischemic attack or other
condition as causally related to her federal employment on September 5, 2006.
FACTUAL HISTORY
On January 24, 2007 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury causally related to her federal
employment on September 5, 2006. She described her injuries as a mild stroke, elevated blood
pressure and light-headedness. Appellant did not provide a description of the employment
incident.

In a note dated September 11, 2006, Dr. David Mallamaci, a family practitioner,
diagnosed “TIA [transient ischemic attack] stroke.” He did not provide further explanation. In a
report dated March 5, 2007, Dr. Mallamaci stated that, prior to September 5, 2006, appellant did
not have high blood pressure. However, on September 11, 2006 she had elevated blood pressure
when examined.
By decision dated March 15, 2007, the Office denied the claim for compensation. The
Office found that appellant did not submit sufficient factual and medical evidence to establish the
claim.
Appellant requested an oral hearing before an Office hearing representative and
submitted additional evidence. In a hospital report dated September 5, 2006, Dr. Tushar Shah
reported that appellant was admitted after having symptoms of slurred speech while at work.
Dr. Shah indicated that symptoms had resolved by the time of her arrival at the hospital. On
September 6, 2006 appellant was treated by Dr. Robert Richardson, a neurologist. In a report of
that date, he provided a history that on the previous day appellant had developed lightheadedness, diaphoresis, subjective weakness and mild dysarthria. Dr. Richardson provided
results on examination and stated that appellant’s symptoms were “suggestive of a presyncopal
episode. I cannot completely rule out a TIA, but feel it is much less likely.” He recommended a
magnetic resonance angiography (MRA) of the brain. The record contains an MRA report dated
September 6, 2006.
At the hearing on August 9, 2007, appellant stated that on September 5, 2007 she was
performing hand stamping duties when she became hot and dizzy. A union official also alleged
the hand stamp area had poor ventilation. According to appellant, her supervisor had improperly
delayed filing the claim and had incorrectly reported that appellant had high blood pressure.
In a report dated August 21, 2007, Dr. Mallamaci stated, “[t]he poor ventilation system
and constant pressure to meet target times and deadlines in the [h]and [s]tamping area by
[m]anagement may have lead to the events that occurred in [appellant’s] T.I.A. (mild stroke). In
my professional opinion, [appellant’s] stressful working environment could have caused her mild
stroke.”
By decision dated October 18, 2007, the Office hearing representative affirmed the
March 15, 2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that he or she sustained an injury while in the performance of duty.2 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally,
“fact of injury” consists of two components which must be considered in conjunction with one
1

5 U.S.C. §§ 8101-8193.

2

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

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another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
employment incident caused a personal injury, and generally this can be established only by
medical evidence.3
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.4
ANALYSIS
Appellant filed a traumatic injury claim in this case. As to the employment incidents
alleged to have caused an injury, appellant reported she was performing hand stamping duties on
September 5, 2006. To the extent appellant alleges other employment factors, she did not
provide a detailed statement. There is a reference to poor ventilation at the August 9, 2007
hearing, but appellant did not discuss this allegation in detail or provide any supporting evidence.
Dr. Mallamaci noted, “constant pressure to meet target times,” an allegation appellant had not
previously raised. If appellant is claiming incidents or factors occurring prior to September 5,
2006, that would be an occupational claim and require a detailed statement as to the alleged work
factors so that the Office can make a proper determination as to whether a compensable work
factor was alleged and substantiated.5
As to the factual element of the claim, therefore, the evidence of record establishes only
that appellant was performing hand stamping duties on September 5, 2006. It is appellant’s
burden of proof to submit medical evidence on causal relationship between a diagnosed
condition and the identified employment factor. Dr. Mallamaci diagnosed a TIA, although he
did not explain whether this diagnosis was based on the September 6, 2006 diagnostic tests or on
other evidence.6 He did not discuss hand stamping duties. Dr. Mallamaci briefly referred to
poor ventilation and constant pressure, which have not, as noted above, been established by the

3

See John J. Carlone, 41 ECAB 354, 357 (1989).

4

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

5

An occupational disease or illness is a condition produced by the work environment over a period longer than a
workday or shift; a traumatic injury is a condition caused by incidents occurring within a single workday or shift. 20
C.F.R. § 10.5(q) and (ee). A claimant must establish a factual basis for an allegation and it must be substantiated as
a compensable work factor. See, e.g., Katherine A. Berg, 54 ECAB 262 (2002).
6

Dr. Richardson opined on September 6, 2006 that a TIA was less likely than a presyncopal episode, but this
apparently was before an MRA was performed.

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record. Even if these factors were to be established, Dr. Mallamaci provides only a speculative
opinion on causal relationship, without providing any medical rationale.
The Board accordingly finds that appellant did not meet her burden of proof in this case.
The medical evidence is not sufficient to establish an injury causally related to appellant’s
employment on September 5, 2006.
CONCLUSION
Appellant did not meet her burden of proof to establish a TIA or other injury in the
performance of duty on September 5, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 18 and March 15, 2007 are affirmed.
Issued: June 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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Appearances:
Adam Conti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-414
Issued: August 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2008 appellant filed a timely appeal of November 21, 2007 and
September 30, 2008 decisions of the Office of Workers’ Compensation Programs, finding that
his request for reconsideration was untimely and failed to show clear evidence of error and
finding that he abandoned his hearing. Pursuant to 20 C.F.R. § 501.3, the Board’s jurisdiction is
limited to decisions issued within one year of the filing of the appeal. Since the last merit
decision was issued June 12, 2007, the Board does not have jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office properly found that appellant had abandoned his
request for a hearing; and (2) whether the Office properly refused to reopen appellant’s case for
further review of the merits of the claim on the grounds that his application for reconsideration
was untimely and failed to show clear evidence of error.

FACTUAL HISTORY
The Office accepted that appellant sustained right knee tendinitis and costochondritis of
the left chest wall as a result of his federal employment as a letter carrier. Appellant returned to
work in a limited-duty position as a modified clerk. On January 12, 2007 the employing
establishment offered him a position as a relief clerk, commencing January 20, 2007. The job
offer stated that the position was tailored to meet appellant’s physical limitations, noting that his
current restrictions included no repetitive movements of wrists and elbows, no pushing, pulling,
lifting over 15 pounds, intermittent sitting in 10- to 15-minute intervals and intermittent walking,
standing, reaching above shoulder in 15- to 20-minute intervals. The record indicates that
appellant worked as a relief clerk and then stopped working on March 10, 2007. He filed a claim
for compensation (Form CA-7) for the period commencing March 10, 2007 and a notice of
recurrence of disability (Form CA-2a) as of March 10, 2007. On the CA-2a form appellant
stated that he was involuntarily reassigned to a new position on January 20, 2007 that was not
within his physical limitations.
By decision dated June 12, 2007, the Office denied appellant’s claim for compensation
commencing March 10, 2007. It found that the medical evidence did not establish an
employment-related disability for the period claimed. Appellant requested a telephonic hearing
with an Office hearing representative by letter dated July 11, 2007. By letter dated October 4,
2007, the Office advised him that the telephonic hearing would be held at 12:30 p.m. (Eastern
time) on November 8, 2007. Appellant was provided with the appropriate telephone number and
other relevant information.
In a decision dated November 21, 2007, the Office found that appellant had abandoned
his request for a hearing as he failed to appear or contact the Office to explain his failure to
appear.
By letter dated August 14, 2008, appellant, through his representative, requested
reconsideration. He stated that he attempted to perform the modified duty job but was unable to
continue. Appellant indicated that an August 6, 2008 letter from the Atlanta District Reasonable
Accommodation Committee (DRAC) had found that the employing establishment was unable to
provide him with a position within his restrictions and therefore he was entitled to compensation
as of March 10, 2007.
In a decision dated September 30, 2008, the Office found that appellant’s application for
reconsideration was untimely. It further found that the evidence did not establish clear evidence
of error by the Office in denying the claim for compensation.
LEGAL PRECEDENT -- ISSUE 1
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.1 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
1

20 C.F.R. § 10.616(a).

2

any representative at least 30 days before the scheduled date.2 Chapter 2.1601.6(e) of the
Office’s procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
(1)
A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [district office].”
ANALYSIS -- ISSUE 1
In the present case, the Office sent notice of a November 8, 2007 telephonic hearing to
appellant’s address of record. There is no evidence that appellant requested a postponement or
attempted to telephone the Office hearing representative at the designated time on
November 8, 2007. In addition, there is no evidence of record that he provided notification of
his failure to participate in the scheduled hearing within 10 days of the schedule date.
The Board accordingly finds that, based on the evidence of record, appellant abandoned
his request for a hearing in this case.3 The Office properly issued a formal decision finding
abandonment of the hearing request.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.4 The employee shall exercise this right through a request to
the district office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”5
Section 8128(a) of the Act6 does not entitle a claimant to a review of an Office decision
as a matter of right.7 This section vests the Office with discretionary authority to determine
2

Id. at § 10.617(b).

3

See C.T., 60 ECAB ___ Docket No. 08-2160, issued May 7, 2009).

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.605 (1999).

6

See supra note 4.

7

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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whether it will review an award for or against compensation.8 It, through regulations, has
imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).9 As
one such limitation, the Office has stated that it will not review a decision denying or terminating
a benefit unless the application for reconsideration is filed within one year of the date of that
decision.10 The Board has found that the imposition of this one-year limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).11
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.12 In accordance with this holding, the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.13
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.14 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.15 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.16 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.17 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.18 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
8

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
9

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim
by: (1) showing that the Office erroneously applied or interpreted a specific point of law; (2) advancing a relevant
legal argument not previously considered by the Office; or (3) submitting relevant and pertinent evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).
10

20 C.F.R. § 10.607(a).

11

See Leon D. Faidley, Jr., supra note 7.

12

Leonard E. Redway, 28 ECAB 242 (1977).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

14

See Dean D. Beets, 43 ECAB 1153 (1992).

15

See Leona N. Travis, 43 ECAB 227 (1991).

16

See Jesus D. Sanchez, 41 ECAB 964 (1990).

17

See Leona N. Travis, supra note 15.

18

See Nelson T. Thompson, 43 ECAB 919 (1992).

4

a substantial question as to the correctness of the Office decision.19 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.20
ANALYSIS -- ISSUE 2
The June 12, 2007 Office decision denied appellant’s claim for a recurrence of disability
commencing March 10, 2007. The application for reconsideration was dated August 14, 2008.
Since this is more than one year after the June 12, 2007 merit decision, it is an untimely
application for reconsideration. Therefore, the issue is whether appellant has established clear
evidence of error by the Office.
On appeal, appellant contends that the evidence establishes that the employing
establishment was unable or unwilling to provide him with a position consistent with his medical
restrictions and therefore he was entitled to compensation from March 11, 2007. The Board
notes that a recurrence of disability may be established if the light-duty job is outside the
employee’s work restrictions, but there must be sufficient evidence of record to support the
finding that the job exceeded physical limitations.21 In this case, the Board does not have
jurisdiction over the merits of the claim. Under the “clear evidence of error” standard, the
evidence must be of such probative value that it prima facie establishes that appellant was
entitled to compensation after March 10, 2007.
The “clear evidence of error” standard is a difficult one to meet and appellant has not met
the standard in this case. Appellant relies on an August 6, 2008 letter from the employing
establishment’s DRAC that the employing establishment could not, at that time, accommodate
him. The work restrictions that are discussed are based on an April 29, 2008 functional capacity
evaluation. The letter does not discuss the relevant time period in this case, from January 20 to
March 10, 2007, or the medical restrictions in effect during this period. The January 12, 2007
job offer indicated that the position was tailored to the current medical restrictions, as outlined by
an attending physician, Dr. Ralph Jackson. There is no probative evidence of record that the
relief clerk position was outside the existing employment-related work restrictions.22
Appellant’s allegation that the position required work outside his medical restrictions is not
sufficient evidence in itself.23

19

Leon D. Faidley, Jr., supra note 7.

20

Gregory Griffin, 41 ECAB 458 (1990).

21

See Cloteal Thomas, 43 ECAB 1093 (1992).

22

Appellant cites Fallon Bush, 48 ECAB 594 (1997) in support of his argument. In Bush, the Board found that
the claimant had established a recurrence of disability because the employing establishment changed the light-duty
job to require him to work at night, which exceeded his work restrictions. The evidence in the present case does not
establish the job exceeded a specific work restriction.
23

Cloteal Thomas, supra note 21.

5

The Board finds that appellant did not establish clear evidence of error by the Office.
The application for reconsideration was properly denied without merit review of the claim.
CONCLUSION
The Board finds that the Office properly determined that appellant had abandoned his
request for a telephonic hearing. The Board also finds that his application for reconsideration
was untimely and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 30, 2008 and November 21, 2007 are affirmed.
Issued: August 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mobile, AL, Employer
__________________________________________

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

Docket No. 16-1875
Issued: August 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 6, 2016 appellant filed a timely appeal from a March 14, 2016 merit decision
and a May 20, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a recurrence of
disability on or after September 1, 2015 due to his accepted work injury; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 19, 2015 appellant, then a 52-year-old city carrier, filed an occupational
disease claim (Form CA-2) for a low back condition that he attributed to performing repetitive
work duties over time, including opening and closing the door to his postal vehicle, getting in
and out of the vehicle, and pulling the handbrake on the vehicle. He indicated that he first
became aware of his claimed condition on December 1, 2014 and first realized on January 15,
2015 that it was caused or aggravated by his federal employment.
In a report dated February 10, 2015, Dr. John Hamilton, an attending Board-certified
occupational medicine physician, noted that appellant reported experiencing pain and swelling in
his low back.2 He indicated that, upon physical examination of the back, appellant’s reported
pain on motion of the back was “almost gone.” There was no swelling or pain on palpation of
the back, and range of back motion had improved. Dr. Hamilton diagnosed lumbar
sprains/strains and restricted appellant from lifting more than 20 pounds, performing overhead
work, and bending, twisting, or stooping for more than 20 minutes.
On February 23, 2015 Dr. Hamilton indicated that his examination on that date revealed
normal lumbar/back range of motion and no back pain upon palpation or motion. He advised
that appellant could return to regular duty.
On March 31, 2015 OWCP accepted appellant’s claim for lumbar sprain.
On September 23, 2015 appellant filed a notice of recurrence (Form CA-2a) claiming a
recurrence of disability on September 1, 2015 due to the accepted work injury. He indicated that
beginning approximately September 1, 2015 he experienced a worsening of his low back
symptoms, including pain, tightness, and swelling, which made it more difficult to perform his
work duties.3
Appellant submitted a September 21, 2015 report from Dr. Hamilton who listed the date
of injury as January 17, 2015 and noted continuing complaints of back pain and swelling.
Dr. Hamilton diagnosed lumbar sprains/strains and indicated that appellant could not lift over
20 pounds and could only occasionally engage in bending, twisting, and stooping. In a duty
status report (Form CA-17) dated September 21, 2015, he indicated that appellant could not
perform his regular work, but that he could work with restrictions. Dr. Hamilton diagnosed
lumbar spine strain and provided work restrictions of no lifting over 20 pounds and only
occasional bending, twisting, and stooping. He limited appellant’s “route work” to six hours per
day.
OWCP interpreted appellant’s September 23, 2015 Form CA-2a as a claim for a
recurrence of disability on September 1, 2015 due to the accepted lumbar sprain and, in an
2

Dr. Hamilton listed the date of injury as January 17, 2015, but he did not provide any explanation for listing
such a date of injury. The evidence of record does not contain a claim for a January 17, 2015 work injury.
3

Appellant placed a question mark next to the portion of the Form CA-2a asking him to indicate whether he was
claiming a recurrence due to time loss from work or a recurrence due to medical treatment only. He did not stop
work around the time he filed the Form CA-2a.

2

October 9, 2015 letter, it requested that he submit additional factual and medical evidence in
support of his claim. It requested that he submit a physician’s opinion supported by a medical
explanation as to the relationship between his disability/condition and the accepted work
condition within 30 days.
In an October 12, 2015 report, Dr. Hamilton listed the date of injury as January 17, 2015
and noted that appellant reported “the problem began on January 17, 2015.”4 He indicated that
his October 12, 2015 examination revealed normal back range of motion and no pain upon
palpation of the back, but also showed pain over the back upon motion. Dr. Hamilton diagnosed
sprain of lumbar spine ligaments and recommended restricted work status from October 12 to 19,
2015, including no lifting over 20 pounds and only occasional bending, twisting, and stooping
(20 minutes per hour).
In an October 19, 2015 report, Dr. Hamilton indicated that examination on that date
revealed normal range of back motion and no back pain upon palpation or motion. He advised
that appellant could return to regular duty effective October 19, 2015.
On October 26, 2015 Dr. Hamilton diagnosed sprain of lumbar spine ligaments and
recommended that appellant work restricted duty from October 26 to November 11, 2015. The
only work restriction he mentioned was no working over eight hours per day.5
In a decision dated November 20, 2015, OWCP denied appellant’s claim for a recurrence
of disability on or after September 1, 2015 because he failed to submit medical evidence
establishing a worsening of his accepted work-related condition which caused work stoppage.
On January 12, 2016 appellant requested reconsideration of OWCP’s November 20, 2015
decision. He indicated that he was submitting a handwritten statement from Dr. Hamilton, but
appellant did not submit any such statement.
In a September 28, 2015 report, Dr. Hamilton indicated that his examination on that date
revealed normal range of back motion and no pain upon palpation of the back, but also showed
pain over the back upon motion and the presence of back spasms. He diagnosed lumbar
sprains/strains and indicated that appellant should be on restricted duty from September 28 to
October 4, 2015, including no lifting over 20 pounds and only occasional bending, twisting, and
stooping.
In a November 11, 2015 report, Dr. Hamilton indicated that appellant could perform
regular duty from November 11 to December 2, 2015. On December 2, 2015 he noted that
appellant could perform regular duty from December 2, 2015 to January 4, 2016.

4

In all of his subsequent reports in the evidence of record, Dr. Hamilton listed the date of injury as January 17,
2015 without any further explanation.
5

Appellant also submitted reports from his attending physical therapists describing physical therapy sessions
beginning on September 25, 2015.

3

In a March 14, 2016 decision, OWCP denied appellant’s claim for a work-related
recurrence of disability on or after September 1, 2015. It noted that the new evidence submitted
by appellant was insufficient to meet his burden of proof to establish his claim.
On May 10, 2016 appellant requested reconsideration of OWCP’s March 14, 2016
decision denying his recurrence claim. He asserted that his continuing back condition was work
related. Appellant indicated that he had enclosed a “detail[ed] statement of my work-related
injury and aggravations,” but no such statement was enclosed.
Appellant resubmitted Dr. Hamilton’s February 10, 2015 report. He also submitted an
April 28, 2016 report of Dr. Donald Ellis, an attending chiropractor. Dr. Ellis indicated that
appellant’s bilateral knee and plantar fasciitis problems affected the spinal problems in his
cervical, thoracic, and lumbar spines. He described his treatment of appellant’s medical
condition through manual spinal manipulation and electric muscle stimulation, and indicated that
appellant should not be pressed into work he could not physically withstand.
By decision dated May 20, 2016, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and argument
he had submitted in support of his reconsideration request was either repetitive or irrelevant.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 Where an employee claims a recurrence of disability due to an accepted
employment-related injury, he or she has the burden of proof to establish that the recurrence is
causally related to the original injury.7 This burden includes the necessity of furnishing evidence
from a qualified physician who concludes that the condition is causally related to the
employment injury.8 The physician’s opinion must be based on a complete and accurate factual
and medical history and supported by sound medical reasoning.9
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s occupational disease claim for lumbar sprain. As of
February 23, 2015, appellant’s treating physician, Dr. Hamilton, discharged appellant from
treatment and advised that he was able to resume his regular duties. On September 23, 2015
appellant filed a notice of recurrence and he identified September 1, 2015 as the date of

6

20 C.F.R. § 10.5(x).

7

Id. at § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 and
2.1500.6 (June 2013).
8

See S.S., 59 ECAB 315, 318-19 (2008).

9

Id. at 319.

4

recurrence. Although he continued to work, he claimed that his work-related condition had
worsened such that he had difficulty performing his employment duties.
The Board finds that appellant did not submit sufficient medical evidence to establish a
recurrence on or after September 1, 2015 due to his accepted work injury.
Appellant submitted a September 21, 2015 report from Dr. Hamilton, an attending
physician, who listed the date of injury as January 17, 2015 and noted continuing complaints of
back pain and swelling. Dr. Hamilton diagnosed lumbar sprains/strains and indicated that
appellant could not lift over 20 pounds and could only occasionally engage in bending, twisting,
and stooping. In a September 21, 2015 Form CA-17, he indicated that appellant could not
perform his regular work, but that he could work with restrictions. Dr. Hamilton diagnosed
lumbar spine strain and provided work restrictions of no lifting over 20 pounds, no more than six
hours of route work per day, and only occasional bending, twisting, and stooping.
The Board finds that the submission of these reports do not establish appellant’s claim for
a work-related recurrence on or after September 1, 2015 because they are of limited probative
value on the relevant issue of this case. Dr. Hamilton did not provide a clear opinion that the
recommended work restrictions were necessitated by the accepted lumbar sprain.10 He did not
describe the accepted work condition in any detail or present objective findings showing that
appellant’s lumbar condition worsened such that the delineated work restrictions were required.
The Board has held that medical evidence that does not offer a clear opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.11
In a September 28, 2015 report, Dr. Hamilton diagnosed lumbar sprains/strains and
indicated that appellant should be on restricted duty from September 28 to October 4, 2015,
including no lifting over 20 pounds and only occasional bending, twisting, and stooping. In an
October 12, 2015 report, he recommended restricted work status from October 12 to 19, 2015
and provided work restrictions similar to those contained in his September 28, 2015 report.
In an October 19, 2015 report, Dr. Hamilton discharged appellant to return to regular
duty, but just a week later on October 26, 2015, he diagnosed sprain of lumbar spine ligaments
and recommended that appellant work restricted duty from October 26 to November 11, 2015,
with “[n]o work over eight hours per day.” The Board finds that the October 26, 2015 report is
also of limited probative value regarding appellant’s claim for a work-related recurrence on or
after September 1, 2015. Again, Dr. Hamilton did not provide a clear opinion that the
recommended work restrictions were necessitated by the accepted work injury.12 He did not
provide a rationalized medical opinion relating the need for work restrictions to appellant’s
accepted work condition, and his report did not otherwise establish that appellant’s work-related
condition worsened such that he could not perform his regular city carrier duties on or after
10

In this report and all subsequent reports, Dr. Hamilton listed the date of injury as January 17, 2015. He did not
provide any clarification of why he listed this date of injury, other than noting in a later report that appellant reported
that “the problem began on January 17, 2015.”
11

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

12

See id.

5

September 1, 2015. The Board has held that the medical evidence required to establish causal
relationship generally is rationalized medical opinion evidence, and appellant failed to submit
such medical evidence in support of his recurrence of disability claim.13
For these reasons, the Board finds that appellant failed to establish a work-related
recurrence on or after September 1, 2015 and has thus failed to meet his burden of proof.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,14
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.15 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.16 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.17 The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record18 and the submission
of evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.19

13

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003). On appeal, appellant
argues that he continues to have back symptoms, but the Board has explained that the medical evidence does not
establish disability on or after September 1, 2015 due to a worsening of the accepted work-related injury. The Board
further notes that, in several reports produced after September 1, 2015, Dr. Hamilton indicated that appellant could
work regular duty. As noted, in an October 19, 2015 report, he advised that appellant could return to regular duty
effective October 19, 2016. On November 11, 2015 Dr. Hamilton indicated that appellant could perform regular
duty from November 11 to December 2, 2015 and, on December 2, 2015, he noted that appellant could perform
regular duty from December 2, 2015 to January 4, 2016.
14

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
15

20 C.F.R. § 10.606(b)(3).

16

Id. at § 10.607(a).

17

Id. at § 10.608(b).

18

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

19

Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

6

ANALYSIS -- ISSUE 2
OWCP issued a decision on March 14, 2016. Appellant requested reconsideration of this
decision in a letter received by OWCP on May 10, 2016.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In his
application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted, nor did he advance a new and relevant legal argument not
previously considered by OWCP. In his letter requesting reconsideration, appellant argued that
he continued to have work-related back problems causing disability beginning
September 1, 2015. The underlying issue in this case was whether appellant submitted probative
medical evidence establishing a recurrence of disability on or after September 1, 2015 due to his
accepted work injury, a lumbar sprain. That is a medical issue that must be addressed by
relevant medical evidence.20 A claimant may be entitled to a merit review by submitting relevant
and pertinent new evidence, but appellant did not submit any such evidence in this case.
In connection with his reconsideration request, appellant resubmitted Dr. Hamilton’s
February 10, 2015 report, which did not pertain to the claimed recurrence on or about
September 1, 2015. It is not only irrelevant, but the submission of this evidence would not
require reopening appellant’s claim for merit review because the Board has held that evidence
which repeats or duplicates evidence already in the case record does not constitute a basis for
reopening a case.21 Moreover, the submission of evidence or argument which does not address the
particular issue included does not constitute a basis for reopening a case.22
Appellant also submitted an April 28, 2016 report of Dr. Ellis, an attending chiropractor.
The submission of this evidence would not require reopening appellant’s claim for merit review
because it is not relevant to his recurrence of disability claim and the Board has held that the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.23 The April 28, 2016 report of Dr. Ellis is not relevant to
the main issue of this case because he is not a physician within the meaning of FECA and his
report does not constitute probative medical evidence. Under section 8101(2) of FECA,
chiropractors are only considered physicians, and their reports considered medical evidence, to the
extent that they treat spinal subluxations as demonstrated by x-ray to exist.24 In this instance,
20

See Bobbie F. Cowart, 55 ECAB 746 (2004).

21

See John F. Critz, 44 ECAB 788, 794 (1993).

22

See supra note 19.

23

Id.

24

5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988). OWCP’s regulations define subluxation as
an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the vertebrae which must be
demonstrable on any x-ray film to an individual trained in the reading of x-rays. 20 C.F.R. § 10.5(bb); see also
Bruce Chameroy, 42 ECAB 121, 126 (1990).

7

Dr. Ellis did not indicate that appellant had a spinal subluxation as demonstrated by x-rays to
exist.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied
merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence of
disability on or after September 1, 2015 due to his accepted work injury. The Board further finds
that OWCP properly denied his request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 20 and March 14, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Columbus, NM, Employer
__________________________________________

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

Docket No. 21-1284
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an
occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due
to factors of his federal employment. He noted that he first became aware of his condition and
first realized its relationship to his federal employment on March 27, 2019. On the reverse side of
the claim form D.C., an assistant port director for the employing establishment, noted that
appellant retired, effective August 31, 2018.
In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical and factual evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary information.
In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing
establishment reporting that appellant’s position at the employing establishment was primarily a
supervisory and administrative position that did not require constant exposure to the elements. He
noted that the port area was surrounded by open desert with the associated dust and wind. D.C.
provided a position description for an assistant port director.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish the alleged factors of his employment. It
specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding
how his federal employment caused or contributed to his claimed condition. OWCP, therefore,
concluded that the requirements had not been met to establish an injury as defined by FECA.
On September 25, 2019 appellant requested reconsideration. By decision dated
October 29, 2019, OWCP denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
On April 8, 2020 appellant, through counsel, requested reconsideration.
In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history
of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a
3

Docket No. 20-1477 (issued March 25, 2021).

2

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema.
Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work
environment” since he did not have a history of smoking.
By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019
decision.
Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board
affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to
establish an injury in the performance of duty, as alleged. 5
On May 14, 2021 appellant, through counsel, requested reconsideration. 6
Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021.
He indicated that he believed he developed emphysema while working as a customs inspector from
1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound
from Mexico. He reported that he worked an average of 64 hours per day and inspected an average
of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car
exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He
indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes
and dust. Appellant explained that he first noticed his condition changing in early 2015 when his
stamina and endurance declined and he developed a persistent cough. He noted that, at that time,
doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally
diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.
In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

4

A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of
an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized
centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography
report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing
capacity.
5

Supra note 3.

6
Although appellant claimed to be filing a request for reconsideration from the Board’s March 25, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP
decision is the appropriate subject of possible modification by OWCP.
7

Id.

3

limitation of FECA, 8 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he developed emphysema due to factors of his federal
employment. OWCP initially denied his claim finding that he had failed to establish that the
employment factors occurred as alleged. It specifically noted that appellant failed to respond to
OWCP’s request for a detailed statement regarding how his federal employment caused or
contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the
denial of his claim.
Following the Board’s March 15, 2021 decision, appellant submitted his response to
OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema
while working as a customs inspector for the employing establishment from 1988 to 2018.
Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and
inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that
he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements.
OWCP’s procedures provide that a description of job duties will almost always be required
to adjudicate an occupational disease claim. 12 It further notes that a claimant should usually be
asked to describe the physical and environmental requirements of the job, and the supervisor or
injury compensation specialist should review that statement and provide comments if there is any
8

D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
10

C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2).
(June 2011)

4

disagreement. 13 While the employing establishment responded to OWCP’s July 19, 2019
development letter, the Board notes that it provided information regarding appellant’s employment
duties as an assistant port director and provided a position description for an assistant port director.
Appellant, however, has not attributed his pulmonary condition to his employment duties as an
assistant port director, but to his employment as a customs inspector from 1988 to 2018. The
Board notes that OWCP did not request further information, including his position description as
a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s
contentions that he was exposed to vehicle fumes and/or environmental conditions. For this
reason, the Board finds that the case must be remanded for further development of the factual
evidence.14
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment.15 OWCP has an obligation to see
that justice is done. 16
On remand OWCP should obtain a detailed statement from the employing establishment
indicating whether it concurred with appellant’s allegations and a position description for a
customs inspector. If the employing establishment fails to respond to a request for comments on
appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17
Following this and any such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.

14

See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing
establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see
also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from
the employing establishment addressing appellant’s allegations regarding harassment at work).
15

D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
16

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket
No. 17-1671 (issued November 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF DEFENSE, NAVAL AIR
STATION, Fallon, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-664
Issued: September 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 3, 2007 appellant filed a timely appeal of the December 8, 2006 decision of
the Office of Workers’ Compensation Programs affirming the denial of his claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On June 10, 1999 appellant, then a 40-year-old meat cutter, filed an occupational disease
claim alleging that he suffered from job stress resulting from being harassed on his job, having
his life threatened, having his car “shot up” and telephone calls to his boss calling him crazy. He
stated that his doctor said depression was because of job stress.

In an incident report by the employing establishment, a patrolman noted that on March 1,
1997 appellant’s vehicle was vandalized in that both driver side and passenger side windows
were shattered and both permanent portions of back sliding glass windows were also shattered.
The patrolman observed a small hole about the size of a dime in each side of the back windows,
but noted that he found no bullet casings in the perimeter. Nothing was reported missing from
the vehicle. Witness statements indicated that when Rick Carroll was leaving the employing
establishment at 1330 hours he noticed that appellant’s truck had broken windows. Mr. Carroll
did not see anyone else in the area. In a statement Pam Wingate indicated that she arrived at
1035 hours to work and that she had not left the building since her arrival. She noted that
appellant and she were always joking around but they never had any altercations. Ms. Wingate
noted a “friendly disagreement” since appellant’s arrival about giving her special cuts of meat,
but as appellant refused, she asked another employee who gave her the cuts. Copies of pictures
of appellant’s damaged vehicles were also submitted. A March 7, 1997 internal note of the
employing establishment noted that the officer investigating appellant’s case said that it was only
a possibility that the windows of appellant’s vehicle were shot out as they did not find enough
evidence to confirm that a gun was used. He noted that the investigation was continuing.
Appellant wrote a letter to “T. Jones” stating that, as per a telephone conversation on
November 4, 1996, that this was a request for written permission for him “not to tell anyone
about the stealing and other things I see going on at [the employing establishment].” He alleged
that he had seen someone reduce produce under cost and put more product into a friend’s
package without upping the price. Appellant alleged that management had a “do n[o]t tell
attitude” and that no one in management would do anything about it. Finally, he alleged that he
was attacked by another employee. Appellant also submitted a note to his union dated May 10,
1997, stating: It has come to my attention that (another employee of the employing
establishment) gave a written statement about appellant’s truck in which he stated that appellant
was crazy and shot out his own windows in order to get a transfer. He requested that the union
obtain statements and lie detector tests from the other employees.
Appellant also submitted evidence with regard to his unsuccessful attempts to be
transferred. He wrote to his congressman requesting assistance in getting a transfer to Stockton,
California. In a letter dated April 24, 1997, the employing establishment replied that appellant’s
request for reassignment to Stockton, California was being considered, but there were no
projected openings appropriate for him at the time.
In a note from appellant, received by the Office on November 11, 2003, he alleged that
A.S. wanted him out of his job so that a friend of his could get the job. He also alleged that
people on his witness list were harassed and he feared for their lives.
By letter dated February 10, 2004, the Office requested that appellant submit further
information. Appellant responded by saying that it had been five years after the incident and that
he was no longer in contact with any witnesses. He related that on his first day at work he
became aware that one of the employees was upset because he thought that appellant had taken
his job. Appellant contended that this individual was stealing but that other employees covered it
up. He alleged that this person threatened to kill him several times but that all reports were taken
out of the employee’s record. Appellant alleged that his car was “shot up” and that the head of

2

security told him that someone was paid to shoot his truck but that it could not be proven. He
also said that after the incident someone put about 200 razor blades on his windshield.
By decision dated March 9, 2004, the Office denied appellant’s claim for an emotional
condition as it found that he had not established any compensable employment factors.
On March 16, 2004 appellant requested an oral hearing which was held on May 12, 2005.
At the hearing held on May 12, 2005, the hearing representative indicated that it was
agreed that the issue to be decided was whether the medical evidence demonstrated that appellant
sustained a medical condition in connection with the reported injury. Appellant indicated that he
last saw a doctor in 2000. He contended that management tried to put him out of work in 1997
and 1998 by putting him on a different shift when he returned from surgery. Appellant noted
that, after his car was “shot up,” he found a box or two of single-bladed razor blades dumped on
his windshield. He testified that the acting commissary manager was a friend of the person who
felt that he should have had appellant’s job. Appellant contended that A.S. purged R.G.’s file so
that he could stay employed. He indicated that he was separated from employment in 1999 due
to a previous arm injury.
In a May 7, 1999 report, William A. Goggin, a licensed social worker, suggested a
psychiatric consultation due to appellant’s depression and extreme paranoia.
In a May 16, 2005 report, Dr. James G. Reid, a family practitioner, indicated that he has
treated appellant intermittently since 1998. He noted that he initially saw appellant on June 1,
1998 for depression and an actual suicide attempt. Appellant related numerous problems due to
stress while working at the employing establishment. He indicated that his fellow workers were
harassing him and stated that there had been numerous acts of vandalism against his personal
property. To the best of Dr. Reid’s knowledge, appellant was never been seen by a psychiatrist,
but had been treated with antidepressants and most recently risperdal. He noted that appellant
became quite obese and developed related diabetes mellitus. Since that time, appellant has lost a
considerable amount of weight and that his diabetes had been controlled. At the present time, he
continued to have feelings of anxiety and expressed evidence of possible auditory hallucinations
which raised the possibility that he mighty have a psychotic disorder. Dr. Reid stated: “It is
reasonable to assume that his present psychiatric illness may have been exacerbated by his work
environment while working for the [F]ederal [G]overnment at [the employing establishment].”
He opined that appellant was presently totally disabled and unlikely to engage in gainful
employment in the future. Dr. Reid diagnosed: (1) chronic pain and weakness in the upper
extremities secondary to bilateral carpal and cubital tunnel syndromes; (2) diabetes mellitus;
(3) hypothoryoidism; (4) exogenous obesity; and (5) nonspecific psychosis. He recommended
that appellant be evaluated and followed by a psychiatrist for management of his mental health
problems.
By decision dated August 3, 2005, the hearing representative found that, although
appellant had established that his truck was vandalized while parked at the employing
establishment, there was no evidence to support that such vandalism was a form of harassment
by his coworkers or management. Therefore, this incident was not considered to have arisen out
of his employment. The hearing representative also found that appellant had not established that

3

any of the other incidents that he alleged had actually occurred, including harassment by his
supervisor or coworkers, that stealing was covered up by a supervisor or that a supervisor was
trying to get him fired so a friend could get appellant’s job. The hearing representative affirmed
the March 9, 2004 decision.1
By letter dated August 17, 2005 to the hearing representative, appellant contended that
the Office did not make all witness medical reports and documentary evidence available. The
Office interpreted this letter as a request for a new hearing and by letter dated October 20, 2005,
advised appellant that a new hearing was not an option available to him. Appellant was referred
to the appeal rights accompanying the hearing representative’s decision.
By letter dated July 15, 2006, appellant requested reconsideration on the grounds that the
Office did not issue subpoenas or supply medical reports and documents as requested.
By decision dated December 8, 2006, the Office denied modification of the August 3,
2005 decision.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, a claimant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable factors are causally related to his
emotional condition.2
Workers’ compensation law does not apply to each ad every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the types of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or an illness has some connection with employment but
nevertheless does not come within the concept or coverage under the Act.5 When an employee
1

By letter dated April 28, 2004, but hand-delivered at the hearing, appellant requested that subpoenas be issued
for various persons and documents. The documents requested by appellant included copies of all documents and
correspondence between his doctor and the Office and the employing establishment, copies of his time cards and
scheduled workdays, a transcript of a different case and copies of his doctor’s reports. He also requested that
subpoenas be issued for Commissary Secretary Priscilla Nugent, Meat Manager Cynthia Padgett and Commissary
Officer Bruce Graff. Subsequent to the hearing representative’s decision, appellant’s sought assistance from his
congressman with regard to these subpoenas. The Office replied that subpoenas were not issued in this case
primarily because appellant had hand-delivered the request at the hearing and that, due to the late submission, the
request could not be considered. Although appellant alleged in a note received by the Office on October 5, 2005
that he had asked for the subpoenas earlier, the Board notes that no documents establishing this were enclosed.
2

Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101–8193.

5

See Anthony A. Zarcone¸ 44 ECAB 751, 754-55 (1993).

4

experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his reaction to such situation, the disability is
generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.6
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his allegations with probative and reliable evidence.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.9
ANALYSIS
In the instant case, appellant alleged that razor blades were placed on the windshield of
his vehicle, death threats were made to him, an employee stole from the commissary, appellant’s
supervisor wanted another employee to have his job and that someone called him “crazy” and
accused him of shooting his own vehicle. He submitted no factual evidence to support these
allegations. There are no witness statements or other corroborative evidence substantiating his
allegations. Therefore, appellant has not established these incidents as compensable employment
factors.
Appellant also made general allegations of harassment. The perception of harassment or
mistreatment is not sufficient to establish a compensable work factor. There must be probative

6

Lillian Cutler, supra note 3.

7

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

8

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

9

Id.

5

and reliable evidence in support of the allegation.10 Appellant has provided no probative
evidence in support of his allegations sufficient to establish his allegations of harassment or other
inappropriate treatment by supervisors or coworkers.
Appellant has established that his vehicle was vandalized on March 1, 1997. However,
he has not established this as a compensable factor of employment. Clearly, the vandalism of
appellant’s vehicle did not arise from carrying out his employment duties. The Board notes that
the individual responsible for this incident was never identified or apprehended. There is no
evidence that this vandalism was the result of harassment by his coworkers.
Appellant made general allegations with regard to the employing establishment failing to
reassign him to another duty station. His allegations regarding work assignments relate to
administrative or personnel allegations taken by the employing establishment are not covered
under the Act, as such matters do not bear a direct relation to the work required of the employee.
Coverage under the Act could attach if the factual circumstances surrounding the administrative
or personnel action established error or abuse by the employing establishment superiors in
dealing with appellant. However, the record does not establish such error or abuse. Appellant
was denied a transfer as no appropriate position was available in the location where he wished to
be transferred. This is not a compensable factor of employment.
Based on the evidence of record, appellant has not substantiated a compensable work
factor. Since he has not established a compensable work factor, the Board will not address the
medical evidence.11
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty.

10

See Beverly R. Jones, 55 ECAB 411 (2004). In evaluating workers’ compensation claims, the term harassment
is synonymous with a persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or
coworkers.
11

T.G., 58 ECAB __ (Docket No. 06-1411, issued November 28, 2006); Margaret S. Krzycki, 43 ECAB
496 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2006 is affirmed.
Issued: September 13, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7