United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
INFORMATION SYSTEMS AGENCY,
SCOTT AIR FORCE BASE, IL, Employer
__________________________________________

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

Docket No. 20-0329
Issued: October 19, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 26, 2019 appellant filed a timely appeal from a November 7, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated October 3, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 9, 2015 appellant, then a 53-year-old financial management technician, filed an
occupational disease claim (Form CA-2) alleging depression, anxiety, irritable bowel syndrome,
spastic ataxia, back pain, leg fatigue/weakness, and vertigo, which she attributed to her work
environment. She alleged that she first became aware of her claimed conditions on January 1,
2013 and first realized their relation to her federal employment on February 15, 2014. Appellant
stopped work on March 12, 2015, and returned to work at her previous employment on April 7,
2015 with no change in her duties/assignments.
In addition to the Form CA-2, OWCP received a description of the financial management
technician position, as well as a December 4, 2011 notification of personnel action form (Standard
Form 50-B) memorializing a within-grade increase, effective December 18, 2011.
In a June 25, 2015 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim. It explained the basic elements for
entitlement to FECA benefits, and noted that she had not provided a description of the employment
factors she believed caused her alleged emotional and physical conditions. Additionally, OWCP
noted that appellant had not provided medical documentation from her physician to support the
existence of her claimed emotional and/or physical conditions. It afforded her 30 days to submit
the requested factual and medical evidence.
On August 18, 2015 OWCP received an undated 28-page statement in which appellant
provided an extensive discussion of the stressful incidents and conditions at work that she believed
had caused her to sustain the medical conditions delineated on her Form CA-2. Appellant indicated
that she sustained employment-related stress beginning on March 3, 2009 when she started
working under a new immediate supervisor in the financial section work unit. She asserted that,
since that time, her supervisor unfairly harassed her regarding various work matters, including
criticizing the wording she used in work documents, without providing her adequate training or
guidance on how to carry out her work assignments. Appellant claimed that her supervisor
scrutinized her work more closely than that of other employees and that she issued her improper
performance appraisal ratings beginning in 2009. She asserted that on March 4, 2009 another
supervisor committed harassment by yelling at her in the presence of other employees. Appellant
further asserted that in October 2011 management improperly failed to consider her for promotion.
She described several instances in February and March 2012 when she believed that a coworker
unfairly criticized her work product, including her choice of the wording of e-mail
3

Docket No. 16-1690 (issued September 7, 2017).

2

communications. Appellant alleged that on October 12, 2012 her supervisor made untrue
statements about her work performance in connection with a work appraisal rating and improperly
denied her request on that date to leave the office and take sick leave.
Appellant further alleged that on November 28, 2012 her supervisor unfairly criticized the
manner in which she prepared e-mail communications. She indicated that on October 31, 2013
her supervisor gave her feedback regarding a performance appraisal rating which she felt was
unwarranted. Appellant alleged that her supervisor told her that no one wanted to promote her.
On November 13, 2013 she became emotional and left the office because her supervisor told her
that a coworker was frustrated about continuing to receive documents faxed from her physician.
Appellant claimed that on March 7, 2014 her supervisor unreasonably told her that she should not
spend time on training despite the fact that she felt it was necessary for her job. She indicated that
on March 8, 2014 her supervisor advised her that she could not take any leave until she built up
leave again. Appellant claimed that she was the only person who was monitored by this supervisor
for leave usage. She claimed that on July 2, 2014 her supervisor unfairly criticized her by advising
her that a coworker had complained that she “didn’t know what [she] was doing” with respect to
a work matter. Appellant further asserted that on September 4, 2014 another supervisor laughed
at her when she mentioned taking sick leave in a manner which suggested she believed that she
was “faking” her need to take sick leave. She alleged that on October 29, 2014 her supervisor
wrongly accused her of slamming a door on an earlier occasion. Appellant indicated that on
April 10, 2015 her supervisor interrupted her while she was receiving guidance on a work task
from a coworker.
Appellant also submitted numerous reports from health care providers. In a September 3,
2014 report, Dr. Panduranga Kini, a Board-certified psychiatrist, provided an impression of
“anxiety type of symptoms.” In an April 15, 2015 report, Byron Loy, a licensed clinical
professional counselor, noted that appellant reported experiencing anxiety due to a supervisor who
was a “bully and a micro manager.” On October 8, 2015 Dr. Steven D. Pritchett, Board-certified
in family medicine, indicated that appellant reported experiencing stress from work and was being
treated by a psychiatrist for depression, anxiety, and panic disorder.
In a February 16, 2016 letter, OWCP again requested that appellant submit additional
factual and medical evidence in support of her claim. It acknowledged receipt of her August 18,
2015 response, as well as medical documentation, however, it indicated that the submitted
information was insufficient to support her claim. The enclosed questionnaire included a
description of eight alleged employment incidents from November 2013 through October 2014.
OWCP advised appellant to submit evidence to support her allegations, including witness
statement from anyone who could verify her allegations. It also requested that she submit copies
of grievances and/or equal employment opportunity (EEO) complaints that were filed with respect
to the alleged working conditions. OWCP again afforded appellant 30 days to submit the requested
information.
Appellant subsequently submitted several witness statements from early-2016 in which
coworkers discussed their observations about her interactions with supervisors and other
employees. She also submitted documents concerning an EEO claim she filed with respect to
some of her claimed employment factors. The documents included a copy of an unsigned “EEO

3

Settlement Agreement.” In an undated document received by OWCP on March 3, 2016, appellant
discussed the medical treatment of her stress-related conditions.
Appellant also submitted additional medical evidence, including an August 24, 2015 report
from Dr. Jeffrey S. Chalfant, an osteopath Board-certified in psychiatry, who diagnosed major
depressive disorder (single episode, moderate degree), and unspecified anxiety state.
By decision dated March 22, 2016, OWCP denied appellant’s claim finding that she failed
to establish a compensable employment factor. It determined that she had not submitted sufficient
supporting evidence to establish her claims that management committed error or abuse with respect
to administrative matters or that supervisors or coworkers subjected her to harassment or
discrimination. OWCP discussed most of the alleged claimed employment factors commencing
in November 2013, which appellant detailed in her 28-page statement, but did not discuss those
alleged to have occurred between March 2009 and October 2013.
On April 19, 2016 appellant requested reconsideration of the March 22, 2016 decision. In
support thereof, she submitted a 25-page document in which she further discussed the various
incidents and conditions at work which she believed caused the claimed stress-related conditions.
In an April 29, 2016 statement, a coworker discussed appellant’s interactions with supervisors.
Appellant also submitted additional medical evidence.
By decision dated July 18, 2016, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant appealed to the Board and, by decision dated September 7, 2017,4 it set aside
OWCP’s March 22, 2016 decision. The Board found that OWCP failed to adequately address a
substantial portion of appellant’s claimed employment factors, i.e., the numerous factors alleged
between March 2009 and October 2013, and to make adequate findings of fact regarding those
allegations. The Board remanded the case to OWCP for further development of the evidence
regarding appellant’s stress-related occupational disease claim.
On remand OWCP further evaluated the factual aspect of appellant’s occupational disease
claim in its totality. In February 2018 it solicited and received additional comments and
documentation from the employing establishment regarding appellant’s claimed employment
factors.
By decision dated March 21, 2018, OWCP again denied appellant’s claim, finding that she
had not established a compensable employment factor.
On April 25, 2018 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. She subsequently submitted additional evidence in
support of her claim, including witness statements of current and former coworkers/supervisors,
and copies of performance appraisals. In a June 17, 2016 report, Carol A. Sterling, a licensed
clinical professional counselor, indicated that appellant reported that she experienced a highly
toxic workplace environment during the prior five years, including being subjected to multiple
4

Id.

4

criticisms for mistakes, receiving inadequate training and support, and being reprimanded for
asking for help. Appellant further reported that this situation resulted in her developing depression,
anxiety, and multiple physical symptoms.
By decision dated October 3, 2018, OWCP’s hearing representative denied modification
of the March 21, 2018 decision.
On September19, 2019 appellant requested reconsideration of her claim. In an
accompanying statement, she asserted that management intended to strip her of her self-worth and
to degrade her by subjecting her to personal attacks.
In support thereof, appellant submitted a January 30, 2019 report from Dr. Salma MannanHilaly, Board-certified in family medicine, who noted that, since 2009 though the date of her
report, appellant had been diagnosed with major depression, generalized anxiety disorder,
propriospinal myoclonus disorder, acid reﬂux, esophageal reﬂux, gastrointestinal bleeding, posttraumatic stress disorder, spastic ataxia, small bowel ulcers, nausea, panic disorder, fatigue,
somatization disorder, and cervical myelopathy. Dr. Mannan-Hilaly opined that these conditions
had been “caused from emotional distress and harassment, due to [appellant’s] work environment”
from 2009 through 2015 and that her supervisor was the major cause for “her physical and mental
health concerns.” In a September 6, 2019 report, she advised that appellant was diagnosed with
anxiety disorder in 2006 and 2007 and was placed on medication due to distress. Dr. MannanHilaly indicated that appellant was gradually taken off medication during 2008 as she did not need
it at that time. She noted that, from 2009 through 2015, appellant was again placed on medication
for anxiety disorder and major depression due to her supervisor who “caused her sickness and
depression due to the hostile work environment.” Dr. Mannan-Hilaly indicated that appellant
started to show major symptoms of severe distress at that time.
In a June 20, 2019 letter, Dr. Scott Norris, a Board-certified neurologist, noted that he first
treated appellant on May 18, 2016 for atypical myoclonus, abnormal movements, and atypical gait
pattern, and that he last saw her on June 5, 2019. He diagnosed functional myoclonus, tremor, and
gait (greatly exacerbated by stress), and noted she also had cervical myelopathy secondary to
cervical stenosis. Dr. Norris advised that appellant had asked him to write a letter “in consideration
that a self-related history of verbal abuse in the work setting (she specifically indicated that a
former supervisor bullied and belittled her) greatly exacerbated her atypical movement disorder.”
He reported that it was generally true that psychological stressors exacerbated symptoms of
functional movement disorder and that appellant reported improved functional movement in
connection with stress reduction since stopping work.
In a March 1, 2019 report, Ms. Sterling indicated that she had ruled out previous diagnoses
of anxiety disorder and acute distress disorder, and noted that she concurred with an attending
physician’s diagnosis of post-traumatic stress disorder. She advised that, while the traumatic
workplace events did not involve a physical threat of death, appellant experienced a “highly
charged psychological attack” which felt emotionally abusive to her. Ms. Sterling noted that
appellant reported experiencing systemic exclusion and hostile communications from her
supervisor, resulting in repeated exposure to demeaning interactions. She opined that the
“psychological atmosphere in the workplace had a profoundly negative effect on appellant’s
psychic safety and personal worth.”

5

Appellant also submitted a copy of the October 3, 2018 OWCP hearing representative’s
decision.
By decision dated November 7, 2019, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record10 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.11

5
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
6

20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
7

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

9

20 C.F.R. § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
10

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

11

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

6

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On September 17, 2019 appellant filed a timely request for reconsideration of an October 3,
2018 decision,12 but she did not establish that OWCP erroneously applied or interpreted a specific
point of law, nor did she advance a relevant legal argument not previously considered by OWCP.
She argued that she established compensable employment factors because management intended
to strip her of her self-worth and to degrade her by subjecting her to personal attacks. However,
OWCP had previously considered and rejected these same arguments when it denied appellant’s
stress-related occupational disease claim. Accordingly, the Board finds that appellant is not
entitled to a review of the merits based on either the first or second requirement under 20 C.F.R.
§ 10.606(b)(3).
On reconsideration, appellant submitted additional medical evidence, including January 30
and September 6, 2019 reports from Dr. Mannan-Hilaly, and a June 20, 2019 letter from Dr. Norris.
While this medical evidence is new, it is not relevant because it does not directly address the
underlying issue of the present case which is factual in nature, i.e., whether appellant submitted
sufficient factual evidence, with adequate supporting documentation, to establish a compensable
employment factor. The submission of this medical evidence does not warrant a review of
appellant’s claim on the merits because 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.13
Appellant submitted a March 1, 2019 report from Ms. Sterling, a licensed clinical
professional counselor, who advised that appellant reported experiencing systemic exclusion and
hostile communications from her supervisor. This nonmedical document is not relevant to abovenoted underlying issue of the present case because it only contains a second-hand description of
appellant’s unsupported allegations regarding work conditions. Therefore, the submission of this
document would not require reopening of appellant’s case for review on the merits.14 Moreover,
its content is similar to that of previously submitted documents which have already been
considered by OWCP, including a June 17, 2016 report from Ms. Sterling. Appellant also
submitted a copy of the October 3, 2018 decision of OWCP’s hearing representative, but this
document was already of record and would not require reopening of the claim for merit review.
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record does not constitute a basis for reopening a case.15
Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).

12

See J.F., Docket No. 16-1233 (issued November 23, 2016).

13

See supra note 11.

14

Id.

15

See supra note 10.

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The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lafayette, NJ, Employer
__________________________________________

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

Docket No. 15-464
Issued: April 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 23, 2014 appellant filed a timely appeal from an October 30, 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 over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on September 6, 2014.
FACTUAL HISTORY
On September 8, 2014 appellant, then a 67-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 6, 2014, he strained his right hip
and buttocks while carrying a 30-pound package from a hamper to the back of a truck. He stated
1

5 U.S.C. § 8101 et seq.

that he felt a sharp pain in his right hip and buttocks extending to his foot. Appellant’s
supervisor checked a box indicating that appellant had been injured in the performance of duty.
Appellant stopped work on September 8, 2014.
In a note dated September 8, 2014, Dr. Richard Vaz, a Board-certified osteopath and
internist, stated that appellant could return to work on September 22, 2014. In a duty status
report of the same date, he noted clinical findings of pain in the right buttock and stated that
appellant should return to work on September 22, 2014.
In an attending physician’s report dated September 8, 2014, Dr. Vaz noted that appellant
had back/leg pain on the right side after lifting. He stated that appellant had sciatica.
By letter dated September 25, 2014, OWCP informed appellant that the evidence of
record was insufficient to support his claim for compensation. It stated that his case had been
reopened for consideration because he had not returned to work in a full-time capacity. OWCP
noted that the medical reports submitted contained only diagnoses of pain and sciatica, which
were descriptions of symptoms rather than valid diagnoses.
On September 8, 2014 Dr. Vaz noted that appellant presented with right leg pain. On
examination, he noted muscle spasm of appellant’s lumbar spine and pain with palpation over
the right buttock. Dr. Vaz noted an assessment of sciatica.
In a follow-up report dated October 6, 2014, Dr. Vaz noted that the pain in appellant’s
right leg was improving. He noted an assessment of muscle spasm in appellant’s low back and
buttock and noted that appellant returned to work on September 28, 2014.
By decision dated October 30, 2014, OWCP denied appellant’s claim for compensation.
It found that the medical evidence of record was insufficient to establish that appellant had been
diagnosed with a condition in connection with the incident of September 6, 2014. OWCP noted
that the only assessments received in support of his claim were for muscle spasm, sciatica, and
pain, which were descriptions of symptoms rather than valid diagnoses. It accepted that
appellant was a federal civilian employee who filed a timely claim and that the evidence
supported that the incident of September 6, 2014 occurred as described.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the

2

5 U.S.C. § 8101 et seq.

2

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
ANALYSIS
On September 8, 2014 appellant filed a claim alleging that he sustained right hip and
buttocks sprain due to an incident at work on September 6, 2014. He noted that his injury
occurred while carrying a 30-pound package from a hamper to the back of a truck. By decision
dated October 30, 2014, OWCP denied appellant’s claim, finding that he had not established a
diagnosed condition due to the accepted incident.
The Board finds that appellant did not meet his burden of proof to establish his claim for
a September 6, 2014 work-related injury because he did not submit sufficient medical evidence
to establish a firm medical diagnosis due to the accepted incident. Appellant submitted reports
and notes from Dr. Vaz. In a duty status report dated September 8, 2014, Dr. Vaz noted clinical
findings of pain in the right buttock and stated that appellant should return to work on
September 22, 2014. In an attending physician’s report of the same date, he noted that appellant
had back/leg pain on the right side after lifting, and stated that appellant had sciatica. In a
follow-up report dated October 6, 2014, Dr. Vaz stated an assessment of muscle spasm in
appellant’s low back and buttock and noted that appellant returned to work on
September 28, 2014.
The Board has held that pain and spasm are generally descriptions of symptoms and are
not, in themselves, considered firm medical diagnoses.8 Sciatica refers to pain in the lower back
and leg, and as such is a description of a symptom and not a firm medical diagnosis.9 As such,
Dr. Vaz’s description of these symptoms are insufficient to establish a firm medical diagnosis
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

4

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 3.
8

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).
9

See C.B., Docket No. 13-694 (issued May 29, 2013).

3

related to the accepted incident at work. Therefore, the Board finds that the reports of Dr. Vaz
are insufficient to establish appellant’s claim for compensation. The Board also notes that the
record does not contain a medical report which explains, with medical rationale, how the
accepted incident of September 6, 2014 would have physiologically caused a diagnosed
condition. Appellant has therefore failed to establish that he had diagnosed conditions of the
right hip or buttocks resulting from the September 6, 2014 employment incident.
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 did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on September 6, 2014.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 30, 2014 is affirmed.
Issued: April 14, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Everett, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1449
Issued: March 11, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 25, 2019 appellant, through counsel, filed a timely appeal from a May 29, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated March 26, 2018, 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 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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 28, 2015 appellant, then a 54-year-old part-time flexible carrier, filed an
occupational disease claim (Form CA-2) alleging that she developed an emotional condition due
to factors of her federal employment including ongoing stress caused by incompetence,
negligence, and malpractice by management and OWCP in the handling of a previous 2012 injury
claim. She first became aware of her condition on February 20, 2015 and realized that it resulted
from her employment on June 8, 2015. On the reverse side of the claim form, T.A, a customer
services manager, indicated that appellant was last exposed to these alleged employment factors
on July 3, 2015.
Appellant submitted two narrative statements where she related that her stress started with
injuries that occurred on the job on January 18 and 20, 2012.3 She asserted that her supervisor had
not initially given her an injury report to file and thereafter delayed turning in her completed report.
Appellant described other mistakes by the employing establishment and OWCP regarding the
processing of her claim. She explained that she underwent surgery for her injuries and that
recovery was going to be a minimum of three months. Appellant noted that she had over 530 hours
of sick leave and over 530 hours of personal leave. She alleged that she had previously discussed
using her sick and personal leave while recovering from surgery and had submitted a “Form 3971”
to her supervisor, but instead the employing establishment put her on leave without pay. Appellant
expressed how stressful it was for her to deal with the payroll issue and the financial strain of not
being properly paid for months. She reported that she was diagnosed with extreme anxiety in
February 2015 and with post-traumatic stress disorder (PTSD) symptoms in March 2015.
In a July 21, 2015 development letter, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she respond to the attached questionnaire
in order to substantiate the factual element of her claim and provide additional medical evidence.
OWCP afforded appellant 30 days to submit the necessary evidence.
On July 8, 2015 appellant completed the attached questionnaire. She explained that she
underwent surgery for a torn labrum and hip impingement after January 18 and 20, 2012 work
injuries. Appellant related that, while she was off work recovering from surgery, management
failed to use her sick and annual leave. She reported that, every time she tried to resolve the issue,
she experienced uncontrollable shaking, increased pain and irritability, extreme anxiety, and
trouble sleeping. Appellant reported that her work and lack of income had been the only source
of stress in her life and that she had not worked outside of the employing establishment. She

3

Under OWCP File No. xxxxxx381, appellant filed a traumatic injury claim (Form CA-1) alleging that she strained
her left knee twice on January 18 and 20, 2012 when she slipped on ice when delivering mail while in the performance
of duty. OWCP accepted her claim for left knee chondromalacia. It subsequently expanded acceptance of her claim
to include left labral hip tear.

2

indicated that she had no other emotional conditions besides these events causing her anxiety and
PTSD.
Appellant submitted: her pay slips dated February 13 to July 17, 2015; a January 24, 2015
Request for Absence form, which requested three months of Family and Medical Leave Act leave
due to recovery from an injury; an illegible Request for Pay, Leave, or other Hours Adjustment; a
position description for a city carrier; an August 10, 2015 patient chart note listing her active
conditions; a grievance form dated June 3, 2015; and a list of paychecks that were incorrect.
In a July 2, 2015 letter, Dr. Antony S. Egnal, a Board-certified family practitioner, noted
that in February 2015 he treated appellant for new symptoms of anxiety, situationally induced
palpitations, irritability, sleep issues, and obsessive compulsive disorder type behavior. He
indicated that she was having issues dealing with Labor and Industries and the employing
establishment and opined that the symptoms were a direct result of having to deal with her claim.
Appellant submitted additional reports dated February 20 to July 21, 2015 regarding Dr. Egnal’s
treatment for her depression, PTSD, and anxiety.
In a September 16, 2015 letter, H.G., an employing establishment health and resource
management specialist, controverted appellant’s claim. She alleged that appellant’s anxiety and
stress-related symptoms were a self-generated reaction to administrative procedures, and thus, not
compensable under FECA.
By decision dated October 5, 2015, OWCP denied appellant’s emotional condition claim
finding that she had failed to establish fact of injury.
On October 27, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
OWCP subsequently received additional reports by Dr. Egnal dated January 14 to
December 1, 2016. Dr. Egnal related that appellant continued to suffer from feelings of anxiety
and being overwhelmed. He conducted an examination and diagnosed depression, acute flare-up
of generalized anxiety disorder due to work stress, and PTSD. Dr. Egnal also completed duty
status reports (Form CA-7) dated January 14 to March 7, 2016, which advised that appellant not
return to work.
In a January 28, 2016 narrative report, Dr. Gary R. Snyder, a clinical psychologist, related
that he had treated appellant since October 15, 2015 for ongoing anxiety and depression resulting
from her workplace environment. He reported that she sustained two employment injuries in
January 2012 and began to have difficulties with her management chain. Appellant had informed
Dr. Snyder that her supervisor assigned her routes that required hours of walking, did not turn in
injury paperwork in a timely fashion, intentionally delayed her accommodation requests, did not
turn in corrected timesheets resulting in a lack of income, and would not provide assistance when
she asked. Dr. Snyder opined that she suffered from PTSD due to a hostile work environment. He
recommended three months of medical leave and completed a work capacity evaluation -psychiatric/psychological conditions (Form OWCP-5a).
In a February 19, 2016 addendum report, Dr. Snyder indicated that appellant had given
ample documentation regarding her January 2012 injury to the appropriate individuals at her work,
3

but management refused to help her and yelled at her in front of other employees. He indicated
that she underwent psychological testing on October 15, 2015 and her results showed that she was
extremely anxious and depressed. Dr. Snyder diagnosed PTSD and recurrent major depressive
disorder. He opined that the cause of appellant’s current anxiety and depression was due to her
on-the-job accident.
Appellant submitted a February 22, 2016 letter to the employing establishment in which
she explained that she was absent from work due to an occupational injury caused by a hostile
work environment. She noted that her physician and clinical psychologist recommended that she
take three months of medical leave and had submitted medical reports.
In addendum letters dated April 7 to May 19, 2016, Dr. Snyder reviewed appellant’s
history regarding the anxiety and depression she had experienced after the January 2012 job
injuries. He reported diagnoses of PTSD and severe recurrent PTSD. Dr. Snyder opined that
appellant’s current anxiety and depression was due to her on-the-job accident and the way her
recovery was handled by management. He indicated that she had experienced significant anxiety
and grief from not getting paid in a timely manner and listed the pay periods for which she was
not paid. Dr. Snyder also described various situations when appellant’s supervisor caused
appellant’s ongoing emotional distress and anxiety. He also completed OWCP-5a forms dated
April 7, 2016 to March 31, 2017, which indicated that appellant was significantly depressed and
was not able to work.
In letters dated January 21 and 22, February 14, and May 16, 2017, appellant continued to
describe situations where management annoyed, intimidated, and refused to help her. She also
asserted that, after she returned to work, she became the victim of workplace bullying by T.A. and
D.W., a supervisor. Appellant related that she was placed on routes that she was not familiar with,
was not allowed the usual time to get to know these routes, was forced to work beyond her work
restrictions, and was refused assistance in accomplishing her duties. She also reported that she
was attaching documentation which showed that her initial Form CA-2 was tampered with by
management. Appellant submitted copies of her Form CA-2, the narrative statement she included
with her Form CA-2, and various Request for or Notification of Absence forms for the period
March 12 to June 24, 2016.
OWCP also received an Equal Employment Opportunity (EEO) Investigative Affidavit and
various Step A Grievance Forms regarding incidents on May 18, July 28, August 10, and
November 4, 2015 when management failed to honor a regular schedule for her. Appellant
included narrative statements and union steward notes regarding these grievances.
On September 12, 2017 a telephonic hearing was held. Counsel was present. Appellant
reiterated her previous allegations that she suffered from anxiety and stress due to harassment from
management. She reported that she prevailed on nine of the grievances against management.
Appellant also explained that in July 2015 she was assigned to a new all-walking route. She
asserted that she had difficulty learning and completing the route and that when she requested
assistance management yelled at her and refused to help her.

4

In a September 25, 2017 narrative report, Dr. Snyder noted that appellant’s recent clinical
scales demonstrated that she was experiencing more emotional distress and turmoil than when
tested in October 2015.
In a September 26, 2017 letter, counsel alleged that appellant had provided sufficient
evidence to establish fact of injury. He cited to various cases to support his contention that
grievance settlements and difficulty with supervisors, if sufficiently detailed, could constitute error
or abuse on the part of management. Counsel also asserted that delay of pay and overwork were
considered compensable employment factors.
By decision dated November 20, 2017, an OWCP hearing representative affirmed the
October 5, 2015 decision finding that appellant had not established a compensable employment
factor for her emotional condition claim as her response to management’s actions were selfgenerated.
On January 2, 2018 appellant requested reconsideration. In a December 27, 2017 narrative
statement, she clarified several points about OWCP’s November 20, 2017 hearing representative
decision. Appellant alleged that she had submitted proof of all the harassment and bullying at
work by management. She quoted several regulations from the Employee Rights and
Responsibilities handbook and alleged that management failed to follow standard operating
procedure in handling her workers’ compensation claim and use of her sick leave.
By decision dated March 26, 2018, OWCP denied modification of the November 20, 2017
hearing representative decision.
Following the decision, in a January 16, 2019 report by Dr. Roopa Bhat, a Board-certified
neurologist, who treated appellant for complaints of left-sided facial pain, loss of appetite, fatigue,
anxiety, depression, and trouble sleeping. She reviewed appellant’s history and opined that
appellant’s stress had increased lately due to a lawsuit for a work-related injury. Dr. Bhat
conducted an examination and diagnosed left facial pain with probable migraine.
In a January 17, 2019 letter, Dr. Snyder reported that the hostile treatment and work
environment that appellant experienced from her supervisors and management since the
January 2012 job injury had directly led to her ongoing depression and anxiety. He described the
January 2012 injuries and the subsequent problems she had regarding the filing of her claim and
incorrect paychecks. Dr. Snyder further reported that, for the past seven years, appellant had dealt
with extreme pain in her left knee, hip, and leg and had to work a physically demanding job while
her medical treatment was denied and delayed.
Dr. Snyder also noted that appellant experienced a great deal of frustration and stress
because she was unable to meet the production standards at work and was unable to finish her
route within the time allotted due to her hip and knee injuries. He indicated that she also attributed
her stress to traffic problems on her route, difficulties parking, delays due to road construction,
and attempting to timely scan parcels. Dr. Snyder also described how appellant lost her regular
route in mid-July 2015 and had to do an all walking route, even though she was not medically
cleared for continuous walking. He also explained that, because the new routes were unfamiliar,
they took longer than eight hours to complete, which caused further physical and emotional pain

5

and suffering. Dr. Snyder indicated that appellant’s anxiety and stress over her inability to perform
her job duties in a timely manner were exacerbated by a series of late and incorrect payroll checks
issued by management. He opined that she sustained PTSD and severe depression during the
course of her employment and within the scope of compensable work factors as defined by FECA.
Dr. Snyder listed the compensable work factors to include regular and specially assigned work
duties, overwork, altercations/difficult relationships with supervisors if documented, erroneous or
abusive personnel actions, requirements of employment, and dispute with origin in the workplace.
On March 17, 2019 appellant, through counsel, requested reconsideration. Counsel
asserted that he was submitting new evidence, including an August 3, 2018 grievance decision, an
OWCP decision accepting her claim for a left hip injury, and a new medical report from Dr. Snyder
with new information supporting his opinion on causal relationship. He further contended that
OWCP had erroneously applied or interpreted a point of law, specifically that emotional conditions
can be caused by situations in which an employee is trying to meet his or her position requirements.
Counsel cited to the case of Lillian Cutler4 and asserted that when an employee experiences
emotional stress in carrying out his or her employment duties or has fear and anxiety regarding his
or her ability to carry out those duties and the medical evidence establishes that disability resulted
from his or her reaction to such scenario, that injury is considered to arise out of and be in the
course of employment. He also alleged new legal arguments that multiple errors in delaying
payments, making incorrect payments, errors assigning work duties, and administering personnel
rules constituted unreasonable error by management. Counsel further asserted that subjective
complaints of pain were compensable when related to physiological tissue damage. Lastly, he
argued that appellant’s current claim should be doubled with OWCP File No. xxxxxx381.5
OWCP received decisions from the employing establishment’s dispute resolution team.
According to a March 11, 2014 decision, the dispute resolution team determined that management
violated appellant’s opting rights when they did not schedule her to her regular work schedule and
denied her contractual right to begin her tour at 8:00 a.m. from December 9 through 21, 2013. In
an August 3, 2018 decision, the employing establishment’s dispute resolution team found that
sections of her Standard Form 3112B were improperly filled out by management and contained
false and misleading information.
Appellant submitted a September 1, 2017 letter from the Office of Personnel Management
which denied her application for disability retirement and the December 17, 2018 letter which
overturned the September 1, 2017 denial letter and approved her for disability retirement due to
major depression. She also provided narrative statements dated December 10, 2015 and June 22,
2016 describing the harassment she experienced from management. Appellant additionally
submitted a timeline of events from April 16, 2005 to January 3, 2019 regarding her job-related
injuries and a summary of grievances that resolved favorably for her. She also submitted the
January 30, 2015 left hip surgery operative report and additional medical reports from 2014
regarding medical treatment for her left hip condition.

4

28 ECAB 125 (1976).

5

See supra note 3.

6

OWCP received an unsigned June 9, 2015 letter from T.A., the Postmaster, who apologized
for the inconvenience in appellant’s pay issues. It also received pay adjustment certification forms
for pay periods 15-04, 15-05, 15-14, and 15-15. OWCP received a December 17, 2015 EEO
investigative affidavit from D.S., appellant’s supervisor.
By decision dated May 29, 2019, OWCP denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of appellant’s March 17, 2019 request for reconsideration, counsel cited to
Lillian Cutler and argued that OWCP failed to address whether appellant’s alleged emotional
6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

7

condition resulted from her specific employment duties or from fear and anxiety regarding her
ability to carry out those abilities. The Board finds that counsel’s argument is a new legal argument
relevant to the underlying issue of whether appellant had established a compensable employment
factor under FECA. In narrative statements dated January 21 and 22, 2017 and during the
September 12, 2017 telephonic hearing, appellant explained that after she returned to work she
was placed on unfamiliar routes, did not have adequate time to learn these routes, and was refused
assistance in accomplishing her duties. OWCP, however, did not address these employment
conditions in its previous decisions. As counsel advanced legal argument relevant to appellant’s
claim which was not previously considered by OWCP, such argument warrants further merit
review.11
Along with her reconsideration request, appellant also submitted relevant and pertinent
new evidence not previously considered by OWCP. She provided decisions dated March 11, 2014
and August 3, 2018 from the employing establishment’s dispute resolution team, which found in
her favor against management. The Board finds that these decisions by the employing
establishment’s dispute resolution team address the issue of whether the employing establishment
acted reasonably, and accordingly, constitutes relevant and pertinent new factual evidence related
to the underlying issue in this claim.12
Appellant also provided a new medical letter dated January 17, 2019 by Dr. Snyder.
Dr. Snyder related that she became frustrated and stressed because she was unable to meet the
production standards at work and was unable to finish her route within the time allotted due to her
hip and knee injuries. He indicated that appellant also attributed her stress to traffic problems on
her route, difficulties parking, delays due to road construction, and attempting to timely scan
parcels. The Board finds that Dr. Snyder provided new details regarding how her specific
employment duties caused or contributed to her diagnosed conditions.13 Accordingly,
Dr. Snyder’s report constitutes pertinent new and relevant medical evidence. Thus, appellant is
entitled to a review of the merits of her claim based on the third above-noted requirement under
section 10.606(b)(3).14
The case will therefore be remanded for OWCP to conduct a merit review of the claim, to
be followed by an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

11
See D.K., Docket No. 19-0637 (issued December 11, 2019); D.M., Docket No. 16-1754 (issued
January 10, 2018).
12

See W.S., Docket No. 12-0992 (issued February 7, 2013).

13

See O.G., Docket No. 18-0359 (issued August 7, 2019).

14

H.H., Docket No. 18-1660 (issued March 14, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the May 29, 2019 nonmerit 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 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.N., Appellant
and
DEPARTMENT OF THE NAVY,
PEARL HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

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

Docket No. 07-1823
Issued: October 18, 2007

Case Submitted on the Record

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

JURISDICTION
On June 26, 2007 appellant filed a timely appeal from an April 3, 2007 Office of
Workers’ Compensation Programs’ decision, adjudicating her claim for a schedule award.
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 any ratable hearing loss entitling her to a schedule
award.
FACTUAL HISTORY
On April 11, 2006 appellant, then a 69-year-old secretary, filed an occupational disease
claim alleging that she sustained bilateral hearing loss and ringing in her ears causally related to
noise exposure at work. From 1981 to 1995 she was exposed to hazardous noise when she
worked as a mobile equipment servicer and a crane operator. In 1995 appellant began working

as a secretary and was not exposed to loud noise. On April 11, 2006 she filed a claim for a
schedule award. On August 11, 2006 the Office accepted appellant’s claim for aggravation of
binaural noise-induced hearing loss. Appellant submitted copies of audiograms dated 1984 to
1998.
The Office referred appellant to Dr. Meredith Pang, an otolaryngologist, for an
examination on July 20, 2006. Dr. Pang found that appellant had mild bilateral high frequency
sensorineural hearing loss, slightly worse in the left ear, caused by noise exposure at work.
Appellant also complained of ringing in her ears. Audiometric testing between 1984 and 1991
revealed normal hearing thresholds. Between 1992 and 1997 there was a very slight elevation of
the hearing thresholds. Audiometric testing performed on July 20, 2006 revealed, at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps): right ear decibels of 20,
30, 30 and 25; left ear decibels of 25, 30, 30 and 50.
On September 15, 2006 an Office medical adviser reviewed the results of the audiometric
testing performed for Dr. Pang and applied the Office’s standardized procedures. He totaled the
decibels of 20, 30, 30 and 25 in the right ear for the frequency levels of 500, 1,000, 2,000 and
3,000 cps at 105 decibels and divided by 4 to obtain the average hearing loss of 26.25 decibels.
This average was then reduced by 25 decibels to equal 1.25 decibels which was multiplied by the
established factor of 1.5 to compute a 1.9 percent impairment in the right ear. The Office
medical adviser totaled the losses of 25, 30, 30 and 50 in the left ear at 135 decibels and divided
by 4 to obtain the average hearing loss of 33.75 decibels. This average was then reduced by 25
decibels to equal 8.75 which was multiplied by the established factor of 1.5 to compute a 13.1
percent impairment in the left ear. The Office medical adviser indicated that appellant had a 3.8
percent binaural hearing impairment, according to the standardized Office procedures for
determining entitlement to a schedule award.
On March 21, 2007 Dr. David N. Schindler, an otolaryngologist and an Office medical
consultant, stated that the October 17, 1996 audiogram should be applied in determining
appellant’s work-related hearing loss. He noted that her last work-related noise exposure
occurred in 1995. Dr. Schindler stated that hearing loss which develops after an individual
ceases to be exposed to industrial noise is not causally related to that noise exposure. Using the
October 17, 2007 audiogram, he totaled the decibels of 15, 25, 15 and 15 in the right ear for the
frequency levels of 500, 1,000, 2,000 and 3,000 cps at 70 decibels and divided by 4 to obtain the
average hearing loss of 17.5 decibels. This average was then reduced by 25 decibels to equal 0
decibels which was multiplied by the established factor of 1.5 to compute a 0 percent impairment
in the right ear. Dr. Schindler totaled the losses of 25, 25, 25 and 25 in the left ear at 100
decibels and divided by 4 to obtain the average hearing loss of 25 decibels. This average was
then reduced by 25 decibels to equal 0 which was multiplied by the established factor of 1.5 to
compute a 0 percent impairment in the left ear. Dr. Schindler indicated that appellant had no
ratable binaural impairment, according to the standardized Office procedures for determining
entitlement to a schedule award.
By decision dated April 3, 2007, the Office denied appellant’s claim for a schedule award
on the grounds that she had no ratable hearing loss.

2

LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act1 and its
implementing regulation2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A, Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each
frequency are added up and averaged.5 Then, the “fence” of 25 decibels is deducted because, as
the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to
hear everyday speech under everyday conditions.6 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.8 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.9
ANALYSIS
Dr. Schindler reviewed the results of the audiometric testing performed on October 17,
1996, following appellant’s last noise exposure at work and properly applied the Office’s
standardized procedures. He totaled the decibels of 15, 25, 15 and 15 in appellant’s right ear for
the frequency levels of 500, 1,000, 2,000 and 3,000 cps at 70 decibels and divided by 4 to obtain
the average hearing loss of 17.5 decibels. This average was then reduced by 25 decibels to equal
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id.

4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

8

Id.

9

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

3

0 decibels which was multiplied by the established factor of 1.5 to compute a 0 percent
impairment in the right ear. Dr. Schindler totaled the losses of 25, 25, 25 and 25 in the left ear at
100 decibels and divided by 4 to obtain the average hearing loss of 25 decibels. This average
was then reduced by 25 decibels to equal 0 decibels which was multiplied by the established
factor of 1.5 to compute a 0 percent impairment in the left ear. The Board finds that the Office
medical consultant correctly determined that appellant had no ratable hearing loss.
On appeal, appellant asserts that she should be compensated for ringing in her ears, a
condition called tinnitus. The A.M.A, Guides allows for compensation of up to five percent for
tinnitus “in the presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.”10 The Board has held that there is no basis for paying a schedule
award for a condition such as tinnitus unless the medical evidence establishes that the condition
caused or contributed to a permanent and ratable loss of hearing under the Act’s schedule award
provisions.11 The medical evidence in this case does not establish that she has a tinnitus
condition that caused or contributed to a permanent and ratable loss of hearing. Consequently,
appellant is not entitled to a schedule award for a tinnitus condition.
CONCLUSION
The Board finds that appellant has no ratable hearing loss entitling her to a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2007 is affirmed.
Issued: October 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

A.M.A., Guides 246; Leslie M. Mahin, 55 ECAB 311 (2004).

11

Donald A. Larson, 41 ECAB 947 (1990); Charles H. Potter, 39 ECAB 645 (1988).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Bowling Green, KY, Employer
__________________________________________

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

Docket No. 11-1417
Issued: December 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 24, 2011 appellant filed a timely appeal from a March 10, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 19, 2009, as alleged.
FACTUAL HISTORY
On January 7, 2010 appellant filed a traumatic injury claim alleging that on October 19,
2009, after returning to work after being absent with the flu, her cold became worse as her office
1

5 U.S.C. § 8101 et seq.

building did not have heat during cold weather. She noted that she worked from 7:50 a.m. until
1:45 p.m., at which time management decided to close the office. As a result, appellant suffered
from a severe headache, aches in her entire body, a sore throat and coughing. She submitted
numerous documents supporting the fact that there was no heat in her building on that date,
including a February 10, 2009 internal memorandum by the senior individual tax advisory
specialist, who noted that there was no heat as a result of construction. The overnight
temperature for October 18 to 19, 2009 was below freezing and according to a coworker, the
temperature felt like it was 55 to 60 degrees in the office on October 19, 2009.
In a report from an October 19, 2009 office visit, Dr. Haidong Nguyen, a Board-certified
family practitioner, noted that appellant complained of aching, headache and sore throat.
Appellant stated that she felt fine until that morning when she came to work and the gas was
turned off. She was exposed to a cold office atmosphere, after which she started experiencing
some chills, body aches and headaches. Dr. Haidong diagnosed pharyngitis, body aching and
elevated blood pressure. In a note of the same date, he released appellant to return to work on
October 22, 2009.
Appellant also submitted a February 8, 2010 report from Dr. Vaughan Allen, a Boardcertified neurosurgeon, who indicated that she had degenerative disc disease and radiculopathy
that started after a March 15, 2007 injury.
By decision dated February 25, 2010, OWCP denied appellant’s claim finding that the
medical evidence was insufficient to establish her claim.
In a February 18, 2010 letter, appellant responded to OWCP’s query with regards to why
she waited three months to file her claim. She stated that her employing establishment did not
allow time off the counter for completing OWCP forms. Appellant forwarded a February 17,
2010 note by Dr. Nguyen, who stated that he saw her on October 14, 2009. At that time, she was
suffering from sinusitis and bronchitis, but noted that her cough was better. On October 19,
2009 Dr. Nguyen noted that appellant experienced some body aching, headaches and sore throat.
He diagnosed pharyngitis and body aching which was negative for flu. Dr. Nguyen stated,
“There may be a cause of relationship between her sore throat, aching and headaches related to
the cold exposure when she was in the office on that day.”
On March 24, 2010 appellant filed a request for review of the written record. She
forwarded documents attesting to the lack of heat in the building on October 19, 2009. Appellant
contended that her attending physician indicated that there may be a relationship between her
sore throat, aching and headaches related to the cold exposure. In a June 23, 2010 medical
report, Dr. Kirk A. Fee, a Board-certified orthopedic surgeon, advised that he saw appellant on
June 23, 2010 and discussed orthotics for her flat foot condition and limp after a total hip
replacement.
By decision dated July 27, 2010, OWCP’s hearing representative affirmed the
February 25, 2010 decision.
By letter dated February 4, 2011, appellant requested reconsideration. In a September 1,
2010 report, Dr. Fee noted that he was treating her for orthopedic injuries to her neck and back as

2

well as her hip and knee. He stated that appellant brought to his attention that she worked on
October 19, 2009 in a building that was below freezing. Dr. Fee opined that the cold temperature
did not do anything anatomically to the arthritis in her knee, her hip or to the degenerative
changes in her back and neck, but certainly temperatures that cold would make her
uncomfortable. He stated that patients with arthritis benefit from a warmer environment.
By decision dated March 10, 2011, OWCP denied modification of its July 27, 2010
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA2 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA4 and that she filed her claim
within the applicable time limitation.5 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
In order to satisfy the burden of proof, an employee must submit a physician’s
rationalized medical opinion on the issue of whether the alleged injury was caused by the
employment incident.9 Neither the fact that the condition became apparent during a period of
employment nor appellant’s belief that the employment caused or aggravated his condition is
sufficient to establish causal relationship.10
2

5 U.S.C. §§ 8101-8193.

3

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

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
See 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

9

Gary L. Fowler, 45 ECAB 365 (1994).

10

Phillip L. Barnes, 55 ECAB 426 (2004); Jamel A. White, 54 ECAB 224 (2002).

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ANALYSIS
The Board notes that there is no dispute that on October 19, 2009 appellant, worked in a
building that had no heat. Although there was a dispute as to how cold the office was, the
employing establishment and appellant agreed that the building was cold, which necessitated
closing it at 1:45 p.m. OWCP determined that she established that the incident occurred on
October 19, 2009, as alleged. The Board finds, however, that appellant did not submit sufficient
medical evidence to establish causal relationship between the accepted employment incident and
her sore throat, body aches, headache or coughing. Neither Dr. Allen nor Dr. Fee addressed
these conditions. Rather Dr. Allen addressed appellant’s degenerative disc disease and
radiculopathy. Dr. Fee addressed her orthopedic injuries, noting only that the cold temperature
did not affect her anatomically but that it could have caused her to feel uncomfortable.
The only physician to address a possible relationship between working in a cold office
building on October 19, 2009 and appellant’s symptoms was Dr. Nguyen, who treated her prior
to her return to work on October 19, 2009 as well as on that date. Dr. Nguyen opined, “There
may be a cause of relationship between her sore throat, aching and headaches related to the cold
exposure when she was in the office that date.” He did not provide a medical explanation for
such causal relationship. A medical opinion not fortified by medical rationale is of little
probative value.11 Dr. Nguyen’s opinion is speculative and equivocal as to causal relationship.
He does not state that the cold caused a worsening of appellant’s cold or flu condition, only that
there could be relationship. A medical opinion on causal relationship does not have to be one of
absolute certainty, but it must be one of reasonable medical certainty and not speculative or
equivocal in nature.12 The opinion should be expressed in terms of a reasonable degree of
medical certainty.13
The Board finds that the weight of the medical evidence does not establish that
appellant’s sore throat, headache, body aches and cough were caused or aggravated by workrelated exposure to a cold building on October 19, 2009. Accordingly, the Board finds that
appellant did not establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty on October 19, 2009, as alleged.

11

M.V., Docket No. 10-1169 (issued December 17, 2010).

12

B.P., Docket No. 10-1593 (issued June 8, 2011).

13

W.W., Docket No. 10-2306 (issued August 8, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 10, 2011 is affirmed.
Issued: December 20, 2011
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1991
Issued: July 1, 2010

Case Submitted on the Record

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

JURISDICTION
On July 28, 2009 appellant filed an appeal from a July 13, 2009 nonmerit decision of the
Office of Workers’ Compensation Programs denying her reconsideration request. There is no
merit decision within 180 days of the filing of this appeal. Therefore, pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim. The Board
has jurisdiction to review the July 13, 2009 nonmerit decision.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.

1

Appellant submitted new evidence accompanying her request for appeal. The Board may not consider new
evidence for the first time on appeal that was not before the Office at the time it issued the final decision in the case.
20 C.F.R. § 501.2(c).

On appeal, appellant asserts that the Office should have accepted her claim as she
remained disabled for work.
FACTUAL HISTORY
On January 16, 2008 appellant, then a 52-year-old mail handler, filed an occupational
disease claim (Form CA-2) claiming that she sustained a low back and hip injury on or before
December 30, 1987 due to lifting sacks of mail. She stated that the Office accepted a prior claim
for a December 30, 1987 injury. A supervisor noted that appellant was last exposed to the
identified work factors on July 18, 2007 and first reported the condition on January 30, 2008.
In a February 8, 2008 letter, the Office advised appellant of the type of additional
evidence needed to establish her claim. Appellant was afforded 30 days to provide such
evidence. She did not submit additional evidence prior to April 7, 2008.
By decision dated April 7, 2008, the Office denied appellant’s claim on the grounds that
fact of injury was not established. It found that appellant failed to establish that the
December 30, 1987 injury occurred at the time, place and in the manner alleged. The Office
noted that the claim was timely filed.
In an April 2, 2009 letter, appellant requested reconsideration. She stated that the effects
of the December 30, 1987 injury disabled her for work on and after July 25, 2007. Appellant
submitted a June 16, 1994 report, from Dr. Jasbir Chowdhary, an attending Board-certified
family practitioner, noting a history of back pain since a 1987 occupational injury. She provided
July 20, 2007 reports from Dr. William L. Burner, an attending Board-certified orthopedic
surgeon, noting a 1987 back sprain due to lifting heavy mail. Dr. Kidest Assegued, an attending
Board-certified internist, submitted chart notes dated August 9, 2007 to April 17, 2008 holding
appellant off work. Appellant also provided an August 15, 2005 position description and an
August 27, 2007 disability retirement form.
By decision dated July 13, 2009, the Office denied appellant’s request for reconsideration
on the grounds that the evidence submitted on reconsideration was irrelevant. It found that
although the April 7, 2008 decision denied appellant’s claim as fact of injury was not
established, the actual issue in the case was timeliness. The Office found that appellant’s
January 16, 2008 claim was not filed within three years of the December 30, 1987 injury.
Therefore, it was not timely under the three-year time limitation under 5 U.S.C. § 8122. The
Office acknowledged that on reconsideration, appellant submitted “some substantial medical
documentation.” This new medical evidence was irrelevant, as it did not address the threshold
issue of timeliness.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,2
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
2

5 U.S.C. § 8128(a).

2

relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 Section 10.608(b) provides
that when an application for review of the merits of a claim does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.4
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.5 Appellant need only
submit relevant, pertinent evidence not previously considered by the Office.6 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.7
ANALYSIS
The Office denied appellant’s occupational disease claim on April 7, 2008, finding that
appellant failed to establish fact of injury regarding a December 30, 1987 work incident.
Appellant requested reconsideration by letter dated April 2, 2009. She submitted new medical
reports in which two attending physicians mentioned a 1987 occupational back injury. In its
July 13, 2009 decision, the Office acknowledged that appellant submitted “substantial medical
documentation” on reconsideration. It did not evaluate the merits of this new evidence. Instead,
the Office denied reconsideration on the grounds that the original claim was not timely filed
within the three-year time limitation of 5 U.S.C. § 8122. The medical evidence submitted on
reconsideration was irrelevant to the issue of timeliness.
The Board finds that the July 13, 2009 decision clearly and totally changed the basis of
denial set forth in the April 7, 2008 decision, which found that appellant’s claim was timely filed
but did not establish fact of injury. The Office did not clearly set forth the basis for this change.
Therefore, the Board will remand the case to the Office for clarification of the legal and factual
basis for its July 13, 2009 decision. After such development as deemed necessary, the Office
will issue an appropriate decision in the case.
On appeal, appellant asserts that the Office should have accepted her claim as she
remained disabled for work. As the case must be remanded for additional development, it is
premature for the Board to address appellant’s argument.

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b). See also T.E., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

5

Helen E. Tschantz, 39 ECAB 1382 (1988).

6

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

7

Annette Louise, 54 ECAB 783 (2003).

3

CONCLUSION
The Board finds that the case is not in posture for a decision. The Office’s July 13, 2009
decision requires clarification.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 13, 2009 is set aside and the case remanded for further action
consistent with this decision and order.
Issued: July 1, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4