United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Chicago, IL, Employer
__________________________________________

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

Docket No. 09-1980
Issued: May 24, 2010

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 July 30, 2009 appellant filed a timely appeal from the June 18, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied an increased schedule award.
She also filed a timely appeal from the Office’s October 28, 2008 decision denying further
authorization for physical therapy from her chiropractor.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of the case.
Appellant disagrees with a letter dated May 13, 2008, in which the Office stated that it
had not received a Form CA-7b. However, that informational correspondence is not an
appealable decision and is not reviewable by the Board. Appellant adds that she has not received
reimbursement for 11 hours of leave, to which an October 9, 2008 Office letter advised that she
was entitled. However, such administrative issues are not subject to Board review. Appellant
also disagrees with an unidentified decision to deny her claim for a cervical condition, possibly a
1

The Office’s October 28, 2008 correspondence apprised appellant of an adverse action and constitutes an
appealable decision. Julius Cormier, 47 ECAB 465 (1996); 20 C.F.R. § 501.3(a) (any person adversely affected by
a final decision of the Office may file an application for review of such decision by the Board).

May 13, 2008 letter requesting objective test results showing a diagnosed cervical condition and
medical explanation of a material change in any cervical degenerative disc disease, possibly a
June 24, 2008 telephone call advising that no cervical condition was accepted and that appellant
needed to submit proof of a cervical condition and causal relationship. Neither is an appealable
decision.2
ISSUES
The issues are: (1) whether appellant has more than a four percent impairment of her left
upper extremity; and (2) whether the Office properly denied authorization for further chiropractic
therapy.
FACTUAL HISTORY
On September 11, 2000 appellant, then a 36-year-old claims examiner, filed an
occupational disease claim alleging that her chronic left shoulder, elbow, wrist and hand pain
was a result of repetitive typing in her federal employment. The Office accepted her claim for
left ulnar strain, left shoulder strain and left forearm strain. It also accepted left ulnar
compression, left flexor tendinitis and left shoulder bursitis. On May 11, 2005 appellant
received a schedule award for a three percent impairment of her left upper extremity. On
November 18, 2005 she received a schedule award for an additional one percent impairment.
On February 6, 2007 the Office informed appellant that it had updated her claim to accept
the following diagnoses: sprain of elbow and forearm, unspecified site, left; sprain of shoulder
and upper arm, unspecified site, left; adhesive capsulitis of shoulder, left; carpal tunnel
syndrome, left; myalgia and myositis, not otherwise specified, left. Appellant filed a claim for
an increased schedule award based on the newly accepted conditions of left carpal tunnel
syndrome and myalgia and myositis, left.
To resolve a conflict that arose between appellant’s physician and an Office second
opinion physician on whether there was a continuing work-related condition, the Office referred
appellant, together with the case record and a statement of accepted facts, to Dr. Paul D. Belich,
a Board-certified orthopedic surgeon, for an impartial medical evaluation.
On May 7, 2009 Dr. Belich related appellant’s history of injury and current complaints.
He reviewed her medical records and described his findings on physical examination. Dr. Belich
diagnosed soft tissue periscapular pain, soft tissue left shoulder pain, normal examinations of the
left elbow, left wrist and left hand. He explained that no significant objective findings or
diagnostic tests substantiated appellant’s complaints of pain in the left shoulder and shoulder
girdle. Dr. Belich felt that she was actively resisting attempts to obtain a better range of motion
in the left shoulder and was putting a great deal of effort in not allowing her arm to be raised
more than 120 degrees. Internal and external rotations on the left were symmetrical to the right,
an inconsistency indicative of abnormal pain-type behavior attempting to influence the
2

The record contains no adverse decision by the Office issued after November 18, 2008 and within 180 days of
the filing of this appeal or before November 19, 2008 and within one year of the filing of this appeal, denying
appellant’s claim for an employment-related cervical condition. 20 C.F.R. § 501.3 (time limitations for appealing).

2

examination. Dr. Belich concluded that appellant’s subjective complaints did not correspond
with any objective findings or any definitive orthopedic diagnosis.
Having found appellant’s range of motion evaluation invalid, Dr. Belich noted that other
physicians never actually found impaired range of shoulder motion beyond a few degrees and
there was nothing to explain why her current examination would be so much different. He
concluded that he could not give appellant more than about a two to three percent impairment of
the left upper extremity based on range of motion, but as there was nothing to indicate that she
had an impaired ability to carry out her work, he believed her true impairment rating should be
zero percent. Dr. Belich reviewed six previous impairment evaluations, three of which, from
orthopedic surgeons, found no impairment and two of which found left hand stiffness and a
sensory deficit that were not currently substantiated on examination.
In a decision dated June 18, 2009, the Office denied appellant’s claim for an increased
schedule award.
On August 2, 2007 the Office informed appellant that it could make payments for only
one attending physician and that Dr. Doreen King was considered the attending physician for her
claim.
On July 22, 2008 Dr. King noted that she had made numerous requests for further therapy
since November 2007, all of which the Office had denied pending referral from appellant’s
primary care physician, which was confusing to Dr. King, as the Office indicated that she was
the primary care physician. She requested authorization for four visits in 2007 and six visits in
2008. Dr. King noted that appellant was being treated periodically for sprain of the elbow and
forearm, sprain of the shoulder and upper arm, adhesive capsulitis of the shoulder and myalgia
and myositis. She added that appellant was seen clinically very infrequently and was under a
self-directed stretching and strengthening protocol to minimize the return of symptoms.
Dr. King concluded: “I can release [appellant’s] workers’ compensation claim with respect to
these left upper extremity injuries as maximally medically improved as of the last date of service,
[June 16, 2008.]”
In a letter dated October 28, 2008, the Office informed appellant that a review of her case
file showed that Dr. King, whom she had been seeing for physical therapy, was a chiropractor,
not a medical physician. As Dr. King reported that appellant had reached maximum medical
improvement and had completed her physical therapy and as there was no evidence from a
medical physician that appellant needed any additional physical therapy, the Office advised that
no further physical therapy with Dr. King was authorized.
On appeal, appellant disagrees with the Office’s decision to deny her schedule award
claim and terminate her therapy. She argues that she is in pain daily, that she self-medicates and
that the pain interferes with her work. Appellant adds that the Office approved Dr. King as her
attending physician.

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LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.4
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.5
ANALYSIS -- ISSUE 1
Appellant requested an increased schedule award based on the Office’s February 6, 2007
update of accepted conditions. She had the burden of proof to establish that she was entitled to
an increased award, to show that she had more than a four percent impairment of her left upper
extremity. However, appellant submitted no impairment evaluation to support her claim.
Dr. Belich, an orthopedic surgeon and impartial medical specialist selected to resolve whether
appellant had any continuing work-related condition, examined her but could find no objective
basis to substantiate her pain complaints. He deemed the range of motion findings invalid due to
active resistance and he could find no evidence of the left hand stiffness or sensory deficit for
which she previously received schedule compensation. Dr. Belich concluded that appellant’s
true impairment rating should be zero percent.
Moreover, the evidence the Office obtained indicated that appellant had no permanent
impairment of the left upper extremity. Because the weight of the medical evidence does not
support her claim, the Board finds that she has not met her burden of proof to establish that she is
entitled to an increased schedule award. The Board will affirm the Office’s June 18, 2009
decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of the Act provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.6 The Office must therefore exercise discretion in determining whether

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).
5

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

6

5 U.S.C. § 8103(a).

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the particular service, appliance or supply is likely to effect the purposes specified in the Act.7
The only limitation on the Office’s authority is that of reasonableness.8
Section 8101(2) of the Act9 provides that the term “physician,” as used therein, “includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulation by the Secretary.” Without diagnosing a spinal subluxation
from x-ray, a chiropractor is not a “physician” under the Act.10
ANALYSIS -- ISSUE 2
The Office mistook Dr. King for a “physician” under the Act. Dr. King’s letterhead, the
body of her reports, the way she signed her name gave no indication that she was a doctor of
chiropractic.11 Thus, the August 2, 2007 notice to appellant that the Office could make payments
for only one attending physician and that Dr. King would be considered the attending.
However, Dr. King was not in fact a “physician.” She did not diagnose a subluxation
from x-ray. Dr. King’s services did not include manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist. Therefore, the Office properly, if belatedly,
recognized her as a chiropractor providing physical therapy. Dr. King indicated in her July 22,
2008 report that she was releasing appellant from further managed care. She explained that
appellant was already infrequently seen on a clinical basis and was under a self-directed
stretching and strengthening protocol to minimize the return of symptoms. Further, Dr. King
stated that she was releasing appellant’s workers’ compensation claim with respect to her left
upper extremity injuries as appellant had reached maximum medical improvement, an indication
that appellant’s condition had stabilized and would not materially improve with further physical
therapy. The Office had discretion in this matter and under the circumstances, the Board finds
that the Office acted reasonably in advising appellant that it was authorizing no further physical
therapy from Dr. King without evidence from a medical physician that appellant needed such
physical therapy. The Board will affirm the Office’s October 28, 2008 decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has
more than a four percent impairment of her left upper extremity. The Board also finds that the
Office properly denied authorization for further chiropractic therapy.

7

See Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad discretionary authority in the administration of
the Act and must exercise that discretion to achieve the objectives of section 8103).
8

Daniel J. Perea, 42 ECAB 214 (1990).

9

5 U.S.C. § 8101(2).

10

See generally Theresa K. McKenna, 30 ECAB 702 (1979).

11

She did not follow her name with the initials D.C.

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ORDER
IT IS HEREBY ORDERED THAT the June 18, 2009 and October 28, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 24, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., 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. 19-1705
Issued: April 16, 2020

Case Submitted on the Record

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

JURISDICTION
On July 29, 2019 appellant filed a timely appeal from a February 6, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees ’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from February 6, 2019, the date of OWCP’s last decision, was
August 5, 2019. Since using August 13, 2019, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is July 29, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the February 6, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provide: “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 his burden of proof to establish ratable hearing loss
for schedule award purposes.
FACTUAL HISTORY
On August 30, 2018 appellant, then a 63-year-old marine machinery mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed binaural hearing loss and
tinnitus due to factors of his federal employment. He indicated that he first became aware of the
condition and attributed it to factors of his federal employment on June 20, 2018. Appellant did
not stop work.
In an accompanying narrative statement, appellant explained that he first became aware of
his hearing loss in June 2018 after he experienced difficulty hearing conversations. He noted that
he had audiograms taken yearly which showed a decline in his hearing. Appellant reported that
he started to experience a constant ringing in his ears that made hearing more difficult. He
indicated that his work as a marine mechanic exposed him to loud noises from pumps, diesel
engines, compressors, generators, blowers, cranes, loud speakers, operating equipment, air
systems, needle guns, grinders, drill presses, and saws. Appellant noted that when feasible he used
earplugs and earmuffs for protection. He indicated that he was exposed to loud noises between
three to six hours per day, five days per week. Appellant related that he had not experienced any
hearing problems prior to his federal employment.
In an August 27, 2018 employment history form, appellant listed his jobs from June 1975
to August 2018. He reported that he was not exposed to any significant loud noises prior to his
federal employment. Appellant noted that from September to August 2018 he worked as a
shipfitter laborer and a marine mechanic which exposed him to loud noises two to six hours daily.
He related that he used earplugs and earmuffs for protection.
In a May 15, 2012 report, Dr. Caton Harris, an employing establishment audiologist, saw
appellant for an annual hearing screening and diagnostic evaluation. He related that appellant
worked as a marine mechanic and was exposed to hazardous noises for 50 percent of his day.
Dr. Harris indicated that appellant reported constant tinnitus. He performed audiometry tests and
diagnosed sensorineural hearing loss.
In an April 24, 2014 report, Dr. Kathryn Watts, an employing establishment audiologist ,
indicated that appellant experienced deterioration in hearing sensitivity in his right ear as a result
of noise exposure. She related that he was exposed to hazardous noises as a result of his work as
a marine mechanic. Dr. Watts performed audiometry tests and found sensorineural hearing loss.
She diagnosed bilateral sensorineural hearing loss and tinnitus.
Appellant submitted audiograms performed by the employing establishment as part of a
hearing conservation program dated from April 23, 1984 through April 11, 2018.
In a September 6, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of medical evidence
needed. OWCP indicated that it was scheduling a second opinion examination for appellant to
address this deficiency.
2

On September 6, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Ronald Peroff, a Board-certified otolaryngologist, for a
second opinion evaluation.
In a report dated October 4, 2018, Dr. Peroff reviewed the SOAF and a September 27, 2018
audiogram, performed a physical examination, and completed OWCP’s evaluation questionnaire.
He indicated that there was no significant variation from the SOAF. Dr. Peroff diagnosed mild
sensorineural hearing loss that he opined was due to noise exposure related to appellant’s federal
employment. He reviewed appellant’s audiogram, which demonstrated losses of 15, 20, 15, and
30 decibels (dBs) on the right and 5, 15, 25, and 25 dBs on the left at 500, 1,000, 2,000, and 3,000
Hertz (Hz), respectively. Utilizing the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides),4 Dr. Peroff calculated that appellant
had a monaural loss of zero percent in each ear for a binaural loss of zero percent. He rated
appellant’s tinnitus at four percent permanent impairment to arrive at a total binaural hearing loss
of four percent.
By decision dated December 26, 2018, OWCP accepted appellant’s claim for binaural
sensorineural hearing loss and binaural tinnitus.
On December 26, 2018 OWCP referred the medical record and SOAF to its district medical
adviser (DMA), Dr. Jeffrey M. Israel, a Board-certified otolaryngologist, for calculation of
appellant’s percentage of permanent hearing impairment and assignment of the date of maximum
medical improvement (MMI). In a January 9, 2019 report, Dr. Israel concurred with Dr. Peroff’s
assessment of zero percent monaural loss in each ear. However, he opined that under the sixth
edition of the A.M.A., Guides, a tinnitus award could not be given when there was zero percent
binaural hearing impairment. As such, Dr. Israel found that the total binaural loss was zero percent.
He recommended that appellant receive yearly audiograms and provided authorization for hearing
aids. Dr. Israel determined that the date of MMI was September 27, 2018, the date of appellant’s
last audiogram.
By decision dated February 6, 2019, OWCP found that appellant’s hearing loss was not
sufficiently severe to be considered ratable, and he was therefore not entitled to schedule award
compensation. It found, however, that he was entitled to medical benefits for the effects of his
injury, including hearing aids, if recommended by his physician.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations6 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, FECA 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 for all claimants, OWCP has adopted the A.M.A., Guides as

4

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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

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the uniform standard applicable to all claimants. 7 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 8
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim. 9 With respect to a schedule award, it is the claimant’s burden
of proof to establish permanent impairment of a scheduled member or function of the body as a
result of his or her employment injury. 10 A claimant may seek an increased schedule award if the
evidence establishes that he or she sustained an increased impairment causally related to an
employment injury.11 The medical evidence must include a detailed description of the permanent
impairment.12
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.13 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides point out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. 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 binaural
hearing loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing
loss.14
Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury. 15 If tinnitus interferes with activities of daily
living, including sleep, reading, and other tasks requiring concentration, up to five percent may be
added to a measurable binaural hearing impairment. 16

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
9

B.B., Docket No. 19-1491 (issued February 3, 2020); John W. Montoya, 54 ECAB 306 (2003).

10

R.R., Docket No. 19-0750 (issued November 15, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).
11

B.B., supra note 9; Rose V. Ford, 55 ECAB 449 (2004).

12

B.B., supra note 9; Vanessa Young, 55 ECAB 575 (2004).

13

A.M.A., Guides 250.

14

J.E., Docket No. 19-1325 (issued December 13, 2019); E.C., Docket No. 19-1007 (issued November 8, 2019).

15

See A.M.A., Guides 249.

16

Id.

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.
OWCP referred appellant to Dr. Peroff for a second opinion examination to evaluate his
hearing loss. In his October 4, 2018 report, Dr. Peroff found mild sensorineural hearing loss and
binaural tinnitus due to noise exposure related to appellant’s federal employment and calculated
that appellant had a monaural loss of zero percent in each ear for a binaural loss of zero percent.
He then rated appellant’s tinnitus at four percent permanent impairment to arrive at a total binaural
hearing impairment of four percent.
In a January 9, 2019 report, Dr. Israel, OWCP’s DMA, reviewed Dr. Peroff’s report and
determined that appellant had zero percent monaural hearing loss in each ear. He related that
September 27, 2018 testing revealed losses of 15, 20, 15, and 30 dBs on the right and 5, 15, 25,
and 25 dBs on the left at 500, 1,000, 2,000, and 3,000 Hz, respectively. Dr. Israel totaled the dB
losses to 80 on the right and 70 on the left. These values, when divided by four, resulted in an
average hearing loss of 20 on the right and 17.5 on the left, which when reduced by the 25 dB
fence, resulted in zero percent loss.
The Board finds that as the September 27, 2018 audiogram did not demonstrate that
appellant’s hearing loss was ratable, he is not entitled to a schedule award for his accepted hearing
loss condition. Although appellant has an employment-related hearing loss, it is not significant
enough to be ratable for schedule award purposes. 17
While Dr. Peroff added a four percent impairment rating based on appellant’s tinnitus,
Dr. Israel correctly explained that tinnitus may not be added to an impairment rating for hearing
loss under the sixth edition of the A.M.A., Guides unless such hearing loss is ratable. 18
Accordingly, as appellant does not have ratable hearing loss, the Board finds that he is not entitled
to a schedule award for tinnitus.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.

17

See L.R., Docket No. 18-0823 (issued December 9, 2019); L.H., Docket No. 18-0696 (issued November 28,
2018); G.G., Docket No. 18-0566 (issued October 2, 2018).
18

B.B., supra note 9; J.E., supra note 14.

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCES CONSERVATION
SERVICES, Chillicothe, MO, Employer
__________________________________________

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

Docket No. 11-67
Issued: October 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 12, 2010 appellant filed a timely appeal from an August 5, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the 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 February 9, 2009 appellant, then a 46-year-old former resource conservation and
development (RC&D) coordinator, alleged that his emotional condition was caused by work
1

5 U.S.C. §§ 8101-8193.

factors on or about February 14, 2006. He also alleged, in a recurrence claim form, that his
emotional condition worsened on June 19, 2008. Appellant alleged that he was subject to
unrelenting abuse and torment by his supervisor, Patricia Hufford and second line supervisor,
Roger Hansen, a state conservationist. He was terminated on November 21, 2008.
In an undated statement, a February 6, 2008 affidavit, e-mails and several Equal
Employment Opportunity (EEO) complaints, appellant alleged his mistreatment.
On
November 24, 2003 Ms. Hufford snapped at him and publicly scolded him for giving her a
physician’s statement for knee surgery scheduled for December 2003. After his December 2003
surgery, appellant’s work location changed. Ms. Hufford directed him to move his office
furnishings, which he claimed reinjured his knee. At the new location, appellant alleged that he
was micromanaged, harassed and scrutinized. He noted winning an award for a novel approach
to storm water management, but Ms. Hufford did not give proper recognition. In performance
reviews, she accused him of being a poor father and equated him to a man in a high profile
murder case. Ms. Hufford told appellant that a fish sale that he had arranged to be held on
government property was illegal. Before a public forum on March 15, 2005, she slung his power
point CD disc across an auditorium in a rage because he did not help her carry equipment. On
May 9, 2005 Ms. Hufford accused appellant of not meeting a deadline for submitting monthly
schedules. Appellant sent the schedule by priority mail but she scolded him for not faxing it
although he claims she previously told him not to fax the schedules. On October 12, 2005
Ms. Hufford told him that his job as an urban conservationist was to be abolished and gave him
no option of certain continued employment. Because of his uncertainty about his job, appellant
had a mental breakdown from October 18, 2005 through February 14, 2006. He stated that this
was the first time he was treated by the Employee Assistance Program (EAP) and a psychiatrist.
Appellant accepted reassignment as a RC&D coordinator in Chillicothe, MO and started
work on March 13, 2006. He alleged that he reinjured his knee when moving his office effects.
The reassignment caused financial problems as appellant bought a second home. Appellant
asserted that the employer erred in not offering him a car for his commute and not offering him a
district conservationist job in Daviess/Dekalb County. He felt his coworkers treated him
differently. Appellant had no experience as a RC&D coordinator and alleged that his training
plan had goals three times higher than other experienced coordinators. On September 21, 2006
his request for travel authorization to the Missouri State RC&D Association meeting was denied
but other Missouri RC&D coordinators were allowed to go. Appellant alleged that his work was
devalued. On September 27, 2006 his office was listed as the only RC&D office that was
severely deficient in personal goal achievement. Appellant alleged that two coworkers were
credited with a majority of his accomplishments and Ms. Hufford denied his request to correct
the report. In 2007, Ms. Hufford undermined his authority in disputes he had with Tiffany
Palmer, a subordinate employee. She also did not approve a program he recommended involving
a work release program at a correctional facility. Appellant informed his supervisors in a
May 30, 2007 meeting that he needed another knee operation but his request for reinstatement of
265 hours of sick leave was not approved. On April 8, 2008 his request for two hours of
administrative leave to vote in Kansas City, where he was registered, was denied. In May 2008,
Ms. Hufford asked appellant for documentation of the dates, times and places of his EAP
counseling before approving administrative leave. Appellant provided EAP appointment
reminder cards but he claims she refused the request. Ms. Hufford threatened him with absent
without leave (AWOL) on June 9, 2008 if he did not sign a medical information release with
2

EAP before June 19, 2008. Appellant felt coerced to sign a blanket medical release without
stipulations. This caused a nervous breakdown and he was off work from June 19 to
July 28, 2008. When appellant returned to work July 28, 2008, he was put on a 60-day
performance improvement plan (PIP), which he felt was a short timeframe for unrealistic tasks
such as writing a first rate grant proposal, which he had never done. Ms. Hufford stated that he
would receive two or three days of training. Appellant indicated on September 5, 2008 that the
director of operations for the National Association of RC&D Council stated his assigned tasks
were “unrealistic” and a “set-up for failure.” He noted filing four EEO complaints in these
matters.
Appellant submitted evidence from 2005 and 2008 from EAP therapists and other
medical records. Dr. Chitra Chinnaswamy, a Board-certified psychiatrist, diagnosed major
depression and anxiety disorder. On February 25, 2009 Dr. David L. Vlach, a Board-certified
psychiatrist, diagnosed recurrent, moderate major depression.
In a September 9, 2009 decision, OWCP denied the claim finding that no compensable
work factors were established. Appellant requested a hearing and, on November 2, 2009, an
OWCP hearing representative vacated the September 9, 2009 decision and directed OWCP to
obtain the employer’s responses to appellant’s allegations.
On December 2, 2009 OWCP received statements and documentation from the
employing establishment. In a November 19, 2009 statement, the employer denied that there
was any aggressive snapping or refusal on Ms. Hufford’s part in approving appellant’s sick leave
request on November 24, 2003. The leave request indicated that, it was requested and approved
on November 24, 2003, with a notation from Ms. Hufford to provide a statement from his
physician. The employing establishment stated that Ms. Hufford advised appellant of the
planned move of his duty station in a January 21, 2004 letter and in a January 25, 2004
memorandum. The employing establishment stated that he had no furniture to move as his new
office was fully furnished and ready for use. Appellant only had to move his personal effects.
As she was an hour away from appellant’s new office, Ms. Hufford asked the district
conservationist to coordinate his first day and to provide him with items he may be moving. The
employing establishment stated that he did not ask for assistance or note any trouble. It noted
that he had been released by his surgeon for full-duty work. In a September 25, 2007 letter,
Ms. Hufford advised that she was not aware that he had any heavy office items to move or
needed assistance and that he did not file a claim for any aggravation of a knee condition in
January 2004. The employing establishment indicated that appellant was familiar with the
furniture set up and there was no rearranging done by him at his new location. It noted that on
January 20, 2006 appellant called the person who handled relocation travel and was told he did
not have to lift anything because the moving company would handle such matters.
Ms. Hufford denied appellant’s allegations of micromanagement, harassment and
scrutiny. She stated that she had two employees with similar names and acknowledged an
August 29, 2008 e-mail regarding grant writing training contained a typographical error in the
employee’s name. Ms. Hufford denied in an August 14, 2008 e-mail equating appellant to a high
profile murderer or saying he did not care for his daughter. She denied telling him that the fish
sale was illegal but questioned if it was appropriate to hold the sale in the employing
establishment parking lot. A higher authority was contacted and confirmed it was not proper to

3

hold such a sale. Ms. Hufford denied slinging appellant’s power point CD on March 15, 2005
based on her appointment schedule for that date. She stated that she would only set up
equipment at district conservationist (DC) meetings and there was no such meeting on
March 15, 2005. Ms. Hufford noted that appellant would not have been at a DC meeting in 2005
as he was not in DC at that time. She stated that employees were told to send monthly schedules
by regular mail but that faxing was not prohibited. Ms. Hufford advised that her office was 72
miles from appellant’s new office such that she was unable to regularly observe behaviors of
appellant or his coworkers.
With regard to abolishing appellant’s position, the employing establishment noted that
the position was abolished effective January 1, 2006 due to budget cuts. On October 25, 2005
Ms. Hufford informed him that his position could be abolished in January 2006 or 2007 and
discussed employment options. In a November 29, 2005 e-mail, she noted that appellant’s
current job was to be abolished due to a business decision and that a directed reassignment letter
to a GS-12 job would be made in a formal letter. The employing establishment stated that
Ms. Hufford had no authority to give a directed reassignment or abolish his job; that authority
belonged to Mr. Hansen. In a December 27, 2005 letter, Mr. Hansen abolished the position and
offered a directed reassignment. The employing establishment noted that reassignment
regulations allowed it extensive flexibility in the process. Appellant’s directed reassignment was
as a RC&D coordinator in Chillicothe, Missouri. The job was the same grade as his previous
job, was permanent and was only 75 miles away and closer than other options. Moving expenses
were authorized. The duties were similar to appellant’s prior job and his goals were comparable
to the other RC&D coordinator. Appellant’s training plan was not considered onerous and
included concepts to be learned on the job or through online courses.
The employing establishment stated that Ms. Hufford did not fully deny appellant’s
request to attend the Missouri State RC&D Association meeting. Ms. Hufford’s counterpart in
Jefferson City declined authorization for the entire two day trip for two RC&D Coordinators
from that area. She felt that the meetings agenda offered only a one hour coordinator’s meeting
that was relevant for RC&D coordinators. On September 12, 2006 Ms. Hufford e-mailed
appellant that he could attend a one-hour coordinator meeting on government time and with a
government vehicle. The employing establishment noted that Ms. Hufford’s job duties required
her to assess requests, determine appropriateness and spend money wisely. Furthermore,
appellant was behind on a project and a two-day absence for a less than useful meeting would
put him further behind. The employing establishment advised that Ms. Hufford was not pleased
that Ms. Palmer ignored a directive from appellant but she still gave Ms. Palmer a cash award
because she served as timekeeper which was not one of her regular responsibilities. Before
giving Ms. Palmer the award, appellant sent Ms. Hufford an e-mail of support. However, he
later felt that this undermined his authority. On September 27, 2006 appellant’s office was listed
as the only RC&D office severely deficient in personal goal achievement. Ms. Hufford did not
have the authority to correct or resubmit the performance summary reports. Changes to the
report could be made each time the report was updated by the staff and appellant had
authorization to enter such information. The final report for the 2006 fiscal year sent October 2,
2006 did not contain any additional reporting by him. On May 30, 2007 appellant requested
reinstatement of 265 hours of sick leave so that it could be used in calculating his retirement
annuity. This was not approved as there were no provisions for reinstating sick leave that had
been properly requested and approved just because the employee wanted to preserve leave for
4

retirement purposes. The employing establishment stated that Ms. Hufford had approved
appellant’s use of existing accrued sick leave for requested periods.
Regarding administrative leave for voting, Ms. Hufford advised that the polls in Kansas
City were 75 miles from appellant’s Chillicothe duty station. She noted that such leave must be
sought in advance which he did not do. Although supervisors had discretion to approve a limited
amount of excused absence where polls are not open at least three hours either before or after an
employee’s regular work hours, the Kansas City polls were for three hours after appellant’s shift
ended and absentee voting was allowed. This was explained to appellant in an April 17, 2008
e-mail, where Ms. Hufford requested documentation for two hours of administrative leave
claimed on April 8, 2008. On April 18, 2008 Ms. Hufford denied the request as his Kansas City
residence was beyond a normal commuting distance and absentee voting was available. The
employing establishment stated that she supported appellant’s use of administrative leave for
EAP sessions but requested documentation to support the requests. Ms. Hufford approved
administrative leave for the first two sessions but, when he did not obtain documentation and
only provided “appointment cards,” she contacted the EAP director and learned that appellant
needed to give a waiver so his staff could provide the requested documentation. Appellant was
informed of the EAP director’s position and was asked to provide the requested waiver within
10 days. He was advised that if he did not obtain the required documentation, he could change
his request to sick leave or it would be recorded as AWOL.
Ms. Hufford stated that the storm water project and appellant’s award were reported in
the employer’s report. She noted in her May 19, 2004 e-mail that she encouraged him to try for
a grant and his accomplishments were noted in his performance appraisal. On July 28, 2008
Ms. Hufford gave appellant a PIP. The 60-day period to improve performance was within
agency guidelines and approved by national headquarters. The tasks were realistic and designed
to help appellant meet “mission results” requirements, a critical performance element. Appellant
could request an extension if reasons and a new date were proposed. He requested an extension
on September 25, 2008, the date the PIP ended, asserting that he was distracted by three EEO
complaints. The employing establishment determined that an extension would not be an
effective solution as it was unlikely more time would result in success. It advised that appellant
requested and was provided training in several areas, to the extent he complied. Appellant
received training in Outlook Publisher and making mailing labels but he did not attend the grant
writing training and, in a course for which he was waitlisted, he did not commit and the class
filled. The employing establishment stated that the September 5, 2008 comment that his PIP
tasks were “unrealistic” and a “set-up for failure,” made by the director of operations for the
National Association of RC& D Council, was quoted out of context as the director of operations
was referring to the two roughly drafted goals from the 2008 annual plan, not to appellant’s tasks
in his PIP. The goals were in draft form as appellant did not develop the 2008 annual plan.
With regard to the correctional facility work release program, Ms. Hufford did not
initially deny or limit appellant’s involvement. However, appellant was not sure how to use the
women on the work release program as laborers and Ms. Hufford became concerned about
liability issues since he and Ms. Palmer would have to supervise prisoners. Ms. Hufford
consulted the state administrative officer who disapproved of the plan. The employing
establishment indicated that, under appellant’s proposal, its employees would have to take a half-

5

day of training to supervise prisoners and it was not its mission to provide oversight to prisoners.
Ms. Hufford determined that the program could not be approved due to liability concerns.
In a February 23, 2010 decision, OWCP denied appellant’s claim on the grounds no
compensable employment factors were established.
Appellant’s attorney requested a telephonic hearing that was held June 8, 2010.
Appellant reiterated his contentions including that on November 24, 2003 Ms. Hufford snapped
at him when he provided a physician’s excuse and that she sent an e-mail referring to a man in a
high profile murder case instead of him. He asserted that Ms. Hufford accused him of running
an illegal fish sale because it was on employing establishment property. Appellant stated that his
predecessor ran the same type of sale for profit. He reiterated that Ms. Hufford threw his power
point CD across a room like a “frisbee” but he may have been mistaken about the date being
March 15, 2005. Appellant testified that Ms. Hufford e-mailed Ms. Palmer to be careful about
his mental illness. Ms. Palmer later threatened to send a letter stating that she was disgruntled to
the RC&D Board. Ms. Hufford advised appellant to tell her not to do so and to have her give
him the letter for review first. However, Ms. Palmer did not give him the letter and sent it.
Afterwards, Ms. Hufford stated that the “no send” order was not given. No action was taken
against Ms. Palmer. Appellant testified that he was fired for filing EEO complaints and
Ms. Hufford and Mr. Hansen ignored his whistleblower protection rights. He indicated that his
merit systems protection suit he filed was settled but he was later “psychologically assaulted by
Louis Hendricks.” Appellant asserted that the abolishing of his job was illegal as was his
termination as he met all of his performance standards.
In an undated letter, the employing establishment reiterated many of its previous
responses. In reference to Ms. Palmer, the employing establishment stated that it was not
unreasonable for Ms. Hufford to caution Ms. Palmer to be discreet about any employee who was
in extended sick leave status as she was the only person, other than appellant, with access to his
timesheet. It noted that there was no e-mail stating that Ms. Palmer should be discreet about his
“mental illness” and that Ms. Hufford did not intervene, other than to respond to his request for
input. Regarding appellant’s allegation about options for continued employment, the employing
establishment noted that he was not given certain job options before his job was officially
abolished and Ms. Hufford had no authority to give him such an assignment. When the job was
abolished, he was given a directed reassignment on January 1, 2006. The employing
establishment indicated that when Ms. Hufford discussed possibilities with appellant in
October 2005, she did not know at that time when his job would be abolished. There was no
attempt to bully him. Appellant discussed the possibility of a private sector job and Ms. Hufford
provided information about severance pay. When the job as the Chillicothe RC&D coordinator
opened, the employing establishment stated that he did not apply for it and Ms. Hufford sent him
the November 29, 2005 e-mail which provided three options. As Ms. Hufford did not have the
authority to offer the directed reassignment, her e-mail was not an offer. The employing
establishment advised that it did not err on offering appellant a job that he wanted in another
county as that job was held by a deployed soldier who had a right to the job when he returned.
Also, a temporary assignment was made for that position in September 2005. The employing
establishment stated that appellant was fired for not meeting his job goals and it described the
goals he did not meet.

6

By decision dated August 5, 2010, an OWCP hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to her regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of FECA. The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to the nature of her work or her fear and anxiety regarding her
ability to carry out her work duties.3 By contrast, there are disabilities having some kind of
causal connection with the employment that are not covered under workers’ compensation law
because they are not found to have arisen out of employment, such as when disability results
from an employee’s fear of reduction-in-force or frustration from not being permitted to work in
a particular environment or hold a particular position.4
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.5 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.6
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.7

2

D.L., 58 ECAB 217 (2006).

3

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

4

Id.

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
6

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

7

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

7

For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim but rather must be corroborated by the
evidence.8 Mere perceptions and feelings of harassment or discrimination will not support an
award of compensation. The claimant must substantiate such allegations with probative and
reliable evidence.9 The primary reason for requiring factual evidence from the claimant in
support of her allegations of stress in the workplace is to establish a basis in fact for the
contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by OWCP and the Board.10
ANALYSIS
Appellant alleged an emotional condition to various actions by his supervisors as well
regarding his job and continued employment. The Board notes that he has not attributed his
emotional condition to either his regular or specially assigned duties of his jobs held during the
relevant period. Therefore, appellant has not alleged a compensable factor under Cutler.11
Appellant attributed his condition to learning that his job was being abolished and his
subsequent reassignment. In this regard, the assignment of a work schedule or tour of duty is
recognized as an administrative function of the employing establishment and absent any error or
abuse, does not constitute a compensable factor of employment.12 Appellant alleged that
Ms. Hufford did not tell him that he was eligible for a directed reassignment and that she did not
give him a directed reassignment. The Board finds that his claim focuses on the administrative
process by which the employing establishment assigned his new position. Appellant’s emotional
reaction arises from his disappointment of not being able to continue in his prior job as an urban
resource conservationist and his erroneous view that Ms. Hufford had the authority to reassign
him during the October 12, 2005 conversation. The employing establishment indicated that the
conversation was informative in nature, as it was not clear at that time when his job would be
abolished, that she could not abolish the position or offer a directed assignment. The record
shows that the employer provided him information as the process developed and, on
December 27, 2005, Mr. Hansen notified appellant that his job was abolished and offered a
directed reassignment in Chillicothe, MO, which appellant accepted. The Board finds that the
8

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
9

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
10

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

11

See supra note 3.

12

See Peggy R. Lee, 46 ECAB 527 (1995). See Andrew J. Sheppard, 53 ECAB 170 (2001) (an employee’s
frustration and depression resulting from an involuntary transfer are not compensable).

8

employing establishment acted reasonably in reassigning appellant. Appellant’s permanent job
was abolished. He was properly notified and given the opportunity to pursue other options. The
employing establishment explained that the Chillicothe job was chosen because it was the same
grade appellant previously held, was permanent and was closer than the other available options.
Appellant’s financial complaints are not relevant to the performance of his job duties and are not
compensable. While he felt the employing establishment should have provided him a car to
commute to Chillicothe, it was his personal decision to reside in two locations. Additionally, the
employing establishment authorized moving expenses since it was a permanent position. While
appellant expressed disappointment at not being reassigned to other closer jobs, the employing
establishment clearly articulated its reasons for why he was not reassigned in those locations.
Although appellant may have disliked the administrative action taken by the employing
establishment in directing his reassignment, he has not demonstrated error or abuse. Instead,
appellant’s concerns relate to his frustration at not being able to hold a particular position. Thus,
he has failed to establish a compensable work factor.
Appellant also alleged abuse by Ms. Hufford in other administrative matters. He alleged
that Ms. Hufford did not correct a performance report to reflect his personal goal achievement;
failed to grant or reinstate leave; and erroneously put him on a PIP and wrongfully terminated
him. The handling of disciplinary actions and leave requests, assigning work and monitoring
performance are administrative functions of a supervisor.13 The manner in which a supervisor
exercises his or her discretion generally falls outside FECA’s coverage. This principle
recognizes that supervisors must be allowed to perform their duties and at times employees will
disagree with their supervisor’s actions. Mere dislike or disagreement with certain supervisory
actions will not be compensable absent error or abuse on the part of the supervisor.14 An
employee’s dislike of his job duties or the desire for a different position is not a compensable
employment factor.15 .
Appellant alleged that he was erroneously denied leave in matters concerning
reinstatement of sick leave; voting in Kansas City; and in the employing establishment’s request
for documentation to support administrative leave for EAP counseling sessions. The record does
not establish employer error or abuse in these matters. The employing establishment explained
that there was no provision for reinstating sick leave that had been properly requested and
approved because the employee desired to preserve leave for retirement purposes. The
employing establishment also articulated that it did not approve appellant’s request for two hours
of administrative leave to vote in Kansas City as the polls were open three hours after his shift
ended, absentee voting was allowed and he did not request leave in advance. Furthermore, the
employing establishment’s request for documentation to support administrative leave for EAP
counseling was reasonable. Ms. Hufford explained that the EAP director informed her that
appellant needed to provide a waiver so the requested documentation could be provided.
Contrary to appellant’s allegation, there is no evidence that she requested medical records.
13

Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D.
Edwards, 55 ECAB 258, 270 (2004).
14

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

15

Katherine A. Berg, 54 ECAB 262 (2002).

9

Appellant did not provide evidence that the employing establishment erred in requesting
documentation to support administrative leave or in offering him an alternative to use sick leave
if no documentation was provided. There is no evidence that the employing establishment acted
unreasonably in these leave matters.
Appellant asserted that two coworkers were credited with 75 percent of his personal goal
achievements and Ms. Hufford denied his request to correct the summary report. Ms. Hufford,
however, did not have the authority to correct or resubmit the performance summary reports.
Changes to the report could not be immediately changed once submitted and only occurred when
it was updated with current information from the staff, which included appellant. While
Ms. Hufford informed him that any progress he entered would be captured in the next report, he
failed to provide any additional reporting. As noted, the monitoring of performance is an
administrative matter.16 Appellant has not submitted any evidence that the employing
establishment erred in this matter and thus has not established a compensable employment factor.
Appellant alleges that the employing establishment erroneously put him on a PIP and
wrongfully terminated him. While he alleged that the PIP had a short period (60 days) to
accomplish unrealistic tasks, the employing establishment advised that the tasks were not
onerous for a simple for a GS-12 level employee and were designed to help him meet the
requirements of a critical performance element. The employing establishment provided an
opportunity for training and a process for allowing a time extension. It also provided a
reasonable explanation for why appellant’s request for an extension of time was denied. The
employing establishment explained the reasons why the statement from the director of operations
for the National Association of RC&D Council, stating that appellant’s assigned tasks were
“unrealistic” and a “set-up for failure,” was presented out of context and not applicable to
appellant’s PIP. There is no evidence to substantiate that his duties were excessive or
unattainable such that the PIP and ensuing termination were in error. There is no other evidence
that the employer erred in terminating appellant or that he was fired for filing EEO complaints.
Appellant was placed on a PIP and terminated as he was not meeting the goals of his job,
including critical elements. There is no evidence that the employing establishment acted
unreasonably in these administrative matters.
Appellant further alleged that he was micromanaged, harassed and scrutinized by
Ms. Hufford. These allegations included that Ms. Hufford accused him of being a poor father
and equated him to a man associated in a high profile murder case; she told him that the fish sale
he had arranged to be held on government property was illegal; failed to properly recognize him
on his storm water management project; accused him of failing to meet a deadline for submission
of an advanced monthly schedule, failed to approve a program that involved a work release
program at a correctional facility; undermined his authority with disputes he had with
Ms. Palmer; and denied his request to attend the Missouri State RC&D Association meeting.
Appellant’s allegations of unfair treatment are not supported by the record. As noted,
Ms. Hufford either denied that these incidents occurred or the employing establishment
explained the circumstances surrounding each of these events and presented evidence supporting
Ms. Hufford’s decisions. There is no evidence that the employing establishment acted
16

Supra note 13. See Reco Roncaglione, 52 ECAB 454 (2001).

10

unreasonably in these matters. Thus, these matters do not rise to the level of a compensable
work factor. To the extent appellant alleges his supervisors performed their administrative duties
inappropriately, he has not shown that any of these or other employment actions constituted
harassment or mistreatment.
Appellant also alleged that Ms. Hufford publicly scolded him about a physician’s
statement on November 24, 2003, slung his PowerPoint presentation on a CD disc across the
auditorium in a fit of rage, because he did not help her carry equipment and refreshments. The
employing establishment contradicted the occurrence and presented evidence to support its
position. Appellant has provided no substantiated detail or contemporaneous evidence to
establish that the event occurred as alleged. He also alleged that after he returned to work on
March 13, 2006, his coworkers looked at him and treated him differently. The employing
establishment stated that Ms. Hufford was located in another office 72 miles away and was
unable to regularly observe appellant’s and his coworker’s behaviors. The record contains no
specific details by from appellant as to what events occurred between him and his coworkers.
Likewise, at his hearing, appellant noted that his merit systems protection suit was settled and
that he was “psychologically assaulted by Louis Hendricks” but he provided no further
information to support that any finding was made that the employer acted in error or to explain
how any actions by Mr. Hendricks rose to the level of a compensable work factor. There is
insufficient evidence to show that these matters rise constitute compensable employment factors.
Because appellant failed to establish a compensable work factor, the Board finds that it is
unnecessary to address the medical evidence of record.17
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.

17

See John Polito, 50 ECAB 347 (1999).

11

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cicero, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-760
Issued: July 11, 2014

Case Submitted on the Record

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

JURISDICTION
On January 23, 2014 appellant filed a timely appeal from a January 7, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP) denying her application for
reconsideration without merit review. 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 January 7,
2014 nonmerit decision. Since more than 180 days elapsed from the last merit decision of
February 6, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant a review of the merits of the claim pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 17, 2009 appellant, then a 50-year-old rural carrier, filed an occupational
claim (Form CA-2) alleging that she sustained carpal tunnel syndrome as a result of her federal
employment. OWCP accepted the claim on March 27, 2009 for bilateral carpal tunnel
syndrome. Appellant underwent a left carpal tunnel surgery on October 8, 2009, and a right
carpal tunnel surgery on November 7, 2009.
In a report dated April 27, 2009, Dr. John Fatti, a Board-certified orthopedic surgeon,
provided results on examination and diagnosed carpal tunnel syndrome and wrist joint pain. He
opined that appellant had a 10 percent permanent loss to each hand and wrist as a result of her
carpal tunnel syndrome.
OWCP referred appellant to Dr. Michael Wiese, a Board-certified orthopedic surgeon, for
a second opinion examination. In a report dated January 6, 2012, Dr. Wiese reviewed her
medical history and provided results on examination. He opined that under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (sixth edition) at Table
15-23, appellant had one percent impairment to each arm. By report dated April 20, 2012,
Dr. Harry J. Magliato, an OWCP medical adviser, agreed with Dr. Wiese’s impairment rating.
He stated that the date of maximum medical improvement was January 23, 2010. By report
dated July 24, 2012, Dr. Magliato advised that the date of maximum medical improvement was
January 6, 2012.
By decision dated February 6, 2013, OWCP granted appellant schedule awards for a one
percent impairment to each arm. The period of the awards was 6.24 weeks from
January 6, 2012.
In a letter dated December 9, 2013, appellant requested reconsideration. She contended
that Dr. Wiese agreed with Dr. Fatti as to 10 percent impairment, and she did not understand why
Dr. Wiese had changed his opinion. Appellant returned to Dr. Fatti’s office for a more recent
nerve conduction study (NCS) and still had carpal tunnel syndrome.
In a report dated November 25, 2013, Dr. Fatti noted that a November 18, 2013 NCS
showed moderate bilateral carpal tunnel syndrome. The report stated that appellant was not
interested in pursuing additional surgery, and she inquired whether this “will change the given
schedule loss of use.” Appellant was told that “the schedule loss of use that was given by
Dr. Fatti will stand as it is. This is based on Workers’ Comp Guidelines.”2
By decision dated January 7, 2014, OWCP denied appellant’s application for
reconsideration. It found that the evidence was insufficient to warrant further merit review.

2

The report was drafted by a nurse practitioner, but is cosigned by Dr. Fatti.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”4 Title 20
of the Code of Federal Regulations § 10.608(b) states that any application for review that does
not meet at least one of the requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
Appellant submitted an application for reconsideration with respect to the February 6,
2013 schedule award. According to her, the second opinion physician, Dr. Wiese, had told her
he agreed with Dr. Fatti as to a 10 percent arm bilateral impairment rating. Appellant did not
understand why he changed his opinion, as Dr. Fatti opined that she had 10 percent impairment.
With respect to the above requirements for a merit review, appellant has not established that
OWCP erroneously applied or interpreted a specific point of law, or advanced a relevant legal
argument not previously considered by OWCP. Dr. Wiese’s January 6, 2012 report found one
percent bilateral arm impairment. OWCP based its decision on the report of Dr. Wiese and an
OWCP medical adviser. Appellant’s assertion that Dr. Wiese supported greater impairment is
not supported by the record.
With respect to the submission of new and relevant evidence, appellant did not meet this
requirement. A new medical report dated November 25, 2013 signed by Dr. Fatti provided no
new or relevant evidence with respect to the February 6, 2013 schedule award. The report
simply states that the prior impairment “will stand as it is.” No additional explanation was
provided specifically as to how the A.M.A., Guides were applied to arrive at the impairment
rating.
The Board finds that appellant did not meet the requirements of 20 C.F.R.
§ 10.606(b)(3) and OWCP properly denied her application for reconsideration without further
merit review.
CONCLUSION
The Board finds OWCP properly denied further merit review of the claim.

3

5 U.S.C. § 8128(a) (providing that “[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”).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the January 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECION,
Pembroke Pines, FL, Employer
__________________________________________

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

Docket No. 13-1225
Issued: October 23, 2013

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 13, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied an additional schedule
award. 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 more than seven percent impairment of the lower right
extremity for which he received a schedule award.
FACTUAL HISTORY
On July 23, 2011 appellant, then a 33-year-old air enforcement agent, filed a traumatic
injury claim alleging that on July 19, 2011 he sustained a right knee injury when he did a
1

5 U.S.C. § 8101 et seq.

maximum vertical jump as part of a physical fitness test. OWCP accepted his claim for tear of
the medial meniscus and other internal derangement of the right knee.
On August 23, 2011 appellant underwent an arthroscopy, partial lateral meniscectomy
and anterior cruciate ligament (ACL) reconstruction of the right knee. He stopped work and
received temporary total disability compensation. Appellant returned to light duty on
October 11, 2011.
On January 15, 2013 appellant filed a claim for schedule award. In a November 26, 2012
report, Dr. Harlan Selesnick, a Board-certified orthopedic surgeon, stated that appellant had
resumed full activities without limitation. Upon examination, he observed trace Lachman and
anterior drawer with a firm endpoint. No joint line tenderness or effusion was noted.
Dr. Selesnick reported that x-rays showed excellent position of the graft with excellent
incorporation of the graft. He opined that, according to the Florida Impairment Rating
Guidelines, appellant had 15 percent permanent impairment of the lower extremity, which
translated to 6 percent permanent impairment to the whole person.
OWCP referred appellant’s schedule award claim to a district medical adviser to provide
an impairment rating for loss of use of the right leg under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) and
date of maximum medical improvement. In a January 23, 2013 report, Dr. Howard P. Hogshead,
a Board-certified orthopedic surgeon and an OWCP medical adviser, noted a date of maximum
medical improvement as of November 26, 2012, the date of Dr. Selesnick’s report. He related
that appellant underwent partial lateral meniscectomy and ACL reconstruction on August 23,
2011 and stated that the results were satisfactory. According to the sixth edition of the A.M.A.,
Guides, Dr. Hogshead opined that, under Table 16-3, page 510,appellant had class 1, grade C
impairment or 10 percent impairment of the right lower extremity. Grade modifiers of 0 were
given for functional history, physical examination and clinical studies, which resulted in a net
adjustment of minus 2. The medical adviser subtracted the net adjustment from the default 10
percent to rate7 percent impairment of the right leg.
By decision dated March 13, 2013, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right lower extremity based on the district medical
advisers’ report. The award ran for a period November 26, 2012 to April 16, 2013, or 20.16
weeks.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such a determination is a matter that rests within the sound discretion of
2
3

5 U.S.C. §§ 8101-8193.
20 C.F.R. § 10.404.

2

OWCP.4 For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standard for evaluating schedule
losses.5 Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides as the
appropriate edition for all awards issued after that date.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 In determining impairment for lower extremity impairments under the sixth
edition, an evaluator identifies the impairment class for the diagnosed condition (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is (GMFH-CDX) +
(GMPE - CDX) + (GMCS-CDX).9
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage in accordance with the A.M.A., Guideswith the medical adviser providing rationale
for the percentage of impairment specified.10
ANALYSIS
Appellant’s claim was accepted for tear of the medial meniscus and other internal
derangement of the right knee for which surgery was performed. On January 15, 2013 he filed a
claim for schedule award. The Board finds that the medical evidence of record establishes no
more than seven percent impairment for appellant’s right leg.
Appellant submitted a November 26, 2012 report from Dr. Selesnick. Upon examination,
he observed trace Lachman and anterior drawer with a firm endpoint. No joint line tenderness or
effusion was noted. Dr. Selesnick opined that according to the Florida Impairment Rating
Guidelines appellant had 15 percent impairment of the right lower extremity, which translated to
6 percent permanent impairment to the whole person. The Board finds, however, that
Dr. Selesnick’s report fails to address permanent impairment under the standards applicable to
FECA. The Board has found that, when an attending physician fails to provide a rating that
4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

6

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
7

A.M.A., Guides 3, 6 (6th ed. 2008).

8

Id. at 494-531.

9

Id. at 521.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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conforms to the A.M.A., Guides, his or her opinion is of diminished probative value in
establishing the degree of permanent impairment.11 In this case, Dr. Selesnick did not utilize the
sixth edition of the A.M.A., Guides to calculate his impairment rating. Rather,he relied on the
Florida Impairment Rating Guidelines. Because Dr. Selesnick’s report does not conform to the
A.M.A., Guides it cannot be used as a basis for appellant’s impairment rating.
In a January 23, 2013 medical adviser report, Dr. Hogshead, determined that appellant
had seven percent impairment of the right lower extremity. He related that appellant underwent
partial lateral meniscectomy and ACL reconstruction on August 23, 2011 and stated that the
results were satisfactory. Utilizing Table 16-3, page 510, of the sixth edition of the A.M.A.,
Guides, Dr. Hogshead determined that appellant had class 1, grade C impairment or 10 percent
impairment of the right lower extremity. Grade modifiers of 0 were given for functional history,
physical examination and clinical studies, which resulted in a net adjustment of minus 2, for a
total of seven percent impairment of the right lower extremity. The Board notes that for
meniscal injury or cruciate ligament injury under Table 16-3 of the A.M.A.,Guides, a class 1
impairment has a default grade of 10 percent impairment. If the default grade of 10 is modified
once, the result is an eight percent impairment, if modified twice, the grade of impairment is
seven percent.12
The Board finds that the medical adviser properly applied the sixth edition of the A.M.A.,
Guides to rate impairment to appellant’s right lower extremity. Dr. Hogshead reviewed the
medical evidence and determined that appellant had no more than seven percent impairment for
the right lower extremity under the sixth edition of the A.M.A., Guides. His rating is in
accordance with the protocols pertaining to lower extremity impairment determinations and
represents the weight of medical opinion. Appellant did not submit any other medical evidence,
which conformed to the A.M.A., Guides, to establish that he sustained greater impairment.
On appeal, appellant contends that a surgeon used the guidelines from the sixth edition of
the A.M.A., Guides and found his impairment rating to be nine percent. The Board’s
jurisdiction, however, is limited to evidence that was before OWCP at the time it issued its final
decision.13 Because this report was not submitted for review to OWCP prior to its March 13,
2013 decision, the Board may not consider this evidence for the first time on appeal. Appellant
may submit that evidence to OWCP along with a request for reconsideration.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

11

Linda Beale, 57 ECAB 429, 434 (2006).See also James Kennedy, Jr., 40 ECAB 620, 627 (1989).

12

A.M.A.,Guides 509-10.

13

See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than seven percent impairment of the right lower extremity for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THATthe March 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2013
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