United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2157
Issued: February 22, 2007

Case Submitted on the Record

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

JURISDICTION
On September 27, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 27, 2006 nonmerit decision denying her request for merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. The last merit decision of record was the Office’s June 15, 2005 decision denying
appellant’s emotional condition claim. Because more than one year has elapsed between the last
merit decision and the filing of this appeal, the Board lacks jurisdiction to review the merits of
this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On November 6, 2003 appellant, then a 51-year-old clerk, filed an occupational disease
claim alleging that she sustained “acute stress” and high blood pressure due to various incidents
and conditions at work. She stopped work on October 31, 2003 and indicated that this was the
date that she realized she had an employment-related emotional condition.
In several statements, appellant claimed that when she returned to light-duty work for the
employing establishment in early October 2003, management unfairly refused to authorize her
use of leave requests or to provide her with work assignments appropriate for her medical
condition. She alleged that she was subjected to harassment and discrimination by Tracey Bibbs,
a supervisor, and Louann Simmons, the postmaster at her workplace. Appellant asserted that,
between October 2 and 31, 2003, Ms. Bibbs and Ms. Simmons yelled at her in an abusive
manner and unreasonably monitored and criticized her work performance. She claimed that
Ms. Simmons physically abused her by shoving mail in her face, pointing her finger in her face
and waving her arms in a threatening manner.
Among the numerous allegations described, appellant claimed that on October 22, 2003
she was working on the computer forwarding system and Ms. Simmons shoved a letter in her
face, yelled at her and wrongly accused her of improperly forwarding the letter. On that date,
while using the Winbats computer program to process post office box applications, Mr. Simmons
unfairly accused her of making an error, pointed her finger near her face in a threatening manner
and harshly ordered her to come to her office. Appellant alleged that on October 31, 2003 she
was in the box mail section casing mail and Ms. Simmons yelled at her and unfairly accused her
of sending box mail through an improper process.
Appellant submitted numerous statements of coworkers in support of her claim, including
statements of Cheruyl Peek and Brandy Gann. In an undated statement received by the Office on
December 21, 2004, Ms. Peek testified about several incidents, including the October 22, 2003
incident when appellant was working on the computer forwarding system and the October 31,
2003 incident when she was casing box mail. In an August 27, 2004 statement, Ms. Gann
testified that Ms. Simmons yelled at appellant on an unspecified date.
In a January 5, 2004 decision, the Office denied appellant’s claim on the grounds that she
did not submit medical evidence relating her claimed medical condition to the established
employment factors. The Office did not identify any established employment factors.
Appellant requested a hearing before an Office hearing representative and provided
testimony at the hearing held on November 19, 2004. In a decision dated and finalized
February 10, 2005, the Office hearing representative affirmed the January 5, 2004 decision as
modified. He based the denial of appellant’s emotional condition claim on the fact that she did
not establish any compensable employment factors. The Office hearing representative
extensively detailed appellant’s numerous allegations but found that she was not subjected to
harassment or discrimination.
Appellant submitted additional evidence and requested another hearing before an Office
hearing representative. The Office exercised its discretion and reviewed the written record. By

2

decision dated and finalized June 15, 2005, the Office hearing representative affirmed the
February 10, 2005 decision.
By letter dated June 14, 2006, appellant, through her attorney, requested reconsideration
of the Office’s denial of her emotional condition claim. Appellant claimed that she had
established that she was harassed on October 22, 2003 while working on the computer
forwarding system and Ms. Simmons shoved a letter in her face, yelled at her and wrongly
accused her of sending the letter with an error on it. She asserted that she established harassment
during another incident on October 22, 2003 when she was using the Winbats computer program
and Mr. Simmons unfairly accused her of making an error, pointed her finger in her face and
refused to listen to her explanation after ordering her into her office. Appellant alleged that the
evidence also showed that on October 31, 2003 she was in the box mail section casing mail and
Ms. Simmons yelled at her and refused to accept her explanation regarding her actions. She
alleged that the occurrence of these incidents was supported by witness statements of Ms. Peek
and Ms. Gann. Appellant also submitted an August 30, 2004 report of Dr. June Nichols, an
attending clinical psychologist.
In a June 27, 2006 decision, the Office denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a) indicating that it had already considered
the arguments and evidence presented by appellant on reconsideration.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file her application for review within one year of the
date of that decision.4 When a claimant fails to meet one of the above standards, the Office will
deny the application for reconsideration without reopening the case for review on the merits.5
ANALYSIS
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at work, including harassment and discrimination engaged in by Ms. Simmons, the
postmaster at her workplace. On June 15, 2005 the Office denied her claim on the grounds that
2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

20 C.F.R. § 10.607(a).

5

20 C.F.R. § 10.608(b).

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she did not establish any compensable employment factors. Appellant subsequently requested
reconsideration on June 14, 2006. In a decision dated June 27, 2006, the Office denied her
request for further review of the merits of her claim.
In support of her June 2006 reconsideration request, appellant argued that she had
established the occurrence of several employment incidents when Ms. Simmons harassed her,
including an October 22, 2003 incident which occurred when she was working on the computer
forwarding system, an October 22, 2003 incident when she was using the Winbats computer
program and an October 31, 2003 incident when she was casing box mail.6 She alleged that the
occurrence of these incidents was supported by witness statements of Ms. Peek and Ms. Gann.
The submission of this argument and evidence does not require the reopening of
appellant’s claim for further merit review. The Office had already addressed appellant’s
arguments regarding these alleged incidents and found that she did not establish any employment
factors with respect to them. The Office has already considered the statements of Ms. Peek and
Ms. Gann and found that they did not support the occurrence of the employment incidents, as
alleged. The Board has held that the submission of argument or evidence which repeats or
duplicates evidence already in the case record and considered by the Office does not constitute a
basis for reopening a case.7
Appellant also submitted an August 30, 2004 report of Dr. Nichols, an attending clinical
psychologist. However, this report is not relevant to appellant’s claim as it was denied on the
grounds that he did not establish any compensable employment factors and the Office would not be
required to consider any medical evidence of record.8 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.9
Appellant has not established that the Office improperly denied her request for further
review of the merits of its June 15, 2005 decision under section 8128(a) of the Act, because the
evidence and argument she submitted did not to show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.

6

To the extent that disputes and incidents alleged as constituting harassment and discrimination by supervisors
are established as occurring and arising from appellant’s performance of her regular duties, these could constitute
employment factors. David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603,
608 (1991).
7

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

8

The Board has held that, when a claimant has not established any compensable employment factors, it need not
consider the medical evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
9

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 27, 2006 decision is affirmed.
Issued: February 22, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Westbury, NY, Employer
__________________________________________

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

Docket No. 14-711
Issued: March 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On February 12, 2014 appellant filed a timely appeal from an August 19, 2013 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 met his burden of proof to establish an emotional
condition in the performance of duty on December 20, 2011.
FACTUAL HISTORY
On December 30, 2011 appellant, then a 31-year-old air traffic control specialist, filed a
claim for traumatic injury (Form CA-1) alleging that on December 20, 2011 he suffered “stress”
1

5 U.S.C. §§ 8101-8193.

as a result of an “aircraft accident.” He stopped work on December 20, 2011 and received
continuation of pay beginning that date.
On January 4, 2012 OWCP requested that appellant provide further description of the
December 20, 2011 accident and indicate whether he was responsible for controlling the aircraft
involved in the accident. Appellant was also asked to submit a detailed medical report from a
psychiatrist or clinical psychologist.
In a January 13, 2012 statement, appellant indicated that on December 20, 2011 he was
involved with the crash of aircraft N731CA which departed Teterboro airport at approximately
2:50 p.m. and crashed at approximately 3:05 p.m. The aircraft was switched to his frequency
when it had climbed to 10,000 feet and he aided the pilot of the aircraft to 14,000 feet. Appellant
issued reports of icing at 14,000 feet, and between 15,000 and 17,000 feet, and aided the pilot of
the aircraft to 17,000 feet after the next controller from the New York Air Route Traffic Control
Center (hereinafter New York Center) “took the handoff.”2 Another controller came to relieve
him of his position “almost right after” the handoff so that he could go on break. Appellant
stated that, when he returned from his break, his supervisor advised him about the crash of an
aircraft he had been assisting, and he stated that “it was all over the news with definite fatalities.”
His supervisor placed appellant in a data position after witnessing his reaction to learning about
the crash. Appellant then watched the radar replay and learned that the aircraft “fell right out of
the sky” while the New York Center was assisting the pilot climb above 17,000 feet. He found
out from newscasts that five people were killed in the crash, including a mother and three
children, and that icing had been reported as the probable cause of the crash. Appellant stated
that since the crash he has been overwhelmed by feelings of guilt, anxiety, doubt, and
sleeplessness.
In a December 22, 2011 report of initial examination, Dr. Bruce S. Herman, an attending
clinical psychologist, provided a description of the December 20, 2011 aircraft crash. Appellant
reported that he ruminated about the crash which occurred shortly after he handed off
responsibility for the aircraft. Dr. Herman diagnosed acute nonspecific reaction to stress and
indicated that appellant would be seen in psychotherapeutic sessions to help him recover from
the effects of the December 20, 2011 incident. The record contains other reports of Dr. Herman,
including a form for authorization for examination and/or treatment (Form CA-16) completed on
January 26, 2012. Dr. Herman indicated that appellant could return to his regular work on
January 27, 2012.3
By letter dated January 19, 2012, an employing establishment official indicated that on
December 20, 2011 appellant worked the aircraft in the space of the New York Terminal Radar
Approach Control (TRACON) and transferred control of the aircraft to the New York Center.
The official stated that, prior to any known issues concerning the aircraft, appellant was relieved
by another controller who actually spoke to the New York Center with regard to the aircraft’s
descent.
2

Appellant indicated that he advised the pilot about the handoff before he carried it out and the pilot responded
that “it would not be a problem.”
3

The record reflects that appellant returned to full duty on January 27, 2012.

2

By decision dated February 8, 2012, OWCP denied appellant’s emotional condition claim
because he had not established a compensable employment factor. It noted that on December 20,
2011 the aircraft did not crash while it was under his control and, therefore, he was not in the
performance of duty at that time. OWCP stated, “[l]earning that a plane you were controlling
crashed after you were no longer responsible for controlling the plane does not involve the
performance of your duties.”
Appellant requested a hearing with an OWCP hearing representative. During the
May 30, 2012 hearing, he testified that he had instructed the aircraft to climb to 14,000 feet, put
the pilot on course, and issued him reports of light icing at 14,000 feet and moderate icing at
15,000 to 17,000 feet. Appellant discussed his communications with the pilot and described how
he handed off responsibility for the aircraft to the New York Center and then aided the pilot’s
climb to 17,000 feet.4 He noted that, several moments after carrying out these actions, he was
relieved of his position and went on break. Appellant stated, “I came back from break later on
and my supervisor broke the news to me…. He told me there was [sic] definite fatalities and
they crashed on Route 287.” He indicated that he later learned that the aircraft climbed to 18,000
feet and then “dropped straight out of the sky.”
In a June 26, 2012 statement, Peter Goodwin, operations manager of the New York
TRACON, stated that appellant was on break and was not working the radar position at the time
of the aircraft accident on December 20, 2011. He noted that, although appellant did work the
aircraft prior to the incident, he had already transferred the aircraft to a radar controller at the
New York Center prior to the crash. Mr. Goodwin stated that the New York Center was actually
working the aircraft at the time of the accident and that another air traffic controller at the New
York TRACON, Tanya Soni, was working the radar position that appellant had left. Appellant
transferred communications with the aircraft to the New York Center at 2:58 p.m. and 23
seconds and the pilot acknowledged this transfer 5 seconds later. Mr. Goodwin indicated that,
shortly thereafter, appellant transferred responsibility for the radar position to the second radar
controller and he went on break. Ms. Soni then began communications with the other aircraft in
the airspace. She was working the radar position when the New York Center called to ask about
the aircraft. Ms. Soni observed the radar scope as the aircraft descended during the time
appellant was on break and the accident occurred at approximately 3:05 p.m.
In a June 26, 2012 letter, appellant’s representative at the time argued that he had
established a compensable work factor because he was on duty at the time that he learned of the
aircraft crash on December 20, 2011. In a letter dated June 29, 2012, the employing
establishment official stated that appellant was not working the aircraft at the time the
December 20, 2011 accident occurred and asserted that, therefore, he did not sustain an injury in
the performance of duty.
In an August 8, 2012 decision, the hearing representative affirmed its February 8, 2012
decision on the basis that, although appellant was performing duties related to the aircraft shortly
before the accident occurred, he was performing those duties and was not present at the time of
the crash, did not witness the crash, and was only told of the crash after it occurred.
4

Appellant indicated that the New York Center was responsible for the airspace above 17,000 feet.

3

In a May 17, 2013 letter, appellant requested reconsideration of his claim and argued that
coverage of his claimed injury was supported by the Board case of A.C.5 in which the claimant
was working on a radar and became aware of a potential conflict with two aircraft converging on
the radar.
By decision dated August 19, 2013, OWCP denied modification of its August 8, 2012
decision, noting that the evidence of record showed that appellant was not in the performance of
duty on December 20, 2011. It noted that the facts of A.C. could be distinguished from the facts
of appellant’s case and stated:
“You were not responsible for monitoring the radar, you were not in the control
room, you did not witness the crash, and you were not even aware of the crash
when it occurred. You were only told of the crash after the fact. When you were
relieved of the responsibility of guiding the planes that crashed, there were no
known issues.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA and that the claim was timely filed within the applicable time limitation
period of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,8 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.9 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability

5

Docket No. 12-1050 (issued December 28, 2012).

6

J.B., Docket No. 14-993 (issued January 27, 2015).

7

R.C., Docket No. 14-1964 (issued January 22, 2015).

8

28 ECAB 125 (1976).

9

Robert W. Johns, 51 ECAB 137 (1999).

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results from his emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of the work.10 In contrast, disability is not covered
when it results from such factors as an employee’s frustration in not being permitted to work in a
particular environment or to hold a particular position.11
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness, or mishap that might
befall an employee contemporaneous or coincidental with her employment; liability does not
attach merely upon the existence of any employee/employer relation.12 FECA provides for the
payment of compensation for disability or death of an employee resulting from personal injury
sustained while in the performance of duty; the term in the performance of duty has been
interpreted to be the equivalent of the commonly found prerequisite in workers compensation
law, arising out of and in the course of employment.13 In addressing this issue, the Board has
stated:
In the compensation field, to arise out of and in the course of employment, in general, an
injury must occur -(1) at a time when the employee may reasonably be said to be engaged in his
employer’s business;
(2) at a place where he may reasonably be expected to be in connection with the
employment;
(3) while he was reasonably fulfilling the duties of his employment or engaged in
doing something incidental thereto.14
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury arising out of the employment must be shown and this
encompasses not only the work setting but also a causal concept, the requirement being that the
employment caused the injury. In order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employer benefit is derived or an
employment requirement gave rise to the injury.15

10

See supra note 8.

11

S.B., Docket No. 14-1423 (issued November 21, 2014).

12

Christine Lawrence, 36 ECAB 422 (1985).

13

James E. Chadden, Sr., 40 ECAB 312 (1988).

14

S.L., Docket No. 14-1591 (issued December 24, 2014).

15

C.M., Docket No. 14-116 (issued July 2, 2014).

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ANALYSIS
The Board finds that appellant’s claimed traumatic injury on December 20, 2011 did not
occur in the performance of duty. Appellant alleged that he developed an emotional condition
following the crash of an aircraft he had directed and handed off to another control tower. On
December 20, 2011 he was not responsible, as part of his job duties, for monitoring the airplane
at the time of the crash. Appellant did not witness the airplane crash as he was on break at the
time and he only learned of the crash after the fact. At the time, he was relieved of responsibility
for monitoring the airplane, he had no outstanding responsibilities with respect to the airplane.
While he earlier had responsibility for the airplane, appellant was not carrying out any work
duties with respect to the airplane at the time of the crash on December 20, 2011.
The facts of this case are similar to but distinguishable from M.L.,16 in which an air traffic
controller alleged that he sustained an emotional condition when an aircraft, over which he had
relinquished control to another airport, crashed. In M.L., the employee was on duty, was
monitoring the radar screens, and observed airplane squawking and emergency code activity on
the radar screen regarding the plane over which he had just relinquished control. He called the
other airport to question what he just saw. Following the incident, appellant was required to
complete paperwork. The Board found that, although he had relinquished control, he was
actively involved in trying to locate the distressed airplane and offering assistance to the other
airport. The employee’s emotional condition was found to be a reaction to regular or specially
assigned duties. The Board noted that it was not a situation where the employee was simply
standing near the radar and witnessed a stressful incident. In the present case, unlike in M.L.,
appellant had no further contact with the plane, did not witness any activity on the radar screen
regarding the distress of the aircraft prior to its crash, and was on break at the time of the crash.
The Board finds that this case is distinguishable from M.L.
The facts in this current case are also distinguished from A.C.,17 in which the claimant
was working on radar and became aware of a potential conflict with two aircraft converging on
radar. The employee took action to separate them. The Board noted the potential for a collision
based on the speed and direction of two planes and the employee’s responsibility for monitoring
live aircraft traffic on radar. The employing establishment later informed the claimant in a
disciplinary letter that it was his obligation to take action even if the ultimate responsibility for
such action was with another radar center. The Board found that the claimant was performing
his regular duties under Cutler18 when the potential collision arose. The incident arose in the
performance of duty and was a compensable employment factor. In the present case, there is no
evidence of record that appellant had responsibility to take any action regarding the plane that
subsequently crashed while attempting to land. There is no evidence that he was in contact with
the other tower or the pilot or that his duties required him to assist.

16

Docket No. 12-354 (issued February 26, 2013).

17

See supra note 5.

18

See supra note 8.

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In L.G.,19 an employee, as in the instant case, had no operational responsibilities for the
aircraft involved in a potential crash situation. He was present in the control room, but was not
operating the radar or responsible for the operation of the radar at the time of the incident
involving two aircraft. The Board held that the incident was not in the performance of duty or a
compensable factor of employment. As noted, appellant had no operational responsibilities for
the aircraft and was not the responsible air traffic controller at the time of the crash. While he
learned of the crash during his shift on December 20, 2011, this knowledge was reported to him
by his supervisor after the fact and the nexus to performance of duty was not present. The Board
found that, as in the case before the Board, the incident did not arise out of his assigned duties
and his emotional reaction was not in the performance of duty.
The facts of the present case are also similar to those of M.P.,20 in which the Board did
not find a compensable factor in the performance of duty. The employee cleared a departing
aircraft out of Fort Pierce Airport, climbed the aircraft to the requested altitude, and turned the
plane on course. She handed the aircraft off to Orlando Approach Control. The airplane then
crashed killing all three persons on board. The employee’s supervisor informed the employee of
the crash during her shift on the date of the crash and she continued working until the end of her
shift. Several days later, the employee completed an official statement regarding the aircraft that
crashed and learned additional details about the persons involved in the crash. In the present
case, appellant also handed the aircraft off to another responsible party prior to the crash. He,
like the employee in M.P., was not handling the aircraft at the time of the crash and was not in
the performance of duty at that time.
The Solicitor of the Department of Labor submitted a May 23, 2014 memorandum in
justification of OWCP’s August 19, 2013 decision. The Solicitor argued that the December 20,
2011 accident did not constitute a work factor because appellant had handed off responsibility
for the aircraft that crashed and was not on duty at the time of the accident. The Board notes that
the Solicitor properly characterized the relevant precedent and applied it to the facts and
circumstances of the present case.
For these reasons, appellant did not meet his burden of proof to establish an injury in the
performance of duty on December 20, 2011.21 He 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.

19

Docket No. 09-276 (issued August 11, 2009).

20

Docket No. 14-1172 (issued October 14, 2014).

21

The Board notes that where an employing establishment properly executes a Form CA-16 which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for
which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated
earlier by OWCP. See 20 C.F.R. § 10.300(c). The record is silent as to whether OWCP fulfilled its obligation to
pay for the cost of appellant’s examination or treatment for the period noted on the form.

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an emotional
condition in the performance of duty on December 20, 2011.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
MONTEREY PARK POST OFFICE,
Monterey Park, CA, Employer
__________________________________________

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

Docket No. 08-1719
Issued: January 6, 2009

Case Submitted on the Record

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

JURISDICTION
On June 2, 2008 appellant filed a timely appeal of the February 22, 2008 merit decision
of the Office of Workers’ Compensation Programs, finding that he did not sustain a stroke while
in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant sustained a stroke while in the performance of duty.
FACTUAL HISTORY
On August 28, 2005 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim alleging that on May 2, 2005 he became aware of his cerebrovascular condition.1
1

In a December 5, 1997 decision, the Office denied appellant’s prior claim for angina arrhythmia and an
emotional condition. It found that he failed to establish that the claimed conditions were caused by his employment.

On May 23, 2005 he first realized that his condition was caused by his federal employment.
Appellant felt tension in his shoulder and pain in both feet. He could not attend physical therapy
because workers’ compensation did not approve his treatment. Appellant stated that he
experienced added stress due to financial concerns as he had not received any payment for wage
loss. He stopped work on October 7, 2005. An October 5, 2005 medical report of a physician,
whose signature is illegible, stated that appellant sustained right shoulder bursitis and a partial
rotator cuff and right Achilles tear.
In an October 7, 2005 letter, the employing establishment stated that appellant was on
leave as of May 26, 2005 for shoulder and foot problems. Appellant’s wife advised that he had
suffered a stroke and would not be returning to work.
By letter dated November 8, 2005, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It addressed additional factual and medical
evidence he needed to submit within 30 days to establish his claim. Appellant did not respond
within the allotted time period.
By decision dated November 21, 2005, the Office denied appellant’s claim. Appellant
failed to establish that his stroke was causally related to a compensable factor of his employment.
On July 26, 2006 appellant requested reconsideration.
On December 30, 2005
Dr. David R. Patterson, a Board-certified physiatrist, stated that appellant sustained a right-sided
hemorrhagic stroke and left hemiparesis, and neurocognitive deficits related to these conditions.
He also suffered from carotid artery stenosis and hypertension. Dr. Patterson opined that
appellant was totally disabled from May 25 through December 1, 2005.
In an August 7, 2006 decision, the Office denied modification of the November 21, 2005
decision. On September 2, 2006 appellant requested reconsideration. He contended that
grievances he filed against the employing establishment during the period January 25, 1985
through September 4, 1987 caused work-related stress resulting in a stroke. Appellant further
contended that he developed stress from trying to fight the clock, as well as, perform certain jobs
by himself. He stated that his work was consistently inspected and his mail was counted.
Appellant stated that the time period allotted for him to deliver the mail had been shortened
compared to that of his coworkers which put strain on his body. He also had to perform work
duties that should have been performed by two people, especially on May 25, 2005, when
Mr. Russo was off work because he had lost his driving privileges due to a car accident.
Appellant also had to case loads of mail and count mail several times over. He was forced to
work harder during the period he was supposed to perform light-duty work.
In an undated letter, appellant disagreed with a seven-day suspension for failure to follow
instructions and performance of unauthorized overtime work on December 7, 2001. He stated
that a supervisor failed to conduct an investigative interview regarding this incident. Appellant
related that his suspension was reduced to a letter of warning. He explained that, on
December 7, 2001, he submitted a form requesting overtime which was denied by a supervisor.
Appellant had to switch his vehicle and deliver the remaining mail. He called the employing
establishment between 3:30 p.m. and 3:45 p.m. to request additional time to deliver the mail but
the line was busy. Appellant stated that Thai Ngo, a coworker, witnessed the call. He called

2

Postmaster Anita Guzik with an explanation regarding the situation. Appellant contended that
his supervisor singled him out and issued the letter of warning based on his race.
In narrative statements dated March 17 and February 27, 1998, Augustine Beanez and
Steven R. Thorp, coworkers, related that they were required to take gasoline to vehicles that had
run out of it. Mr. Beanez stated that this was a common occurrence for carriers and he even ran
out of gas when he returned from carrying mail. Mr. Thorp stated that he had no knowledge of
any carrier or other person who had been suspended for running out of gas.
In a March 13, 2002 letter, Mr. Ngo stated that, at approximately 3:30 p.m. and 3:45 p.m.
on December 7, 2001, appellant telephoned the employing establishment to state that he would
not be able to complete his route on time and to obtain further instructions, but the line was busy.
In an undated letter, Ramon Gonzales, a customer, stated that on or about December 7, 2001
appellant telephoned the employing establishment to obtain authorization to work overtime, but
the line was busy.
Appellant submitted several statements from his coworkers. On April 27 and May 7,
1990 Creighton Nobul and Sal Chiarenza respectively, stated that on December 7, 1989 they
witnessed Postmaster Henry Diaz yell at appellant for working too much overtime and not
following his order to go to his office. On February 14, 2006 Benny De La Cruz related that
appellant was singled out and verbally harassed by management. On August 23, 2006 Anthony
Russo stated that Mr. Santana, a supervisor, pressured and harassed appellant on numerous
occasions. He related that, when appellant left his case, he was asked to case his mail.
Mr. Russo noted that appellant had his long-life vehicle (LLV) taken away and was given a
white jeep while the rest of the employees had an LLV. He also noted that, during the tenure of
Postmaster Diaz, appellant’s mail was counted more than anyone else’s mail. On August 24,
2006 Mr. Russo related that in January 2005 Henry Tanayo, a supervisor, did not allow him to
drive a vehicle which resulted in appellant delivering express mail by himself with a deadline. In
a December 14, 2006 statement, a chief shop steward, whose name is illegible, related that
appellant was harassed by management as he was checked on in the office and while on his route
more than other employees.
Appellant submitted settlement agreements that reduced his 14-day suspension for failure
to follow instructions on February 25, 1998 to a letter of warning. Among other things, he would
be treated equally as his coworkers in same or similar circumstances and that proper procedures
would be followed by management regarding sick leave request, established a special count and
inspection of his work, and removed a January 16, 1987 discussion from his records and Richard
Dale, as his supervisor. The settlements ordered all employees including, supervisors to follow
safety regulations, reduced his November 17, 1997 seven-day suspension to a discussion for
unsatisfactory work performance and compensated him for 1.25 hours of administrative leave on
November 21, 1997.
An October 27, 1997 letter from a clinic stated that appellant underwent physical therapy
on that date. In an October 13, 2006 medical report, Dr. Ferdinand A. Alfonso, a Board-certified
psychiatrist, opined that appellant’s intracranial hypertensive bleed was work related.

3

By decision dated February 2, 2008, the Office denied modification of the August 7,
2006 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers compensation. Where the disability results from an employee’s
stress-related reaction to his or her regular or specially assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act. On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or his or her frustration from not being
permitted to work in a particular environment or to hold a particular position.2
In cases involving stress-related conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship, and which working conditions are not deemed
factors of employment and may not be considered.3 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment, and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.4
ANALYSIS
Appellant alleged that the handling of his claim for wage-loss compensation, the filing of
his grievances, his regular work duties as a letter carrier and harassment at the employing
establishment exacerbated his hypertension and contributed to his stroke. He stated that he was
concerned about his finances because he had not received any payment for wage loss. Appellant
filed several grievances against the employing establishment including, one suspending him for
failure to follow instructions and performance of unauthorized overtime work on
December 7, 2001. He stated that, on December 7, 2001, a supervisor denied his written request
to work overtime. Appellant had to switch his vehicle and deliver the remaining mail. He called
the employing establishment between 3:30 p.m. and 3:45 p.m. to request additional time to
deliver his mail but the line was busy. Appellant contended that a supervisor failed to conduct an
investigative interview regarding this incident and that his suspension was later reduced to a
letter of warning. His allegations regarding the handling of his claim for wage-loss
2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
3

Margaret S. Krzycki, 43 ECAB 496, 501-02 (1992); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

4

Id.

4

compensation5 and filing of grievances6 relate to noncompensable administrative and personnel
matters. However, error or abuse by the employing establishment in an administrative or
personnel matter may afford coverage.7 Appellant did not submit any evidence established error
or abuse in handling his claim for wage-loss compensation. Although the employing
establishment rescinded and modified his seven-day suspension for the December 7, 2001
incident to a letter of warning, the record does not contain a final decision finding that the
employing establishment erred or acted abusively in handling this administrative matter.
Mr. Beanez and Mr. Thorp stated that it was common for vehicles to run out of gas and that no
carrier had been suspended for running out of gas. Mr. Ngo and Mr. Gonzales stated that
appellant telephoned the employing establishment on December 7, 2001 to obtain authorization
to work overtime because he was unable to complete his route. The statements of Mr. Beanez,
Mr. Thorp, Mr. Ngo and Mr. Gonzales do not establish error or abuse on behalf of management
in disciplining appellant. They did not provide any details about why appellant was suspended
by the employing establishment. The record does not contain a final decision finding that the
employing establishment erred or acted abusively in the other administrative matters for which
appellant filed grievances. The Board finds that appellant has failed to establish a compensable
employment factor.
Appellant contended that he was harassed by the employing establishment. He stated that
he had to fight the clock in completing his work duties in a shorter time period than his
coworkers which caused stress on his body. Appellant also stated that he had to perform certain
jobs by himself that should have been performed by two people, especially on May 25, 2005,
when Mr. Russo was off work because he had lost his driving privileges due to a car accident.
He related that his work was consistently inspected and his mail was counted. Appellant had to
case loads of mail and count mail several times over. He stated that he was forced to work
harder during the period he was supposed to perform light-duty work. The Board has held that
emotional reactions to situations in which an employee is trying to meet his or her position
requirements are compensable under the principles of Cutler.8 As with all allegations, overwork
must be established on a factual basis to be compensable.9 Mr. De La Cruz, a coworker,
generally stated that appellant was singled out and verbally harassed by management. However,
he did not provide specifics as to the managers involved or what was said to appellant.
Mr. Russo, a coworker, stated that Mr. Santana, a supervisor, pressured and harassed appellant
on numerous occasions. He related that, when appellant left his case, he was asked to case his
mail. Mr. Russo stated that appellant had an LLV taken away and was given a white jeep while
the rest of the employees had an LLV. He also stated that appellant’s mail was counted more
than anyone else’s mail during Postmaster Diaz’s tenure. Mr. Russo indicated that, when
Mr. Tanayo, a supervisor, would not allow him to drive a vehicle, appellant had to deliver
5

See Ronald K. Jablanski, 56 ECAB 616 (2005).

6

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

7

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
8

Peter D. Butt, Jr., 57 ECAB 117 (2004).

9

Sherry L. McFall, 51 ECAB 436 (2000).

5

express mail by himself within a certain time period. A chief union steward stated that appellant
was harassed by management as it routinely checked on him in the office and on his route more
than other employees. The monitoring10 and assignment of work activities11 are administrative
functions of the employer. The statements of Mr. Russo and the union steward do not establish
that the managers erred or acted unreasonably in handling these administrative matters. The
Board, therefore, finds that appellant has not established a compensable employment factor.
Appellant contended that Postmaster Diaz yelled at him. Mr. Nobul and Mr. Chiarenza,
appellant’s coworkers, stated that on December 7, 1989 they witnessed Postmaster Diaz yell at
appellant for working too much overtime and not following his order to go to his office.
Although Postmaster Diaz’s yelling may have engendered offensive feelings, the statements of
the coworkers are not sufficient to establish a compensable factor.12 The evidence of record does
not otherwise establish a pattern of verbal abuse or harassment by Postmaster Diaz towards
appellant. Accordingly, appellant has not established a compensable factor of employment.13
CONCLUSION
The Board finds that appellant has not established that he sustained a stroke in the
performance of duty.

10

Phillip L. Barnes, 55 ECAB 426 (2004).

11

Barbara J. Latham, 53 ECAB 316 (2002).

12

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

13

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

6

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, NORTH METRO
PROCESSING & DISTRIBUTION CENTER,
Duluth, GA, Employer
__________________________________________

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

Docket No. 10-800
Issued: October 5, 2010

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 January 29, 2010 appellant filed a timely appeal of a December 29, 2009 Office of
Workers’ Compensation Programs’ merit decision denying her disability claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant had met her burden of proof to establish that she had
intermittent periods of total disability from September 1 through October 13, 2009, causally
related to her December 7, 2008 employment injury.
FACTUAL HISTORY
On December 7, 2008 appellant, then 50-year-old clerk, filed a traumatic injury claim
alleging that she injured her right hand, knee and back when she tripped and fell in the
performance of duty. The Office accepted her claim for right wrist sprain, contusion of the left
knee and lumbar sprain.

On May 19, 2009 the employing establishment found that appellant was absent without
permission and suspended her from June 20 through July 3, 2009.
In a note dated October 7, 2009, Dr. Robert L. Howell, a Board-certified plastic surgeon,
examined appellant for degenerative arthritis of the right wrist and noted that she had not worked
since July 22, 2009. He examined x-rays and diagnosed osteoarthritis of the entire mid-carpal
region. Dr. Howell stated that appellant’s chronic degenerative arthritis of the right wrist should
be addressed under private insurance, as he did not believe that her employment injury caused
this condition.
Dr. Plas T. James, a Board-certified orthopedic surgeon, examined appellant on
October 13, 2009. He noted that she reported that her back pain returned on August 29, 2009
after she returned to work. Dr. James diagnosed L4-5 and L5-S1 degenerative disc disease and
recommended a magnetic resonance imaging (MRI) scan.
Appellant filed a claim for compensation and requested loss of differential, night and
Sunday premium pay on September 1 and from September 13 through October 13, 2009. She
indicated that she used 8 hours of leave without pay on September 1, 2009 and 7.83 hours of
leave without pay on September 4, 2009. Appellant used eight hours of annual leave a day from
September 5 through 13, 2009. She used eight hours of leave without pay per day from
September 14 through October 13, 2009.
On November 17, 2009 Dr. James reviewed the MRI scan testing and advised that
appellant had evidence of L4-5 moderate degenerative disc disease, spinal stenosis and Grade 1
spondylolisthesis. He also found a herniated disc and degenerative disc disease at L5-S1.
In a letter dated November 24, 2009, the Office informed appellant that the medical
evidence did not establish her total disability due to the accepted employment injury. It
requested additional medical information and allowed 30 days for a response. On December 2,
2009 appellant stated that she was working, but contended that the employing establishment
withdrew her positions.
By decision dated December 29, 2009, the Office denied appellant’s claim finding that
she failed to submit sufficient medical evidence to support her disability for work.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 The term disability is defined as the incapacity because of an employment injury to earn

1

5 U.S.C. §§ 8101-8193.

2

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Kathryn Haggerty, 45 ECAB 383 (1994);
Elaine Pendleton, 40 ECAB 1143 (1989).

2

the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation. The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence, which includes a physician’s rationalized medical opinion on the issue of whether
there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6 Neither the fact that a
disease or condition manifests itself during a period of employment nor the belief that the disease
or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
ANALYSIS
The Office accepted appellant’s claim for right wrist sprain, contusion of the left knee
and lumbar sprain. She filed a claim for intermittent wage-loss compensation from September 1
through October 14, 2009. On October 7, 2009 Dr. Howell, a Board-certified plastic surgeon,
diagnosed degenerative arthritis of the right wrist. He determined that appellant’s chronic
degenerative arthritis of the right wrist was not due to her employment injury of
December 7, 2008. Dr. Howell advised that it was a chronic condition. This report does not
support appellant’s claim for disability due to her accepted employment injury. Dr. Howell
negated a causal relationship between appellant’s current right wrist condition and her
employment. Moreover, he did not address disability for the period claimed. Dr. Howell’s

3

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

3

report does not establish that appellant disability as of September 1, 2009 due to her accepted
condition.
Appellant submitted reports from Dr. James, a Board-certified orthopedic surgeon, dated
October 13 and November 17, 2009 addressing her current back condition. He diagnosed L4-5
degenerative disc disease, spinal stenosis and Grade 1 spondylolisthesis and a herniated disc and
degenerative disc disease at L5-S1. Dr. James did not attribute appellant’s lumbar condition to
her December 7, 2008 employment injury. While he indicated that appellant experienced back
pain after her return to work, he did not address how her work as a clerk caused or contributed to
any disability for work as of September 1, 2009. Dr. James did not provide an opinion on the
causal relationship between appellant’s accepted lumbar sprain and her claim of disability.
Without a medical opinion attributing appellant’s current back condition and any resulting
disability to her accepted conditions, appellant did not submit sufficient medical evidence to
support her claim that she became disabled as of September 1, 2009 due to residuals of her
accepted injury.
CONCLUSION
The Board finds that appellant did not submit sufficient medical opinion to support that
she was disabled as of September 1, 2009 due to the injury of December 7, 2008.
ORDER
IT IS HEREBY ORDERED THAT the December 29, 2009 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: October 5, 2010
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0488
Issued: May 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 13, 2016 appellant, through counsel, filed a timely appeal from a
December 22, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established more than nine percent permanent
impairment of her right lower extremity for which she received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. However, the Board cannot consider this evidence as its review
of the case is limited to the evidence of record which was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

FACTUAL HISTORY
On March 10, 2006 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date, she sustained a soft tissue injury to her right knee
ligament as a result of a fall. OWCP accepted her claim for sprain/strain of the right knee and
ankle on May 8, 2006. Appellant received intermittent supplemental rolls wage-loss benefits
from April 15, 2006 to April 27, 2007. She underwent authorized right knee arthroscopy on
February 19, 2007 and returned to work on June 6, 2007. A statement of accepted facts dated
July 7, 2015 indicated that appellant’s list of accepted conditions had been expanded to include a
tear of the medial meniscus of the right knee.
On June 19, 2015 appellant requested a schedule award (Form CA-7). With her request,
she submitted a March 5, 2015 impairment report from Dr. Daisy Rodriguez, a Board-certified
internist. She listed appellant’s accepted conditions as a right knee strain/sprain of the lateral
collateral ligament, a right knee meniscal tear, right knee swelling, degenerative joint disease of
the right knee, a resolved right ankle sprain, gait abnormality, and chronic pain. Dr. Rodriguez
stated that she had evaluated appellant’s impairment of the right lower extremity for three
separate conditions, based upon the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides). She noted that appellant’s
permanent impairment was rated as 20 percent for her degenerative joint disease; 15 percent for
her right knee strain/sprain; and 3 percent for her right meniscal tear. Dr. Rodriguez stated that
the combined right lower extremity impairment was 34 percent. She concluded that appellant’s
date of maximum medical improvement was February 9, 2015, the date of appellant’s most
recent magnetic resonance imaging (MRI) scan.
OWCP forwarded the case record and a statement of accepted facts to a district medical
adviser (DMA) on July 7, 2015. In a report dated July 8, 2015, Dr. Morley Slutsky, Boardcertified in occupational medicine and the DMA, arrived at an impairment rating of 12 percent
for the right lower extremity based on degenerative joint disease; however, he noted:
“[Appellant] has multiple diagnoses in the right knee including mild ACL laxity
at MMI (7-13 percent LEI) and medial meniscal tear (1-3 percent LEI). There
was also significant medial compartment arthrosis but no x-rays were performed
with joint space measurements and the MRI scan did not discuss if there were full
thickness articular cartilage tears. I do not know how Dr. Rodriguez arrive[d] at
her impairment assignments as she provided no calculations with rationale. The
doctor simpl[y] assigned impairments for degenerative joint disease and plica (20
percent), strain/sprain (15 percent), and meniscal tears (3 percent). The doctor
also erred when she rated multiple diagnoses in the knee region as only the most
impairing diagnosis is used [under the A.M.A., Guides on page 497 and page 526
in example 16-9].
“I would recommend a [second opinion] with an orthopedic surgeon who is
trained and experienced in the use of the [A.M.A., Guides]....
“I will provide impairment calculations using the medical provided should the
[d]epartment still want this information. Although ACL degeneration is not part

2

of the accepted conditions it is the most impairing diagnosis in the right knee
region and will be used for final calculation.”
On August 7, 2015 OWCP informed appellant that Dr. Rodriguez’s calculations were
insufficiently explained, and requested that she obtain an addendum report from Dr. Rodriguez.
It afforded her 30 days to obtain this report.
In a report dated August 12, 2015, Dr. Rodriguez attached her calculations, noting that
she had previously submitted them, but that the DMA had apparently not received them. She
stated that according to the diagnosis used by the DMA to determine appellant’s ratable
impairment, that of “ACL Laxity,” she would assign appellant a final right lower extremity
impairment rating of 13 percent under the A.M.A., Guides.
On October 7, 2015 OWCP again forwarded the case record and a statement of accepted
facts to the DMA. In a report dated October 17, 2015, the DMA noted that Dr. Rodriguez’
response was confusing as she had not explained how the excerpts she chose to include from the
A.M.A., Guides applied to her calculations. He stated that her evaluation was not well
documented and inconsistent with the rating methods found in the A.M.A., Guides. The DMA
once again recommended a second opinion evaluation. In the absence of a second opinion
evaluation, he reiterated his impairment rating of 12 percent.
On October 26, 2015 OWCP referred appellant to a second opinion physician for
evaluation of her percentage of impairment. In a report dated November 6, 2015, Dr. Robert A.
Smith, a Board-certified orthopedic surgeon, reviewed the medical record and examined
appellant. He found that her right knee sprain had fully resolved without any residual objective
abnormal findings, and rated her permanent impairment due to this condition at zero percent.
Dr. Smith noted that the accepted ratable condition for this claim was a medial meniscal tear of
the right knee status post partial medial meniscectomy. He explained his calculation using the
A.M.A., Guides of a percentage of impairment based on this condition:
“This is a [c]lass 1 injury according to Table 16-3 Knee Regional Grid, page
509…. The default rating is two percent with a range of one to three percent.
From Table 16-6 on page 516 the Functional History Grade Modifier [GMFH] is
1…. The Clinical Stud[ies] Grade Modifier [GMCS] from Table 16-8 on page
519 is also 1. Therefore the [n]et [a]djustment is 0.... The final rating is therefore
two percent right lower extremity.”
Dr. Smith also noted that appellant had impairment from right knee arthritis, but that it
was not an accepted condition in this claim. He rated her permanent impairment from right knee
arthritis at seven percent. Dr. Smith explained that under Table 16-3 primary knee arthritis with
a three millimeter (mm) cartilage interval was a class 1 injury with a default rating of seven
percent. Functional history adjustment from Table 16-6 was 1, and physical examination
adjustment from Table 16-7 was 1. Clinical studies were not applicable because they defined the
class. Therefore the net adjustment was zero and that right lower extremity rating for arthritis
was seven percent. Dr. Smith noted that the accepted right ankle sprain had also fully recovered
and therefore her impairment rating for this condition was zero percent. The total final
permanent impairment rating from Dr. Smith, adding her two percent right lower extremity

3

impairment due to an accepted medial meniscal tear to her seven percent right lower extremity
impairment due to unaccepted right knee arthritis, was nine percent.
On December 1, 2015 OWCP forwarded the case record and a statement of accepted
facts to Dr. Neil J. Negrin, a Board-certified orthopedic surgeon and a DMA. On December 13,
2015 he found that Dr. Smith’s impairment rating of nine percent was the correct impairment
rating, explaining;
“In my opinion Dr. Rodriguez did not apply the correct DRE classification to this
patient’s primary orthopedic problem. The most severe of her conditions is the
degenerative arthritis. [Appellant’s] most recent imaging study indicates that she
has a three mm cartilage interval remaining in her knee. This is a [c]lass 1
impairment with a default grade of seven percent. [Appellant’s] grade modifiers
include a [g]rade 1 for functional history and [g]rade 1 for physical examination
based on the extensive medical records provided for this review. The clinical
studies were used to correctly apply the DRE reclassification. Thus, [appellant]
has a zero grade modifier, which defaults to seven percent. Her other accepted
problems include a partial medial meniscectomy, ankle injury, and knee sprain.
The partial medial meniscectomy is a DRE [c]lass 1 abnormality and defaults to a
two percent partial permanent impairment, using the same grade modifiers. The
ankle injury and the knee sprain have been resolved and are thus [c]lass 0
impairments. In my opinion, the correct calculation is seven percent plus two
percent equaling nine percent to the right lower extremity.”
By decision dated December 22, 2015, OWCP granted appellant a schedule award for
nine percent permanent right lower extremity impairment. It noted that the weight of medical
evidence rested with Dr. Smith and Dr. Negrin.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function, or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.5 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 For decisions issued after

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

Id.

4

May 1, 2009, the sixth edition is used to calculate schedule awards.7 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.8
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).9 Under the sixth edition, the evaluator identifies the impairment for the Class
of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on GMFH,
Physical Examination (GMPE), and GMCS.10 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).11
OWCP 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 of impairment in accordance with the A.M.A., Guides with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
The Board finds that appellant has not established greater than nine percent permanent
right lower extremity impairment. OWCP accepted that appellant sustained sprain/strain of the
right knee and ankle and a tear of the medial meniscus as a result of an occupational employment
injury. Appellant submitted two reports from Dr. Rodriguez, one assigning 34 percent
impairment rating for her right lower extremity, and a later report from Dr. Rodriguez assigning
13 percent impairment rating.
OWCP referred appellant to a second opinion physician, Dr. Smith, for evaluation of her
percentage of impairment. He explained with regard to appellant’s meniscal injury, “This is a
class 1 injury according to Table 16-3 Knee Regional Grid, page 509…. The default rating is
two percent with a range of one to three percent. From Table 16-6 on page 516 the [f]unctional
[h]istory [g]rade [m]odifier is also 1. The [c]linical [s]tud[ies] [g]rade [m]odifier from Table 167

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
8

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.a.3 (January 2010). This portion of OWCP’s procedure provides that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
9

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
10

Id. at 383-419.

11

Id. at 411.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

5

8 on page 519 is also 1. Therefore the net adjustment is 0.... The final rating is therefore two
percent right lower extremity.” Dr. Smith also noted that appellant had impairment from the
preexisting right knee arthritis. He rated her permanent impairment from her three mm right
knee arthritis at seven percent, utilizing Table 16-3, Table 16-6 and Table 16-7. Dr. Smith
properly explained that seven percent impairment was the default rating and appellant’s
impairment required no adjustment, from her grade modifiers. He noted that the accepted right
ankle sprain had also fully recovered and therefore her impairment rating for this condition was
zero percent. The total final permanent impairment rating from Dr. Smith, adding appellant’s
two percent right lower extremity impairment due to the accepted medial meniscal tear to her
seven percent right lower extremity impairment due to the right knee arthritis, was nine percent.
The DMA concurred with this rating on December 13, 2015.
The Board finds that Dr. Rodriguez did not sufficiently explain how she arrived at her
impairment ratings of 34 and 13 percent. The DMA’s report of October 17, 2015 was correct to
note that Dr. Rodriguez’s responses were confusing as she had not explained how excerpts she
chose to include from the A.M.A., Guides applied to her calculations and also did not explain
how specific Tables of the A.M.A., Guides applied to her rating. He was correct in concluding
that her evaluation was not well documented and inconsistent with the rating methods found in
the A.M.A., Guides.
Board precedent is well settled that when an attending physician’s report gives an
estimate of impairment, but does not address how the estimate was based on the A.M.A., Guides,
OWCP is correct to follow the advice of its medical adviser where he or she has properly applied
the A.M.A., Guides.13
Furthermore, OWCP procedures provide that impairment ratings for schedule awards
include those conditions accepted by OWCP as employment related and any preexisting
permanent impairment of the same member or function. If the work-related injury has affected
any residual usefulness in whole or in part, a schedule award may be appropriate as there is no
apportionment.14 As noted above, appellant’s attending physician, Dr. Rodriguez, did not
sufficiently explain how her impairment rating was based on the A.M.A., Guides. The Board
finds that OWCP correctly relied on the reports of Dr. Smith and Dr. Negrin.15
The rating of two percent right lower extremity impairment for the accepted meniscus
injury, added to seven percent for the preexisting degenerative arthritis, was properly calculated
13

J.Q., 59 ECAB 366, 371 (2008); Laura Heyen, 57 ECAB 435, 439 (2006).

14

B.K., 59 ECAB 228 (2007).

15

The Board notes that the A.M.A., Guides explain at page 529, that if there are multiple diagnoses at MMI, the
examiner should determine if each should be considered or of the impairments are duplicative. If there are multiple
diagnoses within a specific region, then the most impairing diagnosis is rated, because it is probable this will
incorporate the functional losses of the less impairing diagnoses. In rare cases of complex injury or occupational
exposure, the examiner may combine multiple impairments within a single region, if the most impairing diagnosis
does not adequately reflect the losses. In the present case, the DMA explained that the rating for appellant’s
accepted medial meniscal tear would not reflect the greater impairment caused by the preexisting arthritis. Both
OWCP second opinion physician Dr. Smith, and the DMA therefore rated both conditions of medial meniscal tear
and arthritis.

6

under the A.M.A., Guides. The Board finds that the impairment rating was consistent with the
examination findings utilizing the A.M.A., Guides, and that the medical evidence established
that appellant sustained no more than nine percent impairment of the right lower extremity.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than nine percent permanent
impairment of her right lower extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., claiming as widower of D.C., Appellant
and
DEPARTMENT OF COMMERCE,
DECENNIAL CENSUS, Dallas, TX, Employer
__________________________________________

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

Docket No. 14-866
Issued: September 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 7, 2014 appellant, through counsel, filed a timely appeal from a January 13,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
claim for death benefits. 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 the employee’s death on December 23, 2012 was causally related to
her accepted employment injury.
FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a December 20, 2010
decision, the Board found that the constructed position of receptionist reflected the employee’s
1

5 U.S.C. § 8101 et seq.

2

Docket No. 10-582 (issued December 20, 2010) and Docket No. 12-831 (issued September 11, 2012).

wage-earning capacity effective June 9, 2009. In a September 11, 2012 decision, the Board
found that OWCP properly determined that the employee was no longer totally disabled for work
and could perform the duties of a constructed position as a receptionist effective August 5, 2011.
The Board also noted that the original wage-earning capacity determination remained in place
following a closed and limited period of disability. The Board noted that the employee
underwent a scheduled surgery and postoperative recovery due to an accepted recurrence due to
a May 25, 2010 right knee surgery. The facts and history contained in the prior appeals are
incorporated by reference.3
On November 8, 2012 the employee filed a claim for a schedule award. In a
November 20, 2012 report, Dr. Jessica Volsky, an osteopath, diagnosed headaches, brachial
neuritis or radiculitis, right total knee replacement and opined that the employee had 19 percent
right and left upper extremity impairment and 34 percent right lower extremity impairment. In a
December 17, 2012 report, Dr. Haranath Policherla, a Board-certified clinical neurophysiologist
and neurologist, diagnosed: depression, neck pain, back pain, headaches, cerebrovascular
disease, hypersomnolence, balance and memory dysfunction.
In a letter dated January 10, 2013, counsel for appellant, noted that the employee passed
away on December 23, 2012 and was survived by her husband, appellant.
On January 19, 2013 appellant, filed a claim for death benefits alleging that the
employee’s death on December 23, 2012 was related to chronic pain from the work injury, which
led to drug use.
In a letter dated January 28, 2013, appellant, through counsel, provided a copy of the
employee’s death certificate and marriage license and requested that OWCP process the claim.
The January 4, 2013 death certificate listed drug abuse as the cause of death.
By letter dated March 8, 2013, OWCP requested that appellant provide additional factual
and medical evidence to support that his wife’s death was causally related to her federal work
injuries. It requested that he submit such evidence within 30 days.
OWCP received an autopsy report dated February 21, 2013, as well as a February 1, 2013
toxicology report. The February 21, 2013 autopsy report, signed by the chief medical examiner,
Dr. L.J. Dragovic, a Board-certified anatomic pathologist, forensic pathologist and
neuropathologist. The autopsy was performed on December 24, 2012. Dr. Dragovic stated that
the employee died on December 23, 2012 at 12:07 p.m. The cause of death was listed as drug
abuse. Dr. Dragovic advised that there was no evidence of other trauma or a significant
preexisting disease. He indicated that the manner of death was undeterminable.
By decision dated June 25, 2013, OWCP denied appellant’s claim for death benefits. It
found that the evidence was not sufficient to support a causal relationship between the
employee’s death and her work-related injuries.

3

OWCP had accepted the employee’s claim for cervical radiculopathy, head contusion, headache and right knee
anterior cruciate ligament tear and medial meniscal tear.

2

On June 27, 2013 appellant, through counsel, requested a hearing, which was held on
November 25, 2013. During the hearing, appellant explained that the employee took pain
medication on a daily basis because of her accepted knee condition.
By decision dated January 13, 2014, the hearing representative affirmed the June 25,
2013 decision which denied appellant’s claim for death benefits.
LEGAL PRECEDENT
An award of compensation in a survivor’s claim may not be based on surmise, conjecture
or speculation or an appellant’s belief that the employee’s death was caused, precipitated or
aggravated by the employment.4 Appellant has the burden of establishing by the weight of the
reliable, probative and substantial medical evidence that the employee’s death was causally
related to an employment injury or to factors of his employment. As part of this burden, she
must submit a rationalized medical opinion, based upon a complete and accurate factual and
medical background, showing a causal relationship between the employee’s death and an
employment injury or factors of his federal employment. Causal relationship is a medical issue
and can be established only by medical evidence.5
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the employee’s death and the accepted conditions or
employment factors identified by the employee.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that the
employee’s death was causally related to her accepted employment injuries. In support of his
claim, counsel for appellant submitted the autopsy report dated February 21, 2013 and death
certificate dated January 4, 2013. The employee died on December 23, 2012 at 12:07 p.m. The
cause of death was listed as drug abuse. Dr. Dragovic advised that there was no evidence of
other trauma or a significant preexisting disease and the manner of death was undeterminable.
He did not offer any opinion that the cause of death was related to any of the accepted conditions
or employment factors identified by the employee.7 Medical evidence which does not offer any

4

Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

5

Mary J. Briggs, 37 ECAB 578 (1986); Umberto Guzman, 25 ECAB 362 (1974).

6

Donna L. Mims, 53 ECAB 730 (2002).

7

As noted, supra note 2, OWCP had cervical radiculopathy, head contusion, headache and right knee anterior
cruciate ligament tear and medial meniscal tear.

3

opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.8
Appellant did not submit any other medical evidence that attributed the employee’s
demise to her accepted employment conditions. Although he asserted that drug use attributable
to the employee’s accepted knee condition led to her death, he did not provide any medical
evidence to support this assertion.
As appellant has not submitted any detailed medical evidence based on a proper history
of injury and medical treatment regarding the employee’s symptoms and treatment immediately
prior to her death or a comprehensive report following her demise, which explains how her death
was attributable to her employment, he has failed to submit the necessary evidence required to
meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the employee’s death on December 23, 2012 was not causally
related to her accepted employment injury.

8

Michael E. Smith, 50 ECAB 313 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the January 13, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 19, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 07-1474
Issued: October 22, 2007

Case Submitted on the Record

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

JURISDICTION
On May 9, 2007 appellant filed a timely appeal of a January 10, 2007 decision of the
Office of Workers’ Compensation Programs, denying merit review of his claim. Since more
than one year has elapsed between the last merit decision on November 9, 2005 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
The Office accepted that appellant sustained bilateral carpal tunnel syndrome causally
related to his federal employment as a sorting machine operator. By decision dated November 9,

2005, the Office issued a schedule award for a four percent permanent impairment to each upper
extremity. The period of the award was 24.96 weeks from June 7, 2004.
By letter dated November 6, 2006, appellant requested reconsideration of his claim. He
inquired as to why the impairment rating from the Office medical adviser was different from that
of his attending orthopedic surgeon, Dr. Sarmed Elias. Appellant argued that the medical adviser
stated that there was no impairment for loss of range of motion in the absence of chronic pain,
while Dr. Elias found an impairment for loss of range of motion. He also noted that the effective
pay rate date was reported as February 14, 2003, when he had surgery, but he had surgeries
going back to May 2000 and appellant inquired as to why that period was not covered.
With respect to the medical evidence, appellant submitted reports from Dr. Elias dated
August 15, 2003, November 2 and 18, 2004 and a February 1, 2005 report that were previously
of record. He also submitted a June 21, 2005 report from Dr. Elias that was not previously
submitted. Dr. Elias provided results on examination but did not provide any opinion as to
permanent impairment. Appellant also submitted a settlement agreement dated March 11, 2005,
with respect to an Equal Employment Opportunity Commission complaint that had previously
been submitted.
By decision dated January 10, 2007, the Office determined that the application for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee shall exercise this right through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”1
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.2
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meet at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the

1

20 C.F.R. § 10.605 (1999).

2

Id. at § 10.606(b)(2).

2

request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.3
ANALYSIS
In the November 6, 2006 application for reconsideration, appellant raised questions as to
how the schedule award was calculated. As noted above, to reopen his claim for review of the
merits, he must show that the Office erroneously applied or interpreted a specific point of law, or
advance a relevant legal argument not previously considered by the Office. To the extent
appellant argues that the November 9, 2005 schedule award decision was not properly
calculated, he does provide a supporting legal argument.4 Appellant noted, for example, the lack
of an impairment for loss of range of motion. In this case, the Office medical adviser had
properly noted that, under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) for compression neuropathies, additional impairment
values for loss of motion are not given in the absence of a chronic regional pain syndrome.5
Appellant also referred to the pay rate date and the period covered, without providing a relevant
legal argument or discussing a specific point of law.6
Appellant did not submit any relevant and pertinent evidence not previously submitted.
The degree of permanent impairment is based on application of the A.M.A., Guides to the
relevant medical evidence. The new medical evidence submitted was a June 21, 2005 report
from Dr. Elias, who did not discuss the A.M.A., Guides or provide any new and relevant
information on the issue presented.7 The record does not contain any new and relevant evidence
on reconsideration with respect to the underlying medical issue in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by the
Office, or submit relevant and pertinent new evidence not previously considered by the Office.
Pursuant to 20 C.F.R. § 10.608, the Office properly determined the application for
reconsideration was insufficient to warrant review of the merits of the claim.

3

Id. at § 10.608.

4

Where the legal argument presented has no reasonable color of validity, the Office is not required to reopen the
case for merit review; see Norman W. Hanson, 40 ECAB 1160 (1989).
5

A.M.A., Guides 494 (5th ed. 2001).

6

The effective pay rate date is based on the provisions of 5 U.S.C. § 8101(4), which establishes monthly pay is
determined at the time of injury, the time disability begins, or the date recurrence begins if more than six months
after the employee returns to regular full-time work with the United States. The period covered by a schedule award
begins with the date of maximum medical improvement and runs for the number of weeks as determined by 5
U.S.C. § 8107(c). See Albert Valverde, 36 ECAB 233, 237 (1984).
7

Appellant had previously submitted a more current report from Dr. Elias, dated July 12, 2005, that was used by
the Office medical adviser to determine upper extremity permanent impairment.

3

CONCLUSION
Appellant did not meet the requirements of 20 C.F.R. § 10.606(b)(2) and therefore the
Office properly denied the application for reconsideration without review of the merits of the
claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2007 is affirmed.
Issued: October 22, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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Appearances:
Ann Branson, for the appellant
Office of Solicitor, for the Director

Docket No. 07-431
Issued: May 17, 2007

Case Submitted on the Record

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

JURISDICTION
On December 6, 2006 appellant, filed a timely appeal from a decision on the Office of
Workers’ Compensation Programs dated November 15, 2006, which denied his asbestosis claim.
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 filed a timely claim for compensation under the Federal
Employees’ Compensation Act.
FACTUAL HISTORY
On June 6, 2006 appellant, then a 77-year-old former naval engineer and machinist, filed
an occupational disease claim alleging that on August 16, 2001 he first realized that he had
asbestosis and that this condition was caused or aggravated by factors of his federal employment.

Accompanying appellant’s claim was an October 23, 2003 report from Dr. Frank
Ganzhorn, Board-certified in internal medicine, regarding appellant’s September 20, 2003 visit.
Dr. Ganzhorn diagnosed asbestosis based on a chest computerized tomography (CT) scan done
on August 16, 2001 as reviewed by Dr. William Meseroll, Board-certified in diagnostic
radiology. In a statement accompanying his claim, appellant also listed his employment history
and alleged asbsestos exposure. In a July 17, 2006 letter, the employing establishment notified
the Office that appellant had left the shipyard in 1984 and retired from federal service in
December of that year. The shipyard closed in 1996.
In an August 25, 2006 letter, the Office requested additional information from appellant,
specifically asking why he did not seek treatment until September 20, 2003 if he had been aware
of asbestosis exposure on August 16, 2001. No response was received. The Office received
copies of appellant’s employment records.
In a November 15, 2006 decision, the Office denied appellant’s claim on the grounds that
the claim was untimely.
LEGAL PRECEDENT
The basic time limit for filing is in section 8122(a) of the Federal Employees’
Compensation Act1 which provides that an original claim for compensation for disability or
death must be filed within three years after the injury or death.2 However, section 8122(b)
modifies the basic rule in latent disability cases where the time limitation does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
a causal relationship between the employment and the compensable disability.3 The Board has
ruled that an employee need only be aware of a possible relationship between his “condition”
and his employment to commence the running of the applicable statute of limitations.4 If an
employee continues to be exposed to injurious working conditions after he or she becomes aware
of causal relationships, the three-year time limit begins to run on the last date of the exposure.5
A claim filed after the three-year limit may still be regarded as timely under section 8122(a)(1) if
the employee’s immediate superior had actual knowledge of his alleged employment-related
injury within 30 days of its occurrence. Appropriate written notice provided within 30 days of
an event, pursuant to section 8119,6 may also affect the three-year rule. The knowledge must be
such as to put the immediate superior reasonably on notice of an on-the-job injury or death.7

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8122(a).

3

5 U.S.C. § 8122(b).

4

Edward C. Horner, 43 ECAB 834, 840 (1992).

5

See Linda J. Reeves, 48 ECAB 373 (1997).

6

5 U.S.C. § 8122(a)(1), (2); see also Larry E. Young, 52 ECAB 264 (2001).

7

Willis E. Bailey, 49 ECAB 509 (1998).

2

ANALYSIS
When appellant filed his claim for compensation on June 6, 2006, he indicated that he
first learned of his asbestosis condition and that it was caused or aggravated by his federal
employment on August 16, 2001. This date is supported by the fact that August 16, 2001 is also
the date of the CT scan Dr. Ganzhorn cited in his October 23, 2003 report. The CT scan report is
not included in the record but was incorporated and relied upon by Dr. Ganzhorn during his 2003
evaluation.
Because this is a latent disability case, the three-year time limitation began to run on
August 16, 2001. Appellant had until August 16, 2004 to file his claim and because he did not
file his claim on or before that date it is untimely.
Other provisions in the statute do not affect this outcome. Appellant had no continuing
exposure to asbestos after his 1984 retirement from federal service. No evidence exists in the
record to establish either actual knowledge by an immediate superior or appropriate, written
notice to the employing establishment. Appellant had to file his claim on or before August 16,
2004 and failed to do so.
CONCLUSION
The Board finds that appellant did not file a timely claim for compensation under the Act.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs on November 15, 2006 is affirmed.
Issued: May 17, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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