United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ladson, SC, Employer
__________________________________________

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

Docket No. 09-608
Issued: October 20, 2009

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 2, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated September 23 and November 21, 2008. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than 16 percent impairment of her right
lower extremity and 5 percent impairment of her left lower extremity for which she received
schedule awards; and (2) whether she received an overpayment of compensation in the amount
of $1,357.56 for which she was not at fault as the Office used an incorrect pay rate; and
(3) whether the overpayment is subject to waiver.
FACTUAL HISTORY
On September 12, 2006 appellant, then a 51-year-old part-time flexible window
distribution clerk, filed an occupational disease claim alleging that she developed a torn

meniscus in her left and right knees due to factors of her federal employment.1 She previously
underwent arthroscopic debridement of the articular cartilage of her left patella and partial
synovectomy on July 20, 1994. Appellant returned to work on August 10, 1994 as a part-time
flexible employee, who averaged 24.60 hours a week. Effective September 17, 2005, her
position was changed to a part-time regular position as a distribution window clerk working 25
hours a week.
By decision dated January 9, 2007, the Office denied appellant’s claim for bilateral knee
and right foot conditions due to her employment duties.
Appellant submitted additional evidence and requested reconsideration on
March 15, 2007. On June 30, 2004 Dr. James D. Spearman, a Board-certified orthopedic
surgeon, explained that she had right knee arthroscopy in 1998 and left knee surgery in 1994. He
recommended repeat arthroscopic debridement bilaterally due to chondromalacia in both knees.
Dr. Spearman performed right and left knee arthroscopic surgeries on August 4, 2004.
Dr. Joel R. Cox, a Board-certified orthopedic surgeon, examined appellant on September 7, 2000
and diagnosed degenerative joint disease of the right great toe with hallux rigidus.
Dr. J. Edward Nolan, a Board-certified orthopedic surgeon, examined appellant on February 22,
2007 and repeated her diagnoses. He opined that appellant’s conditions were caused or
aggravated by her employment activities. The Office accepted appellant’s claim for aggravation
of bilateral chondromalacia and right great toe joint with degenerative joint disease on
June 13, 2007.
Appellant requested a schedule award on September 28, 2004. On October 22, 2007 the
Office requested a report from Dr. Nolan regarding appellant’s permanent impairment. The
employing establishment completed the claim form on October 19, 2007 and provided
appellant’s pay rate information as $23.70 per hour or $30,341.97 per year based on an average
of 26.03 hours per week. It noted that appellant had not worked since October 31, 2005.
The Office referred appellant for a second opinion evaluation on February 14, 2008 with
Dr. Stephen C. Allen, a Board-certified orthopedic surgeon. In a report dated March 6, 2008,
Dr. Allen found that appellant’s knees were well aligned, stable with no effusion. He noted that
patella compression resulted in pain, tenderness and crepitus, but no patella pop. Dr. Allen
diagnosed chondromalacia patella in knees, pseudoarthrosis right hallux joint and metatarsalgia,
myofascial pain syndrome with multiple trigger points, cervical disc degeneration and cervical
and lumbar facet hypertrophy spondylolysis. He referred appellant for x-rays. Dr. Allen only
partially completed the Office permanent impairment worksheets and did not provide any rating.
The Office medical adviser reviewed this report on March 11, 2008 and noted that appellant had
chondromalacia of both knees and that Dr. Allen had not provided an impairment rating.
The Office requested a supplemental report from Dr. Allen to address the extent of
appellant’s impairment of her knees and right toe. In a report dated March 6, 2008, Dr. Allen
1

In a letter dated October 12, 2006, the Office noted that appellant was receiving compensation benefits due to a
back injury under OWCP File No. xxxxxx248. It also noted that appellant had two previous claims under OWCP
File No. xxxxxx843 which was approved for meniscal tear of the left knee and OWCP File No. xxxxxx464 which
was filed for bilateral knee strains and denied by the Office.

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indicated that appellant had 10 percent impairment of the right lower extremity due to ankylosis
of the great toe.2 He found that due to knee chondromalacia, femoral patella pathology and joint
space greater than four millimeters, appellant had five percent impairment of each lower
extremity.3 Dr. Allen concluded that appellant reached maximum medical improvement in 2005.
On March 31, 2008 the Office medical adviser reviewed additional medical evidence from him
and found that appellant had 12 percent impairment of her right lower extremity.4 He concluded
that appellant had 5 percent impairment of her left lower extremity and 16 percent impairment of
her right lower extremity.5
On April 3, 2008 the Office requested pay rate information from the employing
establishment, including night differential, which it submitted on April 7, 2008. It calculated
appellant’s pay rate based on 26.03 hours a week earning $27.70 per hour as a regular full-time
employee with a weekly base pay rate of $616.91.
The Office granted appellant a schedule award for 16 percent impairment of the left knee
on May 5, 2008 based on a weekly pay rate of $616.91. Appellant requested reconsideration on
May 27, 2008 noting that, based on the medical evidence, she had 16 percent impairment for the
right lower extremity and 5 percent impairment for the left lower extremity.
The Office noted on July 3, 2008 that appellant’s pay rate for a schedule award purpose
was incorrectly calculated. As a regular part-time employee guaranteed 25 hours a week with
5.5 hours of night differential and appellant’s recurrent pay rate was April 18, 2005. The Office
requested additional pay rate information from the employing establishment on July 7, 2008.
By decision dated July 7, 2008, the Office informed appellant that she was entitled to an
additional schedule award totaling 5 percent impairment of the left lower extremity and 16
percent of the right lower extremity.
Appellant alleged on July 11, 2007 that she always worked over 25 hours a week. The
employing establishment stated on August 27, 2008 that she was making $21.76 on April 18,
2005, that she was a part-time regular employee guaranteed 25 hours a week and night
differential of $1.58 for 5.5 hours a week, totaling $8.69. On September 19, 2008 the Office
calculated appellant’s weekly pay rate based on 25 hours a week at $21.76 per hour or $544.00
per week and night differential of 5.5 hours for a total weekly pay rate of $552.69.
The Office determined that appellant had received compensation from March 8 to July 5,
2008 in the amount of $8,437.52 based on the incorrect pay rate and that she should have
received compensation in the amount of $7,079.96 for this period. It calculated an overpayment
in the amount of $1,357.56.

2

A.M.A., Guides, 542, Table 17-30.

3

Id. at 544, Table 17-31.

4

Id. at 545, Table 17-32.

5

Id. at 528, 604.

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By decision dated September 23, 2008, the Office granted appellant a schedule award for
16 percent impairment of the right lower extremity and 5 percent impairment of the left lower
extremity. It listed appellant’s pay rate as $552.69.
On October 2, 2008 the Office made a preliminary determination that appellant had
received an overpayment of compensation in the amount of $1,357.56 as her schedule award was
paid at an incorrect pay rate. It found that appellant was not at fault in the creation of the
overpayment. The Office requested that she complete an overpayment recovery questionnaire.
Appellant responded on October 10, 2008 and disagreed with the fact of overpayment. In
a statement dated September 29, 2008, she stated that she never worked only 25 hours a week.
Appellant alleged that she did not work a regular schedule and that her supervisor was
responsible for providing the average weekly hours worked. She also disagreed with the amount
of her schedule award noting that Dr. Dyer added 12 plus 5 and reached 16 rather than 17
percent impairment of the right lower extremity.
By decision dated November 21, 2008, the Office found that appellant received an
overpayment of compensation in the amount of $1,357.56, that she was not at fault in the
creation of the overpayment and that she was not entitled to waiver. It determined to withhold
$1,357.56 from appellant’s continuing schedule award payments beginning November 23, 2008
and stated that the overpayment would be absorbed by January 1, 2009.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.8 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.9
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for aggravation of bilateral chondromalacia and
right great toe joint with degenerative joint disease. Appellant requested a schedule award on
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

8

Id.

9

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

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September 28, 2004. Her physician did not respond to the Office’s request for a permanent
impairment rating in accordance with the A.M.A., Guides and the Office referred appellant to
Dr. Allen, a Board-certified orthopedic surgeon, for a second opinion evaluation, who concluded
that she had 10 percent impairment of the right lower extremity due to ankylosis of the right
great toe at the metatarsal joint and 5 percent impairment of each of her lower extremities due to
chondromalacia of the patella. The Office medical adviser reviewed Dr. Allen’s reports and
found that appellant was entitled to 12 percent impairment of the right lower extremity due to
permanent impairments of her right great toe. He then properly combined this impairment rating
to reach 16 percent impairment of the right lower extremity and 5 percent impairment of the left
lower extremity for which appellant has received schedule awards. There is no medical evidence
in the record to support that appellant has more than 16 percent impairment of her right lower
extremity and 5 percent impairment of her left lower extremity for which she has received
schedule awards.
LEGAL PRECEDENT -- ISSUE 2
The Act10 provides that the United States shall pay compensation for the disability or
death of an employee resulting from personal injury sustained while in the performance of
duty.11 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.12
Section 8105(a) of the Act provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”13 Under 5 U.S.C.
§ 8101(4), “monthly pay” means the monthly pay at the time of injury, or the monthly pay at the
time disability begins or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.
The Office’s procedure manual states that the postal service recognizes several kinds of
tours of duty, depending on the kind of work performed and that an employee may work many
more hours than indicated on the tour of duty. The procedure manual states: “In such cases the
pattern established by the actual number of hours worked or actual amounts of money earned
takes precedence over the stated schedule or tour of duty in deciding which part of 5 U.S.C.
§ 8114 to use in determining pay rate.”14
10

5 U.S.C. §§ 8101-8193.

11

Id. at § 8102(a).

12

Id. at § 8129(a).

13

Id. at § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three fourths
of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.3(b) (1995).

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ANALYSIS -- ISSUE 2
The Office initially granted appellant a schedule award for 16 percent impairment of the
left knee on May 5, 2008 based on a weekly pay rate of $616.91. It based this pay rate on the
employing establishment’s representation that appellant earned $23.70 per hour or $30,341.97
per year based on an average of 26.03 hours per week. Appellant requested reconsideration of
the May 5, 2008 schedule award decision. The Office then determined that her pay rate should
be calculated on her weekly pay rate based on 25 hours a week at $21.76 per hour or $544.00 per
week and night differential of 5.5 hours for a total weekly pay rate of $552.69. It determined
that appellant received an overpayment in the amount of $1,357.56 based on the difference of
pay rates.
The Board finds that the Office improperly calculated appellant’s pay rate in determining
that she had received an overpayment of compensation. As noted, the Office’s procedure manual
notes that employees of the employing establishment may work many more hours than those
indicated on the tour of duty. The procedure manual directs the Office to calculate the pay rate
for these employees based on the actual number of hours worked or actual amount of money
earned rather than the stated schedule or tour of duty. As it determined that appellant received an
overpayment based solely on her schedule of duty rather than the actual number of hours
worked, the Office has failed to establish the fact that she received an overpayment of
compensation.15 The Board finds that the Office has not properly calculated appellant’s rate of
pay for purposes of her schedule award. It has not provided calculations reflecting the actual
number of hours appellant worked in reaching this determination. On remand, the Office should
further develop the record as to appellant’s pay rate and issue an appropriate decision.
CONCLUSION
The Board finds that appellant has no more than 16 percent impairment of her right lower
extremity and 5 percent impairment of her left lower extremity for which she has received
schedule awards. The Board finds that the Office did not properly calculate appellant’s pay rate
for schedule award purposes to establish that she received an overpayment of compensation.

15

As the Office has not established fact or amount of overpayment, it is not necessary for the Board to address the
issue of waiver.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2008 is affirmed in part and remanded in part.
The decision dated November 21, 2008 is reversed.
Issued: October 20, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 10-1325
Issued: February 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 12, 2010 appellant filed a timely appeal from a nonmerit decision of the Office
of Workers’ Compensation Programs dated October 14, 2009 that denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 24, 2007, the
Board found that, by its September 28, 2005 decision, the Office properly refused to reopen
appellant’s case for further consideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a), that he failed to meet his burden of proof to establish that he was totally disabled for
the period December 1 to 15, 2004, and that the Office properly denied his April 19, 2006

reconsideration request.1 In a June 1, 2009 decision, the Board found that appellant failed to
meet his burden of proof to establish that he was totally disabled for the periods November 17 to
December 30, 2005, January 1 to April 30, 2006 and July 1 to September 30, 2006.2 The law
and facts of the previous Board decision are incorporated herein by reference.
In an undated letter received by the Office on August 28, 2009, appellant requested
reconsideration of the Board’s June 1, 2009 decision, attesting that the employing establishment
removed his light-duty position on November 17, 2005. He referenced an employing
establishment letter dated February 8, 2006 advising that, given his current limitations and
medical restrictions, no work was available, and a June 25, 2007 duty status report from
Dr. Stephen E. Fuhs, an attending Board-certified orthopedic surgeon, as being supportive of his
claim. In an August 4, 2008 statement, appellant maintained that he was improperly removed
from a bid position. He submitted employing establishment correspondence and time and
attendance records; a September 25, 2007 grievance appeal form; an arbitration decision dated
July 6, 2008, finding that the employing establishment did not violate postal policies when it
failed to offer appellant a light or limited-duty assignment; an arbitration decision dated May 31,
2009 finding that the matter in question had been decided by a previous arbitration panel and was
therefore barred by the doctrine of collateral estoppel/res judicata; employing establishment emails dated January 25 to February 2, 2005; medical reports previously of record; and an undated
statement from Fred Santiaguel, a coworker, regarding the events of November 27, 2005 that
was previously of record. In a July 28, 2008 report, Dr. John A. Moen, a Board-certified
internist, described appellant’s complaint of right hand pain and inability to grasp with his right
hand. He provided physical examination findings and restrictions to appellant’s physical ability.
An August 5, 2009 upper extremity physical capacities evaluation advised that appellant could
occasionally reach overhead with a weight of 50 pounds and should not perform repetitive right
wrist motion.
By decision dated October 14, 2009, the Office denied appellant’s reconsideration
request on the grounds that the evidence submitted was repetitious or irrelevant.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.4 Section 10.608(a) of the Code of
Federal Regulations provides that a timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence and/or argument that meets at least
one of the standards described in section 10.606(b)(2).5 This section provides that the
1

Docket No. 06-1823 (issued July 24, 2007).

2

Docket No. 08-2061 (issued June 1, 2009).

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8128(a).

5

20 C.F.R. § 10.608(a).

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application for reconsideration must be submitted in writing and set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; or (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.6
Section 10.608(b) provides that when a request for reconsideration is timely but fails to meet at
least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.7
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of the Office
dated October 14, 2009 denying appellant’s application for review. Because there is no merit
decision of the Office within the Board’s jurisdiction, the Board lacks jurisdiction to review the
merits of appellant’s claim.
With his August 2009 reconsideration request, appellant asserted that the employing
establishment improperly removed his light-duty position on November 17, 2005. This
argument was previously reviewed by the Board in its June 1, 2009 decision and therefore does
constitute a basis for reopening a case.8 Appellant therefore did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by the Office. Consequently, he was not entitled to a review
of the merits of his claim based on the first and second above-noted requirements under section
10.606(b)(2).9
With respect to the third above-noted requirement under section 10.606(b)(2), on
reconsideration appellant referenced February 8, 2006 correspondence from the employing
establishment and a June 28, 2007 duty status report that had previously been reviewed by both
the Office and the Board. He also submitted previously reviewed statements and medical
reports. The Board has long held that evidence that repeats or duplicates evidence of record has
no evidentiary value and does not constitute a basis for reopening a case.10
The arbitration decisions are not supportive of appellant’s claim that his light duty was
improperly removed and the grievance form is not a final decision. The time and attendance
records are not relevant to the merit issue of whether appellant established that he was disabled
for certain periods, and the e-mails, Dr. Moen’s report and the physical capacities evaluation are
not relevant to the periods of disability claimed. Evidence that does not address the particular
issue involved does not constitute a basis for reopening a case.11
6

Id. at § 10.608(b)(1) and (2).

7

Id. at § 10.608(b).

8

M.E., 58 ECAB 694 (2007).

9

20 C.F.R. § 10.606(b)(2).

10

Freddie Mosley, 54 ECAB 255 (2002).

11

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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As appellant did not show that the Office erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by the Office, the Office properly denied his reconsideration
request.12
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 14, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 14, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Supra note 6.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDING SERVICES,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-0694 &
15-0319
Issued: February 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 7, 2014 appellant, through counsel, filed a timely appeal from an August 26,
2013 merit decision and a January 8, 2014 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP) in Claim No. xxxxxx813. On November 25, 2014 appellant,
through counsel, also filed a timely appeal from an October 7, 2014 merit decision of OWCP in
Claim No. xxxxxx261. 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 these appeals.
ISSUES
The issues are: (1) whether OWCP properly denied expansion of appellant’s claim to
include an anxiety disorder and aggravation of Asperger’s disorder due to the accepted
condition; (2) whether OWCP met its burden of proof to terminate appellant’s compensation and
medical benefits effective February 12, 2012 as the accepted, single episode of aggravation of
hypertension/hypertensive cardiovascular disease had resolved; (3) whether appellant established
1

5 U.S.C. § 8101 et seq.

continuing disability or residuals of his accepted conditions after February 12, 2012; (4) whether
OWCP properly denied a merit review under 5 U.S.C. § 8128(a); and (5) whether OWCP
properly determined that appellant’s claim for an occupational disease was barred by the
applicable time limitation provisions of FECA.
On appeal, appellant’s counsel argues that because OWCP failed to expand appellant’s
claim, the full extent of the disability due to this employment condition has not been recognized
or acknowledged. He contends that the evidence established that appellant continued to be
disabled. Counsel further argues that appellant’s treating psychologist first associated the
aggravation of appellant’s Asperger’s disorder with his job duties in a report dated
June 26, 2010. Therefore, he argues that appellant’s November 25, 2011 claim was timely filed.
Counsel also asks that these cases be consolidated for decision.2
FACTUAL HISTORY
On July 6, 2005 appellant, then a 46-year-old property manager,3 filed a traumatic injury
claim4 alleging that on June 15, 2005 he became ill when he was required to attend a previously
scheduled performance review meeting. He stated that he was unprepared for the performance
review meeting and asked that the meeting be postponed. Contrary to his wishes, the meeting
went forward and appellant developed a headache. After the meeting, he remained at work and
moved boxes and files, but claimed that his headache worsened and he left work that day.
Appellant has not returned to duty.
OWCP sent appellant, on September 15, 2005, a development letter advising him of the
evidence needed to establish his claim. He was advised that the case would be held open for 30
days for him to submit that additional evidence.
The record reflects that five days before he stopped work, on June 10, 2005, appellant
was notified of the upcoming property manager’s performance review meeting scheduled for
2

The Board has already issued its decision in Docket No. 14-390 on December 18, 2014. See Docket No. 14-390
(issued December 18, 2014) in Claim No. xxxxxx193
3

Appellant was previously a GS-11 property manager. In July 2004 he was transferred to another location within
the employing establishment, the Rodino building, where there were four coworkers. In December 2004 appellant
complained that the staffing level had been reduced from four to two managers. He claimed that, as he was in
essence doing the work of a GS-12, he should be promoted. Since he filed this claim, appellant has filed multiple
claims with the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board
(MSPB) regarding this matter. Although the decisions of the EEOC and the MSPB were not in the record, it appears
that as part of an August 1, 2007 global settlement agreement between appellant and the employing establishment,
his position was reclassified from a GS-11 to a GS-12 retroactive to May 2, 2005. Appellant has filed many
complaints against his employing establishment alleging discrimination and failure to accommodate his disability.
The record reflects appeals through the EEOC, MSPB, Federal Labor Relations Authority (FLRA), state
unemployment agencies, and the employing establishment grievance procedure. The global settlement agreement
allegedly included an agreement whereby appellant would withdraw all of his complaints with EEOC and MSPB
and agreed to file no further complaints, but the complete terms of that settlement are absent from the record.
4

Appellant had filed a prior claim for a July 9, 1996 incident for which OWCP had accepted an aggravation of
hypertension on September 15, 1998 (OWCP Claim No. xxxxxx132).

2

Wednesday, June 16, 2005 at 10:00 a.m.5 He was advised that the review would be of his
performance for the past six months. Appellant was advised to provide the following
information for the review: cleaning inspections for the last three months, records of any
meetings held with janitorial contractor, the janitorial “Quality Control Program” for the last
three months, a copy of the janitorial contract and any modifications, dates and times appellant
met with the tenant agencies, and the “Monthly Building Report” for the last three months.
Following the meeting, a program review evaluations results memorandum addressed to
appellant, dated June 20, 2005, stated the following deficiencies in his performance:
1. Failed to provide any cleaning inspections for the past three months.
2. Failed to provide any records of meetings held with OCNJ (janitorial contractor).
3. Failed to provide any documents authorizing payments for landscaping.
4. Failed to provide a copy of janitorial contract and any modifications
5. Failed to provide a copy of OCNJ’s “Quality Control Program” for the last three
(3) months.
6. Failed to keep records of meetings held with tenants agencies (times and dates).
7. Failed to provide cleaning inspections for the 2nd floor cafeteria.
The employing establishment controverted appellant’s claim and disputed continuation of
pay. By memorandum dated August 19, 2005, it suggested that appellant’s headaches might
have been due to the effects of his medication, Benzodiazepine, which lists headaches as a
possible side effect, rather than his progress review meeting.
On October 26, 2005 OWCP received an undated medical summary report from
Dr. Joseph A. Sarnelle, Board-certified in cardiovascular disease and appellant’s treating
physician, along with an attending physician’s report (Form CA-20). In the attending
physician’s report, Dr. Sarnelle noted that he had first examined appellant on June 17, 2005 and
diagnosed elevated blood pressure and an abnormal electrocardiogram (EKG) and checked a box
marked “yes” as to whether the condition was caused or aggravated by an employment activity.
In the summary report, Dr. Sarnelle noted treating appellant on June 17 and 23,
August 12, and September 20, 2005 and noted that he had prepared his report on the basis of an
October 19, 2005 statement provided to him by appellant. He understood that appellant was
required to complete a measure of work within a certain time frame that was set out in monthly
inspection quotas. Dr. Sarnelle believed that the amount of work appellant had to perform
required some lifting and climbing and required walking from location to location. He
recognized that these activities required a level of physical effort. Dr. Sarnelle stated that
appellant “was ‘hurrying’ about the building in order to ‘make up time.’ [Appellant] was clearly
5

There was some confusion as to the day of the meeting. The notice scheduled it for Wednesday, the 16th but
Wednesday was actually the 15th.

3

attempting to accomplish his work in a reduced amount of time. I believe, to a reasonable
medical certainty that by increasing his pace [appellant] exerted himself to an unusually high
level.” Dr. Sarnelle explained that increased physical exertion almost invariably raises blood
pressure. He reported that “having been [appellant’s] physician for over nine years,” he had the
occasion to measure his blood pressure during periods of physical exertion. Dr. Sarnelle
determined that physical exertion raises appellant’s blood pressure and, to a reasonable medical
certainty, he determined that appellant’s injury on June 15, 2005 “was caused by physical
exertion that occurred during his work shift.”
Appellant’s October 19, 2005 statement to Dr. Sarnelle reported that in February 2005 he
had been given much more physically exerting work and was assigned “an enormous amount of
additional duties, in addition to my already full workload.” He provided Dr. Sarnelle various
documents that outlined preparations for upcoming inspections, and that he was required to
“inspect the entire building every 30 days.” Appellant noted that the Rodino building had 70 rest
rooms spread out over 18 floors that he had to inspect each month. He also noted that after he
had returned from 2004 spinal surgery, he had been assigned to an area of less physical exertion
than a typical building manager assignment would involve, but being transferred to the Rodino
building dramatically increased the physical demands of his job. Appellant explained that the
staffing of the building had been reduced by three managers and he was working with only one
other individual. He claimed that all of the duties of the previous managers had been put on his
shoulders. During the weeks preceding his injury, appellant was struggling to meet the
conflicting deadlines of “my Safety and Environmental inspection duties and my duties under the
cleaning contract.” He claimed that on the 15th, he had been “hurrying to make up time” because
he had “a number of irons in the fire,” including an unscheduled meeting he had to attend.
OWCP accepted on December 7, 2005 an aggravation of hypertensive cardiovascular
disease. The employing establishment was required to provide continuation of pay from June 20
through August 3, 2005.
On December 7, 2005 OWCP requested that appellant’s treating physician provide a
medical opinion on appellant’s capacity to return to work and a treatment plan. It also advised
that appellant would be placed into a nurse rehabilitation program. On March 29, 2006 the
accepted condition was revised to a single episode of hypertension/hypertensive cardiovascular
disease.
Dr. Sarnelle continued to submit attending physician reports finding appellant totally
disabled commencing June 20, 2005 because of hypertension, reactive hypertension, labile
hypertension, and spinal stenosis. Appellant filed claims for disability compensation (Forms
CA-7) for the period August 11, 2005 through June 8, 2006.
On May 15, 2006 OWCP received an April 26, 2006 medical opinion report from
Dr. Sean R. Evers, Ph.D., a clinical psychologist. Dr. Evers described at length the symptoms of
an individual with Asperger’s disorder and provided a history of appellant’s past experience with
the disorder. He noted that appellant had “revealed the details of his condition to his [employing
establishment] at the time of his employ and has repeatedly referred to it and amplified that
description during the term of his employ and as a result was granted accommodation.”

4

Dr. Evers determined that appellant had, for the majority of his life, suffered from Asperger’s
disorder, and the condition was complicated by his significant anxiety disorder.
Dr. Evers noted that Asperger’s disorder had not precluded appellant from maintaining a
successful career in the Federal Government, but that two events had precipitated significant
psychophysical difficulties. The first was in July 1996 while appellant worked at a location in
New Jersey. He was able to return to work after that incident. The second was what appellant
described as “escalating hostile work environment” on July 15, 2005, after which he was unable
to return to work. Dr. Evers found that, when appellant’s supervision changed and when the
number of hours he could work were limited, his symptoms had been exacerbated. This increase
in stress and anxiety “exacerbated his Asperger’s symptoms.” These changes heightened
appellant’s levels of stress and anxiety which manifested into both physical and psychological
symptoms. Dr. Evers opined that there was a direct link between appellant’s work situation and
exacerbation of his psychological conditions. Physically appellant suffered from critical and
dangerous spikes in his blood pressure and psychologically the combination of the underlying
Asperger’s disorder and his anxiety disorder resulted in a chronically heightened state of anxiety,
hyperfocus, and a fear of future injury due to these symptoms.
The employing establishment controverted the claim on August 28, 2006. It noted that
over the past year, appellant had filed several workers’ compensation claims. The employing
establishment contended that Dr. Sarnelle’s report was based on a fictitious factual background
provided by appellant. It claimed that appellant’s claim of his workload was “dramatically
inflated by him for self-serving reasons and that his account of what he alleges transpired on
June 15, 2006 has no basis in reality.” The employing establishment explained that appellant’s
total daily requirement for his inspections of the janitorial contract required him to visit two to
three bathrooms and to walk one half of a floor and to then document his findings. It claimed
that he was never assigned duplicate duties when another individual left the Roper Building.
Appellant was assigned to replace that individual. His claim to have been “hurrying around” to
be inspecting mechanical equipment is “baseless.” Further appellant was not required to either
lift or climb as he had been relieved of the duty to prepare the overtime utilities. His reports in
that regard were considered consistently inaccurate which had to be redone by his associates.
The employing establishment further noted that the meeting on June 15, 2005 was not
singling appellant out, as all managers were in the same position of having their performance
reviewed at that time. Any stress associated with that meeting would have been because
appellant had failed to perform his duties and that fact became apparent. It noted that a few days
prior to his filing this claim on July 5, 2005, he had exhausted all of his annual and sick leave.
A note to the file indicates that on September 19, 2006 (after many telephone calls and
letters from appellant) a senior claims examiner advised appellant that he would receive total
disability compensation for the period August 11, 2005 through September 2, 2006. Later, by
letter dated October 5, 2006 from a different claims examiner, OWCP advised appellant that he
could only be paid from August 11 to September 11, 2005, without further medical development
of the case.
Appellant continually communicated with OWCP and noted that he was very eager to
return to work, but he claimed there were no positions available to meet his limitations. He

5

stated, as noted in several October 5, 2005 reports of telephone contact with OWCP, that he had
another claim related to his psychological condition (OWCP Claim No. xxxxxx885) which
should be combined into this case.6 Further, appellant stated that OWCP Claim No. xxxxxx813
should not only include hypertension, but should be expanded to include aggravation of anxiety
disorder and Asperger’s disorder. By letter dated October 30, 2006, OWCP advised appellant
that it could not determine whether any additional conditions were work related until the claim
had been sent to a second opinion physician.
An October 20, 2006 note to the file by a senior claims examiner indicated that appellant
had again called and expressed his disagreement with being paid for only one month. The note
reflects that after that telephone call he conducted a thorough review of the case and noted that
the case had not been adequately developed. The claims examiner stated that there had been no
findings of fact regarding the acceptance of the claim. The claim had reportedly been accepted
by a probationary claims examiner who was no longer with the office. The note acknowledged
that, absent findings of fact, the record was unclear as to what warranted the acceptance of the
condition. Further, the claims examiner noted that OWCP had only accepted a single episode of
aggravation whereas the treating physician had referenced a permanent aggravation. He
determined that appellant should be paid compensation for temporary total disability for lost time
and that the claims examiner was directed to schedule a second opinion examination to
determine the extent of any aggravation. The claims examiner stated that he was authorizing
compensation for temporary total disability for the period August 11 through June 8, 2006.
OWCP on October 26, 2006 referred appellant and a statement of accepted facts (SOAF)7
to Dr. John Verdon, a Board-certified psychiatrist, and to Dr. Christopher Pierson, an internist
with a Board-certified subspecialty in cardiovascular disease, for second opinions.
In his November 30, 2006 report, Dr. Pierson reviewed the SOAF and appellant’s
medical record, including the test results from an EKG8 and a cardiogram,9 and noted a 10-year
history of essential hypertension, a history of Asperger’s disorder with features of obsessivecompulsive disorder and anxiety disorder..10 He found no evidence of any work injury other than
an exacerbation due to a “stressful or hostile work environment” by “[appellant’s] report.”
Dr. Pierson reported that any cardiac condition was not due to work factors on June 15, 2005.
He reported that emotional stress and his anxiety disorder had the effect of elevating appellant’s
blood pressure and that elevated blood pressure could be detrimental in the long run. Dr. Pierson
reported that appellant was not disabled by any cardiac condition and could perform his regular
6

In OWCP Claim No. xxxxxx885, appellant filed a December 27, 2005 traumatic injury claim based on alleged
harassment and retaliation from his supervisor for having filed an EEO complaint.
7

The SOAF noted that on June 15, 2005 appellant had been required to attend a progress meeting and to move
boxes of files. As a result of this activity, OWCP had accepted a single episode of aggravation of hypertensive
cardiovascular disease.
8

The results were normal except for a borderline first degree atrioventricular block.

9

The test results were normal.

10

In the same report, Dr. Pierson noted that appellant had a history of some obesity and hyperlipidemia. He also
noted an old surgical history of cervical fusion and foot surgery.

6

work, but suggested that his work environment be as stress free as possible. He noted that any
limitation would be psychological in origin.
OWCP, by letter dated December 7, 2006, advised that appellant would be paid disability
compensation for all the periods for which a claim for disability (Form CA-7) had been filed,
which was to June 8, 2006. If appellant continued to allege disability after that period, he was
advised to submit new claims (Forms CA-7) through his employing establishment.
In a January 9, 2007 report, Dr. Verdon diagnosed obsessive-compulsive disorder not due
to or aggravated by his employment.11 He strongly disputed the validity of appellant’s diagnosis
of Asperger’s disorder and reported that appellant’s psychological and psychiatric treatment had
been ineffective. Dr. Verdon disagreed with the diagnoses and treatment rendered by Dr. Evers.
He found appellant unable to work due to his out-of-control, severe, obsessive-compulsive
disorder which had been untreated. Dr. Verdon determined that appellant’s disability was not
related to any employment factor.
On February 20, 2007 OWCP received a letter from the employing establishment dated
February 16, 2006 advising that, although appellant had not returned to work since June 20,
2005, he had been observed serving as the union’s technical representative at a MSPB hearing
related to a case brought by a former coworker. The employing establishment argued that
appellant’s presence at the hearing belied his allegations of being totally disabled and that the
award of temporary total disability for the period August 11, 2005 through June 8, 2006 was in
error. It suggested that OWCP review appellant’s claims.12
On August 13, 2007 OWCP requested clarification from Dr. Verdon regarding one aspect
of the claim, but he did not respond to the request.
Appellant continued to receive disability compensation from June 8, 2006 through
September 30, 2007 and was thereafter placed on the periodic compensation rolls.13

11

Dr. Verdon noted that appellant had missed one appointment and arrived late for the rescheduled appointment.
Appellant had called and reported that he was lost and could not find the doctor’s office. The report of January 9,
2007 notes that the evaluation appointment was “truncated” to half an hour. Dr. Verdon noted that the short
examination, coupled with the material in the record, allowed him to evaluate and offer an opinion concerning
appellant’s condition. He described appellant as completely disorganized, perplexed, confused, fearful, and easily
flustered. OWCP began suspension of benefits proceedings on January 10, 2007 as appellant had failed to attend
examinations on December 11, 2006 and January 9, 2007 but no further action was taken on the suspension.
12

On January 19, 2007 the employing establishment had offered appellant his previous position, if he were
medically able to do the job. An April 27, 2007 fitness-for-duty examination was scheduled. The Board has
previously been involved in that matter. In Docket No. 12-1024 (issued December 20, 2012) the Board affirmed
OWCP’s December 12, 2011 denial of appellant’s traumatic injury claim that his Asperger’s disorder had been
exacerbated due to being required to undergo a May 14, 2007 fitness-for-duty examination. In Docket No. 14-290
(issued December 18, 2014) the Board again affirmed the denial of appellant’s claim that he aggravated his
preexisting Asperger’s disorder by being required to attend the May 14, 2007 examination.
13

The employing establishment removed appellant from its rolls effective September 4, 2007 as he was unable
for work.

7

On November 21, 2007 OWCP declared a conflict in medical evidence between
Dr. Sarnelle and Dr. Pierson regarding the cardiovascular condition and disability. Appellant
was referred to Dr. Luis Tejada, a Board-certified cardiologist, for an independent medical
examination in Bethlehem, Pennsylvania. On that same date, OWCP further declared a conflict
between Dr. Verdon and Dr. Sarnelle regarding the psychological component of his claim.
Appellant was referred to Dr. William Head, Board-certified in psychiatry in Union, New
Jersey.14
Appellant was extremely upset that he was referred for two additional medical
examinations as he believed the medical evidence he had submitted was sufficient for a favorable
outcome on his case. He also argued that having to go to both New Jersey and Pennsylvania was
an extreme hardship for him and that he would need to be transported to those appointments by
OWCP. Appellant disputed the need for additional psychiatric examination as his condition had
only been accepted for hypertension. He also vehemently disagreed with Dr. Head as the referee
physician as appellant claimed Dr. Head was biased. Appellant submitted numerous documents
from state proceedings in which Dr. Head had served as a physician. He argued that he had
spent years trying to perfect his claim and there was no need for additional medical
examinations.
Appellant further requested that his case file be transferred to Pennsylvania as it was very
inconvenient for him to go to New Jersey for appointments. He noted that, although he lives in
Pennsylvania, he used his wife’s work address in New Jersey for his address of record for
OWCP. Appellant was advised that if he changed his official address of record to his
Pennsylvania address they would transfer his case there.
Notes in the record dated December 12, 2007, and thereafter, reflect that Dr. Tejada’s
office manager called OWCP to decline to examine appellant. Although the office manager
declined to answer whether appellant had been calling their office, the office manager stated that
Dr. Tejada declined to be involved in “court procedures” and therefore would not see appellant.
On November 21, 2007 OWCP advised appellant that the request to expand his claim to
include anxiety disorder and aggravation of preexisting Asperger’s disorder would not be
considered. It noted that he had filed two previous claims based on those same work factors15
and they had already been decided and affirmed by the Branch of Hearings and Review.
By letter dated December 21, 2007, appellant’s case record was formally transferred to
Pennsylvania.
Dr. Head submitted his independent medical examination report on December 30, 2007.
He reviewed the record and the SOAF and provided results on examination. Dr. Head found that
14

OWCP received an October 31, 2007 report from Dr. Evers which found that appellant’s psychological
condition prevented appellant from being in the right state of mind when appellant had reached various settlement
agreements with the employing establishment regarding his employment claims. The record is not clear as to the
context of these employment matters and they are irrelevant to the current appeal.
15

Appellant had filed an occupational disease claim (Form CA-2) in OWCP Claim No. xxxxxx900 and a
traumatic injury claim (Form CA-1) in OWCP Claim No. xxxxxx885 alleging the same condition.

8

appellant had sustained no psychiatric condition related to the work incident of June 15, 2005
and any psychological component was due to preexisting conditions unrelated to the work
incident of June 15, 2005. He determined that appellant could return to work full time without
restrictions. Dr. Head noted that, if possible, he would suggest that appellant be assigned another
supervisor to avoid any potential interpersonal conflict.
By report dated February 6, 2008, Dr. Evers noted reviewing Dr. Head’s report and
disagreed with his findings. He believed that Dr. Head had been narrowly focused on the
psychiatric sequelae of the incident at work, which had occurred on June 15, 2005 more than two
and a half years prior to his evaluation, that his focus was on psychosis only as the criteria for
disability, that he did not consider prior evaluations, that he was relying on an inaccurate
psychiatric history, and that OWCP had attempted to unduly influence Dr. Head’s report by
limiting his review only to the SOAF and not to appellant’s own presentation of his history.
Dr. Evers submitted a more detailed report on March 25, 2008. He noted that appellant
had been his patient since September 6, 2005. Appellant’s initial presentation had been one of
uncontrolled anxiety and obsessive-compulsive symptomology. Dr. Evers noted that appellant’s
cardiologist, Dr. Sarnelle, took him off work due to spiking blood pressure, which Dr. Sarnelle
had determined was due to workplace stress. Later, Dr. Evers realized that appellant’s behaviors
were only part of a more pervasive and lifelong condition of Asperger’s disorder. He provided
an extensive description of appellant’s condition and summarized that, on or about March 23,
2005, in his opinion, appellant experienced a traumatic set of circumstances where there was a
flood at work which appellant had to manage resulting in an exacerbation of his psychological
difficulties and a compensable psychological injury, an exacerbation of his anxiety disorder, and
an aggravation of the obsessive-compulsive symptoms secondary to his Asperger’s disorder.
Appellant remained on the periodic compensation rolls and submitted Forms EN1032 and
medical reports from Dr. Sarnelle and Dr. Evers. Dr. Sarnelle completed regular-duty status
reports (Forms OWCP-5a) finding appellant totally disabled.
In a January 26, 2010 report, Dr. Evers noted that appellant manifested adult symptoms
of Asperger’s disorder, complicated by significant obsessive-compulsive features and marked
anxiety. He noted that appellant had been successfully employed until his position
responsibilities allegedly increased. Dr. Evers concluded that appellant’s underlying Asperger’s
disorder and associated obsessive-compulsive behaviors made him unable to do his job. This
condition began prior to his being forced out of work, with the symptoms predating the
September 4, 2007 termination following the fitness-for-duty examination. Dr. Evers found
appellant currently disabled from performing his job duties.16
By letter dated March 22, 2010, the employing establishment requested confirmation
from OWCP that appellant’s current medical documentation verified that he remained disabled
only due to the accepted, job-related condition and not for other nonwork-related factors.
16

A further report from Dr. Evers, dated April 6, 2010, clarified that appellant had remained in an emotionally
paralyzed state triggered by an admission by the employing establishment that a particular medical report did not
exist. Dr. Evers was attempting to substantiate appellant’s attempt to overturn an MSPB settlement agreement
which he had reached with the employing establishment to resolve all of his employment appeals.

9

On April 20, 2010 OWCP requested an updated evaluation from Dr. Sarnelle as to
appellant’s cardiac condition. Dr. Sarnelle submitted a May 26, 2010 work capacity evaluation
(Form CA-20) finding that appellant could return to work four hours a day assuming he was
assigned to an alternative work location. He stated the restrictions were due to appellant’s
prescription of Diazepam due to his Asperger’s disorder which caused drowsiness.
By letter dated February 28, 2011, appellant’s new counsel formally requested that
appellant’s claim be expanded to include a psychological condition.
On March 25, 2011 appellant filed an occupational disease claim (OWCP Claim No.
xxxxxx261) indicating that as a result of his federal duties he suffered from psychological
decompensation, aggravation of Asperger’s disorder, and aggravation of anxiety. In a separate
statement, he alleged that accretion of duties caused a change in responsibility that exacerbated
his underlying Asperger’s disorder and caused a mental disorder. Alternatively, appellant
claimed that the employing establishment abused the administrative processes. He noted that he
worked assisting others and sharing responsibility but that on July 30, 2004 he was assigned to
manage the overtime utilities program for the entire service center and that he could not manage
the higher level duties with his illness. Appellant alleged that he first began to realize that he had
a psychological illness in April 2005, that on January 9, 2007 he was first diagnosed with
psychological decompensation, and that on March 25, 2008 he realized that his illness was
“psychological decompensation.” In addition to issues with his work responsibilities, he
contended that he signed a settlement agreement on May 14, 2007 with regards to his termination
from work and his disability, that once he signed it he began to get better, but that this relief
faded when he realized that the employing establishment did not want to supply the necessary
medical documents with regard to his disability, and that the settlement precluded him from
disability retirement.
In response, the employing establishment noted that appellant was removed from federal
employment on September 4, 2007.
On April 7, 2011 OWCP referred appellant to Dr. Jack Edward Pickering, a physician
Board-certified in cardiology and internal medicine, for a second opinion on appellant’s cardiac
condition. It attached a SOAF which provided a factual summary of the relevant facts accepted
by OWCP and directed that Dr. Pickering use the SOAF as the only factual framework for his
opinion. OWCP asked Dr. Pickering to determine if the medical diagnosis was established, if a
temporary or permanent aggravation had occurred, and to describe any preexisting disability.
In an April 29, 2011 report, Dr. Pickering noted a history of reactive hypertension
secondary to Asperger’s disorder. He noted that the hypertension had not resulted in heart
disease or stroke and thus was not an employment limiting disorder. Any other disability
determination would be deferred to any psychiatric assessment.
In a May 16, 2011 update, Dr. Pickering noted that appellant’s diagnosis of hypertension
was not medically connected to the factors of his federal employment, that in his opinion no
aggravation of a preexisting cardiac condition arose from the June 15, 2005 employment
incident, that his obesity could cause spikes in his blood pressure so he should work with a
restriction of no lifting over 10 pounds, that there was no reason that appellant could not be

10

gainfully employed, and that any other diagnoses were not in the field of cardiology.
Nonetheless, he found that the condition or disability reported on June 15, 2005 was not
precipitated, accelerated, or proximately caused by factors of his employment.
In a June 7, 2011 report, Dr. Evers noted that appellant had been under his care since
September 26, 2005 and had been in weekly psychotherapy since that date. He repeated his
diagnosis of Asperger’s disorder, which he referred to as an autistic spectrum disorder.
Dr. Evers related that Asperger’s disorder is evidenced by a failure to develop appropriate peer
relationships, a lack of social and emotional reciprocity, difficulty with interpersonal contact, and
marked impairment in the use of multiple nonverbal cues and behaviors.
On June 28, 2011 OWCP referred appellant for a second opinion psychiatric evaluation
with Dr. Joseph W. Slap, a Board-certified psychiatrist, to determine whether OWCP should
expand acceptance to include an aggravation of appellant’s Asperger’s disorder and anxiety
disorder. In an August 1, 2011 report, Dr. Slap diagnosed Asperger’s disorder. He noted that
Asperger’s disorder was present during appellant’s childhood, but did not interfere with his work
until he was promoted. Dr. Slap reasoned that the promotion resulted in appellant’s inability to
do his new job and that appellant’s job performance led to a performance evaluation. In a
September 16, 2011 supplement to his earlier report, Dr. Slap opined that, if appellant’s job
promotion had occurred before June 15, 2005, or was discussed at the progress meeting, he
would conclude that appellant’s headache and high blood pressure, following the June 15, 2005
performance review meeting, were causally related to his Asperger’s disorder.
By decision dated September 28, 2011, OWCP denied appellant’s claim for
compensation (under OWCP Claim No. xxxxxx261) as he had not established a compensable
factor of employment and thus had not sustained an injury in the performance of duty.
On October 4, 2011 appellant, through counsel, requested a hearing before an OWCP
hearing representative. On December 7, 2011 the hearing representative vacated OWCP’s
September 28, 2011 decision and remanded for a de novo decision. He asked OWCP to resolve
contradictory factors of employment, to address all factors of employment raised by appellant,
and to discuss substantially duplicative factors addressed in appellant’s other claims.
On November 16, 2011 OWCP proposed terminating appellant’s wage-loss
compensation and medical benefits because he no longer had residuals or disability from his
work-related condition. It noted that, at the time of the performance review, appellant was still at
the GS-11 building manager position. The retroactive reclassification of his position to a GS-12
did not occur until August 1, 2007, pursuant to a settlement agreement between appellant and the
employing establishment.
On December 5, 2011 Dr. Sarnelle reported that he had diagnosed appellant with left
ventricular hypertrophy and that he disagreed with Dr. Pickering’s opinion.
By decision dated January 24, 2012, OWCP terminated appellant’s compensation and
medical benefits effective February 12, 2012. It also denied expanding the claim to include a
psychiatric condition because an employee’s emotional reaction to a performance appraisal,
without more, would not be a compensable factor.

11

On January 30, 2012 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
At the hearing held on April 12, 2012, appellant testified that he did a good job working
at a GS-11 level, but that the promotion to do the work of a GS-12 was difficult because of his
Asperger’s disorder. He related that he had difficulty trying to discern the difference between
important and unimportant decisions and that he took things too literally. Appellant reported that
when he was involuntarily assigned to tasks that were complicated for him, he started having a
difficult time doing the job. He wanted accommodations to have someone else direct him to do
the work. Appellant was informed by management that he was going to have a performance
review meeting and he felt that the meeting was hostile. He could not talk during the meeting
and he got the worst headache he ever had in his life.
Appellant’s counsel argued that this case should be combined with other claims because
“his condition” was caused by the change in jobs.
In a March 2, 2012 medical opinion, Dr. Evers reported that appellant’s increased
workload and responsibilities resulted in an exacerbation of his hypertension, his level of
anxiety, and his obsessive-compulsive symptoms. He noted that the combination of new work
duties before June 15, 2005 and his preexisting, diagnosed Asperger’s disorder made his work
impossible causing subsequent and ongoing disability.
In a decision dated June 28, 2012, OWCP’s hearing representative noted that, while
Dr. Sarnelle had been regularly providing form reports, he had not provided a narrative medical
report since June 2008. The absence of more recent medical evidence from appellant’s treating
physician failed to establish disability due to the result of the accepted single episode of
aggravation of hypertension. The hearing representative also found that Dr. Sarnelle had
provided no medical rationale to support his statement that appellant’s condition had worsened.
He found that the weight of the medical evidence rested with Dr. Pickering. The hearing
representative also denied an expansion of appellant’s claim to include aggravation of Asperger’s
disorder. He found that OWCP had correctly determined that the medical evidence failed to
establish that the accepted condition caused or aggravated any other preexisting conditions. The
hearing representative affirmed OWCP’s January 24, 2012 decision.
On April 8, 2013 appellant, through counsel, requested reconsideration and submitted a
March 18, 2013 report from Dr. Sarnelle. Dr. Sarnelle noted that in the weeks preceding the
June 15, 2005 meeting, appellant was struggling to meet the conflicting deadlines of his safety
and environmental inspection duties and his duties under the cleaning contract. Appellant was
also responsible for adhering to a 30-day inspection cycle for the Rodino building cleaning
contract. Dr. Sarnelle opined that appellant’s underlying hypertension had been aggravated by
his increased level of effort. He further noted that he had diagnosed appellant with left
ventricular hypertrophy caused by elevated blood pressure which is an irreversible condition.
Dr. Sarnelle concluded that this condition had caused him to find that appellant’s heart condition
had been materially worsened by a factor of employment and would not return to his preinjury
status.

12

Dr. Sarnelle concluded that Dr. Pickering’s findings were contrary to the weight of the
medical evidence because they were not based on the relevant evidence. Appellant’s counsel
argued that this report of Dr. Sarnelle was in clear conflict with the report of Dr. Pickering and
that the case should be referred for a referee examination.
By decision dated August 26, 2013, OWCP determined that the weight of the medical
opinion remained with second opinion examiner Dr. Pickering and denied modification of its
earlier decision.
Appellant requested reconsideration and submitted a September 30, 2013 report from
Dr. Sarnelle. In the report, Dr. Sarnelle elaborated on his opinion that appellant was injured at
work by trying to meet his work quota on June 15, 2005. He noted that appellant was assigned a
new set of quotas every month and could not avoid encountering the same time constraints under
which he was operating the day of his June 15, 2005 employment injury. Dr. Sarnelle explained
that he had permanently disqualified appellant from exposure to his monthly quota because it
would further aggravate appellant’s hypertensive cardiovascular disease. He contended that
OWCP departed from standard medical protocol by failing to seek his opinion prior to
terminating appellant’s benefits.
In an October 3, 2012 attending physician’s report, Dr. Evers noted his treatment of
appellant starting September 26, 2005 and continuing on a weekly basis through
September 26, 2012. He noted that at the time of his March 23, 2005 injury, appellant was
physically incapable of accomplishing his work within the allotted time and that he did not
foresee him ever being able to do so as the anxiety had become chronic. Dr. Evers listed the
period of total disability as commencing June 20, 2005.
By decision dated November 13, 2012, OWCP denied appellant’s claim, under Claim
No. xxxxxx261, finding that he failed to establish a compensable factor of federal employment.
On November 19, 2012 appellant, through counsel, requested a hearing.
On
December 17, 2012 the hearing representative conducted a preliminary review of the case and
found that the November 13, 2012 decision was incomplete and remanded the case for a de novo
decision.
By decision dated August 29, 2013, OWCP denied appellant’s claim (xxxxxx261) as the
evidence did not establish either that appellant submitted his claim in a timely manner or that he
was injured in the performance of duty. It found that the employing establishment did not err or
act abusively in scheduling the fitness-for-duty examination on May 14, 2007 and, thus any
emotional condition arising from attending this examination is self-generated. OWCP further
found that, although appellant submitted his occupational disease claim on March 25, 2011, he
did not explain how he “first became aware that [his] alleged condition was caused or aggravated
by [his] employment exactly three years prior on March 25, 2008 as the fitness-for-duty
[examination] took place on May 14, 2007 and [he] signed the settlement agreement on
August 1, 2007 and requested this agreement be rescinded on August 24, 2007.” It also noted
that his claim was essentially for the same factors in OWCP Claim No. xxxxxx193, and rather
than continue to pursue appeal rights, appellant filed this claim.

13

On September 3, 2013 appellant, through counsel, requested a hearing.
At a hearing held on June 12, 2014 counsel disputed that this claim was duplicative. He
argued that appellant’s other claims addressed traumatic injuries and that this case was a claim
for an occupational disease filed due to accretion of duties at work. Counsel also argued that
appellant’s claim was timely filed. He stated that appellant became aware of the relationship
between his aggravation of Asperger’s disorder and his employment as a result of the March 28,
2008 report by his psychologist, and that therefore, the claim filed on March 25, 2011 was
timely.
By decision dated October 7, 2014, an OWCP hearing representative affirmed the
August 29, 2013 decision (under OWCP Claim No. xxxxxx261) finding that appellant’s claim
was untimely filed as appellant should have been aware of his condition prior to March 25, 2008.
She also noted that no compensable factors of employment have been established and that the
claim appeared to be substantially duplicative of earlier denied claims.
By decision dated January 8, 2014, OWCP denied appellant’s request for reconsideration
in OWCP Claim No. xxxxxx813 without considering the merits of the case.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish elements
of his or her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury17 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.18
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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 diagnosed condition and the specific employment factors
identified by the employee.19
ANALYSIS -- ISSUE 1
Appellant claimed injury due to being scheduled to attend a performance review meeting
for which he felt unprepared. He asked that the meeting be postponed, but the performance
meeting proceeded as planned. Appellant claimed that he developed a headache. He alleged
17

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or work shift. See 20 C.F.R. § 10.5(ee).
18

T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003), Elaine Pendleton, 40 ECAB
1143 (1989).
19

Id. See also Gary J. Watling, 52 ECAB 278 (2001).

14

that, after moving boxes and files at work on that date, his headache became worse and he went
home. OWCP accepted appellant’s claim for a single episode of aggravation of hypertensive
cardiovascular disease causally related to the meeting on June 15, 2005 and the lifting of boxes
thereafter.
OWCP accepted appellant’s claim for a single episode of aggravation of
hypertension/hypertensive cardiovascular disease. Appellant later requested that the claim be
expanded to include an aggravation of his underlying Asperger’s disorder and anxiety disorder.
By decision dated June 28, 2012, OWCP denied expansion of appellant’s claim.
In support of his claim to expand the accepted conditions, appellant submitted several
reports from Dr. Evers, his clinical psychologist. Dr. Evers has been treating appellant since
September 26, 2005 and diagnosed Asperger’s disorder and anxiety disorder. In his April 26,
2006 report, he attributed appellant’s condition to a recent change of supervision and tenor of the
work environment. In his February 6, 2008 report, Dr. Evers quarreled that a referee physician,
Dr. Head, had used the SOAF to render his opinion, rather than appellant’s own version of
events. Dr. Evers’ March 25, 2008 report attributed elevated anxiety to a March 23, 2005 flood
at work. In his January 26, 2010 report, he noted that appellant was successfully employed until
his job condition changed and his job tasks increased. Dr. Evers opined that appellant’s
underlying Asperger’s disorder and associated obsessive-compulsive behaviors made him unable
to do his job. His June 7, 2011 report simply described Asperger’s disorder and its resulting
issues. In the March 2, 2012 report, Dr. Evers opined, within a reasonable degree of
psychological probability, that appellant’s increased workload and responsibilities, later
acknowledged as duties of a GS-12, resulted in the exacerbation of his hypertension, his anxiety,
and his obsessive-compulsive symptomology. He noted that the combination of increased higher
level duties associated with the reclassification of his position to a GS-12 and his Asperger’s
disorder made completion of those tasks impossible.
Dr. Evers’ reports fail to relate any of appellant’s symptoms to the actual meeting in
question that took place on June 15, 2005. Rather, he associates the aggravation of his
Asperger’s disorder and his anxiety disorder variably with change of supervisor, tenor of work
environment, flood, conflicting directives, and increased workload and responsibilities due to a
grade increase which appellant had sought and ultimately received.20 The elevation to or
reclassification of that position was not the topic of that meeting. The topic of the meeting was a
routine, mid-year review of his performance for the previous six months. In fact, evidence
supports that the reclassification of the position to a GS-12 did not take place until the settlement
award in 2007.
The Board finds Dr. Evers’ reports are insufficient to establish additional conditions due
to the accepted work incident. A medical report that provides no opinion on causal relationship
between the accepted incident and a medical condition is of no probative value.21
20

In other nonrelevant reports, Dr. Evers also seems to have attributed appellant’s symptoms to being required to
undergo a fitness-for-duty evaluation and also attempted to use the Asperger’s disorder to vacate a settlement
agreement.
21

See Margorie A. Ferrandino, Docket No. 95-772 (issued May 2, 1997).

15

Dr. Verdon had conducted a second opinion psychological assessment to determine
whether appellant remained disabled, but diagnosed only obsessive-compulsive disorder which
he opined was not due to or aggravated by his federal employment.
OWCP had found a conflict of medical opinion had been created between Dr. Evers and
Dr. Verdon as to appellant’s ability to return to work and referred appellant for an independent
medical examination with Dr. Head. In his report of December 30, 2007, Dr. Head found that
appellant had sustained no psychiatric condition related to the work incident of June 15, 2005.
He determined that appellant could return to work full time without restrictions. Dr. Head noted
that, if possible, he would suggest that appellant be assigned another supervisor to avoid any
potential interpersonal conflict.
OWCP had also referred appellant to Dr. Slap in order to further develop his specific
request that the claim be expanded to include an aggravation of his Asperger’s disorder and his
anxiety disorder. Dr. Slap diagnosed Asperger’s disorder and noted that, although this had been
present during appellant’s childhood, it did not interfere with his work until he was promoted to
a GS-12. He claimed it was this promotion that resulted in his being unable to perform his job
adequately which then led to a performance evaluation.22 Dr. Slap further clarified in a
September 16, 2011 updated report, that, if appellant’s promotion occurred before June 15, 2005
or was discussed at the progress meeting, he would conclude that appellant’s Asperger’s disorder
was related to the June 15, 2005 meeting. As noted, the evidence supports that the retroactive
promotion did not occur until 2007, two years after that meeting.
OWCP accepted one incident of aggravation of hypertension related to the June 15, 2005
performance review meeting. The Board finds there is no evidence to establish any reference to
a promotion during the mid-year performance review. The program review evaluations results
memorandum for that meeting listed the following deficiencies in his performance:
1. Failed to provide any cleaning inspections for the past three months.
2. Failed to provide any records of meetings held with OCNJ (Janitorial
Contractor).
3. Failed to provide any documents authorizing payments for landscaping.
4. Failed to provide a copy of Janitorial Contract and any modifications
5. Failed to provide a copy of OCNJ’s “Quality Control Program” for the last
three (3) months.
6. Failed to keep records of meetings held with tenants agencies (times and dates).
7. Failed to provide cleaning inspections for the 2nd floor cafeteria.
22

The Board notes that this medical report was previously evaluated and discussed by the Board in N.T., Docket
No. 12-1024 (issued December 20, 2012) (the Board found that this report failed to establish an injury causally
related to a May 14, 2007 employment incident).

16

Neither Dr. Evers, Dr. Verdon, Dr. Head, nor Dr. Slap ever cites the performance review
meeting of June 15, 2005, or any later box moving, as a cause of any aggravation of appellant’s
preexisting Asperger’s disorder and anxiety disorder.23
The Board further notes that administrative or personnel matters, such as performance
reviews and promotions, although generally related to the employee’s employment, are
administrative functions of the employer rather than the regular or specially assigned work duties
of the employee and are not covered under FECA.24 Although the Board has held that coverage
will be afforded where the evidence establishes error or abuse on the part of the employing
establishment,25 appellant has provided no such evidence on the part of the employing
establishment in the conduct of this routine, mid-year performance review meeting nor does it
establish error or abuse associated with the promotion of or reclassification of appellant to the
GS-12 position.26
The Board finds that as appellant has submitted no rationalized medical evidence to
support an aggravation of Asperger’s disorder or anxiety disorder causally related to a June 15,
2005 employment injury, he has failed to meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.27 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.28 To
terminate authorization for medical treatment, OWCP must establish that a claimant no longer
has residuals of an employment-related condition which requires further medical treatment.29
OWCP’s burden of proof to terminate compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.30 The
opinion of the physician must be based on a complete factual and medical background of the

23

See William D. Starks, 23 ECAB 85 (1971).

24

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
25

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

26

Supra note 21.

27

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

28

Mary A. Lowe, 52 ECAB 223 (2001).

29

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

30

Mary Lou Barragy, 46 ECAB 781 (1995).

17

claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale.31
ANALYSIS -- ISSUE 2
In a decision dated January 24, 2012, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective February 12, 2012.
The Board notes that the only medical condition accepted by OWCP in this claim was a
single episode of aggravation of hypertension or hypertensive heart disease without heart failure.
OWCP referred appellant, along with the medical record, a SOAF, and questions to
Dr. Pickering, the second opinion cardiologist, for a determination of whether appellant
continued to have residuals of the accepted condition. Dr. Pickering found that appellant had a
history of reactive hypertension secondary to Asperger’s disorder, but that the hypertension had
not resulted in any endpoints, no heart disease or stroke. He found the underlying hypertension
not an employment-limiting disorder and any disability determination would be deferred to
psychological considerations. OWCP requested clarification from Dr. Pickering and, in his
May 16, 2011 supplemental report, he noted a diagnosis of benign hypertension and that the
underlying hypertension was not medically connected to factors of his employment.
Although Dr. Pickering questioned whether the meeting of June 15, 2005 would have
initially aggravated his preexisting hypertension, he nonetheless found unequivocally that
appellant’s underlying hypertension was not precipitated, accelerated, or proximately caused by
factors of employment. The Board finds that OWCP properly relied upon Dr. Pickering’s
medical opinion, which provided a rationalized explanation as to the status of the accepted
conditions, to terminate appellant’s compensation and medical benefits.
Dr. Sarnelle, appellant’s treating cardiologist, opined in multiple reports commencing
June 23, 2005 that appellant’s hypertension was materially worsened by the June 15, 2005
incident, an opinion he still held in his September 30, 2013 report. The Board notes, however,
that his report was based on an inaccurate factual history and attributed appellant’s elevated
blood pressure to the physical exertion of “hurrying about the building” in order to “make up
time” and not to the June 15, 2005 meeting or later box lifting, the only incidents accepted by
OWCP. The Board has found that medical reports based on an inaccurate factual history are of
limited probative value.32
The Board finds that Dr. Pickering’s report was based on the SOAF and a physical
examination, provided a thorough report and a rationalized basis for his opinion. The Board
finds that OWCP met its burden of proof to establish that the single episode of aggravation of
hypertension/hypertensive cardiovascular disease had resolved by February 12, 2012 based on
the report of Dr. Pickering.

31

J.M., 58 ECAB 303 (2007).

32

Douglas M. McQuaid, 52 ECAB 382 (2001).

18

LEGAL PRECEDENT -- ISSUE 3
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that any subsequent disability is causally related to the
accepted injury.33
To establish a causal relationship between the claimed condition, as well as any attendant
disability and the employment event or incident, an employee must submit rationalized medical
evidence based on a complete medical and factual background supporting such a causal
relationship.34 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.35 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.36
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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 diagnosed condition and the specific employment factors
identified by the employee.37
ANALYSIS -- ISSUE 3
Following the termination of his compensation benefits, appellant submitted additional
medical evidence from Dr. Evers and Dr. Sarnelle.
In his March 2, 2012 opinion, Dr. Evers reported that appellant’s increased workload and
responsibilities resulted in an exacerbation of his hypertension, his level of anxiety, and his
obsessive-compulsive symptoms. He noted that the combination of new work duties before
June 15, 2005 and his preexisting, diagnosed Asperger’s disorder made his work impossible,
causing subsequent and ongoing disability. This report fails to establish any condition causally
related to the accepted incident. The opinion of a physician must be of reasonable medical
certainty and must be supported by medical rationale explaining causal relationship.38 Here,
Dr. Evers failed to relate appellant’s conditions to the June 15, 2005 meeting, and as, his opinion
lacks probative value.
33

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

34

G.T., 59 ECAB 447 (2008); Elizabeth Stanislave, 49 ECAB 540 (1998).

35

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

36

Ernest St. Pierre, 51 ECAB 623 (2000).

37

Supra note 19.

38

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

19

Dr. Sarnelle’s March 18, 2013 report related appellant’s hypertension to struggling to
meet the conflicting deadlines of his safety and environmental inspection duties, duties under the
cleaning contract, and being responsible for adhering to a 30-day inspection cycle for the Rodino
building cleaning contract. Although he found the elevated blood pressure to be an irreversible
condition caused by employment factors, he did not relate this condition to the June 15, 2005
meeting or later box lifting. The Board finds that Dr. Sarnelle’s report is insufficient to
overcome the weight of Dr. Pickering, whose report was based on the SOAF, an accurate factual
history, and provided rationalized reasoning for his opinion.
Neither Dr. Evers nor Dr. Sarnelle offered a rationalized medical opinion explaining how
these conditions were causally related to the one accepted incident of a performance review
meeting on June 15, 2005. These reports are therefore of diminished probative value and do not
outweigh the report of Dr. Pickering.39
LEGAL PRECEDENT -- ISSUE 4
Under section 8128(a) of FECA,40 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence which:
(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(ii) Advances a relevant legal argument not previously considered by OWCP; or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.41
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.42
ANALYSIS -- ISSUE 4
On reconsideration appellant submitted a report from Dr. Sarnelle dated
September 30, 2013. Dr. Sarnelle reiterated his disagreement with Dr. Pickering’s report and
argued that it was not standard protocol to have terminated his patient’s compensation benefits
without asking him for comment.
39

See I.J., 59 ECAB 408 (2008).

40

Supra note 1.

41

20 C.F.R. § 10.606(b)(3).

42

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

20

The Board finds that Dr. Sarnelle’s report was repetitive of previous findings and failed
to offer any rationalized evidence to establish continuing disability due to the one accepted
episode of aggravation of appellant’s hypertension due to the June 15, 2005 meeting. The Board
has found that the submission of evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.43 As appellant provided no arguments which
would show a legal error by OWCP, did not advance a relevant legal argument not previously
considered by OWCP, and failed to submit any new, relevant medical evidence, the Board finds
OWCP properly denied any further merit review.
LEGAL PRECEDENT -- ISSUE 5
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.44 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
The immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate supervisors
reasonably on notice of an on-the-job injury or death; or
Written notice of injury or death as specified in section 8119 was given within 30
days.45
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.46 Actual knowledge and written notice of injury
under section 8119 serve to satisfy the statutory period for filing an original claim for
compensation. For actual knowledge of a supervisor to be regarded as timely filed, an employee
must show not only that the immediate supervisor knew that he or she was injured, but also knew
or reasonably should have known that it was an on-the-job injury.47

43

E.O., Docket No. 15-0635 (issued June 5, 2015); see also Edward Matthew Diekemper, 31 ECAB 224 (1979).

44

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

45

5 U.S.C. § 8122(a).

46

Id. at § 8119; Larry E. Young, 52 ECAB 265 (2001).

47

Debra Young Bruce, 52 ECAB 315 (2001).

21

Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability. The
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.48
In cases of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his or her federal employment, such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent. Where the employee
continues in the same employment after he reasonably should have been aware that he has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.49 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.50
ANALYSIS -- ISSUE 5
Appellant alleges that he developed psychological decompensation, aggravation of
Asperger’s Disorder, and aggravation of anxiety as a result of the accretion of duties caused by a
change in his level of responsibility. OWCP denied his occupational disease as untimely filed.
It was appellant’s responsibility to file his claim within three years of when he was
aware, or reasonably should have been aware, of a possible relationship between his condition
and his employment.51 Furthermore, his claim would still be regarded as timely under section
8122(a)(1) of FECA if his immediate superior or another employing establishment official had
actual knowledge of the injury within 30 days of the date of the injury or under section
8122(a)(2) if written notice of the injury was given within 30 days.52
Appellant alleged that his injury was caused by an accretion of factors of his federal
employment. He made various allegations with regard to the dates that the employment factors
occurred, but the earliest date is in July 2004. The latest date that appellant would have been
exposed to the factors of federal employment would have been September 4, 2007, the date he
stopped working for the employing establishment. At the hearing, counsel contended that
48

See J.S., Docket No. 13-252 (issued March 27, 2013).

49

Larry E. Young, supra note 46.

50

See T.H., Docket No. 14-909 (issued November 6, 2014).

51

B.H., Docket No. 15-0970 (issued August 17, 2015).

52

L.K., Docket No. 14-2025 (issued January 16, 2005); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.3 (March 1993).

22

appellant was first made aware of the correlation between the aggravation of his Asperger’s
disorder and his federal employment duties as of the date of Dr. Evers’ March 25, 2008 report.
On appeal, he alleged that the date of awareness was actually June 26, 2010. Appellant filed his
claim on March 25, 2011.
The Board finds that appellant was aware of the potential relationship between his
relationship between his medical conditions and his federal employment much earlier than
March 25, 2011. In his October 19, 2005 letter to Dr. Sarnelle, appellant described the change in
his duties and the effect that it had on his health. Dr. Sarnelle noted in his July 9, 2007 medical
report that appellant had developed an anxiety condition while working as a building manager,
and that the employment factors contributed to this condition.
Although appellant places his date of first awareness of the relationship between his
psychological condition (Asperger’s disorder and anxiety disorder) as the date of Dr. Evers’
March 25, 2008 report, this is contradicted by this very report. Dr. Evers noted that he began to
see appellant on September 26, 2005 and his report of April 26, 2006 clearly discusses that
appellant’s presenting symptoms were only part of his more pervasive lifelong condition of
Asperger’s disorder, and that, due to a recent change of supervision and tenor of the work
environment, his symptoms were exacerbated and these changes heightened his levels of stress
and anxiety. The Board finds that at least by October 5, 2006, when appellant informally
requested OWCP to include in his hypertension claim an aggravation of Asperger’s disorder and
his anxiety disorder, appellant was well aware of the condition and its relation to his
employment. Appellant was last exposed to employment factors on June 15, 2005.
Appellant’s letter to Dr. Sarnelle, his statements to OWCP, and the medical reports of
Drs. Sarnelle and Evers indicate that appellant was aware of the potential relationship between
his Asperger’s disorder or his anxiety condition and his federal employment at least by
October 2006, well over three years prior to the filing of his occupational disease claim on
March 25, 2011.
Appellant’s claim would still be regarded as timely under section 8122(a) of FECA if his
immediate supervisor or another employing establishment official had actual knowledge of the
injury within 30 days of the date of injury or under section 8122(a)(2) if written notice of the
injury was provided within 30 days.53 The requirement states that the knowledge must be such
as to put the immediate supervisor on notice of an on-the-job injury or death. An employee must
therefore show not only that his or her immediate supervisor knew he or she was injured, but that
the supervisor knew that the injury was due to work.54 The Board notes that the record fails to
establish that appellant provided his immediate supervisor the requisite knowledge that the
alleged increase in duties when he was transferred to the Rodino building were sufficient to
aggravate his preexisting Asperger’s disorder or anxiety disorder. Accordingly, the Board finds
that the exceptions to the statute have not been met to establish a timely claim.

53

L.K., Docket No. 14-2025 (issued January 16, 2005); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.3 (March 1993).
54

Richard E. Jacobson, 33 ECAB 1517 (1982).

23

Consequently, appellant has not met his burden of proof to establish that his claim was
timely filed under the applicable time limitation periods as set forth in FECA.55
CONCLUSION
The Board finds that OWCP properly denied expansion of appellant’s claim to include
aggravation of Asperger’s disorder. The Board further finds that OWCP properly terminated his
compensation and medical benefits effective February 12, 2012, and denied his claim of
continued disability after February 12, 2012 causally related to the accepted condition. The
Board finds that OWCP properly denied a merit review under 5 U.S.C. § 8128(a) and properly
found appellant’s occupational disease claim was barred under the applicable time limitation
provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 7 and January 8, 2014 and August 26, 2013 be, and they
are, affirmed.
Issued: February 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

55

In light of this finding, the Board will not discuss any aspects of the merits of the occupational disease claim.

24