United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Flagstaff, AZ,
Employer
__________________________________________

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Appearances:
Mark Mallery, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1080
Issued: May 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 2, 2016 appellant, through his representative, filed a timely appeal from a
March 24, 2015 merit decision of the Office of Workers’ Compensation Programs. Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, the Board on October 15, 2015 denied request
for oral argument. Order Denying Request for Oral Argument, Docket No. 15-1080 (issued October 15, 2015).

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On December 20, 2013 appellant, then a 47-year-old park ranger, filed an occupational
disease claim (Form CA-2) alleging that on November 15, 2013 he first became aware of his
poor sleeping, racing thoughts, elevated anxiety, depression, and impaired focus, concentration,
and energy which caused significant interference with his ability to function. He further alleged
that on December 9, 2013 he first realized that his conditions were caused or aggravated by a
November 12, 2013 meeting he had with his supervisor and superintendent to discuss their
failure and refusal to provide him with a 2013 Employee Performance and Appraisal Plan
(EPAP). Appellant contended that, on the following morning, his supervisor telephoned him and
demanded more work. He stated that, when he asked his supervisor for clarification, she hung
up on him. Appellant stopped work on November 19, 2013. He was hospitalized on
November 24, 2013. Appellant did not submit any additional evidence.
On the claim form, C.S., appellant’s supervisor, noted that appellant was off work based
on a physician’s advice. She related that there was not enough information for her to determine
the connection between his statements and information provided by his physician.
In a February 7, 2014 letter, OWCP advised appellant of the medical and factual evidence
necessary to establish the claim. By letter of the same date, it also requested additional
information from the employing establishment.
OWCP received medical reports dated December 4, 2013 to March 6, 2014 which
addressed appellant’s emotional conditions, the causal relationship between his conditions and
employment, work capacity, and medical treatment.
In response, appellant provided a March 5, 2014 statement. He advised that his disability
began on November 19, 2013 when his physician took him off work for one week. Appellant
was hospitalized on November 24, 2013. On December 9, 2013 one week from his hospital
release he was cleared to work from home at a 50 percent schedule. Before appellant could start
work, however, his supervisor “bombarded” him with new work assignments and refused to
provide the resources he needed to perform his job. He worked an entire week, but took off
work again due to the new assignments with no accommodation. Appellant’s physician again
authorized him to work from home on a 50 percent schedule. Recently, he released appellant to
increase his work schedule to 75 percent, but this had not been implemented. Due to a threat of a
government shutdown in the fall of 2013, appellant asked his supervisor when he could expect
his fiscal year (FY) 2013 EPAP. He believed that he could lose his job if he did not have a
current rating if there was a government shutdown. When the situation was not resolved, on
November 5, 2013, appellant complained to his superintendent. He noted that initially his
supervisor claimed that she had previously provided him critical elements and performance
standards for his FY 2013 EPAP. Appellant claimed that this was not true and asserted that his
supervisor was not truthful with him at other times. On November 8, 2013 he met with his

2

supervisor regarding this situation. On November 12, 2013 appellant met with C.S. and K.C.,
the superintendent, to discuss not receiving a FY 2013 EPAP. On November 13, 2013 C.S.
called him and gave him new assignments in a rude and unprofessional manner and then hung up
on him. On November 15, 2013 K.C. informed appellant that he was not going to receive a FY
2013 EPAP and that he had no rights to appeal her decision to the Merit Systems Protection
Board (MSPB). He later learned from a human resources manager that he would receive a FY
2013 EPAP (which was signed in March 2014). The evening before he was to begin part-time
work on December 10, 2013, he was sent an e-mail list of demands from C.S. that increased his
stress and anxiety and interfered with his ability to function. Appellant was also given an
entirely new job via a draft of his FY 2014 EPAP which stated that his office was being moved
to a new and less desirable location and wholesale changes were being made to his duties. He
noted that the FY 2014 EPAP did not run during the fiscal year, but instead it covered the period
December 2013 to March 2014. It had many more critical elements than were allowed.
Appellant noted that, in a December 11, 2013 letter, his physician indicated that he had a
chronic condition that was adversely affected by stress and that any flexibility in his workload or
an extension of deadlines would be medically helpful. Appellant claimed that C.S. reviewed the
letter and responded that management was already doing enough to accommodate him and
nothing more would be done. She also denied his temporary request for a cell phone and
wireless printer/scanner while he worked at home. Appellant did not have a landline telephone
and was forced to use his personal cell phone. He related that he did not have any witness
statements. Appellant claimed that his managers never gave a reason for not giving him a
performance appraisal. C.S. initially claimed that she had completed his FY 2013 EPAP, when
she had not actually done so. Later, after appellant filed an Equal Employment Opportunity
(EEO) complaint, an EEO counselor informed him that his supervisor finally admitted she had
not completed his 2013 EPAP. During the November 12, 2013 meeting, his request for a
different manager went unanswered by K.C. and C.S. Appellant asserted that his supervisor
never discussed his performance rating or put an EPAP in place in 2012. She never conducted a
mid-year review or provided a performance plan, feedback, an interim review, coaching,
mentoring, or year-end review. Appellant rejected his supervisor’s offer to backdate his EPAP
because it might be illegal and unethical. He noted that her offer to create a 2014 EPAP was part
of the job and not a resolution for him not having a 2013 rating of record. Appellant claimed that
C.S. yelled at him on the telephone when he asked for clarification of an assignment to prepare a
critical needs hire packet. After she responded affirmatively to his request to put the assignment
in writing, she hung up on him. Appellant noted that the only stressful situation outside work
was the death of his mother-in-law in October 2013. He did not participate in any hobbies.
Appellant previously received psychiatric treatment following an adverse reaction to a high dose
of steroids used to treat his lung infection.
Appellant submitted e-mails and statements dated November 5, 2013 to March 3, 2014.
Some of these e-mails discussed the incidents involving C.S. and K.C. that he alleged in
connection with the present claim. In addition, appellant contended that he worked beyond his
four-hour a day work restriction and the FY 2013 EPAP fully successful rating he received was
discriminatory and retaliatory. He asserted that C.S. violated his medical privacy rights on
February 28, 2014 by asking him to complete a questionnaire/evaluation and discriminated
against him by failing to accommodate his physician’s request to increase his work hours.
Appellant requested extra time due to the passing of his mother-in-law, his recent illness and
3

hospitalization, and limited work plan. He also requested authorization to participate in
teleconferences, attend courses, and add a person to his team to assist with his work assignments.
In a March 3, 2014 letter, appellant accepted the employing establishment’s offer for
modified work, six hours a day with two hours of work performed at work and four hours of
work performed at home. However, he requested that the employing establishment provide him
with transportation as a temporary reasonable accommodation because he could not drive to and
from work due to his current medical condition and medication.
C.S., in a March 21, 2014 memorandum, controverted the claim. She denied bombarding
appellant with work assignments from December 9 to 14, 2013. C.S. noted that, while his work
duties, which included supervising six employees, could not effectively be performed from
home, he was nonetheless accommodated with a temporary part-time telework agreement to
work at home from 10:00 a.m. to 2:30 p.m. Appellant was given a list of assignments prioritized
in groups of low, medium, and high. After appellant expressed concern about being able to
complete his assignments on a part-time schedule, management assured him that it would be
generally flexible with his due dates and work with him. It also only required him to complete
low and medium priority assignments and temporarily assigned his supervisory work to another
employee. C.S. denied that appellant had not received accommodations or resources needed to
perform his job. On December 9, 2013 K.C. approved appellant’s December 8, 2013 request to
telework four hours a day for 30 days. On December 11, 2013 C.S. approved appellant’s
December 10, 2013 request to change his work schedule to 9:00 a.m. to 11:00 a.m. and 2:00 p.m.
to 4:00 p.m.
On December 10, 2013 appellant requested a cellphone and wireless printer/scanner.
C.S. indicated that, while a cellphone was not immediately available, one became available on
February 13, 2014. She informed appellant that he would be reimbursed for the cost of using his
personal cellphone. C.S. related that he did not initially receive the requested printer/scanner
because his time away from the office was only supposed to be for 30 days and it took that long
to order the equipment. On February 21, 2014 appellant received the requested equipment as he
had submitted medical documentation on January 21, 2014 indicating that he may not return to
full-time work for six months.
On February 28, 2014 C.S. denied the physician’s February 20, 2014 request that
appellant increase his hours at work to four or six hours a day because there was a limit as to
how much work he could perform at home. She suggested that he work four hours at home and
two hours in the office. On March 3, 2014 appellant informed C.S. that he could not drive to
work due to his medication and requested that temporary transportation be provided. C.S. noted
that appellant had been asked to submit medical documentation on February 3, 2014, but had not
done so because he did not want C.S. to see his medical information. She related that she was
acting in several jobs at the beginning of FY 2013 and delayed preparing EPAPs for staff. C.S.
further related that appellant’s absence on approved medical leave throughout winter 2012 and
spring 2013 was also part of the delay.
In April 2013 C.S. met with him regarding his FY 2013 EPAP, but she did not complete
it due to other pressing business. She also had not conducted a mid-year review with him due to
his many approved absences. Before the November 12, 2013 meeting C.S. realized that she

4

made a mistake by not getting appellant’s appraisal signed. On November 7, 2013 she
telephoned him and apologized for her oversight and presented two alternatives. C.S. maintained
that appellant became upset and hung up on her. During the November 12, 2013 meeting K.C.
denied appellant’s request for a new supervisor, but she offered to arrange mediation or conflict
resolution. Appellant signed his FY 2013 EPAP on March 2, 2014. K.C. had no knowledge that
appellant could lose his job during a government shutdown if he did not have a FY 2013
performance appraisal.
C.S. denied speaking to appellant in a rude and unprofessional manner during a
discussion of work assignments or hanging up the telephone on him. She asserted that he was
given a list of assignments and not demands before his return to work on December 10, 2013.
C.S. indicated that organizational changes that were being made before his illness resulted in
assignment changes. She related that appellant’s job was essentially the same with new
assignments within the scope of his job description. C.S. noted that his office had been relocated
from Sunset Crater Volcano to Walnut Canyon National Monument, which was closer to his
home. She denied that appellant was asked to work more than his part-time schedule. Appellant
was reminded on one occasion not to work more than the approved four hours a day. C.S.
related that appellant and other employees may have felt pressures at work, but appellant did not
mention such stresses to management. There were no staff shortages or changes in his workload.
Organizational changes due to the arrival of a new superintendent were discussed with the staff
before appellant’s illness. C.S. related that overall appellant performed at a satisfactory level and
did not have any performance or conduct problems.
C.S. submitted e-mails and documents pertaining to the incidents noted in her March 21,
2014 response to OWCP’s development letter. She also submitted copies of appellant’s FY 2013
EPAP which indicated that he received a fully successful performance rating and a description of
his park ranger position.
In a July 11, 2014 decision, OWCP denied appellant’s claim for an emotional condition
because he had failed to establish any compensable employment factors. Thus, appellant did not
establish an injury in the performance of duty.
On August 3, 2014 appellant requested an oral hearing before an OWCP hearing
representative. During a telephonic hearing held on February 9, 2015, he testified about the
events of the November 12, 2013 meeting. Appellant contended that K.C. tried to coerce him
into falsifying his FY 2013 EPAP, but he refused to do so. He again claimed that C.S. stated that
she had completed his FY 2013 EPAP during the meeting. Appellant identified a human
resources employee who had informed him that he could lose his job in the event of a
government shutdown without an EPAP or rating. He reiterated that C.S. had hung up on him
suddenly after their November 13, 2013 telephone call and that she had assigned him duties and
deadlines that he could not possibly meet due to physician-ordered reduced work schedule and
she refused to change them.
In a March 13, 2015 letter, K.C. responded to appellant’s hearing testimony. She denied
that she tried to coerce appellant into falsifying his appraisal during the November 12, 2013
meeting. K.C. related that, at the meeting, C.S. apologized to appellant for not earlier finalizing
his performance appraisal. She and C.S explained the options for providing appellant with a

5

performance rating of record. The first option offered was for his supervisor to complete a draft
performance plan they had discussed earlier in the year and rate his performance using those
elements and standards, but only if they both agreed the draft represented their mutual
understanding of his performance expectations. The second option was to establish his FY 2014
performance plan right away and rate his performance 90 days from establishment (the minimum
required time for an official rating of record) so that he would have an official rating in three
months. K.C. related both solutions which had been suggested by an employing establishment
employee relations specialist as appropriate. She maintained that C.S. had not claimed to have
completed appellant’s FY 2013 EPAP at the meeting. C.S. readily admitted, at that meeting and
several days prior to it, that the official performance plan document had not been finalized and
signed after they met to discuss the plan in April 2013. She explained that she did not realize the
plan had not been finalized until it was time to complete the appraisal process in early
November 2013. C.S. had not misrepresented this situation during the meeting. K.C. denied that
appellant’s supervisor hung up on appellant. She contended that the employer could not
guarantee a stress-free workplace as a reasonable accommodation. Appellant’s supervisor
provided him with a prioritized list of things that he could do on a reduced schedule. This was
done specifically to help him organize the time he was able to work. K.C. advised that the
employing establishment continued to challenge appellant’s claim.
By decision dated March 24, 2015, an OWCP hearing representative affirmed the
July 11, 2014 decision, finding that as appellant had not established any compensable
employment factors he did not establish an emotional condition in the performance of duty.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.4 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.6 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reduction4

Pamela R. Rice, 38 ECAB 838 (1987).

5

See Donna Faye Cardwell, 41 ECAB 730 (1990).

6

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

in-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA8 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.9
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.12
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and factors. OWCP denied the emotional condition claim on the grounds
that he had not established any compensable employment factors. The Board must initially
review whether these alleged incidents and conditions of employment are compensable
employment factors under the terms of FECA. The Board notes that some of appellant’s
allegations pertain to his regular or specially assigned duties, as under Cutler.13 Appellant has
also alleged harassment and discrimination on the part of his supervisors.

7

Gregorio E. Conde, 52 ECAB 410 (2001).

8

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
9

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

10

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

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Id.

13

See supra note 6.

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Appellant alleged that he was overworked because he was given new work assignments
and he worked beyond his four-hour a day work restriction. The Board has held that overwork,
when substantiated by sufficient factual information to corroborate appellant’s account of events,
may be a compensable factor of employment.14 The record, however, does not substantiate
appellant’s contention that he was overworked. C.S. noted that when appellant expressed
concern about completing his list of prioritized assignments on a part-time schedule, she assured
him that she would be generally flexible with his due dates and work with him. She also only
required him to complete low and medium priority assignments and temporarily assigned his
supervisory work to another employee. K.C. maintained that the prioritized list of assignments
given to appellant by C.S. could be performed on a reduced work schedule. She indicated that
these assignments were provided to help him organize his time. The Board finds that the
evidence is insufficient to establish overwork allegations as C.S. and K.C. explained that
appellant did not have a heavy workload and received assistance with the performance of his
work duties. Appellant has not established a compensable employment factor regarding Cutler
factors.
The Board notes that appellant’s primary allegations regarding management’s failure to
provide him with a FY 2013 EPAP in a timely manner and the filing of an EEO complaint
concerning this matter,15 denial of his request for reasonable accommodations16 and transfer to a
different supervisor,17 modification of his work schedule and assignment of work,18 decision to
reassign him to a new duty station,19 and request for medical documentation20 relate to
administrative matters. The Board finds that the administrative and personnel actions taken by
management in this case contained no evidence of agency error and are, therefore, not considered
factors of employment. As noted in Thomas D. McEuen,21 complaints about the manner in
which a supervisor performs his duties or the manner in which a supervisor exercises his
discretion falls outside the scope of coverage provided by FECA. It must be established
factually that the manager committed error or abuse to support a compensable factor pertaining
to any administrative or personnel matter.
C.S. noted that appellant signed his FY 2013 EPAP on March 2, 2014. She apologized to
him for her delay in completing his mid-year review and performance appraisal and noted her
delay in completing other employees’ FY 2013 performance appraisals. She explained that the
delay was due to her acting in several jobs at the beginning of FY 2013 and appellant’s absence
14

Bobbie D. Daly, 53 ECAB 691 (2002).

15

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

16

See K.M., Docket No. 14-1860 (issued June 2, 2015).

17

See Matilda R. Wyatt, 52 ECAB 421 (2001).

18

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

19

Ernest J. Malagrida, 51 ECAB 287 (2000).

20

James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

21

Supra note 8.

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from work on approved medical leave throughout winter 2012 and spring 2013. C.S. indicated
that she met with appellant in April 2013 regarding his FY 2013 EPAP, but she did not complete
it due to other pressing business. She and K.C. provided appellant with two options for
completing his FY 2013 EPAP, as deemed appropriate by an employee relations specialist prior
to the November 12, 2013 meeting, but he became upset with her and hung up the telephone as
she attempted to discuss his options. C.S. maintained that she had no knowledge about whether
he could have lost his job during a government shutdown if he did not have a current appraisal.
K.C. noted that C.S. apologized to appellant for not finalizing his performance appraisal in a
timely manner. K.C. denied that C.S. claimed to have completed his FY 2013 EPAP and readily
confessed prior to and at the meeting her realization that it had not been finalized until early
November 2013. She also denied trying to coerce appellant to falsify his appraisal during the
November 12, 2013 meeting. Although appellant filed an EEO claim regarding management’s
failure to timely complete his FY 2013 EPAP, he did not submit a final EEO decision finding
error or abuse on the part of management. Under these circumstances, the Board finds that
appellant has not established error or abuse in the handling of this administrative matter.22
Regarding appellant’s allegation that he was denied reasonable accommodations, C.S.
responded that she had approved his request for a temporary part-time telework schedule upon
his return to work on December 10, 2013 even though his park ranger position involved
supervising six employees which could not be effectively performed from telework status at
home. She also approved his request to change his original telework hours. C.S. related that she
denied appellant’s request to increase his work hours from four hours a day to six hours a day
due to the limitation on the amount of work that could be performed at home. The record,
however, indicates that the employing establishment later offered him a modified position, six
hours a day, two hours at home and four hours in the office. While appellant accepted this
position, C.S. denied his request for temporary transportation to work due to his medical
condition and medication because he refused to submit supportive medical documentation. She
related that at the time of appellant’s request for a cell phone, a cell phone was not immediately
available, but noted that one became available on February 13, 2014. C.S. also related that he
did not initially receive a wireless printer/scanner because he was only supposed to telework for
30 days and it would have taken that much time to order the equipment. However, she noted that
appellant subsequently received the equipment after submitting medical documentation that he
could not return to full-time work for six months. The Board finds that C.S. provided a
reasonable explanation for management’s decision and appellant has failed to establish that the
employing establishment erred in this matter.23
Regarding the denial of appellant’s request for a transfer to a different supervisor, C.S.
acknowledged the denial by K.C., but noted that K.C. offered to arrange mediation or conflict
resolution. The Board finds, therefore, that appellant has failed to establish error or abuse with
regard to the denial of his request for a transfer to a new supervisor.24
22

See V.D., Docket No. 10-280 (issued October 8, 2010) (the fact that appellant was not given performance
standards was not compensable where no adverse actions resulted from this).
23

See supra note 16.

24

See supra note 17.

9

Regarding the assignment of appellant’s new work duties, C.S. denied that she demanded
that he perform newly assigned work duties upon his return to work on December 10, 2013. She
explained that the changes in his assignments were due to organizational changes which involved
the arrival of a new superintendent. C.S. noted that the assignments were listed in priority in
groups of low, medium, and high. She also noted that appellant’s new assignments were within
the scope of job description. In response to his allegation that he was being moved to a new and
less desirable location, C.S. indicated that his new duty station was closer to his home. Thus, the
Board finds that C.S.’s statement establishes that she did not err or commit abuse in the exercise
of her supervisory duties in assigning new work duties to appellant and reassigning him to a new
duty station. Appellant has failed to establish a compensable factor of his employment.
The Board finds that appellant’s allegations regarding the above-noted administrative
matters were refuted by the responses of C.S. and K.C. They sufficiently addressed each of his
allegations and demonstrated that they acted appropriately in their administrative capacity with
regard to each of the situations which arose in the work environment.25 Thus, appellant has not
established a compensable employment factor.
Appellant additionally contended that he experienced harassment and discrimination by
the employing establishment. Harassment and discrimination by supervisors and coworkers, if
established as occurring and arising from the performance of work duties, can constitute a
compensable work factor.26 A claimant, however, must substantiate allegations of harassment
and discrimination with probative and reliable evidence.27 Appellant asserted that C.S. yelled at
him during a telephone conversation when he asked her for clarification regarding a work
assignment.28 He claimed that she abruptly hung up the phone. Appellant contended that
management discriminated and retaliated against him by rating him fully successful in FY 2013.
He did not, however, substantiate these allegations with any witness statements. C.S. denied
speaking to him in a rude and unprofessional tone. She also denied hanging up the telephone on
him. As noted above, C.S. related that appellant became upset and hung up the telephone on her
following their discussion about her FY 2013 EPAP. K.C. maintained that C.S. did not hang up
on appellant. Based on the statements of C.S. and K.C., the Board finds that appellant has not
established a factual basis for his claim of harassment and discrimination.29 Appellant has not
established a compensable employment factor.

25

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993).
26

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

27

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

28

See Joe M. Hagewood, 56 ECAB 479 (2005) (without a detailed description of the specific statements made a
compensable employment factor was not established; the mere fact a supervisor or employee may raise his voice
during the course of a conversation does not warrant a finding of verbal abuse); see also D.S., Docket No. 15-0411
(issued September 10, 2015).
29

See Robert Breeden, supra note 27.

10

As appellant failed to establish a compensable employment factor, the Board need not
address the medical evidence of record.30
On appeal, appellant disagrees with OWCP’s decision denying his emotional condition
claim and contends that the submitted evidence was not properly taken into account and was
intentionally misconstrued. The Board finds that OWCP properly reviewed all of the evidence
of record. Further, for the reasons stated above, the Board finds that appellant failed to establish
a compensable work factor.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish an
emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

30

A.K., 58 ECAB 119 (2006).

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE,
)
LANGLEY AIR FORCE, Langley, VA, Employer )
__________________________________________ )
C.B., Appellant

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

Docket No. 14-1232
Issued: October 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2014 appellant filed a timely appeal from an April 8, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP), which denied his reconsideration request
on the grounds that it was untimely filed and failed to present clear evidence of error. Because
more than 180 days has elapsed between the most recent OWCP merit decision, dated March 5,
2013 and the filing of this appeal on May 5, 2014 the Board lacks jurisdiction to review the
merits of his claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 59-year-old supervisor, filed a Form CA-2 claim for benefits on May 23,
2012 alleging an emotional condition causally related to employment factors.
In a report dated March 28, 2012, Dr. Howard J. Bierenbaum, Ph.D. in clinical
psychology, stated that appellant had encountered increasing difficulties over the previous five
months since being transferred to his current position. He advised that appellant had experienced
depression, insomnia, loss of concentration, persistent worry, episodes of panic, social
withdrawal and concerns of losing control. Dr. Bierenbaum advised that appellant was
concerned about his ability to manage these symptoms, perform in the workplace and the fear
that he might lose his job in his last year of civil service employment prior to retirement. He
asserted that there was evidence for an acute major depressive episode, characterized by some
agitation and erratic behavior, in addition to an anxiety disorder. Dr. Bierenbaum recommended
treatment with a physician or psychiatrist, to reduce appellant’s symptoms of anxiety, irritability
and depression and psychotherapy, to examine the sources of his distress. He also recommended
removal from the sources of appellant’s acute distress, to reduce his acute agitation.
In a statement dated November 1, 2012, appellant denied management’s accusations that
he used offensive language to his subordinates. He alleged that he had been being singled out by
management for investigation and unfairly accused of abusive behavior. Appellant felt that he
had received an unfair performance appraisal and was the target of unfounded accusations. The
accusations were unreasonable not based on actual facts and they resulted in his stress, major
depression and anxiety. Appellant believed that he might “snap” under the pressure and tension
caused by interacting with his immediate supervisor and work demands. Management denied his
reassignment request. Appellant worried about managing his symptoms and his assigned duties.
He alleged that his supervisor placed pressure on him because of a lack of concern and
comments unreasonable demands. Appellant further alleged that management’s demands did not
take into account his advanced age.
By decision dated March 5, 2013, OWCP denied the claim, finding that appellant failed
to establish compensable factors of employment.
In a report dated November 6, 2013, Dr. Bierenbaum reiterated the findings, diagnoses
and conclusions contained in his March 28, 2012 report. He stated that appellant’s history
suggested vulnerabilities to depression, generalized anxiety and post-traumatic stress,
exacerbated by his October 2011 transfer to his current work assignment. Dr. Bierenbaum
related an acceleration in these symptoms over the past six months, which left appellant unable
to meet his work responsibilities. He advised that appellant showed a positive response to
psychotherapy and sick leave, however, he experienced anxiety when anticipating the stresses
associated with a return to the work setting. Dr. Bierenbaum reported that management was not
able to offer appellant a less stressful work assignment and had offered him medical retirement.
In a report dated May 14, 2012, received by OWCP on March 13, 2013, it was indicated
recent treatment by a psychiatrist and psychologist for various mental issues, including anxiety
and panic attacks. However, report was incomplete, with pages missing and was not signed by a

2

physician. Appellant related that his medical providers had encouraged him not to return to
work.
By letter dated March 5, 2014, received by OWCP on March 13, 2014 appellant
requested reconsideration.
By decision dated April 8, 2014, OWCP denied appellant’s application for review on the
grounds that it was untimely received on March 13, 2014 and did not establish clear evidence of
error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.2 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.3
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that its final merit decision was in error.4 It will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth
under section 10.607 of OWCP regulations, if the claimant’s application for review shows clear
evidence of error on the part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.7
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
2

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

3

20 C.F.R. §10.607(a); S.S., Docket No. 13-2151 (April 1, 2014).

4

D.G., 59 ECAB 455 (2008).

5

20 C.F.R. § 10.607.

6

See F.R., Docket No. 09-575 (issued January 4, 2010); S.D., 58 ECAB713 (2007).

7

J.S., Docket No. 10-385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006).

3

would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.8 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.10 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.
The Board notes that, as of August 29, 2011, the timeliness of a reconsideration request is
determined by the date the request is received by OWCP.11
In the present case, the last merit decision was issued in this case on March 5, 2013. As
appellant’s March 5, 2014 request for reconsideration was not received by OWCP until
March 13, 2014 and it was therefore untimely filed. Consequently, appellant must demonstrate
clear evidence of error by OWCP in denying his claim for compensation.
The underlying claim for compensation was denied on the grounds that appellant had not
established a compensable factor of employment. In the last merit review of this case, OWCP
determined that he had not established that his allegations regarding his work factors, including
that the employing establishment’s investigation was instigated by someone who had a vendetta
against him or that during the investigation individuals were coerced into giving statements or
that the investigation prejudged him or that he was undermined in favor of subordinates. It also
determined that appellant had not established or abuse error by the employing establishment in
initiating its investigation based a suggestion of inappropriate conduct. Reassignment of
appellant to a new position, denial of an alternate work schedule and denial of authorization of
physical training likewise were not sufficient.
On reconsideration appellant submitted the November 6, 2013 report from
Dr. Bierenbaum and the unsigned, partial copy of a May 14, 2012 report. These reports do not
address the basis upon which the claim was denied. Appellant did not submit evidence which,
on its face, establishes a compensable factor of employment. The evidence submitted on
reconsideration therefore does not establish clear evidence of error in the denial of appellant’s
claim.

8

James Mirra, 56 ECAB 738 (2005).

9

See S.S., supra note 4.

10

20 C.F.R. § 10.607(a).

11

Supra see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e)
(August 29, 2011).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and insufficient to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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W.H., Appellant
and
DEPARTMENT OF HOMELAND
SECURITY, CUSTOMS & BORDER
PROTECTION, OFO-Los Angeles, CA,
Employer

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

Docket No. 14-1662
Issued: February 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2014 appellant filed a timely appeal from an April 29, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
reimbursement of travel expenses.
FACTUAL HISTORY
On March 27, 2000 appellant, then a 50-year-old senior customs inspector, filed an
occupational disease claim for exposure to different irritants during his assignments in Ismail,
1

5 U.S.C. § 8101 et seq.

Ukraine, Los Angeles International Airport, and Ontario International Airport. He first became
aware of his condition in October 1992 and realized that it was caused or aggravated by his
employment on August 21, 1999. OWCP accepted the claim for precipitation of extrinsic
asthma and reactive airway disease. Appellant was off work intermittently from the date of first
exposure and stopped work on July 6, 2002. OWCP later expanded the claim2 to include
aggravation of diabetes mellitus, Type 2; aggravation of hypertension; obstructive sleep apnea;
bilateral carpal tunnel syndrome; left ulnar mononeuritis; and bilateral polyneuropathy secondary
to diabetes.3
Under master claim number xxxxxx323, appellant filed several claims for travel
reimbursement to and from his physician’s offices and his residence in Big Bear City,
California.4 These requests for travel reimbursements for medical appointments covered the
2

Appellant also has additional work-related claims that have been combined under this claim, with this claim
being the master file. In case number xxxxxx428 (subsidiary), he filed a traumatic injury claim stating that, on
April 27, 1999, he sustained a puncture wound to his left thigh and an exacerbation of his respiratory condition.
This short form closure claim was administratively handled. In case number xxxxxx700 (subsidiary), appellant filed
a traumatic injury claim stating that, on June 18, 1999, he sustained an acute exacerbation of respiratory system due
to inhalation of paint fumes. This short form closure claim was administratively handled. In case number
xxxxxx160 (subsidiary), appellant filed a traumatic injury claim stating that, on October 3, 2001, he sustained
airway inflammation and respiration impairment due to a coworker’s cologne/after shave use. OWCP accepted a
temporary aggravation of reactive airway disease/asthma. This claim is closed. Under claim number xxxxxx175
(subsidiary), appellant filed a traumatic injury claim stating that, on September 24, 2001, he sustained airway
inflammation and respiration impairment due to a coworker’s cologne/aftershave use. OWCP accepted a temporary
aggravation of reactive airway disease/asthma. This claim is closed. In case number xxxxxx176 (subsidiary),
appellant filed a traumatic injury claim stating that, on September 17, 2001, he sustained airway inflammation and
respiration impairment due to a coworker’s cologne /after shave use. OWCP accepted a temporary aggravation of
reactive airway disease/asthma. This claim is closed. Under claim number xxxxxx177, appellant filed a traumatic
injury claim stating that, on October 4, 2001, he sustained airway inflammation and respiration impairment due to a
coworker’s cologne/aftershave use. OWCP accepted a temporary aggravation of reactive airway disease/asthma.
This claim is closed. Under claim number xxxxxx861 (subsidiary), appellant filed a traumatic injury claim stating
that, on March 20, 2001, he was exposed to chemical inhalation from a coworker’s scented personal care product.
This short form closure claim was administratively handled. Under claim number xxxxxx124 (subsidiary), appellant
filed a traumatic injury claim stating that, on March 25, 2002, he sustained a respiratory impairment due to a
coworker’s cologne. OWCP accepted a temporary aggravation of reactive airway disease/asthma. This claim is
closed. Under claim number xxxxxx572 (subsidiary), appellant filed a traumatic injury claim stating that, on
April 1, 2002, he sustained airway injury due to exposure to coworker’s cologne. The short form claim was
administratively handled. Under case number xxxxxx098 (subsidiary), appellant filed a traumatic injury claim
stating that, on April 15, 2002, his reactive airways disease was aggravated as a result of exposure to a coworker’s
cologne. This short form closure claim was administratively handled. Under case number xxxxxx144 (subsidiary),
appellant filed a traumatic injury claim stating that, on April 10, 2002, his reactive airways disease was aggravated
as a result of exposure to a coworker’s cologne. This short form closure claim was administratively handled. Under
case number xxxxxx145 (subsidiary), appellant filed a traumatic injury claim stating that, on April 11, 2002, his
reactive airways disease was aggravated as a result of exposure to a coworker’s cologne. This short form closure
claim was administratively handled. Under case number xxxxxx985 (subsidiary), appellant filed a traumatic injury
claim stating that on May 15, 2002 the stress of his claims and medical treatment caused an elevation of Type 2
diabetes mellitus to insulin-dependent diabetes. On February 17, 2004 OWCP’s Branch of Hearings and Review
instructed OWCP to combine this claim with the accepted respiratory claim, case number xxxxxx985, and develop
the case for a possible consequential injury.
3

Appellant also has an accepted hearing loss claim under master file number xxxxxx532; that appeal is before the
Board under Docket No. 14-1661.
4

See id.

2

period September 21, 2011 through June 20, 2013 and exceeded 100 miles round-trip. The
record reflects that appellant lives in the San Bernardino Mountains of Riverside County,
California, in near Big Bear City, California. There are two routes from his home on the
mountain to the valley below: Highway CA-38 and Highway CA-330/CA-18. The closest city
in the valley, below the mountain where appellant lives, is Highland City, California. From
Highland City, the roads branch out to other cities and towns. The cities and towns nearest to
Highland City include Riverside, San Bernardino, Yucaipa, Redlands and Loma Linda.
In support of his claims for reimbursement of travel beyond the 100-mile round-trip
distance limitation, appellant argued that he lives in a remote geographical area with limited
local medical services. In a December 2, 2011 letter, he stated that he lives “7200 feet up in the
San Bernardino Mountains,” in order to “avoid airborne irritants that aggravate his reactive
airways disease.” Appellant stated that the safest route from his home to the nearest freeway
ramp in the valley which encompassed Highway CA-38 was a distance of 52 miles. He defined
“safest route” as the route “without commercial truck traffic, no diesel exhaust, and no scent of
brake asbestos from people burning their brakes driving down the mountain, etc.” Appellant
noted the shorter route from his home to the nearest freeway ramp in the valley, which
encompassed Highway CA-18/CA-330, was 36 miles to the nearest freeway ramp. However,
this shorter route was not the safest travel route for his work-related conditions. Appellant also
noted that there are frequent road closures due to traffic accidents, mud and rock slides,
avalanches, and complete road washouts on Highway CA-18/CA-330, stating that “mountain
driving is inconsistent and unpredictable.”
In a December 19, 2011 letter, OWCP’s District Director Andrew Tharp noted that,
although OWCP had previously paid appellant’s mileage reimbursement claims for medical
appointments in the Los Angeles area, which required more than 100 miles of travel round-trip
from appellant’s home, all future claims for travel reimbursement would follow the provisions of
the 100-mile round-trip limitation set forth in 20 C.F.R. § 10.315, amended effective
August 29, 2011. 20 C.F.R. § 10.315 allows an injured worker to have a primary treating
physician located a maximum distance of 100 miles round-trip between the place of treatment
and the claimant’s residence. Mr. Tharp noted that appellant had not provided any evidence that
there were no physicians located within 50 miles of his residence who could provide adequate
medical treatment for his accepted work injuries. He noted that appellant had attended medical
appointments in Loma Linda (approximately 41 miles one-way) and that there were several
medical specialists located in the San Bernardino, Redlands and Riverside areas, who accept
injured federal workers as patients and are within the 100-mile round-trip limitation. Appellant
was to be paid claims through October 21, 2011.
Appellant continued to submit claims for travel reimbursement for physicians located
more than 100 miles round-trip from his home.
In a January 17, 2012 letter, OWCP advised appellant that 20 C.F.R. § 10.315 had been
amended effective August 29, 2011 and allowed an injured worker to have a primary treating
physician located a maximum distance of 100 miles round-trip from their residence. It noted that
he was previously instructed to locate a physician within a 50-mile radius of his home.
However, appellant provided no evidence showing that he was unable to locate a neurologist in
the Loma Linda, San Bernardino, Redlands or Riverside areas who accepted injured federal
workers as patients. OWCP stated that, if he declined to find a new physician, it could only
3

reimburse him a maximum of 100 miles round-trip for future mileage reimbursement claims
related to attending medical appointments.
Appellant continued to submit claims for reimbursement of travel beyond 100 miles
round-trip from his residence.
In a February 11, 2012 statement, appellant indicated that he conducted a search within a
50-mile radius of “Big Bear Lake, Fawnskin, Angeles Oaks, Forest Falls, Mountain Home
Village, Mentone, Yucaipa, Arrowbear, Running Springs, Green Valley Lake, Lake Arrowhead,
Blue Jay, Crestline, and Lake Gregory, California” as well as areas outside of the 50-mile radius,
including the “cities of Highland, Redlands, Loma Linda, San Bernardino, Colton, Grand
Terrance, Riverside, Lucerne Valley, Victorville, and Apple Valley” for “suitable providers” in
the form of a “board[-]certified endocrinologist” competent to treat his accepted diabetes
mellitus claim. In a May 27, 2012 statement, he stated that Loma Linda University Medical
Center denied his request to be cared for. Appellant also stated that the internet listing, which
the claims examiner provided to him on April 5, 2012, failed to take into account the actual
driving distances between his remote mountain residence and the locations of the medical offices
indicated.
Appellant submitted four video DVDs in support of his assertion that there were no
physicians within a 50-mile radius of his home in Big Bear City. He also alleged that he could
not locate any physicians closer to his residence who would care for him or who would accept
FECA patients.
By decision dated June 26, 2013, OWCP denied appellant’s claims for travel
reimbursement for medical appointments which exceeded 100 miles round-trip.5 Fifteen of the
claims were not payable as they lacked either medical provider documentation or a medical
provider’s billing to support that an appointment was actually attended and which corresponded
to the claimed date of travel. Twenty-five of the claims were not payable pursuant to 20 C.F.R.
§ 10.315 as they were not “reasonable” travel expenses under 20 C.F.R. § 10.315. OWCP found
that, under 20 C.F.R. § 10.315(b), appellant lives in a remote area of Big Bear City, California;
but, once off the mountain road, the provision which states that “an employee who lives in a
remote geographical area with limited local medical services,” no longer applied. It found that
there were two basic ways to come off the mountain from Big Bear City and the “shortest route”
must be used in considering “reasonableness” under 20 C.F.R. § 10.315(a). OWCP found that
once appellant was off the mountain, that there was an “availability of services” in the
appropriate specialty closer than he was presently driving. It further found that he had not shown
adequate proof that he must take the longer route for medical reasons or that his present
physicians on the West Coast could only provide his care for his work-related conditions.

5

A chronological recitation of appellant’s claims for travel reimbursement can be found in OWCP’s June 26,
2013 decision. Where there was no medical documentation in the file of a medical visit on the same date of travel or
no billing from the provider for that claimed date, then the issue of the 100-mile limitation and its exceptions was
not reached. The dates of travel which were not payable due to no provider billing were claimed visits on
October 14, 2011, December 19, 2011 through December 18, 2012, January 1 through December 31, 2012,
February 16 and 21, April 11, June 12 and October 24, 2012, February 8 and 27, March 20, May 23, and June 3
and 20, 2013.

4

OWCP provided appellant a list of physicians within the 50-mile radius in various specialists
appropriate to appellant’s accepted medical conditions.
On July 17, 2013 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on January 17, 2014. Appellant testified
regarding his medical conditions and how it affected his ability to travel. He advised that there
were no suitable appropriate specialists within the allowed radius. Appellant explained that he
lived high up in the mountains to alleviate the symptoms of his respiratory conditions and
traveled longer routes to avoid commercial traffic and freeway as the gas and diesel fumes
aggravate his reactive airway disease. He advised that his physicians supported his need to avoid
commercial traffic. Appellant also asserted that the physicians listed in OWCP’s decision as
being in the 50-mile radius of his residence did not necessarily accept OWCP patients and that
OWCP had not verified that they in fact accepted OWCP patients. He stated that several of the
physicians he contacted advised they did not accept workers’ compensation patients.
By decision dated April 29, 2014, an OWCP hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree of the period of any disability or aid in lessening the amount of any
monthly compensation. The employee may initially select a physician to provide medical
services, appliances and supplies, in accordance with such regulations and instructions as OWCP
considers necessary and may be furnished necessary and reasonable transportation and expenses
incident to the securing of such services, appliances, and supplies.6
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what a reasonable distance to travel is, OWCP will
consider the availability of services, the employee’s condition and the means of transportation.
Effective August 29, 2011, the most recent regulations provide that a round-trip distance of up to
100 miles is considered a reasonable distance to travel.7 If round-trip travel of more than 100
miles is contemplated, or air transportation or overnight accommodations will be needed, the
employee must submit a written request to OWCP for prior authorization with information
describing the circumstances and necessity for such travel expenses. Requests for travel
expenses that are often approved include those resulting from referrals to a specialist for further
medical treatment, and those involving air transportation of an employee who lives in a remote
geographic area with limited local medical services.8

6

5 U.S.C. § 8103(a).

7

20 C.F.R. § 10.315(a).

8

Id. at § 10.315(b).

5

Under FECA Bulletin No. 14-02, issued January 29, 2014, OWCP addressed the manner
in which travel procedure codes will be processed and paid by the Central Bill Processing (CBP)
system when submitted for authorized examinations/treatments. Effective January 17, 2013
whenever a request for travel reimbursement involved more than 100 miles per day of mileage
reimbursement, the reimbursement request is suspended and the request referred for claims
examiner review. Under Part A(2), “in limited circumstances it may be necessary for a claimant
to travel more than 100 miles on a regular basis, such as to be seen by his/her treating physician
or therapist if the claimant lives in a remote area. Upon receipt of notification from CBP in these
instances, the claims examiner should provide a range for this ongoing authorization, including
both total miles and period that the authorization covers. This range should be calibrated to the
claimant’s treatment location and can extend up to 900 miles and up to six (6) months in length,
using Procedure Code A0080.
In interpreting this section, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. The only limitation on OWCP’s authority is that of
reasonableness.9 OWCP may authorize medical treatment but determine that the travel expense
incurred for such authorized treatment was unnecessary or unreasonable.10
ANALYSIS
Under master claim number xxxxxx323, OWCP accepted the conditions of precipitation
of extrinsic asthma and reactive airway disease; aggravation of diabetes mellitus, Type 2;
aggravation of hypertension; obstructive sleep apnea; bilateral carpal tunnel syndrome; left ulnar
mononeuritis; and bilateral polyneuropathy secondary to diabetes. Appellant filed several
applications during the period September 21, 2011 through June 20, 2013 for approval of the
reimbursement of travel beyond the allowed 100-mile limitation, which OWCP denied as either
not supported by medical evidence or medical billing or for not being “reasonable” travel
expenses under 20 C.F.R. § 10.315.11
OWCP regulations provide that an employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. The most recent regulations provide that a round-trip distance of up to
100 miles is considered a reasonable distance to travel.12 If round-trip travel of more than 100
miles is contemplated or air transportation or overnight accommodations will be needed, the
employee must submit a written request to OWCP for prior authorization with information
describing the circumstances and necessity for such travel expenses.13
9

A.O., Docket No. 08-580 (issued January 28, 2009); see also Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP
has broad discretionary authority in the administration of FECA and must exercise that discretion to achieve the
objectives of section 8103).
10

W.M., 59 ECAB 132 (2007); Mira R. Adams, 48 ECAB 504 (1997).

11

Appellant has not disputed the denial of travel expenses which were not supported by the medical or billing
evidence.
12

See supra note 5.

13

See supra note 6.

6

OWCP found that, under 20 C.F.R. § 10.315(b), the area in which appellant lives, is a
remote geographic area with limited local medical services. The evidence reflects that, on the
Highway CA-38 side of the mountain at Big Bear City, there are no physicians located either
along the way up or down the mountain. There is also no evidence as to the existence of
physician offices on the Highway CA-18/CA-330s side. However, once off the mountain roads,
appellant arrives in Highland City, California, which is not a remote geographical area.
In determining what constitutes a reasonable travel distance, OWCP must consider the
availability of medical services in appellant’s area, his condition and the means of
transportation.14 Travel should be taken by the shortest route and if practicable, by public
conveyance.15
OWCP found that there were two basic ways to come off the mountain from Big Bear
City to Highland City, California, either “Highway CA-18/CA-330 or CA-38, with the shortest
route being Highway CA-18/CA-330. It found that the shortest route was more reasonable in
this case as appellant was physically capable of driving shorter distances and that there was an
“availability of services” as the same specialists were available in and around the areas between
Highland City and Yucaipa, California that he treated with on the West Coast. OWCP also
found that it was not practical for appellant to use any type of public conveyance from his home
as he lives in a remote area and, once off the mountain, it was more practical for him to continue
using his automobile. It noted that his round-trip, up and down the mountain, to the valley was
covered within the 100 miles to which he was entitled if he took the shortest route via Highway
CA-38/CA-330. Appellant however took the longer route as he contended the shorter route was
congested and had conditions that exacerbated his accepted medical conditions or prevented
easy, timely travel. However, he offered no medical support for the proposition that he could not
travel the shorter route due to his medical condition. In effect, appellant appears to subject
himself to those very same conditions when he attempts to avoid Highway CA-18/CA-330 and
instead travels to his physicians in the West Coast, exceeding the 100-mile round-trip limitation.
Furthermore, he offered no sufficient medical or factual justification to explain the long distance
travel past the valley point. OWCP noted that, from Highland City, California, he had visited
various physicians as far away as Beverly Hills, California (round-trip 159 miles) to as close as
While appellant had requested prior
Redland, California (round-trip 11.94 miles).16
authorization for travel reimbursement to his various physicians, he did not explain why travel to
those physicians more than 100 miles round-trip was both reasonable and necessary for treatment
of his accepted conditions. The record does not establish that he was unable to obtain competent
and appropriate medical care closer to the valley.
OWCP has broad discretion in considering whether to reimburse or authorize travel
expenses.17 As the only limitation on its authority is reasonableness, abuse of discretion is
14

W.M., 59 ECAB 132 (2007).

15

20 C.F.R. § 10.315(a).

16

OWCP utilized www.mapquest.com to calculate the shortest mileage distance from Highland City, California
Government Offices, to appellant’s residence to calculate the mileage to various locations appellant was seeking
mileage reimbursement.
17

A.R., Docket No. 14-185 (issued August 4, 2014); M.O., Docket No. 13-1822 (issued November 26, 2013).

7

generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deduction from known facts.18
OWCP advised appellant that, although it had paid no large reimbursement claims for medical
appointments in the Los Angeles area, all future claims would follow the provisions of the 100mile round-trip limitations set forth by 20 C.F.R. § 10.315. The Board finds that OWCP’s denial
of his request for reimbursement for another 100 miles of round-trip travel expenses was
reasonable and not an abuse of discretion. The expenses appellant incurred for travel between
his home in Big Bear City to physicians beyond the 100-mile round-trip limit must be considered
personal to him.
On appeal appellant submitted an extensive 52-page brief in which he raised both new
arguments and duplicative arguments previously argued before OWCP. He contended on appeal
and before OWCP that OWCP failed to comply with its own guidelines; that OWCP did not
review all of his evidence and arguments in its entirety; and that OWCP’s decision was factually
inaccurate and should not have relied upon internet search engines MapQuest and google, due to
those sites own disclaimers. Appellant also contended on appeal and before OWCP that he lives
in a remote area and that there was a limited availability of physicians within the 100-mile
round-trip distance limitation who take FECA patients. He further argued that OWCP’s decision
was factually inaccurate. Before OWCP, appellant offered no evidence that OWCP’s detailed
discussion of the geographical area and medical specialists located within a 100-mile round-trip
limitation of his home was factually inaccurate. On appeal he offered his own research regarding
the availability of medical providers within the 100-mile round-trip distance based on actual
study or real time evidence. However, the Board is precluded from reviewing evidence which
was not before OWCP at the time it issued its final decision.19
Appellant also argues that OWCP failed to comply with its own procedural requirements
concerning termination of specific services. He asserted that he expected his travel expenses to
be reimbursed for medical appointments which were over the 100-mile round-trip distance
limitation as OWCP previously reimbursed him for such trips and he had never received notice
from OWCP about an end-date. This argument lacks merit. Appellant was specifically advised
in Mr. Tharp’s December 19, 2011 letter that his claims which were over the 100-mile round-trip
limitation would be paid through October 21, 2011 and that all future claims for travel
reimbursement which were over the 100-mile round-trip limitation would follow the provisions
of the 100-mile round-trip limitation set forth in 20 C.F.R. § 10.315. Thus, appellant had no
expectation after being notified on December 19, 2011 that he would be reimbursed for travel
beyond 100 miles round-trip. The Board notes that OWCP did not preclude him from continuing
care by medical providers exceeding a 100-mile round-trip radius that OWCP’s regulations
provide, but noted that his reimbursable travel would be limited to 100 miles round-trip.20
18

See William B. Webb, 56 ECAB 156 (2004).

19

See 20 C.F.R. § 501.2(c)(1).

20

See J.J., Docket No. 10-1908 (issued June 16, 2011) (the Board found that appellant’s contention that he did
not feel comfortable with physicians near his home as they were not familiar with his case and would not accept
workers’ compensation cases was not sufficient to show traveling to another physician was reasonable and
necessary); W.J., Docket No. 10-1944 (issued June 1, 2011) (the Board found that appellant’s travel between his
new home in Macon, Georgia and his physician’s office in Fort Myers, Florida must be considered personal to
appellant and that OWCP’s denial of his request for reimbursement was reasonable).

8

Appellant also offered no evidence that OWCP’s detailed discussion of the geographical area
and medical specialists located within a 100-mile round-trip distance from his home was
factually inaccurate.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for reimbursement of travel expenses to see his physicians.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gaithersburg, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2498
Issued: March 16, 2009

Case Submitted on the Record

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

JURISDICTION
On September 19, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ June 26, 2008 decision denying his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that he sustained a right arm injury in the
performance of duty.
FACTUAL HISTORY
On March 11, 2008 appellant, then a 46-year-old mail handler group leader, filed an
occupational disease claim (Form CA-2) for a right arm condition. He first realized his condition
was caused by his employment on March 5, 2008, when he experienced pain in his right arm
while breaking down mail.

In a March 13, 2008 medical report, Dr. Timothy J. Greenan, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of appellant’s elbow
revealed no demonstrable soft tissue or osseous abnormality. He also noted that the MRI scan
revealed no osteochondral or ligamentous injury.
By letter dated April 14, 2008, the Office notified appellant that the evidence submitted
was insufficient to determine his eligibility for benefits under the Federal Employees’
Compensation Act. It requested that appellant submit additional medical evidence. Appellant
did not respond.1
By decision dated June 26, 2008, the Office denied his occupational disease claim finding
that the evidence was insufficient to establish that he sustained a right arm injury.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The Board has held that the fact that a condition manifests itself or worsens during a
period of employment5 or that work activities produce symptoms revelatory of an underlying
1

The record reflects that appellant submitted a progress report from King Chiropractic, concerning an
appointment on November 17, 2008. The Board notes that the Office did not consider this evidence in reaching its
final decision. Pursuant to 20 C.F.R. § 501.2(c), the Board’s review is limited to the evidence in the case record at
the time the Office made its final decision. For this reason, the Board cannot consider this evidence for the first time
on appeal.
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).

2

condition6 does not raise an inference of causal relationship between a claimed condition and
employment factors.
ANALYSIS
Appellant alleged that his employment duties of breaking down mail caused a right arm
condition; however, he did not provide sufficient medical evidence to establish his claim. The
evidence of record is insufficient to establish that he developed a right arm condition causally
related to factors of his employment.7
Appellant submitted a diagnostic report from Dr. Greenan, who noted that an MRI scan
of the elbow did not reveal any abnormality. Dr. Greenan did not make any diagnoses pertaining
to appellant’s right arm or provide any opinion relating a medical condition to appellant’s federal
employment. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.8
Dr. Greenan’s report is insufficient to establish a diagnosed condition causally related to
appellant’s duties as a mail handler.
The Office informed appellant of the need to submit a physician’s opinion which
explained how the alleged condition was related to employment-related factors. However,
appellant did not respond. Accordingly, he has failed to establish that he sustained an injury in
the performance of duty.9
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury in the
performance of duty.

6

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

7

See Richard A. Weiss, 47 ECAB 182 (1995).

8

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

9

See Edgar G. Maiscott, 4 ECAB 558 (1952).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 26, 2008 is affirmed.
Issued: March 16, 2009
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Hartford, CT, Employer
)
___________________________________________ )
B.M., Appellant

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

Docket No. 14-488
Issued: June 18, 2014

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, 2014 appellant filed a timely appeal from the October 15, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to factors of his federal employment.
FACTUAL HISTORY
On July 26, 2013 appellant, then a 46-year-old letter carrier, filed an occupational disease
claim alleging pain in his knees when he walked his route and went up and down stairs while
working. He alleged that his condition began on July 16, 2013 and that he first became aware of
its relation to his work on that date. Appellant stopped work on July 26, 2013. The employing
1

5 U.S.C. § 8101 et seq.

establishment noted that it was informed of the condition on that date. Appellant’s supervisor
stated that appellant had previously commented that he had to stop playing basketball due to bad
knees.
By letter dated August 1, 2013, OWCP advised appellant that additional factual and
medical evidence was needed.
In a July 16, 2013 report, Dr. John Mitamura, a Board-certified orthopedic surgeon, noted
that appellant worked at the employing establishment and was seen for progressive knee pain,
particularly in the right knee. Appellant reported pain while going down stairs and a sensation of
near buckling and instability in the right knee. Dr. Mitamura examined appellant and diagnosed
a torn medial meniscus of the right knee. He recommended a magnetic resonance imaging
(MRI) scan.2 In an August 1, 2013 report, Dr. Mitamura listed a July 11, 2013 date of injury and
noted that appellant’s occupation required that he enter and exit a truck and place mail into green
boxes. He recommended a limited restriction of 50 pounds but appellant moved many of the
bags as well as loaded packages. Dr. Mitamura also noted that appellant had stair climbing
responsibilities. On the date of injury, appellant noted severe right knee pain, and had a limp and
difficulty going up and down stairs with buckling of the knee. A July 24, 2013 right knee MRI
scan showed tearing of the medial meniscus, thinning of the medial compartment and a
cartilaginous defect. He examined appellant and diagnosed tearing of the medial meniscus and
condylar defects in the knee. Dr. Mitamura recommended physical therapy. He opined that the
tear would not heal and that appellant would need surgery; but physical therapy and knee bracing
would be tried first. Dr. Mitamura stated that appellant was “totally disabled from work in light
of the responsibility of lifting heavy mailbags and going up and downstairs.”
A later report by Dr. Mitamura, dated August 13, 2013, reflected examination of
appellant and noted his difficulty rising from a seated position, a significant right antalgic gait
and a right knee valgus deformity. He diagnosed torn right knee meniscus, suspected left knee
meniscal tear and osteochondral defect of both ankles. Dr. Mitamura recommended MRI scan
studies to the left knee, right and left ankle and physical therapy for both knees. He reiterated
that appellant was totally disabled for work as a mail carrier and could not bend, stoop, squat, or
carry more than 5 to 10 pounds maximum on an intermittent basis. Dr. Mitamura opined that
“secondary to the numerous steps and carrying of mail which can be up to 70 pounds including
getting in and out of the truck has led to repetitive trauma and impacts, which have led to the
injuries to the right and left ankles and right and left knees.” He noted that appellant explained
his work activities when exiting his truck and delivering mail, and carrying parcels weighing up
to 50 pounds. Dr. Mitamura explained that this “further creates accelerated impact on stepping
and onto the ground.” The duties led to appellant’s repetitive stresses and the injuries he
sustained to knees and ankles. In a September 4, 2013 report, Dr. Mitamura noted appellant’s
status. He diagnosed internal derangement of both knees, worse on the right and both ankles.
Dr. Mitamura requested authorization for right knee arthroscopy and opined that appellant was
totally disabled.
2

A July 24, 2013 right knee MRI scan, read by Dr. Andre Khoury Yacoub, a diagnostic radiologist, revealed a
horizontal tear of the posterior horn and posterior half of the body of the medial meniscus with thinning and
irregularity of the medial compartment with cartilaginous defects and mild effusion with fissures through the
cartilage of the lateral aspect of the patella.

2

Appellant provided an August 13, 2013 statement in which he indicated that he worked
for the employing establishment for over 19 years. He stated that he engaged in excessive
walking, going up and down stairs, carrying, pushing and pulling the maximum weight of 70
pounds during package deliveries, carrying mail on his shoulders during inclement weather and
stepping in and out of work trucks approximately 200 times per day. Appellant indicated that the
trucks had two steps from the curb to the sidewalk. He advised that he completed these tasks
five to six days a week for 8 to 12 hours a day. Appellant explained that on July 10, 2013 he
completed his assignment and when he woke up, his right knee was swollen. He noted that he
went to work with a limp and when he told his supervisor, she informed him that he should take
his time completing his assignment. Appellant indicated that his work duties caused his knee
condition, especially on the right knee, with swelling, severe pain, buckling tingling and wear
and tear of the knees. He noted that his outside activities included spending time with his child,
driving her to tutoring sessions and any of her activities. OWCP also received physical therapy
progress notes.
In an October 15, 2013 decision, OWCP denied the claim, finding that the medical
evidence did not demonstrate that the claimed condition was related to established work events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

3

relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5
ANALYSIS
The Board finds that this case is not in posture for decision.
The evidence establishes that appellant has bilateral knee conditions and performed work
activities such as walking his route, climbing up and down steps, carrying packages weighing up
to 70 pounds and stepping in and out of his truck. The Board notes that the medical reports of
record generally support that appellant has internal derangement to the right and left knees and
that arthroscopy was recommended. The record also reflects that appellant has a torn medial
meniscus in the right knee.
In an August 1, 2013 report, Dr. Mitamura explained that appellant’s occupation required
that he enter and exit a truck, place mail into boxes, move mailbags and load packages. He also
noted that appellant also had stair climbing responsibilities. Dr. Mitamura indicated that on the
date of injury, appellant noted severe pain in his right knee, and had a limp and difficulty going
up and down stairs and reported it to his supervisor. He confirmed that appellant had buckling to
the knee and noted that a right knee MRI scan showed tearing of the medial meniscus with
thinning of the medial compartment. Dr. Mitamura opined that appellant was “totally disabled
from work in light of the responsibility of lifting heavy mailbags and going up and downstairs.”
In an August 13, 2013 report, he noted findings and diagnosed torn right knee meniscus and
suspected tear of the left knee meniscus and osteochondral defect to the right and left ankles.
Dr. Mitamura advised that appellant was totally disabled for work as a mail carrier and opined
that “secondary to the numerous steps and carrying of mail which can be up to 70 pounds
including getting in and out of the truck has led to repetitive trauma and impacts, which have led
to the injuries to the right and left ankles and right and left knees.” He referenced work activities
of exiting a truck, delivering mail and carrying parcels weighing up to 50 pounds. Dr. Mitamura
explained that this “further creates accelerated impact on stepping and onto the ground.” He
opined that appellant’s duties led to repetitive stresses and the injuries he sustained to his knees
and ankles. Dr. Mitamura’s reports identify work factors contributing to appellant’s condition,
provide diagnoses and opine that appellant’s conditions were caused by his employment duties.
While his opinion is not sufficiently rationalized to meet appellant’s burden of proof, it generally
supports causal relation between his accepted employment duties and his knee and ankle
conditions and is sufficient to require OWCP to undertake further development of appellant’s
claim.6
The case will be remanded to OWCP for further development of the medical evidence,
for referral to an appropriate medical specialist for a rationalized opinion as to whether
appellant’s work duties contributed to his bilateral leg conditions. Following this and such other
development as it deems necessary, OWCP shall issue a de novo decision.

5

Id.

6

See also E.J., Docket No. 09-1481 (issued February 19, 2010); John J. Carlone, 41 ECAB 354, 358-60 (1989).

4

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: June 18, 2014
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

5