United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN FRANCISCO VA MEDICAL CENTER,
San Francisco, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0605
Issued: October 27, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On March 9, 2021 appellant filed a timely appeal from a February 8, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0605.1
On June 5, 2013 appellant, then a 57-year-old program assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
performing repetitive computer keyboarding while in the performance of duty. OWCP assigned
the present claim OWCP File No. xxxxxx885. On August 30, 2013 OWCP accepted the claim for
a temporary aggravation of bilateral carpal tunnel syndrome.2

1

The Board notes that following the February 8, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

Appellant has several prior claims before OWCP. Under OWCP File No. xxxxxx962, appellant filed a traumatic
injury claim (Form CA-1) on August 9, 2002 alleging that on that date she sustained injuries to her wrists, knees, and
left great toe when she tripped on a patient’s wheelchair footrest while in the performance of duty. By decision dated

Appellant stopped work on November 28, 2018. On December 23, 2018 she filed a claim
for compensation (Form CA-7) for disability from work for the period November 28 through
December 21, 2018. On January 4, 2019 appellant filed a claim for compensation (Form CA-7)
for disability from work for the period December 24, 2018 and continuing. By decision dated
February 13, 2019, OWCP denied her claims for wage-loss compensation, finding that causal
relationship had not been established. Appellant submitted a series of reconsideration requests.
By decisions dated May 22, 2019, July 25, 2019, April 13, 2020, OWCP denied modification.
In a statement received on December 31, 2020, appellant noted a recent worsening of left
carpal tunnel syndrome, left shoulder pain, and left knee pain. She attributed these symptoms to
sequelae of the August 9, 2002 employment incident and to overuse from favoring her right upper
extremity.
In a development letter dated January 4, 2021, OWCP informed appellant of the
deficiencies of her recurrence claim. It advised her of the type of factual and medical evidence
required and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the necessary evidence.
In a development letter of even date, OWCP noted that appellant had attributed her current
condition to the August 9, 2002 employment incident under OWCP File No. xxxxxx962. It
appended appellant’s August 9, 2002 traumatic injury (Form CA-1) claim form under OWCP File
No. xxxxxx962 and a copy of the October 12, 2006 decision denying the claim.
Appellant subsequently submitted additional medical evidence.
By decision dated February 8, 2021, issued under both OWCP File Nos. xxxxxx885 and
xxxxxx962, OWCP denied expansion of the claims to include left shoulder and left wrist
conditions and osteoarthritis of both knees as causal relationship was not established.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. 3 For example, if a

October 12, 2006, OWCP accepted that the August 9, 2002 employment incident occurred as alleged, but denied the
claim finding that causal relationship had not been established. Under OWCP File No. xxxxxx706, appellant filed an
occupational disease claim (Form CA-2) on July 11, 2006 alleging right shoulder and right hand pain related to
residuals from the August 9, 2002 employment incident, and repetitive keyboarding and filing. OWCP denied the
claim by decision dated October 10, 2006. Under OWCP File No. xxxxxx052, appellant previously filed a traumatic
injury claim (Form CA-1) on May 7, 2009 for right shoulder, right hand, and right forearm injuries sustained while
performing repetitive computer keyboarding while in the performance of duty. On November 20, 2009 OWCP
accepted that claim for right shoulder impingement syndrome, carpometacarpal osteoarthritis of the right thumb,
acquired right trigger finger, and localized primary arthritis of the right forearm. In October 2017, OWCP
administratively combined OWCP File Nos. xxxxxx885 and xxxxxx052, with th e latter serving as the master file.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 4
Under OWCP File No. xxxxxx962, appellant claimed injuries to both upper extremities
sustained on August 9, 2002 when she tripped and fell over a patient’s wheelchair foot rest.
Similarly, under OWCP File No. xxxxxx706, she claimed right shoulder and right hand conditions
related, in part, to sequelae of the August 9, 2002 employment incident.
Therefore, for a full and fair adjudication of appellant’s current claim, the case must be
returned to OWCP to administratively combine the current case record , OWCP File No.
xxxxxx885, with OWCP File Nos. xxxxxx962 and xxxxxx706.5 Following this and other such
further development as OWCP deems necessary, it shall issue a de novo decision.6
IT IS HEREBY ORDERED THAT the February 8, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

Id.; G.R., Docket No. 21-0338 (issued June 29, 2021); M.E., Docket No. 21-0094 (issued May 27, 2021); L.M.,
Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).
5

Id.

6

R.G., Docket No. 19-1755 (issued July 7, 2020); G.R., supra note 4; M.E., supra note 4.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DENVER VETERANS ADMINISTRATION
MEDICAL CENTER, Denver, CO, Employer
__________________________________________

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Appearances:
Gregory A. Hall, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1279
Issued: December 6, 2007

Case Submitted on the Record

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

JURISDICTION
On April 10, 2007 appellant, through counsel, filed a timely appeal of May 2, 2006 and
January 10, 2007 merit decisions of the Office of Workers’ Compensation Programs, denying
her claim for wage-loss compensation for total disability during the period February 17 to
August 7, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that she was totally disabled from
February 17 to August 7, 2005 due to her accepted employment injury.
FACTUAL HISTORY
On October 20, 2004 appellant, then a 38-year-old licensed practical nurse, filed a
traumatic injury claim alleging that on October 18, 2004 she experienced lower back pain as a
result of lifting a patient from a bed to a gurney at work. She stopped work on October 20, 2004.

By letter dated November 3, 2004, Judy Schriver, a workers’ compensation program
manager, advised Dr. Linda M. Tetor, an attending Board-certified family practitioner, that the
employing establishment wished to offer appellant light-duty work. Dr. Tetor was advised to
complete an accompanying work capacity evaluation (Form OWCP-5c) after examining
appellant. On November 9, 2004 the Office received an October 20, 2004 OWCP-5c form from
Dr. Tetor who stated that appellant could not perform her regular work duties but that she could
work eight hours per day with restrictions until October 26, 2004. In a prescription dated
November 8, 2004, Dr. Tetor reiterated that appellant could work four hours per day starting on
November 9, 2004. In an OWCP-5c form also dated November 8, 2004 and a November 9, 2004
report, she stated that appellant was temporarily restricted from bending, skipping, twisting and
lifting, pushing and pulling more than 10 pounds and squatting, kneeling and climbing with more
than 10 pounds due to her back injury. Dr. Tetor recommended 15-minute breaks.
In a November 8, 2004 letter, appellant advised the employing establishment that she was
resigning effective November 9, 2004 because she had a bulging disc in her lower sacrum and
she could no longer lift total care and heavy patients. She stated that she could not work in a
light-duty position at the employing establishment’s hospital because she would have to park her
car six blocks away every day.
By letter dated January 6, 2005, the Office accepted appellant’s claim for lumbar strain.
In a September 12, 2005 letter, the employing establishment stated that appellant resigned
on November 6, 2004 from a position that was designed to accommodate her limited-duty
restrictions. An accompanying notice of personnel action indicated that her resignation was
effective November 9, 2004.
On March 11, 2006 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period February 17 to August 7, 2005. She submitted Dr. Tetor’s November 8, 2004
prescription. In a July 12, 2005 form report, Dr. Tetor stated that appellant sustained an injury
on October 20, 2004. She diagnosed low back pain and indicated with an affirmative mark that
this condition was caused by an employment activity. Appellant was released to light-duty work
on November 8, 2004. In a March 23, 2005 report, Dr. Hang T. Nguyen, a chiropractor,
reviewed the history of the October 18, 2004 employment injury. Appellant related to
Dr. Nguyen that she had to resign from her nurse position due to the nature of her employmentrelated back injury. Dr. Nguyen found that appellant sustained lumbar sprain/strain with
associated lumbar joint dysfunction, lumbar disc syndrome with mild radiculopathy, cervical
joint dysfunction with associated myofascial pain syndrome and thoracic joint dysfunction.
By letter dated March 22, 2006, the Office advised appellant that the record did not
contain any medical evidence establishing that she was temporarily totally disabled from
February 17 to August 7, 2005 due to her accepted employment-related injury. Appellant was
afforded 30 days to submit such evidence.
In a letter dated March 26, 2006, appellant stated that she was awaiting discharge orders
from the medical command of the Army Reserve. She did not earn any income during the period
February 17 to August 7, 2005 because she was unable to work due to her work-related back
injury. Appellant contended that she did not sustain a recurrence of disability during the claimed

2

period as she was continuously disabled. She submitted a survey which she completed on
March 22, 2005 for Dr. Joel P. Carmichael, a chiropractor, regarding her neck and back pain. On
July 21, August 30 and September 12 and 26, 2005 appellant also completed a survey for
Dr. Jones concerning her neck and back pain. His July 21, 2005 report and September 12, 2006
treatment note and report indicated that appellant moved in a guarded manner in light of a recent
motor vehicle accident, that her conditions included back spasms and limited range of motion
and that she required physical therapy. A February 3, 2005 report of Dr. John A. Odom, Jr., a
Board-certified orthopedic surgeon, found that appellant sustained Bertolotti’s syndrome and a
L5 and L6 degenerative disc with pressure on the S1 nerve root on the left. Dr. Nguyen’s
treatment notes covering intermittent dates from March 23 to April 25, 2005 and addressed
appellant’s neck and back pain. Appellant’s wage and tax statements from 2004 and 2005
revealed that she was employed at the Defense Finance and Accounting Service. A March 24,
2006 letter from the Department of the Army stated that appellant was honorably discharged
from the Army Reserve effective April 20, 2006.
On May 2, 2006 the Office issued a decision, denying appellant’s claim, on the grounds
that the evidence of record failed to establish that she was totally disabled from February 17 to
August 7, 2005 due to her accepted October 18, 2004 employment injury.
By letter dated May 30, 2006, appellant, through counsel, requested an oral hearing
before an Office hearing representative. An April 19, 2006 report from a physician’s assistant
whose signature is illegible found that appellant sustained a cervical strain, myofascial pain and
fibromyalgia.
In a declaration signed by appellant, on May 31, 2006, she provided her work duties as a
licensed practical nurse at the employing establishment and further described the October 18,
2004 employment injury. She stated that, after she accepted the employing establishment’s job
offer for light-duty sedentary administrative work on November 8, 2004, Ms. Schriver advised
her that the position was no longer available and that she would have to work in ambulatory care
since she was a nurse. On November 9, 2004 appellant resigned due to her medical inability to
perform the duties of the offered nurse position.
An April 14, 2006 treatment note of Robert Mathewson, a physical therapist, stated that
appellant sustained a recurrence of cervical myofascial pain with restricted movements at C3-4
and C4-5 with hypertonicity of the rotators and levator. Also on April 14, 2006 Dr. Jones stated
that appellant tolerated trigger point injections well. In a mostly illegible report dated August 30,
2006, he recommended self-massage.
Following the November 6, 2006 hearing, appellant submitted Dr. Jones’s April 19,
July 13 and August 30, 2006 reports which found that she sustained discogenic lumbar spine
pain with minimal neurologic symptoms, no progressive neurologic loss, lumbar spine
dysfunction with degenerative disc disease, worsening radiculopathy, coexisting sacroiliac joint
dysfunction and resultant functional deficit, and coexisting but unrelated cervical spine and
scapular dysfunction due to a motor vehicle collision.

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By decision dated January 10, 2007, the Office hearing representative affirmed the
May 2, 2006 decision, denying appellant’s claim for compensation for the period February 17 to
August 7, 2005.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.1 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.2 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.3 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.4 The Board will not require the Office to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify his disability and entitlement to compensation.5
ANALYSIS
The Office accepted that appellant sustained a lumbar strain on October 18, 2004 in the
performance of duty. On March 11, 2006 appellant sought compensation for wage loss for total
disability from February 17 to August 7, 2005. The Office, by decisions dated May 26, 2006 and
January 10, 2007, found that appellant was not totally disabled for work during the claimed
period. She has the burden of establishing by the weight of the substantial, reliable and probative
evidence, a causal relationship between her claimed disability and the accepted condition.6
Appellant submitted Dr. Tetor’s November 8, 2004 prescription which released her to
return to work four hours per day on November 9, 2004. However, Dr. Tetor did not address
whether appellant was totally disabled during the claimed period due to her accepted
employment-related injury and is devoid of a history of injury and treatment therefore. The
Board, therefore, finds that Dr. Tetor’s prescription does not support appellant’s claimed total
disability from February 17 to August 7, 2005.

1

See Prince E. Wallace, 52 ECAB 357 (2001).

2

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

3

Gary J. Watling, 52 ECAB 278 (2001).

4

Manuel Garcia, 37 ECAB 767 (1986).

5

Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005); Fereidoon Kharabi, 52
ECAB 291 (2001).
6

Alfredo Rodriguez, 47 ECAB 437 (1996).

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Dr. Tetor’s July 12, 2005 form report found that appellant sustained low back pain on
October 20, 2004. She indicated with an affirmative mark that this condition was caused by an
employment activity. Appellant was released to light-duty work on November 8, 2004. A
physician’s mere diagnosis of pain, without more by way of an explanation, does not constitute a
basis for payment of compensation.7 Further, Dr. Tetor’s report does not provide any medical
rationale explaining how or why appellant’s condition was caused by the accepted employment
injury.8 Moreover, she does not address appellant’s total disability from February 17 to
August 7, 2005. The Board finds that Dr. Tetor’s report is insufficient to establish appellant’s
claim.
The March 23, 2005 report of Dr. Nguyen, a chiropractor, found that appellant sustained
lumbar sprain/strain with associated lumbar joint dysfunction, lumbar disc syndrome with mild
radiculopathy, cervical joint dysfunction with associated myofascial pain syndrome and thoracic
joint dysfunction. His treatment notes covering intermittent dates from March 23 to April 25,
2005 addressed appellant’s neck and back pain. Dr. Nguyen did not diagnose a spinal
subluxation as shown on x-ray. Therefore, he is not considered a physician under the Act and his
opinion is of no probative value.9
Dr. Jones’s July 21, 2005 report and September 12, 2006 treatment note and report found
that appellant moved in a guarded manner in light of a recent motor vehicle accident, that her
conditions included back spasms and limited range of motion and that she required physical
therapy. On April 14, 2006 he stated that appellant tolerated trigger point injections well. In a
mostly illegible report dated August 30, 2006, Dr. Jones recommended self-massage. His
April 19, July 13 and August 30, 2006 reports found that appellant sustained discogenic lumbar
spine pain with minimal neurologic symptoms, no progressive neurologic loss, lumbar spine
dysfunction with degenerative disc disease, worsening radiculopathy, coexisting sacroiliac joint
dysfunction and resultant functional deficit, and coexisting but unrelated cervical spine and
scapular dysfunction due to a motor vehicle collision. Dr. Odom’s February 3, 2005 report
which found that appellant sustained Bertolotti’s syndrome and a L5 and L6 degenerative disc
with pressure on the S1 nerve root on the left is insufficient to establish appellant’s claim.
Neither Dr. Jones nor Dr. Odom addressed the causal relation between appellant’s diagnosed
conditions and accepted employment-related injury or identified any total disability during the
claimed period. The Board finds that the reports of Dr. Jones and Dr. Odom and Dr. Jones’
treatment note are insufficient to establish appellant’s claim.

7

Robert Broome, 55 ECAB 493 (2004).

8

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

9

5 U.S.C. § 8101(2); 20 C.F.R. § 10.311(a); Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams, 44
ECAB 530 (1993).

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The April 19, 2006 report of a physician’s assistant and the April 14, 2006 treatment note
of Mr. Mathewson, a physical therapist, do not constitute probative medical evidence inasmuch
as a physician’s assistant10 and a physical therapist11 are not considered physicians under the Act.
Appellant failed to submit rationalized medical evidence establishing that her total
disability during the period February 17 to August 7, 2005 resulted from the residuals of her
accepted October 18, 2004 lumbar strain. The Board finds that she has not met her burden of
proof.
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled from
February 17 to August 7, 2005 due to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2007 and May 2, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

5 U.S.C. § 8101(2); Ricky S. Storms, 52 ECAB 349 (2001).

11

Vickey C. Randall, 51 ECAB 357, 360 (2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 10-1978
Issued: May 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 27, 2010 appellant filed a timely appeal from a January 27, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant
to the Federal Employees’ Compensation Act1 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 that he sustained an
injury in the performance of duty on April 16, 2009.
FACTUAL HISTORY
On May 14, 2009 appellant, then a 64-year-old forklift operator, filed a traumatic injury
claim (Form CA-1) alleging that on April 16, 2009 he sustained a lower back, left thigh and right
leg injury when he was getting off his forklift and felt pain in his low back. The employing
1

5 U.S.C. § 8101 et seq.

establishment indicated that appellant stopped work on April 24, 2009 and first received medical
care on April 22, 2009. It controverted the claim alleging that it had no knowledge of the
incident and because of the amount of time it took him to report the incident.
By letter dated May 14, 2009, appellant stated that on April 16, 2009 he was getting off
his forklift and experienced pain in his lower back. He told his supervisor and coworkers and
was given some pain medication. Appellant did not go to a physician because he felt okay and
noted that he had prior back surgery in December 2006 and would take Tylenol for pain. On
April 27, 2009 he got up to use the restroom but could not stand because the pain was severe
from his low back to his right foot. It was then that appellant went to Southern Region Hospital
Emergency room and was diagnosed with chronic back pain.
An April 27, 2009 Southern Regional Medical Center Emergency Discharge report
diagnosed appellant with chronic back pain and prescribed methylprednisolone, lioresal,
hydrocodone and acetaminophen. Robert Prafford, a nurse practitioner, noted that appellant
could return to work on April 29, 2009 with no work restrictions.
Return to work notes dated April 28 to May 5, 2009 from Dr. Christopher Haraszti, a
Board-certified orthopedic surgeon, reported that appellant was unable to work and was under
the physician’s care.
By letter dated May 22, 2009, the Office informed appellant that the evidence received
failed to establish that he sustained an injury. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
In a May 20, 2009 medical report, Dr. Haraszti noted that appellant was getting off
forklift at work and felt pain in his lower back. On April 27, 2009 appellant woke up with
excruciating pain running down the right leg to the big toe and had pain on the lateral side of the
lower leg with some tingling on the anterior of the left thigh. Dr. Haraszti noted that appellant’s
pain was still bothering him and was similar to the pain experienced from his back injury in
December 2006. Upon physical examination of the low back, he noted palpable paravertebral
muscle tightness bilaterally and tenderness over the sciatic nerves at the buttocks. A magnetic
resonance imaging (MRI) scan showed a T1 hyperintense and T1 hypointense material within
the right lateral recess at L4-5 causing impingement on the descending right L5 nerve root.
Dr. Haraszti also noted bilateral neural foraminal stenosis at L4-5 and L5-S1 with some edema in
the right paraspinal soft tissues superficial to the sacrum. He diagnosed right lumbar
radiculopathy, recommended epidural steroid injections and physical therapy and advised that it
would be difficult for appellant to go back to work. Dr. Haraszti referred appellant to Dr. Galan
for evaluation and treatment of the right lumbar radiculopathy.
By letter dated June 1, 2009, appellant stated that he had been working for the postal
service since August 16, 1986 and had been injured three times before. He reported that he
delayed in filing the accident report because he could not walk but that his employer knew of his
condition.
By decision dated July 8, 2009, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that he sustained an injury.

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On July 29, 2009 appellant requested an oral hearing before an Office hearing
representative. He submitted a letter and witness statements which attested to the April 16, 2009
incident.
In a June 4, 2009 medical report, Mansour Jazayeri, a physician’s assistant, noted
appellant’s emergency room visits and diagnosis of right leg radiculopathy.
A July 1, 2009 duty status report with an illegible physician signature diagnosed lumbar
radiculopathy and noted that appellant was getting off a forklift and felt pain in his lower back,
left thigh and right leg.
In medical reports dated May 5 to October 20, 2009, Dr. Haraszti reiterated appellant’s
traumatic incident on April 16, 2009 and diagnosed impingement on right L5 nerve root due to
extruded disc verse postoperative scar and bilateral neural stenosis at L4-5 and L5-S1. He noted
that appellant continued to have back pain and should continue physical therapy.
At the November 18, 2009 hearing, the Office hearing representative found that the
April 16, 2009 incident occurred as alleged. The hearing representative noted, however, that the
medical evidence was insufficient to establish a causal relationship between the claimed bad
condition and the employment incident. She advised appellant as to the necessary medical
evidence and held the record open for 30 days.
In a November 24, 2009 medical report, Dr. Haraszti opined that appellant’s low back
pain and numbness of the lateral calf and big toe were due to his injury from December 2006 and
seemed to be an exacerbation of his chronic radiculopathy that started in December 2006.
In a December 15, 2009 electromyogram (EMG) and nerve conduction study (NCS),
Dr. Sara Shuler, a Board-certified neurologist, reported that appellant’s study showed no
evidence of active radiculopathy, myopathy or peripheral neuropathy of the lower extremities.
By decision dated January 27, 2010, the Office hearing representative affirmed the July 8,
2009 decision, as modified, to reflect that the April 16, 2009 incident occurred as alleged. The
hearing representative found, however, that the medical evidence did not support that appellant’s
back condition was causally related to the April 16, 2009 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the

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employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 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 relationship between the diagnosed condition and the
specific employment factors identified by the claimant. This medical opinion must include an
accurate history of the employee’s employment injury and must explain how the condition is
related to the injury. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
The Office accepted that the April 16, 2009 incident occurred as alleged. The issue is
whether appellant established that the incident caused a lower back or leg injury. The Board
finds that he did not submit sufficient medical evidence to support that his injury is causally
related to the April 16, 2009 employment incident.7
In medical reports dated May 5 to November 24, 2009, Dr. Haraszti noted that appellant
was getting off the forklift at work and felt pain in his lower back. An MRI scan was obtained
and he diagnosed right lumbar radiculopathy and impingement on right L5 nerve root due to
extruded disc verse postoperative scar and bilateral neural stenosis at L4-5 and L5-S1.
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

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

4

Elaine Pendleton, supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

4

Dr. Haraszti recommended epidural steroid injections, physical therapy and restricted appellant
from returning to work. In his November 24, 2009 report, he opined that appellant’s low back
pain and numbness of the lateral calf and big toe were due to his injury from December 2006 and
seemed to be an exacerbation of his chronic radiculopathy that started in December 2006.
The Board finds that the opinion of Dr. Haraszti is not well rationalized. While
Dr. Haraszti diagnosed appellant’s condition, he failed to address the causal relationship between
the low back radiculopathy and the April 16, 2009 employment incident. The reports provided a
detailed explanation of the MRI scan but failed to provide any opinion on the cause of the injury.
The reports suggest that appellant’s back condition resulted from a previous injury in
December 2006 rather than a new traumatic injury. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.8 Without medical reasoning explaining how
the April 16, 2009 employment incident caused or contributed to his back and leg injury,
Dr. Haraszti’s report is insufficient to meet appellant’s burden of proof.9
The remaining medical evidence of record is also insufficient to establish a causal
relationship between appellant’s injury and the April 16, 2009 employment incident. Registered
nurses, licensed practical nurses and physicians assistants are not physicians as defined under the
Act and their opinions are of no probative value.10 The return to work notes from Dr. Haraszti
and the December 15, 2009 EMG and NCS from Dr. Shuler failed to address the causal
relationship between appellant’s injury and the April 16, 2009 employment incident. Moreover,
Dr. Shuler reported that appellant’s study showed no evidence of active radiculopathy, myopathy
or peripheral neuropathy of the lower extremities.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.11 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.12 Causal relationships must be established by rationalized medical opinion evidence.
Appellant failed to submit such evidence and the Office properly denied his claim for
compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on April 16, 2009 in the performance of duty, as alleged.
8

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

9

C.B., Docket No. 08-1583 (issued December 9, 2008).

10

5 U.S.C. § 8102(2) of the Act provides as follows: (2) physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.
11

Daniel O. Vasquez, 57 ECAB 559 (2006).

12

D.D., 57 ECAB 734 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Docket No. 15-1231
Issued: February 2, 2016

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

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 12, 2015 appellant filed a timely appeal from an April 23, 2015 merit decision of
the Office of Workers’ Compensation Programs. 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 the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On February 17, 2014 appellant, then a 56-year-old consumer and industry contact (C &
IC) manager, filed an occupational disease claim (Form CA-2) alleging that she sustained
“stress/back/neck” conditions as a result of her employment. She first became aware of her
1

5 U.S.C. § 8101 et seq.

condition on January 7, 2014. Appellant explained that due to the endless questioning of her
leadership style and communication abilities, she was subjected daily to a dictatorial and hostile
environment created by her immediate manager, L.B. She indicated that the work environment
consisted of: no questions asked; mistakes not tolerated; performance without questioning
authority; intimidation; bullying; undermining; policing; micromanaging; and no dignity and
respect. The record does not indicate that appellant stopped work. The employing establishment
controverted the claim.
Return to work notes dated August 30, 2013 and January 10, 2014 from Dr. Mark D.
Schneider, an osteopath and family practitioner, were submitted. A timesheet with hand notation
“[Family and Medical Leave Act] (FMLA) disapproved February 13, 2014” was received along
with a January 7, 2014 routing slip from L.B., marketing manager, noting a discussion with
appellant on January 7, 2014 covering irregular attendance, unauthorized leave, and unscheduled
days taken December 27, 2013 and January 2, 2014, and a performance improvement plan for
the Consumers Affairs Department to achieve the goals of the Los Angeles District.
In a March 12, 2014 letter, OWCP advised appellant of the deficiencies in the evidence
and requested additional factual and medical evidence. This included a detailed description of
her allegations which caused her emotional condition and a narrative medical report from her
treating psychiatrist or psychologist which contained her medical history, diagnosis, and an
explanation of causation. Appellant was afforded 30 days to submit the requested information.
On April 8, 2014 OWCP received June 3, 2013 and February 11, 2014 disability notes
from Dr. Schneider. In a February 18, 2014 note, Dr. Schneider indicated that appellant was
under his care for stress, back, and neck conditions. He advised that she was totally disabled and
would return for a follow up on April 18, 2014. Documentation from the Employee Assistance
Program (EAP) was also submitted.
In a March 29, 2014 statement, appellant indicated that she worked for L.B. from May 3,
2013 to January 7, 2014 including a 12-month assignment in a Human Resource (HR) unit -Manager Learning Development & Diversity. From the start of the temporary assignment, L.B.
had a dictatorship leadership style and abrasive communication which affected appellant’s health
and psyche, which caused chest pain, problems sleeping, stomach cramps, neck, and back pain,
and upsetting emotions.
Appellant outlined a series of allegations that she indicated caused her financial stress.
L.B. did not approve her sick leave for the period late January to February 2014, for a total of
152 hours despite the fact that she had FMLA and sick leave hours available. L.B. gave
appellant a letter of concern on January 7, 2014 for two annual leave absences from work on
December 27, 2013 and January 12, 2014, although she previously asked for this leave on
December 20, 2013 and the manager in charge at that time, Brenda Coronado, had approved it.
Appellant also had over 500 hours annual leave at that time. When she questioned why she was
given the letter of concern on January 7, 2014 L.B. ended the meeting with a sarcastic remark,
“Go to your Hispanics,” which she considered to be racist. Appellant was sent a May 3, 2013
e-mail by L.B. regarding a congressional letter which was not signed. She found the e-mail
inflammatory because L.B. had already been informed by another manager, Ms. Ramela, that
appellant was not to be disturbed because her father was sick. L.B. did not approve appellant’s

2

bereavement leave for her father’s passing because she disapproved of appellant bereaving for
her father. She also disapproved appellant’s request to leave work to see her mother’s social
worker because she wanted appellant to attend a telecom.
A June 4, 2014 e-mail from L.B. wrote: “I am not comfortable with your failure to
follow instructions.” She summoned appellant to her office around early or middle July 2013
after appellant had expressed her concerns regarding L.B. to the district manager. Appellant
alleged that L.B. stood up and yelled at her while making hand motions because she was upset
that appellant had reported her to the district manager. She alleged that L.B. bullied her on
several occasions from July to August 2013 by asking her whether she had performance issues
yet again.
On August 26, 2013 appellant texted L.B. to request FMLA because of her neck pain.
However, L.B. never submitted appellant’s FMLA request. On September 5, 2013 she gave
appellant an attendance review and commented that appellant had a pattern of being off work on
unapproved leave. Appellant then realized L.B. had coded certain dates as unscheduled leave
(unapproved leave), even though she had submitted her paperwork to L.B. in a timely manner
requesting such approved leave.
L.B. stormed into appellant’s office on September 11, 2013 and asked in a rude and
abusive tone if appellant was answering customer calls and informed her that she had
performance issues yet again. Once appellant was accepted in the EAS Leadership Program, she
alleged that L.B. asked if she wanted to go on a temporary assignment as a safety manager. She
related that this showed that L.B. wanted to get rid of her. While appellant was on temporary
assignment, L.B. sent her two job postings on November 12, 2013. She alleged that this was an
example of L.B. not wanting her to return to her position as a C&IC manager. When the
Learning and Development Department (L&DD) Manager returned on December 2, 2013 L.B.
asked the HR manager, Ms. Robinson, if she wanted appellant for another week in her unit.
Appellant alleged that this was another example that L.B. did not want her back.
On December 16, 2013 appellant’s first day back from her temporary assignment, L.B.
did not allow her to do her Spanish public speaking on television, but instead had a clerk, who
was not media trained, address the media. Appellant alleged that L.B. also had her drive the
clerk to the airport to address the media.
L.B. sent an e-mail to another manager, Ben Rios, asking if he had a temporary
assignment for appellant. Appellant stated that she had no idea that L.B. was inquiring about
temporary assignments for her. This was alleged to be another example that L.B. wanted to get
rid of appellant. She never informed appellant’s former staff that she had returned to her original
position once her temporary assignment was over. L.B. stated that this led appellant’s former
staff to report to the clerk who had covered appellant’s position when she was away. On
December 21, 2013 appellant received an e-mail from L.B. who informed her of changes in
procedure, such as she was not to delegate certain duties even though she is the Manager of
C&IC. She alleged that this e-mail was threatening.
On December 26, 2013 appellant sent an e-mail to L.B. requesting days off for the
holidays. She also reminded L.B. of her earlier July 30, 2013 leave request for December 26, 27,

3

and 31, 2013. Appellant received a December 31, 2013 e-mail from L.B., which stated that
things would be changing. She stated that she perceived this e-mail as threatening. Appellant
indicated that she received an e-mail from an employee whom she supervised who told her what
to do as if she was her supervisor. Since L.B. had allowed this employee to tell appellant what to
do, she perceived this as another form of harassment by L.B. Appellant submitted several
e-mails and statements supporting her allegations. Statements from Miguel Salazar and M.T.
Shooshtari attesting to her character were also received.
On April 15, 2014 OWCP sent a copy of appellant’s allegations to the employing
establishment requesting comments. In a May 15, 2014 statement, L.B. responded to appellant’s
allegations. She indicated that appellant was paid sick leave from January 8 to 17, 2014.
Appellant was verbally notified that she did not have an approved FMLA case and therefore
needed to have acceptable documentation for any unscheduled absences. On January 23, 2014
she was given written notification that she would be placed on leave without pay (LWOP) status
until acceptable documentation was received. On January 31, 2013 appellant notified L.B. that a
specialist had informed her that her FMLA case had been denied in December 2013. L.B. stated
that HR Manager, S. Marney, had informed her that appellant had been advised that her medical
documentation did not meet the requirements of FMLA. She indicated that appellant was
notified on March 28, 2014 that the medical documentation received on February 18, 2014 did
not cover the time period from January 21 to February 14, 2014 and she was requested to
resubmit her application with appropriate medical documentation. L.B. indicated that appellant
returned to pay status on February 18, 2014 the date acceptable medical documentation was
received. She stated that appellant’s FLMA case was not approved until March 10, 2014 and did
not cover January and February 2014. Previous FMLA requests were disapproved by shared
services. Appellant was paid FMLA/LWOP per rules and regulations of the employing
establishment and adjustments were made for all her pay issues.
L.B. denied issuing a letter of concern on January 7, 2014. Instead, appellant was given
an attendance review and discussion because of her unauthorized leave absences on
December 27, 2013 and January 2, 2014. L.B. indicated that appellant had requested the dates
prior to her scheduled vacation, but was told that she was needed to manage and oversee
operations because other managers in the department had already scheduled vacation for those
dates. Appellant requested December 12 and 13, 2013 as alternative dates off and she was
granted those dates. L.B stated that, when she was on vacation, appellant had informed
Ms. Coronado that she had authorized leave by sliding a Leave Request Form under the office
door with a post-it note attached to it. Appellant, however, did not have authorized approval to
take leave on December 27, 2013 and January 2, 2014.
During the January 7, 2014 meeting, appellant told L.B. that she believed that she was
not liked because she was Hispanic. L.B. stated that the meeting was based solely on
performance and had nothing to do with race and she told appellant not to make such
accusations. She stated that appellant called her a racist and she responded, “I am not a racist;
let’s get back to the reason we are here.” L.B. sent appellant an e-mail on May 3, 2013 regarding
the status of a past due congressional complaint letter that required the district manager’s
signature. She denied ever being informed by Manager Ramela not to disturb appellant. L.B.
stated that appellant’s bereavement leave was not disapproved. She indicated that appellant had
sent her a text message when she was out of the office on the day of the meeting requesting to

4

leave the unit because of her need to meet with her mother’s social worker. L.B. stated that she
asked appellant to stay until she returned to the office because of her late request for leave and
the fact that there was no one to cover the meeting if she was not there. She noted that appellant
planned the meeting a week in advance, but did not inform her until the day of the appointment.
L.B. did not recall an e-mail from appellant on June 4, 2014 stating that she was not comfortable
with appellant’s failure to follow instructions. However, she noted that appellant failed to follow
instructions on many occasions.
L.B. denied standing up, yelling at appellant, or making hand motions in front of
appellant during a meeting around early to mid-July 2013 after appellant had spoken to the
district manager about her. She denied bullying appellant from July to August 2013 by asking if
appellant had performance issues yet again. L.B. stated that she had asked appellant if she had
been trained on the programs that were under her responsibility because the records on those
areas were spotty. She provided training when appellant told her that she had not received prior
training.
L.B. denied receiving a text from appellant on August 26, 2013 regarding her FMLA
request due to neck pain. She stated that FMLA requests were made to shared services and not
to management since management does not grant approval for FMLA requests. Appellant was
granted sick leave for the period August 26 to 30, 2013. L.B. stated that appellant was given an
attendance review on September 5, 2013. She noted that appellant’s leave requests were
untimely and that her leave was not scheduled in advance as dictated by FMLA. L.B. denied
storming into appellant’s office on September 11, 2013 and asking in a rude and abusive tone if
she was answering customer calls and stating that she had performance issues yet again.
Appellant stated that she was on vacation in Las Vegas, Nevada on September 11, 2013. L.B.
indicated that appellant brought up the discussion regarding the open position of manager of
health and safety. She told appellant that Ms. Robinson decides the position and she would need
to talk to Ms. Robinson regarding the position.
L.B. indicated that, even though appellant was detailed to human resources, she was still
required to perform evaluations and to oversee her work development through the Executive
Leadership (ELD) program. She indicated that she recommended that appellant apply for areas
she was interested in after her detail. L.B. explained that appellant did not immediately return to
her assignment as she was still needed in L&DD even after the manager, Mr. Burgin, had
returned because many new hires were hired during his absence and he needed to be briefed on
what transpired during his absence.
L.B. explained that the employing establishment does not have an assigned Spanish
public speaker. The clerk selected to speak to the media was specifically requested by the
television company and the Pacific Area Public Speaking/Media Department. This request was
made while appellant was on detail. Appellant was asked to drive the employee to the airport to
address the media as she was on the list to check out vehicles in the district, she was a manger
over the department and the task was arbitrarily assigned to her.
L.B. also noted that instruction from the district and area level directed all support staff
provide lobby assistance to the field office during the holiday season.

5

Other managers were notified by L.B. that appellant was interested in temporary
assignments as appellant had expressed interest in wanting to be a manager/postmaster at the
employing establishment. Appellant had informed L.B. that she had applied for other managerial
positions, but was not selected due to a lack of experience. L.B. stated that, through the ELD
process, she had discussed with appellant getting some field experience in order to be more
qualified when she applied for such positions in the future. As a result, she reached out to other
senior managers to see if there were any details available for appellant. L.B. noted that all the
senior managers were Hispanic, but race did not play a factor in the request.
L.B. stated that appellant did not immediately resume the duties of her permanent
position after she returned, but allowed others to perform her duties. She indicated that the
December 21, 2013 e-mail regarding changes in the department’s workload was sent when
appellant was on detail. As a result, since appellant was on detail, it was obvious that she would
not be delegating duties which pertained to her position as manager of C&IC.
Appellant’s December 26, 2013 e-mail request for leave was never received and L.B. also
noted that she was on vacation during this time period. She further indicated that appellant had
requested December 12 and 13, 2013 as alternative days off in exchange for the original
requested dates of December 26, 27, and 31, 2013. L.B. indicated that the dates appellant
requested had already been taken by other managers.
L.B. stated that the December 31, 2013 e-mail pertained to organizational changes
regarding processes within the department and was not specifically sent to target appellant. She
stated that appellant had requested additional training from her employee, Natashi Garvins, on
how to navigate the programs related to consumer affairs. Since Ms. Garvins was appellant’s
employee and reported to her, L.B. indicated that she was not responsible for Ms. Garvin’s
actions toward appellant. Numerous e-mails supporting L.B.’s statements were submitted.
By decision dated June 20, 2014, OWCP reviewed each of appellant’s allegations and
denied the claim as she had not established compensable employment factors.
On July 2, 2014 appellant, through her counsel, requested an oral hearing before the
Branch of Hearings and Review. After an oral hearing was scheduled, appellant’s counsel
changed the request to a written review of the record by an OWCP hearing representative. In a
January 27, 2015 letter, appellant’s counsel indicated that the claim was based solely on the
physical injuries sustained by appellant.
On April 9, 2015 additional evidence was submitted into the record.2 This included
diagnostic testing and interpretive studies of appellant’s cervical spine and lower extremities.
Medical documentation from Dr. Harley R. Deere, a neurosurgeon, noted neck, shoulder, arm,
and low back problems. In an October 28, 2013 report, he noted that appellant had a lumbar
laminectomy when she was 26 years old and was able to go back to work. Dr. Deere noted
results of diagnostic testing, appellant’s problems throughout the years, and that diagnostic
studies confirmed multilevel disc desiccation from C2-3 through C6-7 and osteoarthritis of the
right hip. He noted that on October 21, 2014 appellant had been under increased emotional
2

The employing establishment was not afforded a copy of the additional evidence.

6

turmoil ever since her last employment and was forced to sit in a very uncomfortable position in
a chair. Appellant felt that she had poor ergonomics as far as the arrangements on her desk were
concerned and she developed increased low back pain. It was her opinion that she was unable to
work because of the back and leg pain.
In a December 9, 2014 report, Dr. Jacob Tauber, a Board-certified orthopedic surgeon,
diagnosed severe degenerative disc disease, cervical, and lumbar spine with cervical stenosis and
sciatica, and degenerative arthritis, right hip. He opined that appellant suffered a permanent
aggravation of her degenerative spinal conditions as a result of a nonergonomic workstation and
keyboarding activity.
By decision dated April 23, 2014, an OWCP hearing representative affirmed the June 20,
2014 decision. The hearing representative noted that the current claim alleged that appellant was
experiencing stress, neck, and back pain as a result of harassment in her work environment. The
decision notes that she never mentioned in her statements allegations regarding her workstation
or keyboarding activity. Appellant was advised that if she wished to pursue a claim for her
orthopedic conditions, as her counsel indicated, she must file a new claim.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition, for which she claims compensation, was caused or
adversely affected by factors of her federal employment. To establish her claim that she
sustained an emotional condition in the performance of duty, appellant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to
her condition; (2) medical evidence establishing that she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to her emotional condition.3 The medical
opinion must be one of reasonable medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.4
It is well established that, in an emotional condition claim, a claimant must first establish
a compensable work factor before the medical evidence is considered.5 A claimant has the
burden of establishing by the weight of the reliable, probative, and substantial evidence that the
condition, for which she claims compensation, was caused or adversely affected by employment
factors.6 This burden includes the submission of a detailed description of the employment

3

See K.M., Docket No. 15-1600 (issued November 6, 2015); Wanda G. Bailey, 45 ECAB 835, 837 (1994);
Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).
4

Roy L. Humphrey, 57 ECAB 734 (2006); Daniel O. Vasquez, 57 ECAB 559 (2006).

5

Richard Yadron, 57 ECAB 207 (2005).

6

Pamela R. Rice, 38 ECAB 838, 841 (1987).

7

factors or conditions, which the employee believes caused or adversely affected the condition or
conditions, for which compensation is claimed.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.8 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.9
An employee’s emotional reaction to administrative or personnel matters generally falls
outside the scope of FECA.10 Although related to the employment, administrative, and personnel
matters are functions of the employing establishment rather than the regular or specially assigned
duties of the employee.11 However, to the extent the evidence demonstrates that the employing
establishment either erred or acted abusively in discharging its administrative or personnel
responsibilities, such action will be considered a compensable employment factor.12
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his or her regular duties, these could constitute employment factors.13
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.14
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.15

7

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

8

Pamela D. Casey, 57 ECAB 260, 263 (2005).

9

Lillian Cutler, 28 ECAB 125, 129 (1976).

10

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

11

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

12

Id.

13

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

14

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

15

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

ANALYSIS
The Board notes that appellant’s allegations do not pertain to her regular or specially
assigned duties under Cutler.16 This claim pertains to her allegation that she experienced stress
and neck, and back pain as a result of her manger’s management style, harassment, and
retaliation.17
Appellant filed an emotional condition claim, which OWCP denied as the evidence did
not establish a compensable factor of employment. Therefore, the Board must review whether
the alleged incidents are covered employment factors under FECA.18
Appellant made a series of specific allegations regarding administrative and personnel
actions with regard to leave matters,19 administrative discipline and assignment and monitoring
of work20 by her manager. In Thomas D. McEuen,21 the Board held that an employee’s
emotional reaction to administrative or personnel matters by the employing establishment is
generally not covered under FECA as such matters pertain to procedures and requirements of
employing establishment and do not bear a direct relation to the work required of the employee.
The Board noted, however, that coverage under FECA would attach if the factual circumstances
surrounding the administrative or personnel action established error or abuse by superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.22
Appellant alleged several matters pertaining to leave. She alleged that her manager
disapproved 152 hours of sick leave for the period late January to February 2014; she had
requested leave for December 25, 27, and 31, 2013, but was not allowed to take leave on
December 27, 2013 and January 2, 2014, although her request was approved by another
manager; her request to leave work to see her mother’s social worker was denied. Appellant’s
manager responded to appellant’s allegations and provided verified reasons for the denial of
leave. Sick leave for the period late January to February 2014 was denied because appellant’s
FMLA case was denied in December 2013 because acceptable medical documentation was not
provided. Appellant had been informed both of the status of her FMLA case and that her
16

28 ECAB 125 (1976).

17

On appeal, appellant noted that she would pursue a separate claim for her physical injuries sustained from the
performance of her duties.
18

See P.E., Docket No. 14-102 (issued April 1, 2014).

19

J.C., 58 ECAB 594 (2007).

20

Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D.
Edwards, 55 ECAB 258, 270 (2004).
21

41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 556 (1991).

22

See Richard J. Dube, 42 ECAB 916, 920 (1991).

9

medical documentation did not meet the requirements of FMLA. Furthermore, the medical
documentation received on February 18, 2014 did not cover the period January 21 to
February 14, 2014. Appellant was not allowed to take off December 27, 2013 and January 2,
2014 because L.B explained that she never received the December 26, 2013 e-mail requesting
leave. L.B. further indicated that appellant had requested to be off December 12 and 13, 2013, in
exchange for the original requested dates of December 26, 27, and 31, 2013 as other managers
had already taken the original days requested by appellant. Appellant’s request to leave work to
see her mother’s social worker was denied as L.B. was notified at the last minute of appellant’s
need to leave work, but she was needed at a meeting.
The Board finds that there is no credible evidence of error or abuse by the employing
establishment in the handling of these administrative matters relating to leave requests. Mere
disagreement or dislike of a supervisory or managerial action will not be compensable absent
evidence of error or abuse.23 The Board finds that appellant has not established any error or
abuse related to these administrative matters.
Appellant alleged that she was issued a letter of concern on January 7, 2014 due to two
annual leave absences from work on December 27, 2013 and January 2, 2014, which her prior
manager, Ms. Coronado, had approved. L.B. stated a letter of concern was not issued on
January 7, 2014. Rather, appellant was given an attendance review because of her unauthorized
absences on December 27, 2013 and January 2, 2014. L.B. explained that before appellant went
on vacation, she told appellant that she was needed at work on those dates because they were
short on managers during the holidays. However, while L.B. was on vacation, appellant had
informed Ms. Coronado that the leave for those dates was authorized. There is no evidence of
error or abuse by the employing establishment in either performing an attendance review for
unauthorized annual leave on December 27, 2013 and January 2, 2014 or the denial of annual
leave on those dates as they were short on managers during the holidays. Thus, appellant has not
established a compensable employment factor relating to these allegations.
Appellant alleged that the May 3, 2013 e-mail by her manager regarding a congressional
letter was inflammatory as the manager was informed by another manager, Ms. Ramela, that
appellant was not to be disturbed because of her sick father. The manager acknowledged
sending the May 3, 2013 e-mail. However, she denied being informed not to disturb appellant.
There is no evidence of abuse. Appellant did not provide any evidence to substantiate her
allegation that Ms. Ramela told her manager that appellant did not want to be disturbed.
Appellant alleged that several instances where she perceived her manager did not want
her to return to her old position after her temporary assignment was over. She stated that her
manager sent her two job postings on November 12, 2013 when she was on temporary
assignment; her manager asked the HR manager if she wanted her for another week in her unit
after the LD&D manager had returned; and sent an e-mail to another manager, Mr. Rios, asking
whether he had a temporary assignment for her; appellant’s manager responded that she was
required to oversee appellant’s work development through the ELD program and the job
recommendations were part of appellant’s work development. Appellant explained that, even
23

A.K., Docket No. 14-437 (issued June 9, 2014).

10

though the LD&D manager had returned, she was still needed because a new personnel were
hired during that manager’s absence and appellant needed to brief that manager on what
transpired during his absence. She further stated that since appellant had expressed an interest in
wanting to be a manager and postmaster at the employing establishment, gaining field experience
through temporary assignments was the best way to make her more eligible for such positions,
and this was why other managers were notified that appellant was interested in temporary
assignments.
The Board finds that there is no evidence that appellant’s manager acted abusively in
either sending appellant job postings or notifying other managers that she was interested in
temporary work assignments. There is also no evidence of managerial abuse in recommending
to another manager that she work another week in her temporary assignment after that unit’s
manager had returned. Mere perceptions of harassment or abuse, absent any factual
substantiation, is not in the performance of duty.24 Thus, appellant’s reactions are not
compensable work factors.
Appellant considered several e-mails from her manager threatening. This included a
December 21, 2013 e-mail, which stated that she was not to delegate certain duties even though
she was manager of C&IC; and a December 31, 2013 e-mail indicating that things were
changing. The manager explained that the December 21, 2013 e-mail was sent to appellant
while she was on temporary assignment. Since appellant was on detail to another department, it
was obvious that she would not be delegating duties as a manager of C&IC. The December 31,
2013 e-mail pertained to organizational changes on processes within the department and was not
sent to target appellant. There is no evidence of error or managerial abuse. Mere perceptions of
harassment or abuse, absent any factual substantiation, is not in the performance of duty.25
Furthermore, the fear of losing one’s job or job security in not sufficient to constitute personal
injury in the performance of duty.26 Thus, appellant has not established compensable
employment factors.
Following appellant’s return from her temporary assignment, she alleged that her
manager did not allow her to do Spanish public speaking on television on December 16, 2013,
but rather had a clerk perform the task and that she had to drive the clerk to the public speaking
engagement. She also alleged that her manager did not report to her staff that she had returned to
her original position once her temporary assignment was over which led to her old staff reporting
to the clerk who covered her position while she was away. L.B. explained that the employing
establishment did not have an assigned Spanish public speaker; that the clerk in question was
specifically requested by the television company while appellant was on temporary assignment,
and since she was eligible to use an employing establishment vehicle, she was asked to drive the
clerk to the speaking engagement. She also explained that appellant did not immediately resume
her duties once she returned to her permanent position.

24

Supra note 14.

25

Id.

26

Purvis Nettles, 44 ECAB 623 (1993); Lorraine E. Schroder, 44 ECAB 323 (1992).

11

The Board again finds that these allegations do not establish any abuse by management.
Thus, appellant’s reactions are not compensable work factors.
OWCP found that the record did not substantiate that the following alleged incidents
occurred: during an attendance review on January 7, 2014, the manger made the remark for
appellant to “Go to yours Hispanics;” that her bereavement leave was not approved; that a
June 4, 2014 e-mail from the manager stated: “I am not comfortable with [appellant’s] failure to
follow instructions;” that during a July 2013 meeting, the manager stood up and yelled at
appellant while making hand motions; that the manger bullied appellant on several occasions
from July to August 2013 by asking if she had performance issues again; that the manger never
submitted appellant’s FMLA request of August 26, 2013; that the manager coded certain dates as
unscheduled leave; that the manager stormed into appellant’s office on September 11, 2013; that
the manager asked her to go on a temporary assignment as a safety manager; and that appellant
received instructions from an employee she supervised.
L.B. specifically denied these allegations. The manager also provided detailed
background information to explain the context of appellant’s allegations. Appellant has not
provided any eyewitness statements or probative evidence to substantiate her allegations. To
establish entitlement to benefits, a claimant must establish a factual basis for the claim by
supporting her allegations with probative and reliable evidence.27 The Board finds that the
factual evidence fails to support appellant’s allegations of harassment in the above matters. The
Board thus finds that appellant has not established a factual basis for her allegation that she was
harassed. Therefore, appellant has failed to establish a compensable factor of employment.
As appellant has not established a compensable factor of employment it is unnecessary to
address the medical evidence of record.28
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

27

See G.S., Docket No. 09-764 (issued December 18, 2009); Frank A. McDowell, 44 ECAB 522 (1993);
Ruthie M. Evans, 41 ECAB 416 (1990).
28

See Margaret S. Kryscki, 43 ECAB 496 (1992).

12

ORDER
IT IS HEREBY ORDERED THAT the April 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2016
Washington, DC

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

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

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 12-158
Issued: June 8, 2012

Case Submitted on the Record

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

JURISDICTION
On October 26, 2011 appellant filed a timely appeal from a May 5, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) with respect to payment of a lump
sum for a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for a lump-sum payment
of his schedule award.

1
2

5 U.S.C. § 8101 et seq.

The record contains a schedule award decision dated January 25, 2011 and a January 13, 2011 decision, finding
appellant’s wage-earning capacity was represented by the selected position of information clerk. The Board has
jurisdiction over final OWCP decisions issued within 180 days of the filing of the appeal. Therefore, the Board does
not have jurisdiction over the January 13 and 25, 2011 decisions on this appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
OWCP accepted that appellant sustained a left knee anterior cruciate ligament (ACL) tear
and left knee patellofemoral arthritis in the performance of duty on July 2, 1992.3 Appellant
received compensation for wage loss through January 15, 2011, when OWCP determined he no
longer had a loss of wage-earning capacity.
With respect to permanent impairment to the left leg, OWCP issued schedule awards for
a 16 percent impairment on January 23, 1998, a 17 percent impairment on January 19, 2003 and
a 4 percent impairment on December 13, 2004. By decision dated January 25, 2011, it found
that appellant was entitled to an additional 30 percent permanent impairment to the left leg. The
period of the award was 86.40 weeks from January 16, 2011.
By letter dated February 22, 2011, appellant requested a lump-sum payment of the
schedule award or five months in advance. In a letter dated March 7, 2011, OWCP advised
appellant that a determination of a lump-sum payment was based on whether such a payment
would be in his best interest. It indicated that appellant should submit evidence showing that the
schedule award was not a substitute for wages.
By letter dated March 23, 2011, appellant again stated that he would like to receive a
lump sum or a five-month advance. On April 1, 2011 OWCP responded that if he had returned
to work or was receiving a retirement annuity, then a lump sum may be in his best interest as it
would not be a substitute for lost wages. It advised appellant that he had an additional 30 days to
submit relevant evidence. On April 25, 2011 OWCP received a Form EN1032 dated
April 9, 2011.4 Appellant indicated that he had no employment for the 15-month period covered
by the form, nor had he received federal benefits or payments.
In a decision dated May 5, 2011, OWCP denied appellant’s request for a lump-sum
payment. It found the evidence did not establish that a lump sum was in his best interest.
LEGAL PRECEDENT
Section 8135(a) of FECA,5 which allows for the discharge of the liability of the United
States by payment of lump sums, affords the Secretary of Labor discretionary authority to use
lump sums as a means of fulfilling the responsibility of OWCP in administering FECA.
OWCP’s regulations provide that there is “no absolute right to a lump-sum payment” with
respect to a schedule award.6 A lump-sum payment may be made to an employee entitled to a
3

An April 12, 2010 memorandum to an OWCP medical adviser stated that the accepted conditions were a medial
meniscus tear, complications of internal prosthetic device, left knee ankylosis and left knee osteoarthritis. The
accepted conditions, according to a January 22, 2010 statement of accepted facts (SOAF), were left knee ACL tear
and patellofemoral arthritis.
4

The EN1032 form requests information regarding employment, volunteer work, dependents and receipt of other
federal benefits or payments.
5

5 U.S.C. § 8135.

6

20 C.F.R. § 10.422(b).

2

schedule award “where OWCP determines that such a payment is in the employee’s best
interest.”7 The regulations provide that a lump-sum payment “generally will be considered in the
employee’s best interest only where the employee does not rely upon compensation payments as
a substitute for lost wages (that is, the employee is working or receiving annuity payments).”8
ANALYSIS
Appellant received a schedule award for 86.40 weeks of compensation commencing
January 16, 2011. He requested a lump-sum payment or an advance of five months of payments.
There is no provision for an advance payment of a portion of a schedule award. As noted,
OWCP does have discretionary authority to grant a single, lump-sum payment for a schedule
award if it is determined to be in the employee’s “best interest.”
The record reveals that appellant is not currently working or receiving annuity payments
or other benefits. The EN1032 form received on April 25, 2011 did not report any employment
or receipt of retirement annuity payments. Based on the evidence of record, appellant was
relying on the schedule award payments as a substitute for lost wages. He provided no evidence
that he was working or receiving a regular income. Based on the standard set forth at 20 C.F.R.
§ 10.422(b), OWCP found there was no evidence that a lump-sum payment would be in his best
interest.
The Board finds that OWCP did not abuse its discretion in denying the request for a
lump-sum payment. OWCP explained its finding to appellant and the evidence of record
supports the finding that a lump-sum payment was not in appellant’s best interest. Pursuant to
20 C.F.R. § 10.422(b), OWCP properly denied the request for a lump-sum payment.
On appeal, appellant refers to a travel refund not being reimbursed, and that he was told
“those claims” would be paid. The only final OWCP decision before the Board on this appeal is
the denial of the lump-sum request regarding his schedule award. Appellant must pursue other
issues with OWCP in an appropriate manner.
CONCLUSION
The Board finds that OWCP properly denied the request for a lump-sum payment of the
July 25, 2011 schedule award.

7

Id.

8

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2011 is affirmed.
Issued: June 8, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HEALTH ADMINISTRATION CONNECTICUT
HEALTHCARE SYSTEM, West Haven, CT,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1231
Issued: November 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 25, 2016 appellant, through counsel, filed a timely appeal from a March 8, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed between the last merit decision dated October 2, 2015 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review 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

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 14, 1980 appellant, then a 32-year-old nurse, sustained a traumatic injury to her
right knee. OWCP accepted the claim for right knee chondromalacia and left medial meniscus
tear. Appellant retired from the employing establishment in 2008.
On December 12, 2014 appellant filed a claim for a schedule award (Form CA-7). In
support of her claim, she submitted an October 14, 2014 note from Dr. Michael P. Bolognesi, a
Board-certified orthopedic surgeon. Dr. Bolognesi reported that appellant had reached
maximum medical improvement (MMI) for both knees.
By letter dated December 18, 2014, OWCP advised appellant that further evidence was
necessary to establish her claim. It requested that Dr. Bolognesi submit an impairment
evaluation in accordance with the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment4 (A.M.A., Guides). Appellant was afforded 30 days to
submit the requested information. No evidence was received.
By decision dated January 26, 2015, OWCP denied appellant’s claim for schedule award
finding that the medical evidence failed to demonstrate any permanent impairment to a
scheduled member or function of the body.
On February 2, 2015 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. A hearing was held on August 12, 2015. Appellant was not
present. At the hearing, counsel indicated that an impairment rating by a treating physician
would be submitted in support of the claim. Following the hearing, no evidence was received.
By decision dated October 2, 2015, OWCP’s hearing representative affirmed the
January 26, 2015 decision finding that the medical evidence of record was insufficient to
establish a ratable impairment.
On February 9, 2016 appellant, through counsel, requested reconsideration of the
October 2, 2015 decision. Counsel noted submission of a report from Keith L. Blankenship, a
licensed physical therapist (PT), not previously considered, in support of appellant’s claim.
In a June 26, 2015 report, PT Blankenship provided a history of appellant’s bilateral knee
condition for an impairment evaluation of her left knee joint and right patellofemoral joint in
accordance with the sixth edition of the A.M.A., Guides.5 Using the Knee Regional Grid,6
4

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

5

Id.

6

Id. at 509, Table 16-3.

2

PT Blankenship provided a diagnosis category and class rating for each knee. He described his
conclusions relative to the grade modifiers for functional history, physical examination, and
clinical studies. Using the net adjustment formula, PT Blankenship determined that appellant
sustained two percent left lower extremity permanent impairment and three percent permanent
right lower extremity impairment. Located below PT Blankenship’s signature was a signature
line for Dr. Thomas Vail, a Board-certified orthopedic surgeon. The report was not signed by
Dr. Vail.
By decision dated March 8, 2016, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included relevant and pertinent
new evidence. It noted that the impairment rating provided was not signed by a physician.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.7 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.8
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In the February 5, 2016 application for reconsideration, counsel did not establish that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument.
Counsel alleged that submission of a report from PT Blankenship established appellant’s
claim for a schedule award. Entitlement to a schedule award is a medical issue which must be
addressed by relevant medical evidence.9 In this case, appellant failed to submit relevant and
pertinent new evidence establishing permanent impairment to a scheduled member or function of
the body.10
7

D.K., 59 ECAB 141 (2007).

8

K.H., 59 ECAB 495 (2008).

9

See Bobbie F. Cowart, 55 ECAB 746 (2004).

10

C.B., Docket No. 08-1583 (issued December 9, 2008).

3

While appellant submitted a new report from PT Blankenship dated June 26, 2015, this
report is not pertinent new and relevant medical evidence. Although PT Blankenship provided
detailed findings and explained his impairment rating for the left and right lower extremity, it is
not relevant to the issue of permanent impairment as a report from a physical therapist does not
constitute medical evidence for purposes of a schedule award.11 Specifically, PT Blankenship’s
report is insufficient to warrant further merit review as it was not signed by a physician.12
Registered nurses, physical therapists, and physician assistants, are not considered physicians as
defined under FECA, and therefore their opinions are of no probative value.13
While the report contained a signature line for Dr. Vail, there is no indication that he
created or reviewed the report as he failed to co-sign the document. Appellant failed to provide a
detailed report from a physician to explain and support permanent impairment to a scheduled
member such that she would be entitled to a schedule award.14 The Board has held that the
submission of evidence which does not address the particular issue involved does not constitute a
basis for reopening a case.15
In this case, appellant failed to submit any relevant and pertinent new evidence
addressing permanent impairment to a scheduled member such that she would be entitled to a
schedule award.16
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
11

C.B., Docket No. 13-1734 (issued November 4, 2013).
September 4, 2014).
12

See also C.C., Docket No. 14-0884 (issued

See C.G., Docket No. 13-1519 (September 25, 2014).

13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
14

Supra note 12.

15

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

16

See E.M., Docket No. 16-0471 (issued May 16, 2016).

4

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2016
Washington, DC

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

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

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

5