United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charlotte, NC, Employer
__________________________________________

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

Docket No. 10-1157
Issued: January 6, 2011

Case Submitted on the Record

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

JURISDICTION
On March 24, 2010 appellant filed a timely appeal from a March 8, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 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 to establish that she sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On January 29, 2004 appellant, then a 43-year-old transportation security screener, filed a
traumatic injury claim alleging that she pulled a muscle in her left lower back on that day while
lifting a bag off a conveyor. A witness who was working alongside her did not see her lifting a
bag, but was advised that she was hurt. Appellant stopped working on February 2, 2004 and
returned on February 4, 2004.

A March 5, 2004 work release signed by Dr. David Peltzer, a Board-certified family
practitioner, noted treating appellant beginning March 2, 2004 and released her to return to work
on March 9, 2004. He diagnosed neck and back pain and fibromyalgia in an August 17, 2004
treatment note.
In a March 10, 2004 work status form, Dr. Craig D. Brigham, a Board-certified
orthopedic surgeon, diagnosed a shoulder sprain and checked the “yes” box in response to a
question asking whether appellant’s injury was work related. He released her to modified duty
for two weeks. Dr. Brigham’s August 9, 2004 notes diagnosed cervical sprain and fibromyalgia
and released appellant to return to work on August 16, 2004 while a form report of the same date
checked a box “yes” indicating that her condition was work related.
In a September 14, 2004 note, Dr. Patrick Box, a Board-certified rheumatologist,
prescribed light duty for two months due to appellant’s myofascial pain. He specified in
September 22 and October 13 2004 evaluations that she was not to lift or carry baggage, push or
pull, bend or stoop or conduct bag searches. Dr. Box also recommended in a December 2, 2004
note that appellant stay on light duty until December 30, 2004.
Notes dated December 7, 2004 and signed by a family nurse practitioner advised that
appellant was unable to perform her work duties between December 3 and 7, 2004 due to a head
cold. The nurse practitioner released her to return to work on December 8, 2004.
On October 30, 2008 appellant’s representative inquired as to the status of the claim.1
Appellant subsequently submitted physical therapy records for the period July 13, 2005 to
February 27, 2008 and progress notes from Dr. Neal M. Goldberger, a Board-certified
anesthesiologist, beginning August 25, 2005. In Dr. Goldberger’s notes for the period August 25
to November 18, 2005, he stated that she complained of lower back discomfort radiating down
the posterolateral aspect of her thighs and legs. He reported that magnetic resonance imaging
(MRI) scan of her lumbar spine demonstrated a slightly leftward L5-S1 disc protrusion.
Dr. Goldberger examined appellant and observed tenderness of the bilateral sacroiliac (SI) joint
and myofascial tenderness of the bilateral lumbar paravertebral and gluteus medius muscles. He
diagnosed lumbar root irritation, significant bilateral SI joint bursitis and myofascial pain. On
January 12, 2006 Dr. Goldberger reported that he would address appellant’s condition once her
workers’ compensation case reopened. A February 1, 2006 note detailed that lumbar facet
injections were approved. On May 24, 2006 Dr. Goldberger commented that appellant
complained of significant left shoulder pain and was “out of work secondary to cervical disc
injury that was work related.” A physical examination showed myofascial tenderness of the
pectoralis major, gluteus medius and thoracic, cervical and lumbar paravertebral muscles.
Dr. Goldberger diagnosed myofascial pain syndrome and lumbar discogenic pain.
In a December 3, 2008 letter, the Office informed appellant that her initial traumatic
injury claim had not been fully processed and no condition had been accepted as employment
related. The claim had been received as a simple, uncontroverted case resulting in minimal or no
1

The record reflects that appellant filed a notice of recurrence on September 2, 2005, alleging that she sustained a
spinal injury on April 7, 2004 while on limited duty for the employing establishment. The record does not reflect
that the Office issued a decision on that claim.

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time lost from work and payment was approved for limited medical expenses without formal
adjudication.
Appellant submitted a December 7, 2008 physical therapy referral form in which
Dr. Chason S. Hayes, a Board-certified orthopedic surgeon, diagnosed left shoulder pain and
approved physical therapy services.
In a July 1, 2009 letter, the Office informed appellant that the evidence submitted was
insufficient to establish her claim for a traumatic injury on January 29, 2004 and advised her of
the evidence needed to establish her claim. No subsequent evidence was received.
By decision dated August 4, 2009, the Office denied appellant’s traumatic injury claim,
finding that the factual and medical evidence was insufficient to establish her claim.
Appellant requested a telephonic hearing which was held on December 14, 2009. At the
hearing, she testified that she felt a stabbing pain in her lumbar region after picking up a heavy
bag from a conveyor and turning slightly on January 29, 2004. Appellant saw Drs. Hayes and
Goldberger within two days of the incident, adding that Dr. Hayes reviewed an MRI scan on
February 19, 2004 and observed protrusions in the C-5, C-6 and C-7 vertebra. She underwent
disc decompression surgery on November 1, 2007 to treat her lumbar condition. Appellant was
no longer working at the time of the hearing.
On March 8, 2010 the Office hearing representative modified the August 4, 2009
decision to find that the January 29, 2004 lifting incident occurred, but denied appellant’s claim
on the grounds that the medical evidence was insufficient to establish that she sustained an injury
causally related to that incident.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of her claim by the weight of reliable,
probative and substantial evidence,3 including that she is an “employee” within the meaning of
the Act and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.7
ANALYSIS
The evidence supports that appellant lifted a bag off a conveyor and turned slightly on
January 29, 2004. However, she does not provide sufficient medical evidence establishing that
this work incident caused or aggravated her lower back injury.
Appellant submitted several progress notes from Dr. Goldberger for the period
August 25, 2005 to February 20, 2007, in which he diagnosed lumbar root irritation, lumbar
discogenic pain, bilateral SI joint bursitis and myofascial pain syndrome in light of physical
examination findings and prior diagnostic test results. Dr. Goldberger specifically mentioned in
his May 24, 2006 note that appellant sustained a work-related injury. However, he referred to
appellant’s cervical disc condition rather than her claimed lower back condition. None of
Dr. Goldberger’s notes, in fact, contained a history of appellant pulling a muscle in her left lower
back when she lifted a bag off a conveyor on January 29, 2004.8 Because he did not account for
this event, his notes were based on an incomplete history of her injury and therefore of
diminished probative value.9 Furthermore, Dr. Goldberger did not otherwise provide medical
rationale to explain the reasons why any particular work activity occurring on or about
January 29, 2004 caused or aggravated any of appellant’s diagnosed conditions.10 Thus, his
progress notes are insufficient to establish appellant’s claim.
Dr. Brigham indicated on March 10, 2004 that appellant sustained a work-related
shoulder sprain by checking a “yes” box. Likewise, in an August 9, 2004 form report, he
checked a box “yes” to indicate that her diagnosed cervical sprain and fibromyalgia were work
related. However, the Board has held that an opinion on causal relationship consisting only of a
physician checking “yes” on a medical form report without further explanation or rationale is of
6

T.H., 59 ECAB 388 (2008).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment
incident described by the claimant caused or contributed to diagnosed medical condition).
9

See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980).

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

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little probative value.11 Dr. Brigham did not mention the January 29, 2004 lifting incident nor
did he explain the reason why particular employment activities caused or aggravated any of
appellant’s diagnosed conditions. Consequently, his support for causal relationship is
insufficient to establish the claim as he did not provide medical reasoning to explain how the
January 29, 2004 work incident caused or aggravated a diagnosed condition.
In his September 14, 2009 note and September 22 and October 13, 2004 evaluations,
Dr. Box diagnosed myofascial pain and recommended that appellant be placed on limited work
duty. Although he detailed specific employment activities to avoid, namely lifting and carrying
baggage, he did not note the occurrence of the January 29, 2004 lifting incident and did not
specifically support that her diagnosed condition was caused or aggravated by her employment.12
Likewise, Dr. Peltzer’s August 17, 2004 treatment note and Dr. Hayes’ December 7, 2008
referral did not specifically address the cause of appellant’s condition.
Appellant also submitted evidence from a nurse practitioner and physical therapists. This
is not constitute competent medical evidence as neither physical therapists nor nurse practitioners
are considered physicians under the Act.13 For these reasons, the medical evidence is insufficient
to establish appellant’s claim.
Appellant argues on appeal that the Office hearing representative’s decision was contrary
to fact and law. As stated above, the medical evidence did not sufficiently explain how lifting
baggage and turning slightly on January 29, 2004 caused or contributed to appellant’s injury.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on January 29, 2004.

11

See Alberta S. Williamson, 47 ECAB 569 (1996).

12

J.F., 61 ECAB ___ (Docket No. 09-1061, issued November 17, 2009) (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).
13

5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316 (2006); Paul Foster, 56 ECAB 208 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the March 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Glouster, OH, Employer
__________________________________________

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

Docket No. 11-2011
Issued: April 23, 2012

Case Submitted on the Record

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

JURISDICTION
On September 7, 2011 appellant, through her attorney, filed a timely appeal from a
July 29, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established disability for wage-loss commencing
July 18, 2006.
FACTUAL HISTORY
The case has been before the Board on prior appeals. By decision dated July 11, 2008,
the Board remanded the case for further development of the medical evidence.2 Appellant had
1

5 U.S.C. § 8101 et seq.

2

Docket No. 08-687 (issued July 11, 2008).

filed an occupational claim based on carrying her mailbag as a part-time letter carrier and OWCP
had accepted the claim on November 27, 2006 for lumbar degenerative disc disease, lumbar facet
arthropathy and lumbar radiculitis. She had stopped working and claimed compensation as of
July 18, 2006. The Board remanded the case for further development of the medical evidence.
In a decision dated September 3, 2009, the Board found a conflict in the medical
evidence under 5 U.S.C. § 8123(a) as to whether appellant had an employment-related disability
commencing July 18, 2006.3 The case was remanded to resolve the conflict. In an order dated
December 17, 2010, the Board remanded the case to OWCP.4 The Board noted that OWCP had
never properly rescinded acceptance of the conditions accepted on November 27, 2006, yet the
statement of accepted facts (SOAF) indicated that lumbar facet arthopathy and lumbar
degenerative disc disease were not employment related. The case was remanded for OWCP to
prepare a proper SOAF and secure a rationalized medical opinion from the referee physician.
OWCP referred appellant to Dr. Arthur Hughes, a Board-certified neurologist selected as
a referee physician. The questions posed to Dr. Hughes included a question as to whether there
was an employment-related aggravation of a preexisting condition and whether appellant “has
been disabled since [July 18, 2006] due to any employment[-]related aggravation of her
degenerative disc disease.”
In a report dated June 16, 2011, Dr. Hughes noted that the accepted conditions were
lumbar radiculitis, lumbar degenerative disc disease and lumbar facet arthropathy. He provided
a history and results on examination and diagnosed lower back and left leg pain by history of
uncertain cause. In response to the questions posed, Dr. Hughes opined that there was no
evidence that the job as a letter carrier aggravated the preexisting lumbar degenerative disc
disease. He further opined that appellant had not been disabled since July 18, 2006 due to an
employment-related aggravation of degenerative disc disease. Dr. Hughes stated that she had
lower back pain, which is not a consequence of degenerative disc disease. As to disability, he
stated, “By her history, [appellant] was not, however, capable of performing her duties as a letter
carrier as a consequence of lower back pain. This is based on appellant’s history and supporting
history in the medical record regarding ongoing lower back pain.”
By decision dated July 29, 2011, OWCP determined that appellant was not entitled to
compensation commencing July 18, 2006. It found the weight of the evidence was represented
by Dr. Hughes.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.6 The term disability is
3

Docket No. 09-353 (issued September 3, 2009).

4

Docket No. 10-675 (issued December 17, 2010).

5

5 U.S.C. §§ 8101-8193.

6

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

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defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.7
ANALYSIS
OWCP accepted lumbar degenerative disc disease, lumbar facet arthropathy and lumbar
radiculitis on November 27, 2006.
The medical issue in this case is whether appellant was disabled during the period
July 18, 2006 to January 3, 2007 due to an accepted employment-related condition.
The report from Dr. Hughes does not resolve this issue. The questions posed to
Dr. Hughes did not accurately identify the issue and his report does not clearly address the issue.
OWCP asked him if there was an employment-related aggravation and if appellant had been
disabled due to an aggravation. The issue does not involve an aggravation of a preexisting
condition as OWCP accepted the underlying degenerative disc disease. As to disability,
Dr. Hughes appeared to indicate that appellant was disabled for some period due to low back
pain, but the period was unclear. In addition, he referred only to “uncertain” and “undetermined”
as causes of the back pain, without further explanation.
The case will be remanded to OWCP to properly resolve the issue. On return of the case
record, OWCP should secure a supplemental report that addresses the issue presented. The
referee physician should have a clear understanding of the accepted employment-related
conditions and provide a rationalized opinion as to an employment-related disability for the dateof-injury position during the period July 18, 2006 to January 3, 2007. After such further
development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case must be remanded to OWCP for further development of the
medical evidence.

7

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

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 29, 2011 is set aside and the case remanded for further
actions consistent with this decision of the Board.
Issued: April 23, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
RESERVES, San Antonio, TX, Employer
__________________________________________

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

Docket No. 06-1564
Issued: February 27, 2007

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 June 29, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs merit decision dated April 19, 2006. 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 she sustained a neck injury in the
performance of duty on January 11, 2006.
FACTUAL HISTORY
On January 19, 2006 appellant, then a 46-year-old logistics management specialist, filed
a traumatic injury claim (Form CA-1) alleging that she sustained an injury on January 11, 2006.
She stated she lost her balance walking down stairs and twisted her body, causing a neck injury.
Appellant submitted an emergency room report dated January 13, 2006 from Dr. Howard Wells,
an emergency medicine specialist, diagnosing a sprained neck.

In a letter dated March 8, 2006, the Office requested appellant to submit additional
evidence, including a medical report with a physician’s opinion on causal relationship between a
work incident and the claimed injury. Appellant submitted additional emergency room reports
dated January 13, 2006. A report signed by Dr. Wells provided a history of neck pain since
January 11, 2006 when appellant almost fell and jerked her body. He diagnosed acute cervical
myofascial strain. Appellant also submitted a “nursing assessment” dated January 13, 2006 from
the hospital.
By decision dated April 19, 2006, the Office denied the claim for compensation. The
Office found that the medical evidence was insufficient to establish an injury in the performance
of duty on January 11, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that he or she sustained an injury while in the performance of duty.2 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. The second component is whether the
employment incident caused a personal injury and generally this can be established only by
medical evidence.3
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.4 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.5
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and

1

5 U.S.C. §§ 8101-8193.

2

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

3

See John J. Carlone, 41 ECAB 354, 357 (1989).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

5

Id.

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supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6
ANALYSIS
The Office does not appear to dispute that an incident occurred as alleged on
January 11, 2006. Appellant stated that she was walking down stairs when she lost her balance
and twisted her body and there is no contrary evidence. She must, however, submit probative
medical evidence on the issue of causal relationship between a diagnosed condition and the
employment incident. This is not an injury that can be identified on visual inspection or a clear
cut injury requiring only an affirmative statement. Appellant must submit rationalized medical
evidence in support of her claim.
The evidence of record submitted prior to the April 19, 2006 decision does not provide a
rationalized medical opinion.7 Dr. Wells noted on January 13, 2006 a history of appellant
jerking her body and nearly falling on January 11, 2006 and he diagnosed a cervical strain. He
did not, however, provide any opinion on causal relationship between the diagnosed condition
and a January 11, 2006 employment incident. While a physician’s opinion regarding a cervical
strain may not require extensive medical rationale, there must be an opinion on causal
relationship based on an accurate factual and medical background and with supporting
explanation. The record does not contain a physician’s rationalized medical opinion in this
case.8 The Board finds appellant did not meet her burden of proof and the Office properly
denied the claim.
CONCLUSION
Appellant did not submit sufficient medical evidence to meet her burden of proof in
establishing an injury in the performance of duty on January 11, 2006.

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

7

The Board notes that the case record contains evidence that was submitted subsequent to the Office’s April 19,
2006 decision. The Board has no jurisdiction to review evidence that was not before the Office at the time of its
final decision; see 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).
8

The opinion must be from a physician under the Act. See 5 U.S.C. § 8101(2). Nurses are not physicians under
the Act and are not competent to render a medical opinion. See Vincent Holmes, 53 ECAB 468 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 19, 2006 is affirmed.
Issued: February 27, 2007
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
__________________________________________
K.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, STATUE OF
LIBERTY, New York, NY, Employer
__________________________________________

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

Docket No. 10-1806
Issued: April 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 29, 2010 appellant filed a timely appeal of a June 7, 2010 merit decision of the
Office of Workers’ Compensation Programs denying his claim for traumatic injury. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an emotional condition and an episode of high blood pressure due to an April 29, 2001
employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 6, 2010 appellant, then a 51-year-old audiovisual specialist, filed a traumatic
injury claim alleging on April 29, 2010 during the performance of his job, he was surrounded by
a Special Weapons and Tactics (S.W.A.T.) team and park police officers with guns threatened
with arrest and interrogated. He alleged that he was racially profiled and his civil rights were
violated. Appellant asserted that he developed high blood pressure and traumatic, physical and
psychological damage.
In a letter dated May 7, 2010, the Office requested additional factual and medical
information in support of appellant’s claim and allowed 30 days for a response. Appellant
responded and submitted an authorization for examination and/or treatment, (Form CA-16)
diagnosing post-traumatic stress disorder and hypertension due to “traumatic experience….”
Dr. Sam S. Parsla, a physician, completed a note on March 13, 2010 and stated that appellant
suffers from high blood pressure and that after a “traumatic personal episode in his workplace on
April 29, 2010” appellant measured blood pressure levels that were dangerously high.
By decision dated June 7, 2010, the Office denied appellant’s claim on the grounds that
he had not submitted sufficient factual evidence to establish that the employment incident
occurred as alleged.
LEGAL PRECEDENT
A 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 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 is causally related to
the employment injury.”2 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.3 The Office defines a traumatic injury as, “[A] condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”4
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.

2

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

4

20 C.F.R. § 10.5(ee).

2

The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.6
An alleged work incident does not have to be confirmed by eyewitnesses in order to establish
that an employee sustained an injury in the performance of duty, but the employee’s statement
must be consistent with the surrounding facts and circumstances and his subsequent course of
action.7 A consistent history of the injury as reported on medical reports to the claimant’s
supervisor and on the notice of injury can also be evidence of the occurrence of the incident.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,9 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Act.10 There are situations where an injury
or illness has some connection with the employment but nevertheless does not come within
coverage under the Act.11 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.12 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of the Act. Thus,
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.13
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 the Act.14 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
5

Elaine Pendleton, supra note 2.

6

John J. Carlone, 41 ECAB 354 (1989).

7

Rex A. Lenk, 35 ECAB 253, 255 (1983).

8

Id. at 255-56.

9

28 ECAB 125 (1976).

10

5 U.S.C. §§ 8101-8193.

11

See Robert W. Johns, 51 ECAB 136 (1999).

12

Cutler, supra note 9.

13

Id.

14

Charles D. Edwards, 55 ECAB 258 (2004).

3

administrative or personnel responsibilities, such action will be considered a compensable
employment factor.15 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.16
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.17
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. 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.18
ANALYSIS
Appellant alleged that he sustained an emotional condition and incident of high blood
pressure on April 29, 2010 in the performance of duty. He did not submit a factual statement in
response to the Office’s request for information and the only description of his employment
incident is on his notice of traumatic injury. Appellant alleged that he was surrounded by a
SWAT team and park police officers with guns, threatened with arrest and interrogated. He also
stated that he was racially profiled and his civil rights were violated. Appellant did not explain
how this situation arose, how this was connected with his employment and has not submitted any
witness’ statements, police reports or other documentation to support that the alleged
employment incident occurred as described. The medical reports in the record indicate that he
experienced a traumatic incident, but do not provide any further description. Due to the absence
of necessary factual evidence explaining the nature and circumstances of the events on April 29,
2010 and the relationship of these events to appellant’s employment, the Board finds that he did
not submit the necessary factual evidence to meet his burden of proof of establishing a traumatic
injury through a compensable and substantiated factor of his employment causing or contributing
to his alleged emotional and physical conditions.

15

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
16

Roger Williams, 52 ECAB 468 (2001).

17

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

18

James Mack, 43 ECAB 321 (1991).

4

The Office, however, did not specifically address the issue of appellant’s entitlement to
medical expenses. It is required by section 8103 of the Act19 to provide all medical care
necessary as a result of an employment injury. The Office has broad discretionary authority in
the administration of the Act and must, in fact, exercise such discretion to achieve the objective
of section 8103. Ordinarily, when an employee sustains a job-related injury which may require
medical treatment, the designated agency official shall promptly authorize such treatment by
giving the employee a properly executed Form CA-16 authorizing medical treatment and
expenses within four hours.20 In this case, the employing establishment provided appellant with
a Form CA-16 and the Office failed to address whether this was a situation in which
compensation for medical expenses was appropriate. The circumstances of the case warrant
additional development of this issue. Therefore the case shall be remanded to the Office for
further development consistent with this decision of the Board, followed by an appropriate
decision.
CONCLUSION
The Board finds that while the evidence does not establish that appellant sustained a
traumatic physical or emotional injury on April 29, 2010 the issue of whether he is entitled to
medical expenses due to his authorized medical treatment via Form CA-16 has not been
adequately addressed by the Office and that the case must be remanded for the Office to issue an
appropriate decision in this regard.

19

5 U.S.C. § 8103.

20

20 C.F.R. § 10.300(b).

5

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2010 decision of the Office of Workers’
Compensation Programs is affirmed. The case is remanded for further development consistent
with this decision of the Board.
Issued: April 5, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.Y., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1079
Issued: November 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 16, 2019 appellant, through counsel, filed a timely appeal from a January 29,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 29, 2019 decision, OWCP received additional evidence. 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.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
entitlement to a schedule award effective September 6, 2017 because she refused an offer of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On February 5, 2016 appellant, then a 49-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that day she injured her hands, arms, shoulders, and
back when she slipped on ice in the employing establishment parking lot while in the performance
of duty. She stopped work on February 5, 2016. OWCP accepted the claim for right upper arm
contusion, and subsequently expanded acceptance of the claim to include right shoulder labrum
lesion, left shoulder labral tear, lumbar radiculopathy, and bilateral shoulder rotator cuff tendinitis.
It authorized left shoulder arthroscopic surgery and rotator cuff repair, which was performed on
September 1, 2016. OWCP paid appellant wage-loss compensation on the supplemental rolls as
of March 22, 2016 and on the periodic rolls as of June 26, 2016.
Appellant continued to seek treatment with Dr. Richard A. Boiardo, a Board-certified
orthopedic surgeon. In a December 2, 2016 report, Dr. Boiardo noted that she had undergone
successful left shoulder arthroscopy, but she now had an exacerbation of right lower extremity
discomfort and sciatica. He indicated that appellant would continue with therapy for her right
lower extremity, sciatica and left shoulder conditions. On January 6, 2017 Dr. Boiardo reported
that appellant’s left shoulder had improved, but she now had right shoulder pain. Physical
examination findings indicated restricted cervical range of motion. Dr. Boiardo concluded that
appellant was unable to return to work.
On January 31, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Timothy J. Henderson, a Board-certified orthopedic surgeon, for a report of the status of her
accepted employment injuries and her work capacity.
In a report dated February 16, 2017, Dr. Henderson, based upon a review of the medical
evidence, statement of accepted facts (SOAF), and appellant’s physical examination, opined that
she was capable of returning to work with restrictions. He noted that OWCP had accepted the
conditions of right arm contusion, right labral shoulder lesion, left labral shoulder tear, lumbar
radiculopathy, and bilateral rotator cuff tendinosis. A review of a March 1, 2016 magnetic
resonance imaging (MRI) scan revealed multilevel disc degenerative changes, most pronounced
in the lower lumbar spine causing various degrees of neural foraminal narrowing without
significant central stenosis. Dr. Henderson also reviewed a March 1, 2016 right shoulder MRI
scan which revealed mild tendinosis of the supraspinatus and subscapularis tendons and fluid in
the subacromial/subdeltoid bursa. Review of an April 11, 2016 MRI scan of the left shoulder
revealed mild tendinitis of the distal supraspinatus tendon, moderate acromioclavicular joint
osteoarthrosis, and complex anterior labrum tear. Dr. Henderson observed that it was difficult to
assess tenderness over the greater tuberosity in appellant’s shoulders due to her exhibiting
hypersensitivity. Physical examination of appellant’s shoulders revealed objective findings
regarding her left shoulder. Dr. Henderson opined that she had reached maximum medical
improvement with respect to her right shoulder. He further opined that appellant exhibited signs
of left shoulder hypersensitivity and possible complex regional pain syndrome.

2

With respect to appellant’s work capacity, Dr. Henderson found that she was disabled from
performing her usual duties due to her left shoulder condition, but was capable of returning to
work with restrictions including no lifting more than 10 pounds. He opined that appellant’s
disability was due to her left shoulder labral tear, subsequent surgery, and likely postoperative
capsulitis, not complex regional pain syndrome. Dr. Henderson concluded that the work
restrictions were temporary and he anticipated full recovery within 12 months after surgery. In an
attached work capacity evaluation form (Form OWCP-5c), he indicated that appellant was capable
of performing sedentary work with restrictions of walking and standing limited to two hours, and
lifting, pushing, and pulling limited to 10 pounds.
In progress notes dated March 24, 2017, Dr. Boiardo noted that appellant sustained injuries
to both wrists and her left shoulder due to the accepted February 5, 2016 employment injury. He
provided appellant’s physical examination findings and diagnosed post-traumatic bilateral carpal
tunnel syndrome.
On April 11, 2017 the employing establishment offered appellant a modified mail
processing clerk position based on the temporary work restrictions provided by Dr. Henderson.
The physical requirements of this 8-hour workday position included lifting, pushing, and pulling
up to 6 hours each task as well as standing and walking for 30 minutes to 1 hour each task. Weight
restrictions were not indicated.
Appellant rejected the job offer on April 21, 2017. She related that she was waiting for
authorization of another surgical procedure. Appellant also indicated that she could not lift more
than five pounds, and that she could not sit or stand for extended periods of time. A copy of the
modified job offer indicated that she refused the offer based upon Dr. Boiardo’s opinion that she
was unable to perform the duties of the position because she could not lift more than five pounds
and sit/stand for long periods of time.
In an April 27, 2017 report, Dr. Dong W. Cho, a Board-certified physiatrist, noted
appellant’s medical history. He related that her physical examination findings included limited
bilateral shoulder range of motion, and positive wrist Tinel’s sign. Dr. Cho conducted an
electromyography/nerve conduction velocity (EMG/NCV) study which revealed tardy elbow ulnar
nerve entrapment neuropathy or cubital tunnel syndrome.
In a June 26, 2017 letter, OWCP advised appellant of its determination that the modified
mail processing clerk position offered by the employing establishment constituted suitable work.
It informed her that the weight of the medical opinion evidence rested with the February 16, 2017
report of Dr. Henderson. OWCP advised appellant that her wage-loss compensation and
entitlement to a schedule award would be terminated if she did not accept the modified mail
processing clerk position or provide good cause for not doing so within 30 days.
In a July 3, 2017 report, Dr. Boiardo diagnosed left ulnar nerve entrapment with no
evidence of carpal tunnel syndrome, which he opined was a direct result of appellant’s accepted
February 5, 2016 employment injury.
In a July 28, 2017 letter, OWCP advised appellant that her reasons for refusing to accept
the modified mail processing clerk position were unjustified. It discussed the evidence she had
submitted, but found that this evidence did not provide a valid reason for refusing to accept the
position. OWCP advised appellant that her wage-loss compensation and entitlement to a schedule
3

award would be terminated if she did not accept the position within 15 days of the date of the letter.
Appellant did not accept the modified mail processing clerk within the allotted period.
In an August 4, 2017 note, Dr. Boiardo referenced his July 3, 2017 report and opined that
appellant currently was disabled from work due to hand weakness, as well as elbow and shoulder
restrictions. In a narrative report of the same date, he related that appellant complained of
persistent left elbow medial aspect discomfort and numbness and tingling of the hand ulnar
distribution following the accepted February 5, 2016 employment injury. Examination findings
included restricted left elbow and hand range of motion, positive ulnar groove Tinel’s, restricted
low back range of motion, and low back pain.
On August 25, 2017 the employing establishment advised OWCP that the modified mail
processing clerk position was a permanent position and remained available to appellant.
By decision dated September 6, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to a schedule award effective that day because she refused an offer
of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It determined that the weight of medical
evidence rested with the February 16, 2017 report of Dr. Henderson. OWCP found that appellant
had not submitted rationalized medical evidence establishing that she was unable to perform the
duties of the modified mail processing clerk position.
On September 21, 2017 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
On October 16, 2017 OWCP received progress notes dated September 5 and 15, 2017 from
Dr. Boiardo diagnosing left elbow ulnar nerve entrapment and left shoulder flare-up. Examination
findings and test results were noted. Dr. Boiardo, in an October 24, 2017 progress note, diagnosed
left elbow nerve entrapment based on an EMG. He also noted that appellant presented with left
elbow pain and restricted range of motion. On December 1, 2017 OWCP received progress notes
dated September 29, 2017 from Dr. Boiardo, which were repetitive of prior reports.
On February 28, 2018 a hearing was held before an OWCP hearing representative.
Following the hearing, OWCP received progress notes dated November 28, 2017 from
Dr. Boiardo, which were unchanged from prior reports.
By decision dated May 14, 2018, OWCP’s hearing representative affirmed the
September 6, 2017 decision. She found that the weight of the medical opinion evidence, with
respect to appellant’s ability to work, continued to rest with Dr. Henderson’s February 16, 2017
report.
On October 31, 2018 appellant, through counsel, requested reconsideration. In support of
this request for reconsideration, OWCP received February 9 and October 19, 2018 reports from
Dr. Boiardo. In the February 9, 2018 note, Dr. Boiardo reported that appellant was unable to
perform the tasks of the modified job offer because the tier weight of the equipment was 10 pounds
and she could not lift, push, or pull more than 5 pounds. He also reported that appellant was unable
to stand or lean for more than two hours. In his October 19, 2018 report, Dr. Boiardo explained
that appellant had five-pound lifting, pushing, and pulling restrictions based upon her cubital
tunnel syndrome of the left elbow, which was confirmed by EMG examination on April 27, 2017
by Dr. Cho.
4

By decision dated January 29, 2019, OWCP denied modification of the May 14, 2018
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits.4 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, or secured for the employee is not entitled to compensation.5 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position was not suitable.6 Section 8106(c) will be narrowly construed
as it serves as a penalty provision.7
Pursuant to OWCP’s procedures, a job offer must be in writing and contain a description
of the duties to be performed and the specific physical requirements of the position.8 Section
10.516 provides that an employee who refuses or neglects to work after suitable work has been
offered or secured for the employee has the burden of establishing that such refusal or failure to
work was reasonable or justified.9
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective September 6, 2017.
OWCP’s procedures require that a suitable work offer contain a description of the duties
to be performed and the specific physical requirements of the position.10 The April 11, 2017
modified job offer did not adequately describe the specific physical requirements of the position,
including the requirements as to the weight of lifting, pushing, and pulling. The April 11, 2017
job offer was based upon the restrictions provided by Dr. Henderson, OWCP’s second opinion
physician. In his February 16, 2017 report, Dr. Henderson noted that while appellant’s right
shoulder condition had resolved, she could not perform the duties of her date-of injury position
due to her left shoulder condition. He further explained that appellant could return to work with a
10-pound lifting restriction, which was necessitated by her left shoulder condition.
4

J.R., Docket No. 19-0206 (issued August 14, 2019); R.P., Docket No. 17-1133 (issued January 18, 2018); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).
5

5 U.S.C. § 8106(c)(2); see also J.R., id.; Geraldine Foster, 54 ECAB 435 (2003).

6

R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

7

Supra note 5; S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

8
20 C.F.R. § 10.516. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work,
Chapter 2.814.4(a) (June 2013).
9

P.C., Docket No. 18-0956 (issued February 8, 2019).

10

Supra note 8.

5

The Board has held that the issue of whether a claimant is able to perform the duties of an
offered employment position is a medical question that must be resolved by probative medical
evidence.11 Dr. Henderson did not address whether appellant’s accepted lumbar radiculopathy
condition necessitated restrictions, and after appellant’s treating physicians, Dr. Cho and
Dr. Boiardo related that EMG/NCV studies revealed left ulnar nerve entrapment, OWCP did not
seek a supplemental report from Dr. Henderson to determine whether this diagnosed condition
caused further physical restrictions. Therefore, the Board finds that the medical evidence is
insufficient to establish that appellant was able to perform the duties of the offered employment
position. The Board further finds that the job offer did not include the position description, nor
did it accurately set forth the physical requirements of the position, including the lifting/
pushing/pulling weight requirement.
As OWCP did not secure a medical report that reviewed an adequately detailed job offer
or provided a reasoned opinion as to the job’s suitability for appellant considering all currently
disabling conditions, the Board finds that OWCP has not met its burden of proof to establish that
the offered position was suitable.12
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective September 6, 2017.

11

F.B., Docket No. 17-0216 (issued February 13, 2018); Gayle Harris, 52 ECAB 319 (2001).

12

See S.Y., Docket No. 17-1032 (issued November 21, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 14, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-259
Issued: August 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On November 9, 2012 appellant filed a timely appeal from June 25 and October 31, 2012
merit decisions of the Office of Workers’ Compensation Programs (OWCP) denying
modification of a loss of wage-earning capacity decision.1 The Board assigned Docket
No. 13-259.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision and must be remanded for further development. This case has been before the
Board previously. Regarding the relevant decisions in the first appeal, the Board issued a
May 15, 2003 decision affirming October 29, 2001 and January 28, 2002 decisions of OWCP,
finding that it properly reduced appellant’s compensation benefits effective August 15, 1999
based on the selected position of cashier II.2 In the second appeal, the Board, on December 14,
2004, affirmed OWCP’s April 12, 2004 decision denying modification of the loss of wage1

On March 15, 1982 appellant, then a molder, injured his right hand in the performance of duty. OWCP accepted
the claim for fracture of the fifth right metacarpal and authorized nerve entrapment surgery.
2

Docket No. 02-2265 (issued May 15, 2003). The Board also found that appellant failed to establish that his
claimed recurrence of disability on or after August 28, 2000 was causally related to the March 15, 1982 employment
injury.

earning capacity determination, but remanded the case for clarification of OWCP’s calculation of
appellant’s wage rate by using a mean rate.3 By decision dated October 24, 2006, the Board, on
the third appeal, affirmed an April 5, 2005 OWCP decision regarding appellant’s pay rate.4
By decision dated June 25, 2012, OWCP found that it had correctly applied the Shadrick
formula,5 and noted that appellant had requested the application of a grade and step that he had
not reached. It concluded that the figures used for computation were correct as they were based
on the position he actually held on the date of injury. OWCP, in its October 31, 2012 decision,
again found that it applied the correct pay rate, i.e., date of injury, when computing his wageearning capacity using the Shadrick formula and added that it had previously answered his
questions regarding the matter.
Section 8124(a) of the Federal Employees’ Compensation Act provides: “[OWCP] shall
determine and make a finding of fact and make an award for or against payment of
compensation....”6 Section 10.126 of Title 20 of the Code of Federal Regulations provides:
“The decision shall contain findings of fact and a statement of reasons.”7 Moreover, OWCP’s
procedures provide: “The reasoning behind [OWCP’s] evaluation should be clear enough for the
reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.”8
In its June 25 and October 31, 2012 decisions, OWCP did not discharge its responsibility
to provide appellant a statement explaining the disposition so that he could understand the basis
for the decision, including the evidence required to show that the rate of pay calculation for the
loss of wage-earning capacity decision was incorrect. It did not discharge its responsibility to
provide appellant a statement explaining the disposition so that he could understand the basis for
the decision as well as the precise defect and the evidence required to overcome this defect when
it issued its June 25 and October 31, 2012 decisions finding that the rate of pay used to calculate
his loss of wage-earning capacity was correct when applying the Shadrick formula and that it had
previously addressed this issue. OWCP failed to make any determination regarding whether
appellant’s requests for reconsideration were timely or untimely pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.606 and 10.607, did not include any further explanation concerning the
actual computation of the rate of pay and did not provide any appeal rights for either decision.
Thus, OWCP, in its June 25 and October 31, 2012 decisions, did not discharge its responsibility
to set forth findings of fact and a clear statement of reasons explaining the disposition so that
3

Docket No. 04-1438 (issued December 14, 2004).

4

Docket No. 06-40 (issued October 24, 2006), order granting Director’s petition for recon. for correction and
denying appellant’s petition for recon., Docket No. 06-40 (issued July 30, 2007).
5

See Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403.

6

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

7

20 C.F.R. § 10.126. See O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); Tonja R. Hiebert,
55 ECAB 706 (2004) (it is a well-established principle that OWCP must make proper findings of fact and a
statement of reasons in its final decisions).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

2

appellant could understand the basis for the decision, i.e., the evidence required to establish that
his rate of pay was incorrectly calculated for the loss of wage-earning capacity determination.
The case must be returned to OWCP for a proper decision which includes findings of fact
and a clear and precise statement regarding appellant’s request for reconsideration on the rate of
pay calculation for his loss of wage-earning capacity determination, including advising appellant
regarding the evidence required to show that the rate of pay had been incorrectly calculated.
Following this and such further development as OWCP deems necessary, it shall issue a de novo
decision.
IT IS HEREBY ORDERED THAT the October 31 and June 25, 2012 Office of
Workers’ Compensation Programs’ decisions be set aside and the case remanded for further
action consistent with this order of the Board.
Issued: August 12, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Williamsville, NY, Employer
__________________________________________

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

Docket No. 18-1025
Issued: January 23, 2019

Case Submitted on the Record

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

JURISDICTION
On April 23, 2018 appellant filed a timely appeal from a November 9, 2017 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On June 2, 2017 appellant, then a 34-year-old city carrier and acting supervisor, filed a
notice of occupational disease (Form CA-2) alleging that, on or about May 17, 2017, she sustained
stress, anxiety, and depression in the performance of duty when a supervisor disseminated a
1

5 U.S.C. § 8101 et seq.

sexually-oriented personal advertisement appellant had placed on social media to her coworkers.
She stopped work on May 22, 2017. On the reverse side of the claim form, S.C., appellant’s
supervisor, asserted in a statement dated June 6, 2017 that appellant had not been injured in the
performance of duty and was not being truthful.2
Appellant provided a statement to the employing establishment on May 18, 2017 asserting
that she had been advised on May 17, 2017 “that there was a Craigslist advertisement posted
about” appellant and her husband. She alleged that Coworker T.H. sent a screen capture of the
advertisement to other employees who in turn shared it with additional coworkers.
In a memorandum dated May 22, 2017, C.B., an employing establishment inspector, noted
that appellant acknowledged that “she posted the advertisement,” which included a photograph of
herself and her husband.
In a memorandum dated May 23, 2017, C.B. noted that appellant admitted that she falsely
claimed that an unknown party posted the personal advertisement and photograph, but later
acknowledged that she and her husband had posted the advertisement. Appellant asserted that a
coworker informed her that she was the “joke of the union meeting” and was referred to as
“Facebook girl.” She alleged that the circulation of the advertisement by Coworker D.R. and
unnamed supervisors constituted harassment.
In a sworn affidavit dated May 23, 2017, appellant asserted that she did not wish the
employing establishment’s inspection service to pursue additional investigation of the Craigslist
advertisement.
In a statement dated June 12, 2017, appellant’s supervisor S.C. contended that appellant
had recently expressed dissatisfaction with the amount of a settlement from an automobile accident
and stated that there was “another way to get $100,000.00” that she needed. S.C. alleged that, on
May 18, 2017, appellant asked S.C. if others were speaking about a “fake post” by an “ex-friend
of [hers] who was on vacation” with appellant and her husband. S.C. related that appellant told
her a “supervisor at another office told her that it was being spread around.” S.C. informed
appellant of who she received it from, and who that person received it from. The latter would not
say who told them.
In an investigative memorandum dated June 12, 2017, C.B. noted that on May 18, 2017,
appellant had contended that the Craigslist advertisement was “false,” but on May 22, 2017
acknowledged that “she and her husband posted a personal advertisement on Craigslist.
In a statement dated June 13, 2017, D.K., an employing establishment manager, noted that
on May 17, 2017, appellant came into his office and alleged that someone had posted a false
personal advertisement on the Internet with sexual content about appellant and her husband.
Appellant wished to file “a complaint because some of the employees (Carriers) had seen the
2

In letters dated June 13, 2017, L.R., an employing establishment human resources specialist, noted that the
employing establishment “cannot concur with [appellant’s] claim” as there were serious inconsistencies in the factual
evidence and appellant had provided no medical evidence. In a letter dated June 20, 2017, L.R. contended that because
appellant had posted the personal ad any reaction to it was self-generated.

2

advertisement and had shared it with each other. She really didn’t know who.” Appellant stopped
work on May 20, 2017 and has not returned.
In a work excuse slip dated June 29, 2017, Dr. Yellamraju R. Kumar, an attending Boardcertified internist, held appellant off from work from May 22 to July 25, 2017.
By development letter dated July 11, 2017, OWCP notified appellant of the deficiencies of
her claim and requested that she submit additional medical and factual evidence. It noted that the
factual evidence of record did not indicate that she sustained the claimed emotional condition in
the performance of her regularly or specially assigned duties. OWCP emphasized that appellant’s
physician’s detailed, well-rationalized opinion on causal relationship was crucial to her claim. It
afforded her 30 days to submit the necessary evidence.
In response, appellant provided an undated statement alleging that, on May 20, 2017, while
at work, she became physically ill when Coworker S.P. told her that she “was the joke of the
Carriers Union Meeting” held on May 17, 2017. Appellant contended that “two male carriers had
also made snide, harassing comments” directly to her, but she could not recall their names or the
words spoken. She also alleged that coworkers and supervisors harassed her about the personal
advertisement from May 17 to 22, 2017. Appellant characterized her false statement that an
unknown person had posted the advertisement as a “coping strategy” to salvage her reputation and
protect her career. She noted a history of panic attacks, including a hospitalization on
August 28, 2015.
Appellant provided an undated witness statement from Coworker J.K. who asserted that,
on May 20, 2017, she informed appellant that there was a “picture of her being circulated around.”
A supervisor had already told appellant that she had received the photo from station manager J.P.
In an undated statement, appellant’s coworker M.L. asserted that on May 20, 2017
appellant was distressed when she learned that others at the employing establishment had seen the
personal advertisement. He “had also heard many of these slanderous remarks throughout the
workroom floor prior to this date.”
Appellant also provided a statement dated July 28, 2017 from acquaintance P.W., and
undated statements from two relatives, who attested to appellant’s anxiety after she became aware
that her coworkers had seen the sexually-oriented personal advertisement and photo she had posted
online.
Appellant also submitted medical evidence. In reports dated September 1 and October 12,
2015, Dr. Kumar diagnosed generalized anxiety disorder, chronic post-traumatic stress disorder
(PTSD) and hypothyroidism. In a report dated June 20, 2017, he related that appellant experienced
stress and anxiety when coworkers circulated “an advertisement on Craigslist that advertised her
and her husband looking for a woman,” which resulted in her demotion from supervisor to carrier.
Dr. Kumar noted that appellant had continued neck and back pain related to a motor vehicle
accident on an unspecified date. He prescribed anxiolytic medication. Dr. Kumar held appellant
off work through August 27, 2017.
Appellant also provided a report dated August 13, 2017 from Dr. Frank Sturniolo, an
attending licensed clinical psychologist, who related appellant’s account of harassment by
3

coworkers who discovered the personal advertisement she had placed on Craigslist. Dr. Sturniolo
diagnosed acute PTSD and agoraphobia with panic attacks caused by “verbal harassment” at work.
By decision dated November 9, 2017, OWCP denied the claim as fact of injury had not
been established. It found that appellant had provided an inaccurate statement about the origin of
the Craigslist photo and advertisement and later admitted that she and her husband had posted the
material themselves. OWCP further found that she did not submit probative evidence establishing
her allegations of harassment. Additionally, it found that the photo and advertisement were
voluntary acts unconnected to and outside her federal employment. Appellant’s reaction to
coworkers viewing the advertisement and photo were therefore self-generated.
LEGAL PRECEDENT
To establish an emotional condition causally related to factors of a claimant’s federal
employment, he or she must submit: (1) factual evidence identifying and supporting employment
factors or incidents alleged to have caused or contributed to her condition; (2) rationalized medical
evidence establishing an emotional condition or psychiatric disorder; and (3) rationalized medical
opinion evidence establishing the emotional condition is causally related to the identified
compensable employment factors.3
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.4 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force, or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.5
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 her regular duties, these could constitute employment factors.6
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.7

3

M.R., Docket No. 18-0304 (issued November 13, 2018); A.C., Docket No. 18-0484 (issued September 7, 2018);
see Kathleen D. Walker, 42 ECAB 603 (1991).
4

Lillian Cutler, 28 ECAB 125 (1976).

5

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

6

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, supra note 3.

7

A.C., supra note 3; Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

4

Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting her allegations with probative
and reliable evidence.8 When the matter asserted is a compensable factor of employment and the
evidence of record establishes the truth of the matter, OWCP must base its decision on an analysis
of the medical evidence.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.
Appellant alleged that she sustained an emotional condition due to harassment and
discrimination by coworkers and managers who shared a sexually-oriented personal advertisement
she had posted on social media and ridiculed her for posting the advertisement. OWCP denied her
emotional condition claim because she had failed to establish any compensable employment
factors. The Board must, thus, initially review whether these alleged incidents and conditions of
employment are compensable employment factors under the terms of FECA.10 The Board notes
that appellant’s allegations do not pertain to her regular or specially assigned duties under Cutler.11
Rather, appellant has alleged a pattern of harassment and discrimination on the part of managers
and coworkers.
Appellant has alleged that managers and coworkers subjected her to harassment and
discrimination. Disputes and incidents alleged as constituting harassment and discrimination by
managers and coworkers may constitute compensable employment factors if they are established
as occurring and arising from appellant’s performance of her regular duties.12 The Board has held
that unfounded perceptions of harassment do not constitute an employment factor.13 Mere
perceptions are not compensable under FECA and harassment can constitute a factor of
employment if it is shown that the incidents constituting the claimed harassment actually
occurred.14

8

Kathleen D. Walker, supra note 3.

9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).
10

A.C., supra note 3.

11

Lillian Cutler, supra note 4.

12

A.C., supra note 3; David W. Shirey, 42 ECAB 783, 795-96 (1991).

13

A.C., supra note 3; see F.K., Docket No. 17-0179 (issued July 11, 2017).

14

Id.

5

The Board finds that appellant has not established compensable employment factors with
regard to the claimed harassment and discrimination.15 Appellant has not submitted probative
evidence establishing such harassment or discrimination. She submitted two statements asserting
that she had heard secondhand from coworkers that the personal advertisement and photo she
placed on Craigslist was being circulated at the employing establishment. Appellant also provided
a June 12, 2017 statement from S.C. who informed appellant of who had forwarded the personal
advertisement to her, and who that person received it from, and an undated statement from
Coworker J.K. alleging that Station Manager J.P. had forwarded the advertisement to unspecified
persons on an unspecified date. Given the lack of specific details as to the time and place of
transmittal or the recipients, these statements are insufficient to establish harassment or
discrimination by management.
Appellant also alleged that coworkers ridiculed her and disseminated the posting.
The Board notes that these statements do not establish harassment or discrimination.
Statements of her coworkers did not note specific remarks made against appellant, or identify the
person or persons who allegedly made those remarks.16 Since appellant has admitted that she
placed the personal advertisement in question on Craigslist, which is open to a world-wide
community, she has not explained how discussion of the ad by coworkers would constitute
harassment.
Appellant also attributed her emotional condition to an alleged demotion somehow
connected to the personal advertisement. She advised Dr. Kumar, an attending Board-certified
internist, on June 20, 2017 that the dissemination of the personal advertisement resulted in her
demotion from supervisor to carrier. An emotional reaction to an administrative action, such as a
demotion, may be compensable if the evidence of record establishes error or abuse by the
employing establishment.17 The Board finds, however, that the factual evidence of record does
not establish that appellant was demoted. There are no personnel documents, supervisory
statements, or position descriptions to support this allegation. Thus, appellant has not established
error or abuse on the part of the employing establishment.
For these reasons, the Board finds that appellant has not established a compensable
employment factor.18 In light of the Board’s finding on the factual aspect of her case, it is
unnecessary to consider the medical evidence of record.19

15

A.C., supra note 3. See generally C.T., Docket No. 08-2160 (issued May 7, 2009) (finding that some statements
may be considered abusive and constitute a compensable factor of employment, but that not every statement uttered
in the workplace will be covered by FECA).
16

A.C., supra note 3; see S.B., Docket No. 09-1654 (issued July 14, 2010).

17

K.W., Docket No. 15-1535 (issued September 23, 2016); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 556 (1991).
18

M.R., supra note 3.

19

M.R., supra note 3; Garry M. Carlo, supra note 9.

6

On appeal, appellant alleges that she was harassed at work, discriminated against, and
demoted. As set forth above, appellant did not submit probative factual evidence establishing her
allegations of harassment and discrimination or that she was demoted.
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 an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 12-82
Issued: June 7, 2012

Case Submitted on the Record

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

JURISDICTION
On October 18, 2011 appellant filed a timely appeal from a September 14, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On October 14, 2010 appellant, then a 50-year-old rural carrier, filed an occupational
claim (Form CA-2) alleging that she sustained, stress, anxiety and pain attacks as a result of
verbal and mental abuse from coworkers. The reverse of the claim form noted she stopped work
on October 1, 2010.
1

5 U.S.C. § 8101 et seq.

Appellant submitted an October 25, 2010 statement that, in her years of service at the
employing establishment, there had been screaming, yelling and cursing. She referred to a
coworker who retired early to get away from bullying and harassment. According to appellant,
she had an approved annual leave request in July 2003 but had to find a carrier at another work
site to substitute for her because the other carriers refused. She stated that she tried to fit in with
the other carriers but “I was never good enough for them,” and she was ignored and considered
an outcast. Appellant referred to an incident when she had identified a coworker as making
comments about a new employee. According to her, on September 16, 2010, a coworker
screamed at her on the telephone and called her a liar. Appellant also referenced a
September 17, 2010 incident when another coworker screamed at her and called her a
backstabber. She stated that she experienced anxiety attacks.
With respect to witness statements, Ms. Odom, a coworker, submitted an October 27,
2010 statement that there was abuse and criticism at work. Marylynn Perschbacher, another
coworker, submitted an undated statement noting that she had been harassed at work. Janet
Wood, a supervisor, submitted a January 12, 2011 statement that appellant wore a headset while
at work and could not hear if people were whispering about her. She stated that she did not
know about any telephone calls or hear anyone screaming at appellant. Ms. Wood stated that
some of the carriers spoke loudly when they were agitated.
In a statement dated February 8, 2011, Derick Lenear, a supervisor, stated that he did not
know of the specifics regarding appellant’s relationship with other carriers. He did not witness
or was aware of any alleged verbal abuse toward appellant.
In a decision dated March 7, 2011, OWCP denied the claim for compensation. It found
that no compensable work factors had been established.
Appellant requested an oral hearing before an OWCP hearing representative, which was
held on July 13, 2011. She submitted a March 28, 2011 statement that reiterated her allegations
that she was yelled at by coworkers, dating the incidents to September 17 and 18, 2010.
Appellant filed an Equal Employment Opportunity (EEO) complaint and on March 15, 2011 she
“filed a complaint of forgery” with employing establishment inspectors.2 In a March 30, 2011
note, Ms. Odom stated that on September 18, 2010 she heard Sheri Rogers, a coworker, yelling
at appellant. She stated that, when appellant attempted to speak, another coworker told her to
shut up. Appellant submitted statements from family members and a March 31, 2011 note from
a former coworker who felt he was subject to daily harassment and abuse. Ms. Perschbacher, a
coworker, addressed allegations of harassment she had witnessed; but did not refer to instances
involving appellant.
By decision dated September 14, 2011, the hearing representative affirmed the March 7,
2011 decision. The hearing representative found appellant had not established a compensable
work factor.

2

The record contains an e-mail dated March 15, 2011 from appellant alleging that an “accountable clerk” signed
appellant’s name on an employing establishment form.

2

LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.3 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.5
With respect to a claim based on harassment or discrimination, the Board has held that
actions of an employee’s supervisors or coworkers which the employee characterizes as
harassment may constitute a factor of employment giving rise to a compensable disability under
FECA. A claimant must, however, establish a factual basis for the claim by supporting the
allegations with probative and reliable evidence.6 Unsubstantiated allegations of harassment are
not determinative of whether or not harassment occurred.7
ANALYSIS
Appellant’s primary allegation in this case is that she was subject to verbal abuse and
harassment by coworkers. The Board has addressed the factors in determining whether
interactions between employees will give rise to coverage under FECA where harassment is
alleged through verbal altercations or difficult relationships between employees.8 The difficulty
in such claims is the subjective nature of a claimant’s perceptions to his or her work
environment. To support a claim for compensation, the claimant must specifically delineate
those factors or incidents to which the emotional condition is attributed and submit supporting
factual evidence verifying that the implicated work situations or incidents occurred as alleged.
Vague or general allegations of perceived harassment, abuse or difficulty arising in the

3

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

4

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

Gregory N. Waite, 46 ECAB 662 (1995); Barbara J. Nicholson, 45 ECAB 803 (1994).

7

Helen P. Allen, 47 ECAB 141 (1995).

8

E.H., Docket No. 11-798 (issued March 22, 2012); Paul Trotman-Hall, 58 ECAB 189 (2006).

3

employment are not sufficient to give rise to compensability under FECA.9 In reviewing the
evidence of record, appellant has not submitted sufficient evidence to establish as a compensable
work factor any instance of verbal abuse.
Appellant generally alleged that she felt she did not fit in with some of her coworkers.
The specific allegations discussed were incidents in September 2010 when she claimed she was
yelled at over the telephone by a coworker, and on the following day another coworker yelled at
her, while a third told her to shut up when she tried to speak. A brief witness statement reported
that she heard a coworker yelling at appellant, and another told her to shut up, without providing
further detail regarding these incidents. Witness accounts that do not provide a detailed
description of the specific statements made are of limited probative value.10 Moreover, the
Board has held that being spoken to in a raised or harsh voice does not of itself warrant a finding
of verbal abuse.11
The evidence of record is not sufficient to establish a compensable work factor based on
verbal abuse or harassment. Several of the witness statements provided only the coworker’s
general perceptions of harassment or abuse at work, without providing adequate detail to support
appellant’s specific allegations. While appellant indicated that she had filed an EEO complaint,
there was no supporting evidence or any findings made with respect to a claim of harassment or
verbal abuse.12 The evidence is not of sufficient probative value to establish a compensable
work factor as to verbal abuse or harassment.
Appellant also made an allegation of forgery by a coworker. There is little evidence of
record as to specific details other than appellant stating that her name was improperly signed on
an employing establishment form. The nature of the form or its function at the employing
establishment are not clearly addressed and there is no additional relevant evidence as to the
circumstances surrounding the allegation. Appellant referred to filing a complaint with
inspectors but there are no findings or other probative evidence establishing a compensable work
factor in this regard.
The Board finds that appellant has not substantiated a compensable work factor. Since
appellant has not established a compensable work factor, the Board need not address the medical
evidence.13
On appeal, appellant noted that she filed an EEO complaint and sent a letter to employing
establishment inspectors, and that no one looked into the forgery of her name. It is appellant’s
burden of proof to establish her claim for compensation and the Board can review only the
9

Id.

10

See Joe M. Hagewood, 56 ECAB 479 (2005); Donney T. Drennon-Gala, 56 ECAB 469 (2005).

11

T.G., 58 ECAB 189 (2006).

12

The filing of an EEO complaint does not establish harassment or unfair treatment occurred. Charles D.
Edwards, 55 ECAB 258, 266 (2004).
13

See Margaret S. Krzycki, 43 ECAB 496 (1992). If appellant does establish a compensable work factor, then
she must submit rationalized medical evidence on causal relationship between the work factor and a diagnosed
condition. See Beverly R. Jones, 55 ECAB 411 (2004).

4

evidence that is before OWCP at the time of its final decision.14 The Board has reviewed the
evidence of record, including the witness statements, and for the reasons stated finds that she has
not established a compensable work factor.
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 established an emotional condition causally related
to compensable work factors.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2011 is affirmed.
Issued: June 7, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

14

20 C.F.R. § 501.2(c)(1).

5