United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Melford V. McCormick, J.D., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1695
Issued: June 27, 2017

Case Submitted on the Record

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

JURISDICTION
On August 23, 2016 appellant, through her representative, filed a timely appeal from a
July 27, 2016 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.

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.

ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.
On appeal appellant’s representative asserts that the wrong legal standard was applied,
noting that two witnesses saw the claimed incidents.
FACTUAL HISTORY
On November 10, 2014 appellant, then a 38-year-old tax examiner, filed an occupational
disease claim (Form CA-2) alleging that working in a hostile workplace caused health
conditions. She stated that she first became aware of the condition on May 21, 2012 and its
relationship to her federal employment on May 5, 2014.
By letter dated December 29, 2014, OWCP informed appellant of the evidence needed to
support her claim.
In a January 12, 2015 response, appellant alleged that: (1) in 2011 her manager M.C.
grabbed her arm to prevent her from making a copy of a signed absent-without-leave (AWOL)
memorandum, and continued to harass and retaliate until she was transferred; (2) in 2013, while
on the nightshift, Managers C.J. and K.B. denied her requests for a transfer to the dayshift in
retaliation for Equal Employment Opportunity (EEO) activity; (3) in 2014 she requested Family
and Medical Leave Act (FMLA) leave, and while on leave was continually charged with AWOL
by Managers D.E. and L.S., which caused financial hardship; and, (4) C.G., the union president,
interfered with an EEO investigation.
In a letter dated April 30, 2015, OWCP asked the employing establishment to respond to
appellant’s claim.
The record contains copious evidence regarding appellant’s allegations. An August 4,
2011 report of investigation by the employing establishment’s Office of the Inspector General
(OIG) covering March 9 through July 19, 2011 noted appellant’s allegation that M.C. grabbed
her arm and pushed her while she was in Supervisor M.C.’s cubicle discussing an AWOL
memorandum. M.C. agreed that she and appellant were discussing an AWOL memorandum, but
denied that she touched appellant. A witness, L.R., described an incident that occurred on or
about March 9, 2011 when M.C. became upset with appellant because she had been talking with
a new employee. L.R. indicated that M.C. began berating appellant, and then placed her hands
on appellant and gently pushed her away. The employing establishment noted, in a
September 21, 2011 letter, that it had closed the investigation with no action. M.C. had been
cautioned to create and sustain a positive workplace. A September 18, 2012 report indicated that
the OIG investigation was closed and noted that appellant had filed an EEO complaint.
Regarding appellant’s 2013 request for a hardship transfer from the nightshift to the
dayshift included a May 16, 2013 memorandum to appellant from C.J., senior manager, indicated
that no position was available on the dayshift at that time and that appellant’s name had been

2

placed on a list for consideration when a position became open. C.J. noted that appellant had
permanently transferred to the dayshift under a new division.
In a grievance resolution signed on October 16, 2012, 20 hours of sick leave were
restored to appellant and 8 hours of AWOL was changed to 8 hours of FMLA. The employing
establishment was to respond to appellant’s request for a transfer and secure a new position for
her. Neither party admitted to wrongdoing. A second grievance settlement agreement dated
October 9, 2014 indicated that 62 hours of AWOL would be changed to appropriate leave. The
agreement provided that it did not constitute an admission of wrongdoing on the part of the
employing establishment. A February 13, 2015 report regarding this indicated that, at the time
appellant requested 480 hours of FMLA in May 2014, it exceeded the 168 hours that had been
approved, and that it was not until June 9, 2014 that sufficient medical documentation was
received to support the additional hours. At that time the AWOL was changed to annual leave,
sick leave, leave bank, and leave transfer hours.
Evidence regarding interaction with C.G., who was president of the union local,
described an October 22, 2014 event when appellant alleged that C.G. approached her desk with
an envelope, telling her to sign it, and he shoved the envelope at her, and then on October 24,
2014 L.S., a manager, told appellant that she needed to meet with her and C.G., but C.G.
requested another union representative. A management inquiry dated January 22, 2015 indicated
that no evidence was found that a physical assault occurred.
The record also contains additional evidence regarding EEO claims and grievances filed,3
and appellant’s performance appraisals.
In a January 12, 2015 statement, C.D., a coworker, advised that, while she and appellant
were cordially speaking to each other on September 10, 2014, L.S. came and commented:
“ladies we have a lot of work to do.” She also indicated that she knew that C.G. became
aggressive when he asked appellant to sign some papers and threw them at her.
Medical evidence relevant to the claim included a June 1, 2012 report in which Daniel J.
Keyser, Ph.D., a clinical psychologist, indicated that appellant was under his care for an anxiety
disorder, depression, and an extremely high stress level. In a June 9, 2014 letter, Dr. Keyser
indicated that appellant was under his care for work-related stress and depression. He advised
that she be on medical leave from May 5 through August 31, 2014. On an attending physician’s
report (Form CA-20), dated December 9, 2014, Dr. Keyser diagnosed anxiety and depression.
On January 5, 2015 he related that he began treating appellant on May 21, 2012 for anxiety and
depression due to a hostile work environment. Dr. Keyser maintained that conditions had not
changed, and appellant still experienced work-related anxiety and depression caused by the
stressors of the hostile environment. On April 20, 2015 he related that appellant was having
sleep disturbances and physical symptoms such as muscle spasms, headaches, abdominal pain,
chest pain, and digestive problems. Dr. Keyser advised that she was unable to perform her
regular work duties.

3

No additional settlement agreements or final decisions are found in the case record before the Board.

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By decision dated November 18, 2015, OWCP found that appellant had not established
any compensable factors of employment and denied the claim. It specifically found that the
claimed assault by supervisor M.C. did not occur.
Appellant timely requested a hearing with OWCP’s Branch of Hearings and Review. She
submitted evidence previously of record. D.M., a coworker, provided an April 19, 2011
statement in which she opined that M.C. was rude and unfair. Appellant submitted additional
reports from Dr. Keyser. Her representative also submitted additional evidence alleging
continued harassment into 2016.
At the hearing held on June 10, 2016, the hearing representative explained that no
incidents after November 10, 2014 would be considered. Appellant’s representative maintained
that harassment was shown by the EEO reversal of leave without pay. Appellant testified
regarding the March 2011 event with M.C., and subsequent transfers, indicating that her next
team supervisor’s wife was a friend of M.C., that the third supervisor was very rude, and that
L.S. micromanaged and was very controlling. She also maintained that she had inappropriately
been charged AWOL, that her hardship request was improperly denied, and that she had won
several EEO claims.
By decision dated July 27, 2016, an OWCP hearing representative affirmed the
November 18, 2015 decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.4 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.5 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.6
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,7 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
4

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

5

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

6

Id.

7

28 ECAB 125 (1976).

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coverage under FECA.8 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.9 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.10 Where the
claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence.11 Personal perceptions alone are insufficient to
establish an employment-related emotional condition.12
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 FECA.13 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.14
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.15
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEO, which is charged with statutory authority to investigate and evaluate such matters in
the workplace. Rather, in evaluating claims for workers’ compensation under FECA, the term
“harassment” is synonymous, as generally defined, with a persistent disturbance, torment or
persecution, i.e., mistreatment by co-employees or coworkers. Mere perceptions and feelings of
harassment will not support an award of compensation.16

8

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

9

Supra note 7.

10

J.F., 59 ECAB 331 (2008).

11

M.D., 59 ECAB 211 (2007).

12

Roger Williams, 52 ECAB 468 (2001).

13

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

14

Kim Nguyen, 53 ECAB 127 (2001).

15

James E. Norris, 52 ECAB 93 (2000).

16

Beverly R. Jones, 55 ECAB 411 (2004).

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Physical contact arising in the course of employment, if substantiated by the evidence of
record, may support an award of compensation if the medical evidence establishes that a
condition was thereby caused or aggravated.17
ANALYSIS
The Board finds this case is not in posture for decision.
Appellant has not alleged that her emotional condition was due to any specific job duties.
Rather, she has alleged that she was harassed and retaliated against and worked in a hostile work
environment, that M.C. inappropriately touched her, that management inappropriately denied
FMLA and placed her on AWOL, that she was inappropriately denied a hardship request, and
that C.G., the union president, interfered with an EEO investigation.
As a general rule, a claimant’s reaction to administrative or personnel matters falls
outside the scope of FECA.18 The Board has long held that disputes regarding leave19 and the
inability to obtain a transfer20 are administrative functions of the employer and, absent error or
abuse, are not compensable.21 Regarding appellant’s allegation that her hardship application to
change from the nightshift to the dayshift was inappropriately denied, Manager C.J. explained
that appellant had been placed on a waiting list for the next available dayshift position, but, in the
meantime, had transferred to a different dayshift position. There is no evidence of error or abuse
in this administrative matter.
Appellant also alleged that she was inappropriately denied FMLA and placed on AWOL.
Generally, actions of the employing establishment in matters involving the use of leave are not
considered compensable factors of employment as they are administrative functions of the
employer and not duties of the employee. Approving or denying a leave request is an
administrative function of a supervisor.22 The employing establishment explained that in
May 2014, when appellant requested 480 hours of FMLA, she had only been approved for 168
hours. When additional medical evidence was received in June 2014, the AWOL was changed
to annual leave, sick leave, leave bank, and leave transfer hours. Although the record contains
two settlement agreements dated August 2012 and October 2014 regarding restored leave, each
indicated that the employing establishment was not in error. There is no evidence of error or
abuse in this administrative matter.
Regarding appellant’s perception that she was harassed and retaliated against by
employing establishment management, generally, complaints about the manner in which a
17

Alton L. White, 42 ECAB 666 (1991).

18

Carolyn S. Philpott, 51 ECAB 175 (1999).

19

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

20

Alberta Kinloch-Wright, 48 ECAB 459 (1997).

21

Supra note 13.

22

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

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supervisor performs his or her duties or the manner in which a supervisor exercises his or her
discretion fall, as a rule, outside the scope of coverage provided by FECA. This principle
recognizes that a supervisor or manager in general must be allowed to perform his or her duties,
and employees will, at times, dislike the actions taken. Here again, as the record contains no
evidence that any employing establishment supervisor or manager treated appellant in a
disrespectful manner, error or abuse in discharging management duties has not been established,
and this allegation is not compensable.23
Perceptions of harassment or discrimination are not compensable under FECA,24 and
unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.25 As noted, the August and October 2012
settlement agreements regarding restored leave were resolved with no admission of error.
Although appellant submitted several statements from coworkers, these statements are
insufficient to meet appellant’s burden of proof. C.D. merely described a comment made by
Manager L.S., and D.M. merely opined that Manager M.C. was unfair. While these generally
supported appellant’s contentions, neither substantiated the type of harassment contemplated
under FECA. Appellant, thus, submitted insufficient evidence to show a persistent disturbance,
torment, or persecution, i.e., mistreatment by employing establishment management.26 She,
therefore, has not established a factual basis for her claim of harassment by probative and
reliable evidence.27
Moreover, with regard to appellant’s allegation regarding union president C.G.,
interfering with an EEO investigation, the Board has held that union activities are personal in
nature and are not considered to be within the course of employment.28 While there is a
recognized exception to the general rule, in that employees performing representational functions
which entitle them to official time are in the performance of duty, the incident claimed in the
case at hand was with regard to C.G., the union president, representing appellant regarding a
grievance she had filed.29 Thus, it does not fall within the exception.
With regard to appellant’s allegation that M.C. inappropriately touched her on March 9,
2011, the Board finds that, as in the case Alton L. White, although there is some discrepancy as to
the actual nature and extent of the physical contact between appellant and Manager M.C., the
evidence establishes that there was some physical contact.30 It is not a question of whether the
23

Id.

24

Supra note 15.

25

Id.

26

Supra note 16.

27

See Robert Breeden, 57 ECAB 622 (2006).

28

Jimmy E. Norred, 36 ECAB 726 (1985).

29

See L.D., Docket No. 15-0706 (issued May 9, 2016).

30

Supra note 17.

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physical contact rose to the level of abuse. It is simply a question of whether physical contact
arising in the course of employment is substantiated by the evidence of record.31 Appellant
alleged that on March 9, 2011, while she was in M.C.’s cubicle discussing an AWOL
memorandum, M.C. grabbed her arm and pushed her. M.C. agreed that she and appellant were
discussing an AWOL memorandum, but denied that she touched appellant. L.R., a coworker,
informed the OIG that she witnessed an incident that occurred on or about March 9, 2011 when
M.C. became upset with appellant regarding her talking with a new employee and began berating
appellant. L.R. witnessed M.C. place her hands on appellant and, albeit gently, push her away.
Thus the record establishes that there was physical contact between appellant and M.C. A
compensable employment factor has, therefore, been established.32
In denying appellant’s claim, OWCP did not review the medical opinion evidence
submitted on the issue of causal relationship. The Board will, therefore, set aside OWCP’s
July 27, 2016 decision and remand the case for a review of the medical opinion evidence. After
such further development as may be necessary, OWCP shall issue a de novo decision on
appellant’s emotional injury claim.
CONCLUSION
The Board finds this case is not in posture for decision.

31

D.S., Docket No. 15-0585 (issued July 11, 2016).

32

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: June 27, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MICHAEL E. DEBAKEY VA MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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Appearances:
Roman Rozkov, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1345
Issued: February 2, 2022

Case Submitted on the Record

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

JURISDICTION
On June 23, 2020 appellant, through counsel, filed a timely appeal from a December 30,
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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted May 31, 2017 employment incident.

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.

FACTUAL HISTORY
On June 9, 2017 appellant, then a 61-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that on May 31, 2017 he experienced pain and swelling in his head,
neck, back, and abdomen after slipping and falling from a rolling stool when collecting trash while
in the performance of duty. On the reverse side of the claim form, the employing establishment
controverted his claim, asserting that he was not injured in the performance of duty as he was not
using standard operating procedures while collecting trash. Appellant did not stop work.
In a development letter dated June 19, 2017, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of medical evidence
needed, including a narrative report from his physician explaining how the reported employment
incident caused or aggravated a medical condition. OWCP afforded appellant 30 days to submit
the necessary evidence.
OWCP subsequently received emergency department notes, dated June 2, 2017, from
Dr. Kamel Sadat, a Board-certified cardiologist, who noted that appellant hit his head while
working. Dr. Sadat examined appellant and reviewed a computerized tomography (CT) scan of
his head. He found an incidental mass on appellant’s head, which was likely a meningioma.
In a June 12, 2017 duty status report (Form CA-17), a physician assistant noted that
appellant was injured when he slipped while emptying trash. The physician assistant indicated
that appellant could resume work with restrictions on June 12, 2017.
On June 12, 2017 appellant accepted a light-duty assignment as a housekeeping aid.
On a June 20, 2017 Form CA-17 a provider with an illegible signature advised that
appellant could not resume work.
By decision dated July 20, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish a medical diagnosis in connection with the accepted
May 31, 2017 employment incident. It concluded therefore that the requirements had not been
met to establish an injury as defined by FECA.
OWCP subsequently received treatment notes from Dr. Cheng Lee, a chiropractor, dated
June 15 through September 15, 2017.
In a June 20, 2017 report, Dr. Dominic Sreshta, a Board-certified specialist in internal
medicine, noted that appellant fell backward and hit his head, neck, and back on a table after
slipping from a rolling stool while picking up trash. He examined appellant and diagnosed head
trauma, abdominal muscle strain, thoracic spine sprain, lumbar spine sprain, dizziness, cervical
spine sprain, and muscle spasm.
In a July 25, 2017 report, Dr. Sreshta noted that appellant experienced some improvement
in his back and neck pain. He examined appellant and diagnosed cervical spine sprain, lumbar
spine sprain, thoracic spine sprain, head trauma, closed traumatic brain injury, abdominal muscle
strain, dizziness, and muscle strain. Dr. Sreshta indicated that appellant also had ankylosing
spondylitis in the spine, which was complicating his treatment program.

2

Appellant submitted Form CA-17 reports from Dr. Sreshta, dated July 25, 2017 through
June 12, 2018, noting that appellant had decreased range of motion (ROM) in his neck and back.
Dr. Sreshta listed appellant’s work restrictions and ability to resume work.
In an August 22, 2017 report, Dr. Sreshta noted that appellant’s neck pain has slightly
decreased, but his ROM remained stiff. He examined appellant and diagnosed cervical spine
sprain, lumbar spine sprain, thoracic spine sprain, head trauma, closed traumatic brain injury, and
abdominal muscle strain.
A September 15, 2017 functional improvement measures report from Dr. Paul Raymond,
a chiropractor, showed the results of ROM, muscle strength, and grip strength testing.
In a report dated September 19, 2017, Dr. Sreshta examined appellant and diagnosed
cervical spine sprain, lumbar spine sprain, thoracic spine sprain, head trauma, closed traumatic
brain injury, abdominal muscle strain, dizziness, and muscle spasm. He noted that appellant would
continue physical therapy treatment.
On October 20, 2017 Dr. Sreshta examined appellant and again diagnosed cervical spine
sprain, lumbar spine sprain, thoracic spine sprain, head trauma, closed traumatic brain injury,
abdominal muscle strain, dizziness, and muscle spasm.
A November 21, 2017 report by Dr. Sreshta indicated that appellant experienced continued
low back pain. He reviewed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
and noted that he had failed conservative treatment.
In reports dated December 19, 2017 through June 12, 2018, Dr. Sreshta reiterated
appellant’s history of injury and treatment plan. He provided physical examination findings and
diagnosed cervical spine sprain, lumbar spine sprain, thoracic spine sprain, head trauma, closed
traumatic brain injury, abdominal muscle strain, dizziness, and muscle spasm.
A March 6, 2018 functional capacity evaluation by Dr. Raymond showed the results of
ROM, muscle strength, and grip strength testing. He diagnosed lumbar spine sprain, lumbar
radiculopathy, thoracic spine sprain, cervical spine sprain, and cervical radiculopathy.
Dr. Raymond found that appellant was unable to perform the usual duties of his job. He noted that
appellant demonstrated restricted ROM in his cervical spine and thoracic spine. Dr. Raymond
further indicated that appellant had a strength deficit in his right elbow, right wrist, and left grip.
He noted that appellant could only safely perform work at the sedentary physical demand level.
In a May 14, 2018 behavioral evaluation, Dr. Carey Fiegel-Jackson, a licensed professional
counselor, reviewed appellant’s medical history. She examined him and found that he was
experiencing feelings of depression, anxiety, and somatization related to his pain. Dr. FiegelJackson recommended that appellant participate in a behavioral multidisciplinary chronic pain
management program.
On July 19, 2018 appellant requested reconsideration.
Appellant submitted records, dated July 20, 2018, which showed his active health
problems.

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By decision dated October 9, 2018, OWCP modified its July 20, 2017 decision to find that
appellant had established a diagnosed condition. However, the claim remained denied, as the
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
condition(s) and the accepted May 31, 2017 employment incident.
OWCP subsequently received a January 14, 2019 report from Dr. Joan Appleyard, a
Board-certified rheumatologist, who noted that appellant had been experiencing back and neck
pain since November 1974. She indicated that he fell and hit his neck in May 2017. Dr. Appleyard
examined appellant and reviewed x-rays of his spine. She diagnosed ankylosing spondylitis and
opined that the employment incident exacerbated his symptoms of his underlying spinal
spondylitis.
On September 30, 2019 appellant, through counsel, requested recon sideration and
submitted additional evidence.
In a July 8, 2019 report, Dr. Sreshta described the May 31, 2017 employment incident and
diagnosed lumbar spine sprain, thoracic spine sprain, cervical spine sprain, abdominal muscle
strain, low back muscle spasm, and chronic pain syndrome. He opined that appellant’s conditions
were directly caused by the employment incident. Dr. Sreshta noted that appellant had preexisting
ankylosing spondylitis, which made him more susceptible to spine and back injuries. He explained
that ankylosing spondylitis caused vertebrae in the spine to fuse, which made the spine less flexible
and in turn caused the muscles, ligaments, and tendons in the back and neck to become
overworked. Dr. Sreshta noted that these muscles, ligaments, and tendons were highly susceptible
to damage or sprain. He found that the employment incident of falling and colliding with a table
exerted a rapid straining force onto appellant’s cervical, thoracic, and lumbar spine, which caused
the sprains of the ligaments. Dr. Sreshta opined that the force of the fall caused tiny tears to
develop in the soft tissues of appellant’s neck and back, which caused the sprains. He further
opined that the overstretching and pressure from the employment incident caused appellant’s low
back muscle spasms. Dr. Sreshta explained that the combination of lifting trash from a seated
position and suddenly falling caused appellant’s abdominal strain. He noted that appellant had
been experiencing pain for more than six months and therefore had chronic pain. Dr. Sreshta
indicated that appellant had chronic pain syndrome as he developed symptoms beyond chronic
pain, including depression and anxiety. He noted that on May 14, 2018 appellant was given a
behavioral evaluation, which showed that he was in the severe range for depression and anxiety.
Dr. Sreshta, therefore, opined that appellant’s diagnosed conditions were directly caused by the
May 31, 2017 employment incident.
By decision dated December 30, 2019, OWCP denied modification of its October 9, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

3

Id.

4

time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 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. 6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 9 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 incident identified by the claimant. 10
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted a July 8, 2019 report from Dr. Sreshta who
accurately described the history of the accepted May 31, 2017 employment incident. Dr. Sreshta
diagnosed lumbar spine sprain, thoracic spine sprain, cervical spine sprain, abdominal muscle
strain, low back muscle spasm, and chronic pain syndrome and opined that appellant’s conditions
were directly caused by the employment incident. He explained that appellant’s preexisting
ankylosing spondylitis caused vertebrae in the spine to fuse, which made the spine less flexible
4

M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.J., Docket No. 19-0461 (issued August 11, 2020); Delores C. Ellyett, 41 ECAB 992 (1990); Elaine Pendleton,
40 ECAB 1143 (1989).
8

D.M., Docket No. 20-0386 (issued August 10, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

A.R., Docket No. 19-0465 (issued August 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

W.L., Docket No. 19-1581 (issued August 5, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1071 (issued August 26, 2020); V.W., Docket No. 19-1537 (issued May 13, 2020).

5

and caused the muscles, ligaments, and tendons in the back and neck to become overworked,
making them highly susceptible to damage or sprain. Dr. Sreshta opined that the employment
incident of falling and colliding with a table exerted a rapid straining force on appellant’s cervical,
thoracic, and lumbar spine, which caused tiny tears to develop in the soft tissues of appellant’s
neck and back, causing his ligament sprains. He further opined that the overstretching and pressure
from the employment incident caused appellant’s low back muscle spasms. Dr. Sreshta also
explained that the combination of lifting trash from a seated position and suddenly falling caused
appellant’s abdominal strain. He finally noted that appellant had chronic pain as he had been
experiencing pain for more than six months. Dr. Sreshta opined that appellant had chronic pain
syndrome as appellant developed symptoms beyond pain, including depression and anxiety, which
interfered with his daily life. He indicated that on May 14, 2018 appellant was given a behavioral
evaluation which showed that appellant was in the severe range for depression and anxiety.
The Board finds that the July 8, 2019 report of Dr. Sreshta is sufficient to require further
development of the medical evidence. Dr. Sreshta is a Board-certified physician who is qualified
in his field of medicine. He reviewed appellant’s medical records and provided a comprehensive
understanding of the case history. Dr. Sreshta provided a pathophysiological explanation as to
how the mechanism of the accepted employment incident was sufficient to cause appellant’s
diagnosed conditions. His opinion is not contradicted by any substantial medical or factual
evidence of record. 12 The Board has long held that it is unnecessary that the evidence of record in
a case be so conclusive as to suggest causal connection beyond all possible doubt. Rather, the
evidence is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical.13 Following review of Dr. Sreshta’s July 8, 2019 report, the Board finds that
his medical opinion is rationalized and logical and is therefore sufficient to require further
development of appellant’s claim.14
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is
done.16
On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine,
along with the case record and a statement of accepted facts. Its referral physician shall provide a
well-rationalized opinion as to whether the accepted May 31, 2017 employment incident caused,
contributed to, or aggravated appellant’s diagnosed conditions. If the physician opines that the
diagnosed conditions are not causally related to the employment incident, he or she must explain

12

See A.M., Docket No. 18-1656 (issued October 23, 2020).

13

See J.S., Docket No. 20-0379 (issued October 28, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983).
14

See S.J., Docket No. 19-1029 (issued October 22, 2020).

15

See A.M., supra note 12; see also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51
ECAB 219, 223 (1999).
16

See J.S., supra note 13; B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued
February 19, 2010); John J. Carlone, 41 ECAB 354 (1989).

6

with rationale how or why their opinion differs from that of Dr. Sreshta. Following this and other
such further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Birmingham, AL, Employer
__________________________________________

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

Docket No. 11-1041
Issued: February 1, 2012

Case Submitted on the Record

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

JURISDICTION
On March 22, 2011 appellant filed a timely appeal from an October 27, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP) and a February 17,
2011 decision of an OWCP hearing representative. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the schedule award decision.
ISSUE
The issue is whether appellant met his burden of proof to establish more than a one
percent impairment of the right leg for which he received a schedule award.
On appeal, appellant contends that he has greater impairment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 1, 1999 appellant, then a 51-year-old x-ray technologist, filed a traumatic
injury claim, alleging that he injured his back lifting a patient on September 28, 1999. On
October 14, 1999 OWCP accepted that he sustained an employment-related lumbosacral strain.
The claim was also accepted for a herniated disc at L4-5. On April 4, 2000 Dr. Thomas A.
Wilson, Jr., a Board-certified neurosurgeon, performed a lumbar microdiscectomy. Appellant
returned to modified duty. By decision dated February 26, 2001, OWCP determined that his
actual earnings in his modified position fairly and reasonably represented his wage-earning
capacity. Appellant retired on disability effective January 6, 2006. On November 29, 2006 he
elected FECA benefits.2
On May 20, 2010 appellant filed a schedule award claim. A January 19, 2010 magnetic
resonance imaging (MRI) scan of the lumbar spine demonstrated the previous surgery and
bilateral foraminal stenosis at L4-5 and L5-S1 with rather diffuse disc bulging at L5-S1. A
July 13, 2010 functional capacity evaluation was determined to be invalid due to significant lack
of effort and inconsistencies.
By letter dated August 10, 2010, OWCP informed appellant of the type evidence needed
to support his schedule award claim. Appellant was asked to provide a report by his physician in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides).3
A September 20, 2010 electromyography (EMG) study of the lower extremities was
interpreted as normal without evidence of radiculopathy. In a September 27, 2010 report,
Dr. Ronald T.Y. Moon, an osteopath, advised that appellant reached maximum medical
improvement on September 22, 2010, that the nerve root involved was L4 and that in accordance
with the fifth edition of the A.M.A., Guides, appellant had a five percent impairment due to loss
of function from sensory deficit, pain or discomfort and a zero loss due to decreased strength.
By report dated October 8, 2010 report, OWCP’s medical adviser reviewed the medical
evidence and identified the nerve root involved as L4, with only a sensory impairment. In
accordance with the sixth edition of the A.M.A., Guides, under Table 16-11, appellant had a mild
or class 1, impairment, which he rated at one percent. The medical adviser noted that, under
proposed Table 2, as found in Exhibit 4 of section 3.700 of OWCP procedures, appellant had a
mild sensory impairment which he rated as class 1 with a default value of C, for one percent
impairment. The medical adviser then applied the net adjustment formula, finding no change,

2

On May 4, 2007 the employing establishment informed OWCP that it had continued to accommodate
appellant’s modified duty until he was removed for disciplinary reasons effective November 18, 2005. Appellant
retired on disability effective January 6, 2006. By decision dated May 8, 2007, OWCP denied his claim that he
sustained a recurrence of disability on January 6, 2006. In decisions dated October 25, 2007 and January 14, 2008,
OWCP’s Branch of Hearings and Review denied appellant’s requests for a hearing on the grounds that the requests
were untimely filed. By decision dated April 23, 2008, OWCP denied modification of the prior decision. In a
nonmerit decision dated July 18, 2008, it denied appellant’s reconsideration request.
3

A.M.A., Guides (6th ed. 2008).

2

and concluded that appellant had one percent right leg impairment, with the date of maximum
medical improvement of September 22, 2010.
In an October 27, 2010 decision, appellant was granted a schedule award for a one
percent impairment of the right leg or a total of 2.88 weeks to run from September 22 to
October 12, 2010.
On November 10, 2010 appellant requested a review of the written record. He submitted
additional medical evidence but did not submit an impairment evaluation. By decision dated
February 17, 2011, OWCP’s hearing representative affirmed the October 27, 2010 decision.4
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition is to be used.9
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
4

Following appellant’s appeal to the Board, upon examination of the case record, it was determined that the
February 17, 2011 decision of OWCP’s hearing representative was not contained in the record. By order dated
November 29, 2011, the Board asked that OWCP complete the record. OWCP complied, and the case record is now
complete.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

3

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.12 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures.13 Specifically, it will address lower extremity impairments
originating in the spine through Table 16-1114 and upper extremity impairments originating in
the spine through Table 15-14.15
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).16 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).17
ANALYSIS
The Board finds that appellant has a one percent impairment of the right leg. OWCP
accepted that he sustained a lumbosacral strain and herniated disc at L4-5 on September 28, 1999
while lifting a patient. The Board finds that the weight of the medical evidence rests with the
opinion of OWCP’s medical adviser, the only impairment evaluation of record that conforms to
the sixth edition of the A.M.A., Guides. By letter dated August 10, 2010, OWCP informed
appellant that in order to support his schedule award claim, he should submit a report from his
physician that was in accordance with the sixth edition of the A.M.A., Guides. In a
September 27, 2010 report, Dr. Moon, an attending osteopath, advised that appellant reached
maximum medical improvement on September 22, 2010. He indicated that the nerve root
involved was L4 and that, under the fifth edition of the A.M.A., Guides, appellant had a five
percent impairment due to loss of function from sensory deficit, pain or discomfort and a zero
loss due to decreased strength. As noted, subsequent to May 1, 2009, the sixth edition of the
A.M.A., Guides is to be used in determining impairments. Dr. Moon based his impairment
rating on the fifth edition. A medical opinion not based on the appropriate edition of the A.M.A.,
Guides is of diminished probative value in determining the extent of a claimant’s permanent
impairment.18
By report dated October 8, 2010 report, OWCP’s medical adviser reviewed the medical
evidence and identified the affected nerve root as L4, with sensory impairment. He advised that,
12

Rozella L. Skinner, 37 ECAB 398 (1986).

13

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 8.

14

Supra note 3 at 533.

15

Id. at 425.

16

Supra note 14.

17

Id. at 521.

18

Shalanya Ellison, 56 ECAB 150 (2004).

4

in accordance with the sixth edition of the A.M.A., Guides, under Table 16-11, appellant had a
mild or class 1, impairment, which he rated at one percent. The medical adviser then indicated
that, under proposed Table 2, as found in Exhibit 4 of section 3.700 of OWCP procedures,
appellant had a mild sensory impairment which he rated as class 1 with a default value of C for
one percent impairment. He then applied the net adjustment formula, finding no change and
concluded that appellant had one percent right lower extremity impairment, with the date of
maximum medical improvement of September 22, 2010. While appellant submitted additional
medical evidence, he did not submit an impairment evaluation.
The Board finds that OWCP’s medical adviser properly reviewed the medical record and
evaluated appellant’s right lower extremity impairment in accordance with OWCP procedures
found at Exhibit 4 of section 3.700. There is no medical evidence establishing a greater
impairment.
Regarding appellant’s argument on appeal that he has a greater impairment then awarded,
the amount payable pursuant to a schedule award does not take into account the effect that the
impairment has on employment opportunities, wage-earning capacity, hobbies or other lifestyle
activities.19 Section 8107 provides a compensation schedule for payment of awards for
permanent impairment of listed body members. The schedule establishes how many weeks of
compensation an employee will receive in the event of total functional loss or dismemberment.
Compensation for partial loss of use of a scheduled member is awarded for a proportionate
number of weeks.20 For complete loss of use of the leg, the maximum number of weeks of
compensation is 288. Since appellant’s permanent impairment of his right leg is one percent, he
is entitled to one percent of 288 weeks or 2.88 weeks of compensation. Under the schedule
award provisions, he is entitled to no more.21
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish that he has more than a one percent
impairment of the right lower extremity.

19

Denise L. Crouch, 57 ECAB 161 (2005).

20

5 U.S.C. § 8107; see Carol A. Smart, 57 ECAB 340 (2006).

21

See R.O., Docket No. 10-1777 (issued March 16, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2011 and October 27, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 1, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 21-0995
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 17, 2021 appellant filed a timely appeal from a December 21, 2020 nonmerit
decision and an April 15, 2021 merit decision and 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) whether
appellant has met his burden of proof to establish permanent impairment of a scheduled member
or function of the body, warranting a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 10, 1989 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 1989 he sustained a left knee injury when pulling an allpurpose container (APC) while in the performance of duty. He did not stop work but was granted
disability retirement on March 11, 1992. OWCP accepted that appellant sustained a sprain/strain
of the left knee and leg, a tear of the left lateral meniscus, and left corns/calluses. It authorized
arthroscopic surgery on the left knee, performed on January 23, 1990.3
On April 15, 2005 appellant filed a notice of recurrence of disability (Form CA-2a),
alleging that he experienced pain and weakness in his left knee commencing October 30, 2004,
causally related to the accepted May 10, 1989 employment injury.
By decision dated August 16, 2006, OWCP denied appellant’s recurrence of disability
claim, finding that the evidence of record was insufficient to establish that appellant sustained a
recurrence of disability commencing October 30, 2004 causally related to his work injury of
May 9, 1989.
On November 28, 2006 appellant appealed to the Board. 4 By decision dated June 7, 2007,
the Board affirmed the August 16, 2006 OWCP decision.
OWCP received additional evidence. Appellant subsequently submitted employing
establishment medical records dated March 4, 1977 through June 7, 1988 where he was treated for
several conditions including ankle, toe, right foot, and back pain. He was treated by Dr. Michael
Redlich, a Board-certified neurologist, on February 25, 1992 for cervical and thoracic disc
syndrome. Likewise, from March 12, 1993 through August 11, 2000, Dr. A. Janati, a Boardcertified neurologist, treated appellant for chronic neck and left lower extremity pain. He
diagnosed degenerative arthritis of the cervical and thoracic spine, which was related to trauma
while in the military in 1978. Appellant attended physical therapy from July 17, 1978 through
March 16, 2000. He also submitted a position description for a personnel clerk.
Dr. Azer treated appellant from October 20, 1989 through September 10, 1991 for
callouses on his left foot and left knee pain. OWCP received diagnostic studies from March 3,
1992 through December 21, 2017.

2

Docket No. 07-406 (issued June 7, 2007).

3

On January 23, 1990 Dr. Samir N. Azer, a Board-certified orthopedist, performed arthroscopy of the left knee,
removed loose chondral fracture, shaved crater, and diagnosed loose chondral body of the left knee with greater defect
of the left medial femoral condyle weight bearing surface.
4

Supra note 2.

2

On January 21, 2017 Dr. Ferdinand M. Amante, Jr., an orthopedic surgeon, reevaluated
appellant for a painful left knee. Appellant reported sustaining a proximal left leg fracture at 14
years old and underwent a left knee meniscectomy in 1990. He diagnosed osteoarthritis of the left
knee and left leg length discrepancy which could be an aggravating factor for osteoarthritis.
In a statement dated September 13, 2018, appellant provided a history of his employment
with the Federal Government. He sought to expand the acceptance of his claim to include
aggravated underlying preexisting medical conditions. In a statement dated December 13, 2018,
appellant again requested expansion of his claim.
In a medical certificate and report dated November 20, 2018, Dr. Emiliano B. Tablante, a
Board-certified orthopedist, noted a history of the May 9, 1989 work injury and provided a medical
history from May 1967 through January 2, 2018. He noted that appellant underwent a posterior
decompression L3-4 and L4-5 on January 2, 2018. Dr. Tablante noted findings on examination of
decreased stride length, tight on trapezius, paracervical and lats doris, muscle spasm o f lower
trapezius, intermittent localized pain of the knee and patella, muscle spasm with dull pain in the
feet and hand, and cervical pain with radiculopathy. He diagnosed left ganglion cyst of first
metatarsal head, focal right synovitis, posterior calcaneal spur, left os peroneum, right pes planus,
overpronation of the foot, osteoarthritis changes of the knees, left patella osteophyte, right knee
varus, status post chronic low back pain with radiculopathy, levoscoliosis, compression deformity
of the thoracic spine, thoracic spondylosis, cervical spondylosis with radiculopathy at C4-5, C5-6,
C6-7, mild anterior wedge compression deformities at C5-6, and bilateral carpal tunnel syndrome.
Dr. Tablante opined within a reasonable degree of medical certainty that the above medical
conditions were consequential to the accepted left knee and leg sprain/strain, left lateral meniscus
tear, and left calluses. He recommended further diagnostic work up including epidural cervical
injections and diagnostic arthroscopy of the left knee.
On May 30, 2019 appellant again requested his claim be reopened and expanded to include
additional conditions.
On September 28, 2020 appellant requested reconsideration of the August 16, 2006 OWCP
decision denying his recurrence claim. He alleged clear evidence of error in the last OWCP
decision based on OWCP’s failure to develop his subsequent injury claims after the January 25,
1990 OWCP-authorize arthroscopic left knee surgery revealed loose chondral bodies and defect
of the medial femoral condyle. Appellant also requested a schedule award for the left lower
extremity, and expansion of the acceptance of his claim.
On September 28, 2020 OWCP received an electromyogram (EMG) and nerve conduction
velocity (NCV) study dated September 18, 2003 that revealed multiple peripheral neuropathy,
sensorimotor affecting the lower more than upper extremities without ruling out bilateral chronic
cervical C5-6 radiculopathies and bilateral lumbar L5 radiculopathies. X-rays of the feet dated
October 3, 2017 revealed posterior calcaneal spurs and os peroneum of the left foot. An x -ray of
the right hip dated November 24, 2019 revealed no discrete fracture or dislocation. An x-ray of
both knees dated March 10, 2020 revealed mild degenerative osteoarthritic changes and bilateral
patellar enthresophytes.

3

On October 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated October 20, 2020, OWCP requested that appellant submit an
impairment evaluation addressing whether he had reached MMI and provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days to submit additional medical
evidence in support of his schedule award claim.
By decision dated December 21, 2020, OWCP denied appellant’s reconsideration request
of the August 16, 2006 recurrence decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
By decision dated April 15, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely, it undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.11
5

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

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 (September 2020).

4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures 16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including a merit decision of the Board.17 The most recent merit decision on the recurrence issue
was the Board’s June 7, 2007 decision, which affirmed the denial of appellant’s claim for a
recurrence of disability on October 30, 2004. As OWCP received his request for reconsideration
on September 28, 2020, more than one year after the June 7, 2007 decision, the Board finds that it
was untimely filed. Because appellant’s request was untimely filed, he must demonstrate clear
evidence of error on the part of OWCP in its August 16, 2006 decision.

12

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (September 2020).

14

U.C., Docket No. 19-1753 (issued June 10, 2020).

15

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

20 C.F.R. § 10.607(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a. (September 2020); R.G., Docket No. 21-0540 (issued November 9, 2021); B.P., Docket No. 20-0178
(issued August 23, 2021); Debra McDavid, 57 ECAB 149 (2005).

5

Appellant submitted employing establishment medical records dated March 4, 1977
through June 7, 1988; treatment notes from Dr. Redlich dated February 25, 1992; reports from
Dr. Janati dated March 12, 1993 through August 11, 2000; physical therapy treatment notes from
July 17, 1978 through March 16, 2000; and reports from Dr. Azer dated October 20, 1989 through
September 10, 1991. These reports are not relevant to the recurrence claim as they predate the
alleged date of the recurrence and do not raise a substantial question as to whether the August 16,
2006 decision was in error. 18
Appellant submitted diagnostic studies dated March 3, 1992 through March 10, 2020
including x-rays, MRI scans, and an EMG/NCV study. Diagnostic studies, standing alone, lack
probative value on the issue of causal relationship. 19 Therefore, none of this evidence manifests
on its face that OWCP committed an error in denying appellant’s claim for recurrence of disability
commencing October 30, 2004. Thus, the evidence is insufficient to demonstrate clear evidence
of error.20
Appellant also submitted a January 21, 2017 report from Dr. Amante who diagnosed
osteoarthritis of the left knee and left leg length discrepancy, which could be an aggravating factor
for osteoarthritis. Similarly, in a medical certif icate and report dated November 20, 2018,
Dr. Tablante provided additional nonaccepted diagnoses and opined within a reasonable degree of
medical certainty the mentioned diagnoses were consequential to the accepted left knee and leg
sprain/strain, left lateral meniscus tear, and left calluses. However, these reports do not address
the claimed recurrence of disability commencing October 30, 2004. Thus, this evidence does not
raise a substantial question as to the correctness of OWCP’s August 16, 2006 merit decision. 21
As appellant has not raised an argument or submitted any evidence that manifests on its
face that OWCP committed an error in denying his recurrence claim, the Board finds that his
untimely request for reconsideration failed to demonstrate clear evidence of error. 22
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA, 23 and its implementing federal regulations,24 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
18

M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).

19

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
20

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

21

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

22

Id.

23

5 U.S.C. § 8107.

24

20 C.F.R. § 10.404.

6

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 25 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 26
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 27 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.28 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a d iscussion of how the
impairment rating was calculated. 29 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.30
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 31 OWCP procedures, however,
further provide that if a claimant does not provide an impairment evaluation from his or her
physician when requested, and there is an indication of permanent impairment in the medical
evidence of file, the claims examiner (CE) should refer the claimant for a second opinion
evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion
examination to determine if the evidence in the file is sufficient for the DMA to provide an
impairment rating. If the case is referred for a second opinion, the report should contain the
information described in 6a above.32 If it does not contain this information, clarification with the
second opinion should be sought. 33

25

Id. at § 10.404(a).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
27

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

28

Supra note 8 at Chapter 2.808.5 (March 2017).

29

Id. at Chapter 2.808.6(a) (March 2017).

30

Id. at Chapter 2.808.6(c).

31

Id.

32

Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was
calculated. Supra note 8 at Chapter 2.808.6a.
33

Supra note 8 at Chapter 2.808.6d (March 2017).

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted the claim for sprain/strain of the left knee and leg, a tear of the left lateral
meniscus, left corns/calluses, and aggravation of other spondylosis with radiculopathy,
lumbosacral region. On October 9, 2020 appellant filed a claim for a schedule award. Under
FECA,34 where a claimant is seeking a schedule award, he or she must submit a medical report
that “must contain accurate measurements of the function of the organ or member, in accordance
with the A.M.A., Guides.”35 The burden is on the claimant to provide this evidence. 36
In support of his claim, appellant submitted a November 20, 2018 report by Dr. Tablante.
However, the Board finds that it is of diminished probative value because he neither utilized the
sixth edition of the A.M.A., Guides, nor found that appellant reached MMI. Therefore,
Dr. Tablante’s report is insufficient to establish permanent impairment of a scheduled member or
function of the body causally related to appellant’s accepted employment condition. 37
The remaining medical evidence submitted by appellant is also insufficient to establish
permanent impairment of a scheduled member or function of the body causally related to
appellant’s accepted employment condition as it also does not conform with the protocols of the
A.M.A., Guides.
Accordingly, the Board finds that appellant has not met his burden of proof.
Appellant may request a schedule award, or increased schedule award, at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. The Board
further finds that appellant has not met his burden of proof to establish permanen t impairment of
a scheduled member or function of the body, warranting a schedule award.

34

Supra note 1.

35

20 C.F.R. § 10.333.

36

Id. at § 10.115.

37

See M.G., Docket No. 19-0823 (issued September 17, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 and December 21, 2020 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, CERNON STATION
POST OFFICE, Vacaville, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-122
Issued: October 1, 2010

Case Submitted on the Record

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

JURISDICTION
On October 16, 2009 appellant filed a timely appeal from the August 19, 2009 decision of
the Office of Workers’ Compensation Programs denying her emotional condition claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On February 13, 2009 appellant, then a 34-year-old acting station manager, filed a claim
alleging that she sustained a stress-related condition in the performance of duty. She first became
aware of her claimed condition and its relationship to her employment on February 1, 2009.

Regarding the cause of her claimed emotional condition, appellant stated, “Due to stress caused
by additional activities and duties as an acting manager at the Cernon Station Post Office.”1
In a February 13, 2009 statement, appellant noted that when she was detailed to become
acting station manager in March 2008, the prior station manager had not started the Program
Evaluation Guide (PEG), a program that evaluated management’s compliance with Occupational
Safety and Health Administration (OSHA) standards. She asserted that during this period she
worked from about 7 a.m. to 6 p.m. and was not given any assistance from Karen Dragon, the
postmaster. Appellant indicated that there were two supervisors running the operations at the
employing establishment and claimed that she had to spend time mentoring Don Fernandez, one
of the supervisors, who was not performing up to standards. She was also managing the PEG
files and the rest of the office. Appellant repeatedly asked Ms. Dragon for advice and guidance
but she did not provide any assistance with respect to the underperforming supervisor or other
matters, including the correction of errors in a prior rural route examination. In May 2008,
Ms. Dragon told her that the employing establishment had begun to improve, but that she needed
“to get it done faster.” Appellant asserted that Ms. Dragon told her that another employee,
Mr. Wright, had requested to be placed in the position of acting manager. On numerous
occasions, Ms. Dragon “made it clear” that her position was not a permanent one and appellant
felt that she was being threatened with removal if she did not improve the performance of the
office. Appellant claimed that she had to mentor an employee who only worked for her when he
felt like it and who repeatedly threatened to go back to delivering only his mail route.2 She
stated, “With all this pressure from Ms. Dragon, issues with PEG, new supervisors all along with
the normal operations, I began to fell [sic] stressed and my emotions and moods were getting
bad.”
In a February 11, 2009 report, Dr. Zoe Berna, an attending Board-certified family
practitioner, stated that she had treated appellant since June 7, 2006 and that a colleague had
treated her prior to that time. Appellant took various medications during this period and was
currently taking Prozac, a medication used for anxiety, depression and stress. Dr. Berna stated,
“The patient tells me that she has to restart her Prozac because of increased amount of stress
related to her work. It has been my medical recommendation for her to avoid [the] cause of the
stress and if necessary to continue to stay off work.”
In a February 18, 2009 statement, Ms. Dragon noted that she gave appellant an
opportunity to serve as an acting station manager because she had previously filled in when the
prior station manager was on leave and was familiar with the operation of the station. The station
had previously operated with only one supervisor and a station manager, but a second supervisor
was added prior to the time that appellant became the station manager. Ms. Dragon noted that the
station did not begin participating in the PEG program until appellant became the station manager
and she was responsible for managing the PEG program once it began. She provided appellant
assistance with the PEG program by giving her copies of documents related to the conduct of a
1

Appellant last worked for the employing establishment on October 31, 2008 and was terminated on February 13,
2009 for engaging in personal use of postal funds.
2

The employee was designated as a 204B employee, a craft employee who was brought up to a higher level of
service.

2

PEG program at another station and by referring her to additional personnel who could provide
help. Ms. Dragon did not require appellant to work overtime and she did not ask for permission
to work overtime. As part of her duties, appellant was required to manage her office, including
handling the PEG program and mentoring Mr. Fernandez. Ms. Dragon provided advice when
appellant talked to her about the failure of Mr. Fernandez to follow instructions and she believed
that appellant made a good decision when she took actions to remove Mr. Fernandez from his
position. She stated that appellant, as part of her regular duties, had to correct errors to the rural
routes made by a prior manager. During a May 2008 mid-year performance evaluation,
Ms. Dragon suggested changes so that appellant could speed up the performance of her station
and meet the targets for the end of the year. She indicated that it was proper for her to advise
appellant that, after she served as a station manager for at least six months, Mr. Wright would be
allowed to serve for a few months in the position as he also had career advancement ambitions.
Ms. Dragon stated that it was part of appellant’s duties to supervise the 204B employee who was
threatening to go back to his mail delivery route. She gave appellant advice regarding this
employee and provided her with another employee when he eventually did return to his delivery
route.
On March 5, 2009 the Office requested that appellant provide additional factual and
medical evidence in support of her claim. It asked her to respond to the February 18, 2009
statement of Ms. Dragon.
In a March 23, 2009 statement, appellant agreed that the PEG program did not start until
she became station manager, but asserted that Ms. Dragon did not provide her with enough time
to gather the necessary files for the program. She claimed that Ms. Dragon only provided limited
guidance with respect to how to handle the 204B employee and failed to provide adequate
guidance to allow her to speed up the performance of the station. Appellant asserted that
Mr. Fernandez falsified time documentation records pertaining to delivery routes and that
Ms. Dragon should have dealt with this situation rather than requiring her to resolve it. She was
placed on medication in March 2008 due to issues she began having a week or two after
assuming the position of acting station manager.
In an August 19, 2009 decision, the Office denied appellant’s emotional condition claim
on the grounds that she did not establish any compensable employment factors. It found that
Ms. Dragon provided appellant with adequate support and guidance to work as an acting station
manager.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 The Board has held that emotional reactions to situations in which an employee is trying to
3

See 5 U.S.C. §§ 8101-8193; Lillian Cutler, 28 ECAB 125 (1976).

3

meet her position requirements are compensable. 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 her frustration
from not being permitted to work in a particular environment or to hold a particular position.4
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed factors
of employment and may not be considered.7 If a claimant does implicate a factor of employment,
the Office should then determine whether the evidence of record substantiates that factor. When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.8
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents and conditions. In an August 19, 2009 decision, the Office denied her
emotional condition claim on the grounds that she did not establish any compensable
employment factors. The Board must, thus, initially review whether the alleged incidents and
conditions of employment are compensable employment factors under the terms of the Act.
Appellant alleged that, after she became an acting station manager in early 2008, she
sustained stress because she was responsible for managing her station, including handling rural
route examinations and administering the PEG program which required evaluating management’s
compliance with OSHA standards. She spent time mentoring a subordinate supervisor who was
not performing up to standards. Appellant also alleged stress due to managing a 204B employee
(a former craft employee brought up to a higher level of service) who constantly threatened to go
back to mail delivery job. The Board finds that, under the principles of Cutler,9 appellant has
4

See supra note 3.

5

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

6

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

7

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

8

Id.

9

See supra note 3.

4

established employment factors with respect to the above-described responsibilities as an acting
station manager.
The evidence of record establishes that these management responsibilities were part of
appellant’s regular or specially assigned duties. Ms. Dragon, the postmaster, acknowledged that
it was part of appellant’s duties to manage her employees, including Mr. Fernandez and the 204B
employee.10 She also advised that appellant, as part of her regular duties, had to correct errors to
the rural routes made by a prior manager and had to manage the PEG program. As these work
assignments pertain to appellant’s regular or specially assigned duties and relate directly to her
position requirements as an acting station manager, they are compensable employment factors
under Cutler.
Appellant also alleged that Ms. Dragon did not provide her adequate support with respect
to various matters, including the management of the PEG program and rural route examinations
or the handling of employees who had performance problems. She asserted that Ms. Dragon
unfairly criticized her by telling her to speed up the production of her work unit. The Board finds
that these allegations relate to administrative or personnel matters unrelated to appellant’s regular
or specially assigned work duties and do not fall within the coverage of the Act.11 Although the
evaluation of employee performance and the provision of supervisory support are generally
related to the employment, they are administrative functions of the employer, and not duties of
the employee.12 The Board has found that an administrative or personnel matter will be
considered to be an employment factor where the evidence discloses error or abuse on the part of
the employer. In determining whether the employer erred or acted abusively, the Board has
examined whether the management acted reasonably.13
The Board finds that appellant did not submit sufficient evidence to establish that
Ms. Dragon committed error or abuse with respect to these matters. Ms. Dragon explained that
she provided support to appellant regarding various matters by providing advice, referring her to
employees who could help her, and assigning employees to her work unit.14 She noted that it was
appropriate for her to counsel appellant regarding the nature of her work performance. Appellant
did not submit evidence, such as a positive final finding of a grievance or complaint or witness
statements, to establish error or abuse by her manager.15 She has not established a compensable
employment factor under the Act with respect to these administrative matters.
10

Ms. Dragon stated that appellant made a good decision when she took action to remove Mr. Fernandez from his
position.
11

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
12

Id.

13

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

14

There is no indication in the record that it was inappropriate for Ms. Dragon to give appellant the responsibility
of disciplining Mr. Fernandez.
15

The Board notes that appellant did not claim stress due to her removal for cause in February 2009 and the record
does not show error or abuse by the employing establishment in taking this action.

5

Appellant felt that her job was at risk because Ms. Dragon told her to speed up the
station’s production and because it was structured to be temporary in nature.16 Regarding her
allegation that she developed stress due to insecurity about maintaining her position, the Board
has held that a claimant’s job insecurity, including fear of a reduction-in-force, is not a
compensable factor of employment under the Act.17 Ms. Dragon explained that she wished to
provide both appellant and another employee with an opportunity to gain experience working as
an acting station manager for purposes of career advancement.
The Board finds that appellant established compensable factors of employment with respect
to her supervisory duties, which included managing subordinates (such as Mr. Fernandez and the
204B employee) and handling the PEG program and rural route examinations. However, her
burden of proof is not discharged by the fact that she has established employment factors which
may give rise to a compensable condition or disability. To establish her occupational disease claim
for an emotional condition, appellant must also submit rationalized medical evidence to establish
that her condition is causally related to the accepted employment factor.18
Appellant submitted a February 11, 2009 report from Dr. Berna, an attending Boardcertified family practitioner, who stated that she had treated appellant since June 7, 2006 and that
a colleague had treated her prior to that time. Appellant was prescribed medications during this
period for anxiety, depression and stress. Dr. Berna stated that appellant told her that she had to
restart on medication because of “increased amount of stress related to her work” and
recommended that she avoid the cause of the stress and, if necessary, continue to stay off work.
The report is of little probative value on the question of whether appellant sustained an
employment-related emotional condition. Dr. Berna did not provide a firm medical diagnosis or
any findings upon examination or testing. Moreover, she did not provide an opinion on causal
relationship.19 Although appellant attributed her need for medication to stress caused at work,
Dr. Berna did not provide any independent opinion on the cause of her condition. The record does
not contain any other medical evidence to establish that appellant sustained an emotional condition
due to the established employment factors.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

16

Appellant indicated that Ms. Dragon told her that another employee would have a chance to serve as an acting
station manager after she served in that position for at least six months.
17

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

18

See William P. George, 43 ECAB 1159, 1168 (1992).

19

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

6

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed. The August 19, 2009 decision is modified to
reflect that appellant established employment factors pertaining to her supervisory duties, but that
she did not submit sufficient medical evidence to establish that she sustained an emotional
condition due to these factors.
Issued: October 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7