United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CINCINNATI VA MEDICAL CENTER,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 21-1245
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 21, 2021
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 has met her burden of proof to establish a medical condition
causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On November 3, 2020 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 4, 2018 she injured her right arm when she grabbed a
patient who attempted to leave the premises while in the performance of duty. She explained that
the patient became agitated, started to swing his cane at the staff, and attempted to leave the
hospital. Appellant asserted that she grabbed him at the same time the police attempted to subdue
him by placing him on the bed which jerked her arm to the left and pulled her down with the patient
onto the bed. She noted that she initially experienced immediate pain to her wrist and arm, which
worsened with certain activities and continued days later. Appellant stopped work on
December 7, 2018.
In a November 18, 2020 development letter, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
further evidence was submitted.
By decision dated December 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the accepted December 4, 2018 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
In a December 4, 2018 report, Dr. Jason T. Hildebrant, an internist, related that appellant
was involved in a work-related altercation with a patient who was trying to leave the hospital. He
summarized her account that the patient became agitated and aggressive, and that she tried to
redirect him back to his bed while a coworker relieved him of his cane. Dr. Hildebrant noted that
appellant was unsure whether she injured her arm from being hit by the cane or by the patient.
Appellant reported having aching pain in her right forearm. Dr. Hildebrant conducted a physical
examination and diagnosed right arm pain.
A December 15, 2018 x-ray of the right wrist revealed no acute osseous injury. A right
hand x-ray of even date demonstrated no fracture or dislocation. A right forearm x-ray of even
date revealed mild degenerative changes.
In an August 31, 2020 medical report, Dr. Glen A. McClung, a Board-certified orthopedic
surgeon, noted that appellant presented with right shoulder pain after she fell on her right shoulder.
He conducted a physical examination and diagnosed a possible right shoulder partial rotator cuff
tear.
In a November 18, 2020 medical report, Dr. McClung reported that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He noted that she reinjured her right shoulder “in April.” Dr. McClung conducted a

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physical examination and diagnosed probable right shoulder distal clavicle osteolysis, right
shoulder impingement, and a possible partial rotator cuff tear.
A November 30, 2020 magnetic resonance imaging (MRI) scan of the right shoulder
revealed moderate-to-severe supraspinatus and mild infraspinatus tendinosis without tear as well
as mild acromioclavicular (AC) joint osteoarthritis with acromial morphology.
In a December 2, 2020 medical report, Dr. McClung conducted a physical examination and
diagnosed right shoulder impingement, AC arthrosis, and rotator cuff tendinitis.
In a December 10, 2020 form report, Dr. McClung noted that appellant’s condition began
in April 2020 and diagnosed right shoulder pain, rotator cuff tendonitis, impingement, and AC
arthrosis. He advised that she was scheduled for right shoulder surgery on December 28, 2020.
In a December 28, 2020 operative report, Dr. McClung noted that appellant underwent
surgery, including right shoulder arthroscopies with subacrominal decompression, distal clavicle
excision, and extensive debridement. He diagnosed right shoulder impingement, AC arthrosis,
bursitis, and synovitis.
In a letter dated January 12, 2021, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on April 19, 2021.
By decision dated June 21, 2021, the hearing representative affirmed, as modified, the
December 21, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted December 4, 2018 employment incident.
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 that the individual is an emp loyee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation 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

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specif ic employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
In his November 18 2020 medical report, Dr. McClung noted that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He also indicated that she reinjured her right shoulder “in April.” Dr. McClung diagnosed
right shoulder distal clavicle osteolysis, right shoulder impingement, and a possible partial rotator
cuff tear. While his report is generally supportive of causal relationship, he did not offer any
explanation or medical rationale as to how appellant could have developed the diagnosed right
shoulder conditions due to the accepted December 4, 2018 employment incident. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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medical rationale explaining how a given medical condition is related to the accepted employment
incident.10 For these reasons, this report is insufficient to establish the claim.
In his reports dated December 2, 10, and 28, 2020, Dr. McClung provided multiple
diagnoses related to appellant’s right shoulder and arm. However, he did not provide an opinion
on causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value. 11 Thus, these reports are
also insufficient to establish appellant’s claim.
In an August 31, 2020 medical report, Dr. McClung noted that appellant fell on her right
shoulder and diagnosed a possible right shoulder partial rotator cuff tear. However, he failed to
provide a firm diagnosis in connection with the accepted December 4, 2018 employment incident.
The Board has long held that a medical report lacking a firm diagnosis and a rationalized medical
opinion regarding causal relationship is of no probative value.12 Thus, this report is insufficient to
establish appellant’s claim.
Dr. Hildebrant, in his December 4, 2018 medical report, indicated that appellant was
involved in a work-related altercation with a patient who was trying to leave the hospital while
threatening staff members with his cane. He diagnosed right arm pain. However, the Board has
held that pain is a description of a symptom, not a clear diagnosis of a medical condition. 13 A
medical report lacking a firm diagnosis is of no probative value.14 This report is, therefore,
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident.
The remaining medical evidence includes radiographic studies. The Board has held,
however, that diagnostic studies, standing alone, lack probative value and are, therefore,
insufficient to establish the claim. 15

10
B.H., Docket No. 20-077 (issued October 21, 2020); see S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J.,
Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a
report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the
relation between work factors and a diagnosed condition/disability).
11
L.T., Docket No. 20-0582 (issued November 15, 2021); A.C., Docket No. 21-0087 (issued November 9, 2021);
D.B., Docket No. 19-0514 (issued January 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

W.G., Docket No. 20-0439 (issued July 13, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.R., Docket No. 18-1408 (issued March 1, 2019); D.A.,
Docket No. 18-0783 (issued November 8, 2018).
14

C.S., id.; J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

15

J.E., Docket No. 21-0956 (issued November 23, 2021); J.K., Docket No. 20-0591 (issued August 12, 2020); J.P.,
Docket No. 19-0129 (issued December 13, 2019).

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As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right arm condition is causally related to the accepted December 4, 2018 employment incident, the
Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Mary, FL, Employer
__________________________________________

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

Docket No. 16-1429
Issued: October 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 28, 2016 appellant, through counsel, filed a timely appeal from a June 2, 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.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
period March 22 to May 30, 2014 due to her January 3, 2013 work injury.
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 January 9, 2013 appellant, then a 51-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on January 3, 2013 she sustained an injury as she was
lifting a parcel at work when her left knee became entangled in webbing and twisted.3 OWCP
accepted her claim assigned OWCP File No. xxxxxx406, for left knee/leg sprain (unspecified
sites) and temporary aggravation of localized primary osteoarthritis of her lower left leg.
Appellant stopped work on January 4, 2013. She received disability compensation on the daily
rolls beginning February 23, 2013.4
In a February 6, 2013 report, Dr. Michael V. Jablonksi, an attending Board-certified
orthopedic surgeon, diagnosed several left knee conditions, including arthritis, degenerative
changes, joint effusion, Baker cyst, and subtle tear of the medial meniscus. He found appellant
partially disabled due to her January 3, 2013 work injury and provided various work restrictions.
On April 14, 2013 appellant returned to work as a modified manual mail processor on a
full-time basis.5 The job required walking/standing for up to four hours per day and manual
letter sorting for up to eight hours per day. Appellant was restricted from walking for more than
two hours at a time and from standing for more than two hours at a time.
On November 6, 2013 OWCP referred appellant to Dr. Brian Leung, a Board-certified
orthopedic surgeon for a second opinion examination, and requested that he provide an opinion
regarding whether her January 3, 2013 work injury had resolved.
In a report dated December 11, 2013, Dr. Leung discussed appellant’s factual and
medical history and detailed his physical examination findings from that date. He noted that she
had undergone magnetic resonance imaging scans in March 2011 and January 2013 that
confirmed left knee osteoarthritis. Dr. Leung reported that his examination showed no
mechanical symptoms and noted, “These findings are likely the natural progression of
[appellant’s] disease and not attributable to the work injury. Her osteoarthritis has returned to
baseline.” He opined that appellant’s January 3, 2013 work injury had resolved. Dr. Leung
indicated that she did have pain in her left knee, but found that it was related to her preexisting
knee arthritis and was “not a result of her twisting injury.”
In a March 14, 2014 duty status report (Form CA-17), Dr. Robert Reppy, an attending
Board-certified family practitioner, listed the date of injury as January 3, 2013, diagnosed
internal derangement of the left knee, and indicated that appellant could not work for four weeks.

3

Appellant’s work as an automation clerk required lifting up to 20 pounds.

4

Under a prior claim, assigned OWCP File No. xxxxxx253, OWCP accepted that appellant sustained contusions
and internal derangement of both knees due to a December 18, 1997 fall at work and paid medical expenses related
to that injury. It administratively considered that file with the present case, with File No. xxxxxx253 serving as the
master file. The Board notes that appellant’s December 18, 1997 injury is not the subject of the present appeal.
5

Appellant received disability compensation on the daily rolls through April 12, 2013.

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OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Leung and Dr. Reppy regarding the “nature and extent of residuals of accepted conditions.”
On March 18, 2014 it referred appellant to Dr. Narinder S. Aujla, a Board-certified orthopedic
surgeon, for an impartial medical examination.
On April 7, 2014 appellant filed a claim for compensation (Form CA-7), alleging that she
sustained total disability for the period March 22 to April 4, 2014 due to her January 3, 2013
work injury.6
In support of her claim for total disability from March 22 to April 4, 2014, appellant
submitted an April 14, 2014 report in which Dr. Reppy noted that her medical condition had not
changed since he completed a Form CA-17 on March 14, 2014. Dr. Reppy indicated that the
note was valid from April 14 to May 14, 2014.
In an April 18, 2014 letter, OWCP requested that appellant submit additional medical
evidence in support of her claim for total disability beginning March 22, 2014.7
In an April 14, 2014 narrative report, Dr. Reppy reported examination findings and
diagnosed left knee osteoarthritis, chondromalacia, and left knee medial meniscus tear. He
expressed his disagreement with Dr. Leung’s opinion, as presented in his December 11, 2013
report, that appellant’s January 3, 2013 work injury had resolved. Dr. Reppy noted that she had
swelling in her left knee and was unable to fully flex it.
In an April 29, 2014 report, Dr. Aujla discussed appellant’s factual and medical history
and detailed the findings of his physical examination on that date. He reported that, upon
examination of the left knee, the collateral ligaments were observed to be stable, the patella
tracked centrally, and the anterior drawer test was negative. Dr. Aujla diagnosed “Resolved left
knee sprain from [January 3, 2013]” and “Ongoing significant tricompartment arthritis,
preexisting.” He opined that appellant’s January 3, 2013 left knee sprain had resolved and
indicated that her present symptoms were related to the preexisting tricompartment arthritis of
her left knee, which had been getting progressively worse with time. Dr. Aujla advised that her
work-related condition was not permanent and that it had resolved. He indicated that the
prognosis for appellant’s return to post office work was related to her preexisting tricompartment
arthritis and not to the accepted left knee sprain.

6

Appellant had stopped work on March 22, 2014. She later filed additional Forms CA-7 alleging total disability
from April 5 to May 16, 2014.
7

Under a separate claim, assigned OWCP File No. xxxxxx277, appellant filed a Form CA-1 alleging that on
January 16, 2014 she sustained injury to both knees when she fell to the ground while pushing a chair. By decision
dated March 10, 2014, OWCP denied her claim for a January 16, 2014 work injury. On November 24, 2014 an
OWCP hearing representative remanded the case to OWCP for further development. In March 10 and
December 14, 2015 decisions, OWCP again denied appellant’s claim for a January 16, 2014 work injury. OWCP
File No. xxxxxx227 was combined with File Nos. xxxxxx253 and xxxxxx406, with xxxxxx253 serving as the
master file. The Board notes that appellant’s claimed January 16, 2014 injury is not the subject of the present
appeal.

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In a May 12, 2014 narrative report, Dr. Reppy reported examination findings and
diagnosed left knee osteoarthritis, chondromalacia, left knee medial meniscus tear, patella bone
bruise, and L4-5 herniated disc. He again opined that appellant’s January 3, 2013 work injury
had not resolved. In a note dated May 12, 2014, Dr. Reppy noted that her medical condition had
not changed since he completed a Form CA-17 on January 20, 2014.8 He indicated that the note
was valid from May 12 to June 12, 2014.
In a May 27, 2014 decision, OWCP denied appellant’s claim for disability compensation
for the period beginning March 22, 2014 due to her January 3, 2013 work injury. It found that
she had failed to submit sufficient medical evidence to establish her claim.9
By decision dated June 13, 2014, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 13, 2014.10
Appellant requested a telephonic hearing with a representative of OWCP’s Branch of
Hearing and Review with respect to OWCP’s May 27, 2014 decision.11 During the hearing held
on January 8, 2015, she argued that she had disabling residuals of her January 3, 2013 work
injury during the claimed period of total disability.
By decision dated March 25, 2015, OWCP’s hearing representative affirmed OWCP’s
May 27, 2014 decision and found that appellant had not established disability for the period
March 22 to May 30, 2014 due to her January 3, 2013 work injury. The hearing representative
noted that, in connection with appellant’s claim for a January 16, 2014 work injury (OWCP File
No. xxxxxx277),12 Dr. Aujla had been asked to provide a supplemental report evaluating when
the temporary aggravation of her left knee osteoarthritis had resolved. Appellant noted that
Dr. Aujla indicated in a January 27, 2015 report, “[Appellant’s] temporary aggravation of her left
knee sprain was stabilized around May 3, 2013 and the ongoing symptoms are related to the
preexisting arthritis.”13 The hearing representative noted that appellant’s total disability claim
was denied because Dr. Aujla had opined, in a well-reasoned medical report, that her accepted
8

The Board notes that the record does not contain a Form CA-17 dated January 20, 2014.

9

On May 30, 2014 appellant filed a claim for compensation alleging total disability from May 17 to 30, 2014 due
to her January 3, 2013 work injury.
10

OWCP based its termination action on the April 29, 2014 report of Dr. Aujla, the impartial medical specialist.
Prior to taking its termination action, it had advised appellant of its proposed action and provided her an opportunity
to submit evidence and argument. Appellant requested a hearing with a representative of OWCP’s Branch of
Hearings and Review and, in an April 2, 2015 decision, an OWCP hearing representative affirmed OWCP’s June 13,
2014 decision. She requested reconsideration of the April 2, 2015 decision and, in a June 9, 2016 decision, OWCP
denied her request for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a). The Board notes that
the termination of appellant’s wage-loss compensation and medical benefits effective June 13, 2014 is not the
subject of the present appeal.
11

Appellant submitted a Form CA-17 dated April 29, 2014 in which Dr. Reppy listed the date of injury as
January 3, 2013, diagnosed internal derangement of the left knee, and noted that she could not work for four weeks.”
12

See supra note 7.

13

A copy of Dr. Aujla’s January 27, 2015 report can be found in the file for appellant’s claimed January 16, 2014
work injury under OWCP File No. xxxxxx277.

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knee injuries had resolved by May 2013, well before the period of disability that she claimed
beginning on March 22, 2014.
On March 11, 2016 appellant, through counsel, requested reconsideration of OWCP’s
March 25, 2015 decision. Counsel submitted a February 28, 2016 report of Dr. Reppy. In this
report, produced at the request of counsel, Dr. Reppy expressed disagreement with Dr. Aujla’s
opinion that appellant’s work-related left knee condition had resolved. He indicated that
Dr. Aujla was making the case that appellant’s left knee problems were solely due to the natural
progression of her preexisting arthritis. Dr. Reppy felt that Dr. Aujla had not adequately
explained his opinion given the fact that her right knee was not arthritic and, therefore, did not
exhibit natural progression of degeneration occurring with age.
In a decision dated June 2, 2016, OWCP denied modification of its March 25, 2015
decision, finding that appellant had not met her burden of proof to establish total disability for
the period March 22 to May 30, 2014 due to her January 3, 2013 work injury. It noted that the
weight of the medical evidence rested with Dr. Aujla, the impartial medical specialist, because
he provided a well-rationalized opinion that her left knee injuries had resolved by May 2013, a
date 10 months prior to her claimed total disability beginning on March 22, 2014. OWCP also
indicated that the reports of Dr. Reppy were of diminished probative value with respect to
appellant’s disability claim because their opinions on disability were not based on a complete
and accurate history.
LEGAL PRECEDENT
An employee seeking benefits under FECA14 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
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.15 In general the term disability under FECA means an
incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.16 This meaning, for brevity, is expressed as disability for work.17
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of appellant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the

14

Supra note 2.

15

J.F., Docket No. 09-1061 (issued November 17, 2009).

16

See 20 C.F.R. § 10.5(f).

17

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

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nature of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.18
ANALYSIS
OWCP accepted that on January 3, 2013 appellant sustained left knee/leg sprain and
temporary aggravation of localized primary osteoarthritis of her lower left leg. Appellant
stopped work on January 9, 2013. She received disability compensation on the daily rolls
beginning July 23, 2006 and on the periodic rolls beginning July 8, 2007. Appellant returned to
modified work on a full-time basis on April 14, 2013. She alleged total disability for the period
March 22 to May 30, 2014 due to her January 3, 2013 work injury.
Preliminarily, the Board notes that the record contains April 29, 2014 and January 27,
2015 reports of Dr. Aujla, an impartial medical specialist, which OWCP found represented the
weight of the medical evidence with respect to appellant’s claim for total disability from
March 22 to May 16, 2014.19 FECA provides that, if there is disagreement between an OWCPdesignated physician and the employee’s physician, OWCP shall appoint a third physician who
shall make an examination.20 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.21
The Board notes, however, that Dr. Aujla’s reports do constitute the weight of the
medical opinion evidence with respect to whether appellant had total disability from March 22 to
May 30, 2014 due to her January 3, 2013 work injury as the case was referred to him prior to the
time that she filed her claim for total disability from March 22 to May 30, 2014 and she was
referred to him to settle a different medical question, i.e., whether she continued to have
residuals of her January 3, 2013 work injury. At the time of the referral to him, there was no
conflict in the medical evidence regarding the question of whether appellant had total disability
from March 22 to May 30, 2014 due to her January 3, 2013 work injury. Therefore, appellant’s
claim for total disability for the period March 22 to May 30, 2014 due to her January 3, 2013
work injury is more appropriately evaluated by considering the probative value of the medical
evidence she submitted in support of her claim.
Appellant submitted several reports of Dr. Reppy, an attending physician, which
addressed the claimed period of disability from March 22 to May 30, 2014, but the Board finds
that these reports are of limited probative value on the relevant issue of the case and that she did

18

See E.J., Docket No. 09-1481 (issued February 19, 2010).

19

Dr. Aujla’s April 29, 2014 report was produced in connection with the present claim under OWCP File No
xxxxxx406, but his January 27, 2015 report was produced in connection with appellant’s claim for a January 16,
2014 work injury under OWCP File No. xxxxxx277.
20

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

21

Gary R. Sieber, 46 ECAB 215, 225 (1994).

6

not meet her burden of proof to establish total disability for the period March 22 to May 30, 2014
due to her January 3, 2013 work injury.
In Forms CA-17 dated March 14 and April 29, 2014, Dr. Reppy listed the date of injury
as January 3, 2013, diagnosed internal derangement of the left knee, and noted that appellant
could not work for four weeks. In a note dated April 14, 2014, he noted that her medical
condition had not changed since he completed a Form CA-17 on March 14, 2014.22 In a note
dated May 12, 2014, Dr. Reppy reported that appellant’s medical condition had not changed
since he completed a Form CA-17 on January 20, 2014.23 In April 14 and May 12, 2014
narrative reports, he discussed his examination findings and diagnosed left knee osteoarthritis,
chondromalacia, left knee medial meniscus tear, patella bone bruise, and L4-5 herniated disc.
Dr. Reppy opined that appellant’s January 3, 2013 work injury had not resolved.
The Board finds that, although some of the above-described reports contain an opinion
that appellant had total disability during the claimed period March 22 to May 30, 2014, they are
of limited probative value because Dr. Reppy did not provide any medical rationale in support of
his opinion that she had total disability during this period due to her January 3, 2013 work injury.
The Board has held that a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.24 Dr. Reppy did not explain how the January 3, 2013 work injury could have
caused appellant’s disability from March 22 to May 30, 2014. He diagnosed several conditions
that were not accepted as work related, such as left knee medial meniscus tear and patella bone
bruise, and it is unclear to what extent his opinion on disability was based on these nonworkrelated conditions. In April 14, May 12, 2014, and February 28, 2016 narrative reports,
Dr. Reppy opined that appellant’s January 3, 2013 work injury had not resolved. However, he
did not provide any opinion in these reports on her disability for any specific period. The Board
has held that medical evidence which does not offer a clear opinion regarding a given medical
question is of limited probative value with respect to that medical question.25
For these reasons, the Board finds that appellant has not established total disability for the
period March 22 to May 30, 2014 due to her January 3, 2013 work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

22

Dr. Reppy indicated that the note was valid from April 14 to May 14, 2014.

23

Dr. Reppy indicated that the note was valid from May 12 to June 12, 2014. The Board notes that the record
does not contain a Form CA-17 dated January 20, 2014.
24

C.M., Docket No. 14-0088 (issued April 18, 2014).

25

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

7

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish total
disability for the period March 22 to May 30, 2014 due to her January 3, 2013 work injury.
ORDER
IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 10, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LOS ANGELES AIR FORCE BASE,
El Segundo, CA, Employer
__________________________________________

)
)
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)
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)
)
)
)

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

Docket No. 14-1224
Issued: November 7, 2014

Case Submitted on the Record

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

JURISDICTION
On May 2, 2014 appellant filed a timely appeal from a November 26, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition causally related to factors of her federal employment.
FACTUAL HISTORY
On December 19, 2012 appellant, then a 63-year-old contract negotiator, filed a traumatic
injury claim alleging an emotional condition related to a hostile and stressful work environment.
1

5 U.S.C. § 8101 et seq.

She noted December 18, 2012 as the date of injury and stopped working that day. Felicia N.
Brown, appellant’s supervisor, controverted the claim stating that appellant’s duties and
environment were consistent with normal work conditions.
Along with the claim, appellant submitted a copy of her position description, a
January 9, 2013 report from Dr. Lauren J. Waxman, a Board-certified psychiatrist, diagnosing
adjustment disorder with anxiety over a two year period from work stressors; and a
January 15, 2013 Form CA-20 report from Dr. Randall A. Caldron, a Board-certified internist,
diagnosing adjustment disorder with work. Other medical reports from Kaiser Permanente
diagnosed adjustment disorder with anxiety, occupational problems or work circumstances and
included work restrictions.
By letter dated January 18, 2013, OWCP requested additional factual and medical
evidence. It afforded appellant 30 days to submit additional evidence and respond to its
inquiries.
Appellant submitted additional medical evidence diagnosing adjustment disorder with
anxiety along with several statements and e-mails.
In a January 25, 2013 statement, appellant provided background information regarding
her work as a contract negotiator and the changes that took place when her office was
reorganized in early 2011. She indicated that Ms. Brown began working as her supervisor in
February 2011.
When Ms. Brown became appellant’s supervisor, there were 11 new
requirements and over 40 completed contracts that had to be managed. Appellant indicated that
only two people remained after the reorganization and Ms. Brown wanted her to handle the 11
new requirements and for the other employee to handle the 40 contracts. She stated that two
people could not handle that many contracts and for her to handle 11 new requirements would
mean no days off and long hours every day. Appellant indicated that by November 2012 extra
people were brought into help, who were subsequently made permanent.
Appellant alleged that prior to bringing the extra people aboard, Ms. Brown abused,
harassed, intimidated and stressed her by saying she was not doing her job and demanding that
she work faster and smarter. Ms. Brown also made age a factor. She assigned the remaining 10
new requirements to the other employee and assigned the 40 plus contracts to appellant.
Appellant alleged that she could not keep up with the 40 contracts and work piled up because she
and the other employee could not handle the workload. She stated that from January 2011
through November 2012, additional supervisors were brought in who also gave her directions.
Appellant alleged that she was trying to do her job and the additional directions from the other
supervisors were a double hit on her plate. However, she stated that she could live with all the
changes as long as Ms. Brown stayed away from her, but the stress was compounded because of
Ms. Brown’s demands and abusiveness towards her was out of control.
Appellant alleged that she had several interactions with Ms. Brown where Ms. Brown
was intimidating, verbally abusive, used foul language and harassed her. She indicated that she
became so stressed out that she could not function at work or home and constantly tried to
maintain her blood pressure and other symptoms for two years.

2

In the summer of 2011, a management assistant filed an Equal Employment Opportunity
(EEO) complaint against Ms. Brown and she had to give two depositions and testify. She
alleged that Ms. Brown escalated appellant’s harassment by constantly coming into her office,
giving her more assignments and telling her that she was not working fast enough or was making
too many mistakes. At the same time, Ms. Brown also assigned appellant to train that same
management assistant and would send her e-mails telling her what she wanted the management
assistant to do. Appellant stated that the management assistant would also be in her office,
which bothered Ms. Brown and Ms. Brown would get back at her with verbal abuse including
quotas, timeframes and demands. She alleged that, if she did not turn in an assignment to
Ms. Brown, who would come into her office and demand to know how long it would take.
Whenever she turned in an assignment, Ms. Brown would draw a line through the document, say
“wrong, do it over” and Ms. Brown would do that in front of people in her office.
Appellant alleged that Ms. Brown refused to sign her leave slips for doctor’s
appointments or regular leave. She stated that they had an argument on March 16, 2011 because
Ms. Brown told her that she was not going to approve any leave unless it fit into the matrix she
had created regarding the workload assigned to her. Appellant stated that they did not come to
an agreement regarding her leave requests, but when she wrote Ms. Brown an e-mail requesting
justification for the denial of her leave, her leave requests were approved.
From February through September 2011, appellant stated that she had to visit Ms. Brown
in her office regarding the workload and her assigned tasks and they had many altercations and
confrontations regarding Ms. Brown’s abusive and filthy language. She stated that she would
constantly ask Ms. Brown to stop cursing and discussing her personal business. Appellant
alleged Ms. Brown used obscene language and made racial slurs in the workplace.
On March 16, 2011 appellant told Ms. Brown that she was sick, had completed her work,
and needed to go home. She stated that Ms. Brown gave her a dollar and asked her to go get her
some chocolate before she left to go home. Appellant stated that this made her angry and she
“threw the money on the floor, grabbed her belongings and got out of the building before she
exploded.” She stated that this incident occurred on a Friday and over the weekend all she could
think about was telling Ms. Brown off on Monday. On Monday appellant met with Ms. Brown
in the conference room and told her why she was angry and upset with her on Friday. She stated
that Ms. Brown did not think anything was wrong with what she had asked appellant to do.
Appellant asked Ms. Brown if she felt she was different “and less than her or whether she had
that much authority to get that lowdown and dirty and to think that because she was the
supervisor she had to run her errands and get her lunch.” She also told Ms. Brown that she
talked to people in a demeaning manner and had a “filthy and dirty mouth and that she needed to
watch her tone and conversation in the workplace.” Appellant also stated that she was not
accustomed with people using racial slurs or obscene language and that Ms. Brown should not
ever talk to her like that and not to mess with her. She also told Ms. Brown that she had no
manners and created an explosive environment with her filthy language and was always picking
some fight. Appellant stated that Ms. Brown stated that she would not ask her to do anything
like that again and appellant accepted Ms. Brow’s apology.
In April 2011, appellant was working on a new requirement in her office when
Ms. Brown got verbally abusive (and cornered her so she could not get up or get out of her chair)

3

trying to make her give a date when she would have a contract completed. She alleged that she
got stressed out and nervous because she had never had anyone stand over her, get up in her face
and demand an answer. Appellant stated that she asked Ms. Brown to leave her office or she
would get up and go home. She alleged that Ms. Brown gave her a look which frightened her.
Appellant stated that her blood pressure was high when Ms. Brown left her office and appellant
stated that she had to go outside and calm down.
Appellant stated that Ms. Brown’s personality was too abusive and controlling and
alleged that she misused her supervisory authority. She alleged that Ms. Brown constantly
abused her by telling her that she worked too slow, made too many mistakes and was not
executing. Ms. Brown also insisted that appellant work faster or smarter. Appellant stated that
Ms. Brown intended to change the image of their organization and that people did not accept
change easily and the employing establishment wanted younger smarter people who could
execute.
Appellant indicated that the workload in contracts had always been stressful, but it had
never been a constant stress until Ms. Brown abused, demeaned, intimidated, bullied and
harassed her to the point where she could no longer function after two years. She indicated that
they have had heated, knock out disagreements and that she did not accept Ms. Brown’s conduct
and obviously Ms. Brown does not like being called out about her filthy language and conduct.
Appellant stated that working for Ms. Brown over the last two years had not allowed her to do
her best work because of the stress caused by Ms. Brown.
Appellant stated that Ms. Brown brought in a temporary management assistant to help
with the workload in March/April 2011, who then became permanent. She indicated that this
employee filed an EEO complaint against Ms. Brown and was successful with her settlement.
In a September 24, 2011 e-mail, appellant requested to work at home to get a break as she
could not accomplish anything in the office. She also stated that she was being disallowed
training for the new assignments. Appellant stated that in order to get her work done she had
been unable to take vacations, had missed doctor appointments and was burned out. The office
was noisy and she could not concentrate on her work. Ms. Brown responded in a
September 27, 2011 e-mail that she expected the completed assignment to be on her desk by
October 30 (or November 1 if you choose to come in on Friday and Saturday). In a
September 28, 2011 e-mail to Ms. Brown, appellant stated that she did not like the tone of
Ms. Brown’s message and indicated that she had to do most of the work with Ms. Brown taking
credit and appellant being held responsible for delays of deadlines. She also stated in the e-mail
that Ms. Brown’s tactics “suck.”
On October 11, 2011 appellant was given a new requirement during a staff meeting and
was told to have the package ready on October 14, 2011. She asked Ms. Brown why she only
had three days to complete the package as opposed to 14 days. Appellant was told that the
project was reassigned to appellant as the employee to whom it had been assigned had suffered a
heart attack. She alleged that she was pushed to work faster, had timeframes and dates on when
the projects had to be completed. Appellant stated that she and Ms. Brown argued over the
assignment and Ms. Brown nearly demanded that she come in and work her day off and
Saturday. She indicated that she agreed so they could make the October 14, 2011 deadline.

4

Appellant was also assigned various other tasks to be done as soon as possible in addition to the
project and her 40 contracts.
Appellant stated that she stayed at her desk all day, hardly took her breaks and that she
could not continue at that pace with the “verbal abuse, harassing and bullying from Ms. Brown.
Appellant stated that her work was 40 plus delivery orders and there was no one who
could handle 40 contracts. She stated that she accepted whatever work Ms. Brown assigned.
A March 8, 2012 e-mail noted that appellant had agreed to take on another assignment on
overtime, to work from home. She accused Ms. Brown of then trying to take away the
agreement of doing it from home on overtime.
In a December 13, 2012 e-mail, Ms. Brown indicated that she had reviewed appellant’s
timecard and informed her that some of the hours claimed had been denied. She stated that she
would like to discuss the matter more fully with appellant on Friday. Appellant responded that
she would not be in the office that Friday but would be teleworking that day unless Ms. Brown
decided to take that back because she did not like the contents of the e-mail. She wrote
Ms. Brown that she should think long and hard about her decision because if she was not going
to pay her what was on the overtime sheet, she would file the biggest lawsuit and EEO complaint
against her. In a December 24, 2012 e-mail, appellant informed Ms. Brown that she just got
notice that Ms. Brown took away her overtime. She wrote, “If you take that time off my card I
will file a GRIEVANCE. Don’t you ask me to work out OVERTIME ever. You are a vindictive
person. I will strongly suggest you put it back on. I worked my behind off trying to get the
contracts done.” Appellant stated that, although the overtime hours were not preapproved,
Ms. Brown had asked all the employees to work overtime because they were overloaded. She
indicated that she had a total of 50 hours of overtime but was only paid for 20 hours. Appellant
stated that she had worked her days off and the weekends for two weeks and that Ms. Brown
knew she was working the extra time because of the upcoming holidays.
On December 18, 2012 appellant sent an e-mail to Ms. Brown regarding a statement that
she was no longer performing as a GS-12.
Appellant stated that most of her altercations with Ms. Brown were held in private and
she was unsure if any of her coworkers were aware of them or would provide statements
concerning Ms. Brown’s abusive language. She indicated that she filed an EEO complaint,
which had not yet been finalized and denied any stress outside of work or in her personal life.
Appellant denied any hospitalizations for emotional problems and has been placed on medication
for her current condition. She further stated that her stress condition developed on or around
April 2011 after she had three confrontations with Ms. Brown.
In a March 13, 2013 letter, Mary Mercado, injury compensation specialist, stated that the
employing establishment did not concur with appellant’s claim. She indicated that appellant had
a “similar number of actions (often smaller) with the similar level of difficulty (often less
difficult) as all of the other employees (contract specialists) within the Space and Missile
Systems Center Specialized Contracting Division.” Ms. Mercado indicated that all of the
employees had been offered overtime and compensation time and several employees, including

5

appellant, had accepted that opportunity. She stated that the level of expectation for each
employee was depicted in their respective employee job description and all of the duties assigned
to appellant were within her job description. Ms. Mercado stated that to her knowledge, all of
the employees got along with each other as no complaints had been brought to her attention. The
only complaints received were e-mails from appellant which always coincided with her not
meeting her deadlines. However, those complaints were always resolved verbally within days
and her packages were always completed (although late as they required rework attributed to
errors). To accommodate her complaints, appellant was granted telework to alleviate her
extremely long commute and to give her the quiet time she requested. Ms. Mercado indicated
that appellant was not the only one in the office with a long commute, nor was she the only
employee in a cubical. However, appellant was the only one on telework and her work
continued to be late and riddled with errors that required rework. To that end, because she was
on telework, other employees had to rework her assignments, including the PCOs
supervising/signing the packages when she was unavailable. Appellant continued that the
organization was downsized a couple of years ago and the work was commensurate with the
number of remaining employees and was executed with no impacts to the mission. Ms. Mercado
indicated over the past two years the workload has tripled and policies had changed, but more
employees had been added to the team and, therefore, there was no excess or added stress to any
one individual. She denied that there was any expectation or excess demand for any one
employee to do more than anyone else as the work was spread evenly. Ms. Mercado further
indicated that appellant’s work product had always been average and all of her packages required
more than one set of corrections. Often times the PCO had to execute the corrections out of
frustration and pressure to meet the deadline as well as to avoid her insubordinate attitude.
Ms. Mercado stated that appellant’s workload was decreased over the past two years to
accommodate this; however, the number of errors, her lack of attention to detail and her attitude
had worsened.
By decision dated July 3, 2013, OWCP denied appellant’s claim on the basis that she
failed to establish any compensable factors of employment.
On August 2, 2013 appellant requested review of the written record.
In an
August 2, 2013 statement, she indicated that she was submitting e-mails from Ms. Brown to
support her allegations that they had serious altercations for the last two years that included
harassment, intimidation and excessive workload. Appellant stated that she testified in another
employee’s EEO case and Ms. Brown became more hostile and abusive towards her. She
discussed issues with her time card and overtime issues. Appellant indicated that she was unable
to obtain documentation to corroborate her allegations due to other employee’s fear of reprisal.
She indicated that she had documented those incidents. Appellant stated that Ms. Brown was a
liar and would say anything and had a foul mouth. Numerous e-mails were provided which she
asserted supported her claim.
By decision dated November 26, 2013, an OWCP hearing representative affirmed its
prior decision.

6

LEGAL PRECEDENT
Workers’ compensation does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.3
It is well established that administrative or personnel matters, although generally related
to employment, are primarily administrative functions of the employing establishment and not
duties of the employee.4 Investigations are considered to be an administrative function of the
employer unrelated to the employee’s day-to-day duties or specially-assigned job requirements.5
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that the incidents alleged or implicated by the employee did, in fact,
occur.6 Grievances or EEO complaints by themselves are not determinative of whether
harassment or discrimination took place.7 Where a claimant alleges harassment, the issue is
whether he or she has submitted sufficient evidence to establish a factual basis for the claim by
the submission of probative and reliable evidence to support such allegations.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
2

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

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

4

See Pamela D. Casey, 57 ECAB 260 (2005); Thomas D. McEuen, 41 ECAB 387 (1990); reaff d on recon., 42
ECAB 566 (1991).
5

See Jeral R. Gray, 57 ECAB 611 (2006).

6

T G., 58 ECAB 189 (2006).

7

C.S., 58 ECAB 137 (2006).

8

Id. See Robert Breeden, 57 ECAB 622 (2006).

9

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

7

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
The Board has held that a variety of work factors are compensable under FECA. Among
them, overwork is a compensable factor of employment if appellant submits sufficient evidence
to substantiate this allegation.11 Also, in certain circumstances, working overtime is sufficiently
related to regular or specially assigned duties to constitute a compensable employment factor.12
Additionally, conditions related to stress resulting from situations in which an employee is trying
to meet his or her position requirements are compensable.13
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that an emotional condition was caused or adversely affected by his or her
employment.14 Neither the fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.15
ANALYSIS
Appellant alleged that she sustained an emotional condition with consequential physical
symptoms and medical conditions due to being overworked, as well as a pattern of reprisals and
criticism by her supervisor, creating a hostile work environment. OWCP denied her claim,
finding no compensable employment factors under Cutler.
Appellant alleged that she sustained stress in the performance of her duties due to the
additional responsibilities and excessive workload assigned to her by her supervisor. The Board
has held that emotional reactions to situations in which an employee is trying to meet his or her
position requirements are compensable.16 OWCP found that this allegation was unclear and
contradictory as appellant alleged in some statements a disputative workload while in other
statements she stated that she was able to handle the workload and overtime except for her
supervisor’s behavior towards her. Thus, it found her allegations of additional responsibilities
and excessive workloads were not sufficient to be considered a compensable factor of
employment.
As to appellant’s allegations of being overworked due to staffing shortages the Board
finds that she has not established a factual basis for this allegation. The employing establishment
10

Id.

11

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

12

See Ezra D. Long, 46 ECAB 791 (1995).

13

See Trudy A. Scott, 52 ECAB 309 (2001).

14

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

15

See Ronald K. Jablanski, 56 ECAB 616 (2005); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

16

See Lillian Cutler, supra note 2.

8

stated that the work following reorganization and subsequent downsizing was commensurate
with the number of remaining employees and was executed with no impacts to the mission. It
acknowledged the workload had increased within the last two years, but stated the number of
employees had increased with the work spread evenly among employees. This contradicted
appellant’s allegation that she was overworked or assigned an excessive workload. As appellant
has provided no evidence to substantiate her allegation of overwork, she has not established this
as a compensable factor of employment.
Appellant alleged stress due to deadlines and the work assigned to her by her supervisor.
Assignment of a work schedule is an administrative function and not a work factor and is not
compensable absent a showing of error or abuse.17 Appellant has submitted insufficient evidence
to establish that the employing establishment acted unreasonably or committed error with regard
to this administrative factor. The employing establishment stated that she had a similar number
or a smaller number of assignments than her coworkers and, over the past two years, had been
given work of a less difficult nature than her coworkers. It explained that appellant’s workload
was decreased over the past two years as all of her packages required more than one set of
corrections and the number of errors she made along with her lack of attention to detail and
negative attitude worsened. The employing establishment noted that her complaints were always
resolved verbally within days and that telework was provided to accommodate her extremely
long commute and to give her the quiet time she requested. It noted that appellant was the only
employee on telework and her work continued to be late and required rework. Appellant did not
submit any evidence to substantiate that these administrative functions, e.g., her work
assignments were assigned in error or were abusive. The Board has held that an employee’s
dissatisfaction with perceived poor management constitutes frustration from not being permitted
to work in a particular environment or to hold a particular position and is not compensable under
FECA.18 Thus, these actions on the part of management did not constitute a factor of
employment.
Appellant attributed her emotional condition to mistreatment and harassment by her
supervisor. She alleged that Ms. Brown yelled at her and used profane language and racial slurs.
OWCP reviewed all of appellant’s allegations of discriminatory treatment and found that they
were not substantiated or corroborated. To that end, the Board finds that it properly found that
the episodes of discrimination cited by appellant did not factually occur as alleged by her, as she
failed to provide any corroborating evidence for her allegations. There is no corroborating
evidence that Ms. Brown yelled at, cursed at or used racial slurs to appellant. While appellant
documented Ms. Brown’s behavior, there is no independent corroboration that these events
actually occurred as alleged. She alleged that she and Ms. Brown got into heated arguments.
Verbal altercations, when sufficiently detailed by the claimant and supported by the evidence of
record, may constitute factors of employment.19 However, appellant has not submitted any
corroboration that any of the events occurred as alleged. Thus, the allegation of mistreatment in
this manner is not established and is not compensable.
17

Cyndia R. Harrill, 55 ECAB 399 (2004).

18

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

19

Mildred D. Thomas, 42 ECAB 888 (1991).

9

Appellant attributed her emotional condition to matters concerning her leave and the
denial of some claimed overtime hours on a timecard. The Board notes that matters pertaining to
use of leave and overtime are generally not covered under FECA as they pertain to
administrative actions of the employing establishment and not to the regular or specially
assigned duties the employee was hired to perform.20 However, error or abuse by the employing
establishment in an administrative or personnel matter or evidence that it acted unreasonably in
the administrative or personnel matter, may afford coverage.21 Appellant stated that her leave
requests were ultimately approved. While she may have been frustrated with having to ask
Ms. Brown why her leave was denied, she has failed to show that this action demonstrated error
or abuse on the part of management. Thus, it is not compensable. The Board further finds that
Ms. Brown did not commit administrative abuse or error by changing appellant’s timecard to
reflect less overtime hours. The Board notes that appellant indicated that the overtime hours
were not previously authorized. Therefore, it is the supervisor’s discretion to change a timecard
regarding unauthorized overtime, if deemed appropriate. Appellant failed to show any evidence
of error or abuse in regards to the alteration of her claimed overtime hours. Thus, she has not
established a compensable employment factor in this respect.
Appellant alleged that she was denied classes and mandatory training. However, the
record is devoid of any documentation from the employing establishment that she was denied
time to attend mandatory training classes.
For these reasons, appellant did not establish that her emotional condition arose in the
performance of duty.22
On appeal, appellant contends that her workload tripled before any new employees were
added and her supervisor’s constant and continuous abusiveness for two years caused her
emotional condition. She further alleged that her supervisor gave her excellent appraisals,
bonuses and time off awards for two years yet lied to OWCP saying she was incompetent and
other employees had to do her work. As noted above, appellant has not submitted sufficient
evidence to establish a compensable factor of employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

20

Elizabeth Pinero, 46 ECAB 123 (1994).

21

Margreate Lublin, 44 ECAB 945 (1993).

22

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).

10

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, PERSONNEL
OPERATIONS SUPPORT, Dallas, TX, Employer
__________________________________________

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

Docket No. 09-653
Issued: December 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 7, 2009 appellant filed a timely appeal from the September 25, 2008 decision
of the Office of Workers’ Compensation Programs denying her compensation claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant sustained an injury on October 14, 2004 while in the
performance of duty.
FACTUAL HISTORY
On October 19, 2004 appellant, then a 54-year-old purchasing agent, filed a traumatic
injury claim alleging that on October 14, 2004 she broke her left leg when her shoe became
caught in a sprinkler head in a grassy area near a mall parking lot in San Diego, California. She
submitted a prescription note and attending physician’s report (Form CA-20) from her treating
physician, Dr. Wynne N. Snoots, a Board-certified physiatrist, who advised that appellant
sustained injury when she fell while on a business trip.

In a December 21, 2004 letter, the Office informed appellant that the evidence was
insufficient to support her claim. Appellant was advised to submit additional medical and factual
evidence within 30 days.
Appellant responded that her injury occurred while she was in San Diego, California,
performing an annual site visit at Earth Tech, Inc., an environmental contractor. Travel was
authorized from October 13 to 15, 2004. On October 14, 2004 a meeting with Earth Tech, Inc.,
ran late. Appellant and a coworker decided to visit a local mall to eat dinner and to purchase
some souvenirs. After leaving the mall to return to their car, appellant tripped over an embedded
water sprinkler head in the median strip of grass. She fell from the curb and struck the concrete.
When appellant tried to stand up she felt excruciating pain. She returned to her hotel room
where she elevated her leg and put ice on it. Around 2:00 a.m. on October 15, 2004, appellant
went to a local emergency room since she was unable to put any weight on her leg. She was
released from the emergency room around 5:15 a.m. and returned to her hotel. Appellant packed
and returned to Dallas, Texas, later that day.
In a February 1, 2005 decision, the Office denied appellant’s claim, finding that she was
not injured while in the performance of duty.
Appellant subsequently requested review of the written record. In a December 29, 2004
statement, Kathleen Couvillion, a coworker, noted that, following the meeting with Earth Tech,
Inc., she was returning to the hotel with appellant when they drove by a shopping mall. She
suggested stopping for dinner at the mall as they could eat and shop for souvenirs. After their
meal, appellant and Ms. Couvillion were walking back to the mall parking lot when the accident
occurred.
In an August 18, 2005 decision, an Office hearing representative affirmed the denial of
appellant’s claim finding that she was not in the performance of duty at the time of the injury.
In a letter dated July 24, 2006, appellant requested reconsideration.
By decision dated August 31, 2007, the Office denied further reconsideration of the
merits of the claim.
On July 15, 2008 the Board remanded the case to the Office for a merit review as it failed
to act on appellant’s reconsideration request in a timely fashion.1
By decision dated September 25, 2008, the Office denied modification of its prior
decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the

1

Docket No. 08-775 (issued July 15, 2008).

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performance of her duty.2 The phrase sustained while in the performance of her duty is regarded
as the equivalent of the coverage formula commonly found in workers’ compensation laws,
namely, arising out of and in the course of employment.3 Arising in the course of employment
relates to the elements of time, place and work activity.4 An injury is said to arise in the course
of employment when it takes place within the period of the employment, at a place where the
employee reasonably may be and while they are fulfilling their duties or are engaged in doing
something incidental thereto.5 Arising out of employment relates to the causal connection
between the employment and the injury claimed.6
Under the Act, an employee on travel status or a temporary-duty assignment or special
mission for her employer is in the performance of duty and, therefore, under the protection of the
Act 24 hours a day with respect to any injury that results from activities essential or incidental to
her special duties.7 Examples of such activities are eating,8 returning to a hotel after eating
dinner and engaging in reasonable activities within a short distance of the hotel where the
employee is staying.9 However, when a claimant voluntarily deviates from such activities and
engages in matters, personal or otherwise, which are not incidental to the duties of his or her
temporary assignment, they cease to be under the protection of the Act. Any injury occurring
during these deviations is not compensable.10 Examples of such deviations are visits to relatives
or friends while in official travel status,11 visiting nightclubs and bars,12 skiing at a location 60

2

5 U.S.C. § 8102(a).

3

R.A., 59 ECAB ___ (Docket No. 07-1814, issued June 19, 2008); Bernard D. Blum, 1 ECAB 1 (1947).

4

V.O., 59 ECAB ___ (Docket No. 07-1684, issued May 2, 2008); R.S., 58 ECAB ___ (Docket No. 06-1312,
issued August 17, 2007).
5

L.K., 59 ECAB ___ (Docket No. 07-1763, issued April 22, 2008); D.L., 58 ECAB ___ (Docket No. 07-976,
issued August 23, 2007).
6

See Charles Crawford, 40 ECAB 474 (1989) (the phrase arising out of and in the course of employment
encompasses not only the concept that the injury occurred in the work setting, but also the causal concept that the
employment caused the injury); see also Robert J. Eglinton, 40 ECAB 195 (1988); Clayton Varner, 37 ECAB 248
(1985); Thelma B. Barenkamp ( Joseph L. Barenkamp), 5 ECAB 228 (1952).
7

Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K. O Connor,
4 ECAB 21 (1950).
8

Michael J. Koll, Jr., 37 ECAB 340 (1986); Carmen Sharp, 5 ECAB 13 (1952)

9

Ann P. Drennan; Janet Kidd (James Kidd), supra note 7; Theresa B.L. Grissom, 18 ECAB 193 (1966).

10

Karl Kuykendall, 31 ECAB 163 (1979).

11

Ethyl L. Evans, 17 ECAB 346 (1966); Miss Leo Ingram, 9 ECAB 796 (1958); George W. Stark, 7 ECAB
275 (1954).
12

Conchita A. Elefano, 15 ECAB 373 (1964).

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miles from where an employee is undergoing training13 and taking a boat trip during nonworking
hours to view a private construction site.14
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.15
ANALYSIS
Appellant was on official travel status in San Diego, California, from October 13
to 15, 2004 at the time she sustained injury. In his treatise on workers’ compensation law,
Larson explains:
“Employees whose work entails travel away from the employer’s premises are
held in the majority of jurisdictions to be within the course of their employment
continuously during the trip, except when a distinct departure on a personal errand
is shown. Thus, the injuries arising out of the necessity of sleeping in hotels or
eating in restaurants away from home are usually held compensable.”16
On the evening of October 14, 2004 appellant and a coworker stopped at a local mall to
eat dinner and to shop for souvenirs. After finishing dinner and completing their purchases they
were returning to the parking lot where their car was located. However, appellant tripped over a
sprinkler head and sustained a left leg fracture.
The Board has held that an employee on travel away from her normal post of duty is
extended coverage under the Act for all ordinary incidents which the employer would normally
contemplate as occurring in the course of such mission. The circumstances of this case are
similar to those in A.W.17 The employee was authorized to travel with coworkers in an
employing establishment van to attend a one-day out of town conference. After the conference
ended, the employee and a coworker walked through a nearby casino and the Boardwalk area in
Atlantic City, New Jersey, prior to dining at a restaurant in that area. The employee fell after she
exited the restaurant on her way back to the van for the return trip to the employing
establishment. The Board found there was no substantial deviation from her employment. It
was a reasonable necessity that an employee attending the conference eat at a local restaurant
before departing for a three-hour, bus trip to the employing establishment in Baltimore,

13

Karl Kuykendall, supra note 10.

14

Mattie A. Watson, 31 ECAB 183 (1979).

15

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

16

A. Larson, The Law of Workers’ Compensation § 25.01 (2000); see Susan A. Filkins, 57 ECAB 630 (2006).

17

59 ECAB ____ Docket No. 08-306 (issued July 1, 2008).

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Maryland. The Board found that the employee’s injury was sustained in the performance of duty
and reversed an Office decision rescinding acceptance of the claim.
The present case may be distinguished from S.C.18 The employee was attending a
mandatory out of town training conference. After eating dinner, she went shopping at a local
Target store with coworkers where her slip and fall occurred. The Board found that the
employee’s shopping at a Target store was not incidental to the duties of her temporary
assignment as it was a personal activity. She ceased to be under the protection of the Act due to
this deviation. Thus, her injury was found not to be in the performance of duty.
The employing establishment authorized appellant’s travel to San Diego, California, for
an annual site visit with Earth Tech, Inc., an environmental contractor. After meeting with the
contractor on October 14, 2004, appellant and a coworker went to a local mall to eat dinner. She
remained in the course of employment with respect to all normal incidents of her employment.
The facts in this case do not establish a substantial deviation from her employment.19 As in
A.W., it was a reasonable necessity that appellant eat dinner following her meeting with the
contractor. The fact that she ate at a restaurant located in a mall where there were other shops
does not establish a substantial deviation from her employment. The Board finds that appellant
was in the performance of duty when she sustained injury on October 14, 2004. The incident
giving rise occurred at the mall parking lot following her dinner and on her return to her car. It
arose in the course of appellant’s employment.20 The case will be remanded to the Office for
further development of the medical evidence on the issue of appellant’s injury and disability
arising from the October 14, 2004 incident.
CONCLUSION
The Board finds that appellant was injured while in the performance of duty on
October 14, 2004.

18

Docket No. 08-2440 (issued June 22, 2009).

19

Compare Richard Michael Landry, 39 ECAB 232 (1987) and cases cited therein at 237-38.

20

See The Law of Workers’ Compensation, supra note 16 (injuries arising out of the necessity of eating in
restaurants away from home are usually held compensable).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 25, 2008 is set aside. The case is remanded for further
development in conformance with this decision.
Issued: December 24, 2009
Washington, DC

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

David S. Gerson, 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
__________________________________________
P.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gaithersburg, MD, Employer
__________________________________________

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

Docket No. 07-1364
Issued: December 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated March 5, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this nonmerit decision. The last
merit decision of record is the Board’s December 11, 1995 decision.1 Because more than one
year has elapsed between the last merit decision and the filing of this appeal, the Board lacks
jurisdiction to review the merits of this claim.2
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim.
1

According to Office procedure, the one-year period for requesting reconsideration begins on the date of the
original Office decision, but that the right to reconsideration within one year also accompanies any subsequent merit
decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.3b (June 2002).
2

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
This is the fourth appeal in the present case. In the first appeal,3 the Board issued a
decision on December 11, 1995 affirming the Office’s determination that appellant did not meet
her burden of proof to establish that she sustained a recurrence of total disability on or after
February 19, 1992 due to her accepted right hand and wrist injury.4 The Board determined that
the reports of appellant’s attending Board-certified orthopedic surgeons, Dr. Rida N. Azer and
Dr. William E. Gentry, did not show that she sustained such an employment-related recurrence
of disability. In the second appeal,5 the Board issued a decision on March 17, 2003 affirming the
Office’s refusal to reopen appellant’s case for merit review because her applications for review
were not timely filed and failed to present clear evidence of error.6 In the third appeal,7 the
Board issued a decision on July 13, 2004 affirming the Office’s refusal to reopen appellant’s case
for merit review because her application for review was not timely filed and failed to present
clear evidence of error. The facts and the circumstances of the case are set forth in the Board’s
prior decisions and are incorporated herein by reference.
On May 9, 2005 appellant requested reconsideration of her claim that she sustained a
recurrence of disability due to her accepted right hand and wrist injury. She argued that her
September 4, 2003 reconsideration request was timely because it was filed within one year of the
Board’s March 17, 2003 decision and asserted that her claim should have been reviewed on the
merits. Appellant alleged that the reports of Dr. Azer showed that she had disability after
February 19, 1992 due to her accepted right hand and wrist injury. She submitted an April 27,
2005 report of Dr. Azer.
In a January 26, 2006 decision, the Office discussed precedent regarding the finality of
Board decisions and stated:
“Please be advised that the July 13, 2004 decision from the [Board], was not a
merit decision, therefore, this [O]ffice has no jurisdiction to review a nonmerit
decision.”
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3

Docket No. 95-802 (issued December 11, 1995).

4

The Office accepted that appellant sustained tendinitis and de Quervain’s complex of the right hand and wrist
and she returned to limited-duty work on December 29, 1990. The case number for this injury is A25-297044.
Appellant also claimed that she had disability after March 10, 1993 due to an accepted left thumb and wrist injury,
but this injury (case number A25-398729) is not the subject of the present appeal.
5

Docket No. 01-2038 (issued March 17, 2003).

6

On August 13, 2004 appellant filed a petition for reconsideration of the Board’s July 13, 2004 decision and, in a
January 11, 2005 order, the Board dismissed appellant’s petition for reconsideration as untimely.
7

Docket No. 04-545 (issued July 13, 2004).

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“In conclusion, no further action will be taken on this request to reconsider the
[Board] decision, as the Board has issued a final nonmerit decision on the
timeliness issue; therefore, there is no appealable right to this Office.”8
In a December 4, 2006 letter, appellant again requested reconsideration of her claim that
she sustained an employment-related recurrence of disability. She characterized the Office’s
January 26, 2006 letter as a “decision” and argued that it should have been accompanied by
appeal rights. Appellant claimed that her May 9, 2005 request for reconsideration was timely
filed and required that the Office perform a review of the merits of her claim. She discussed
Office regulations regarding the filing of reconsideration requests and argued that a proper
interpretation of these regulations showed that all of her prior reconsideration requests were
timely. Appellant claimed that the reports of Dr. Azer showed that she had disability after
February 19, 1992 due to her December 2, 1986 injury. She alleged that the Office had confused
her claim for a recurrence of disability due to her accepted right hand and wrist injury with her
claim for a recurrence of disability due to her accepted left thumb and wrist injury.
In a March 5, 2007 decision, the Office denied appellant’s request for reconsideration. In
justification of this determination, the Office stated, “We have declined your request for
reconsideration dated December 4, 2006 as this Office shows no decision dated January 26, 2006
as indicated in your letter. We have not reviewed the merits of your case.”
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.9
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.10
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes “clear evidence of error.”11 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set

8

The Board notes that although the Office did not provide appeal rights the January 26, 2006 document
constitutes a final decision of the Office concerning appellant’s May 9, 2005 request for merit review of her claim.
9

20 C.F.R. § 10.607(a).

10

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

11

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

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forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.12
In determining whether a claimant has discharged his or her burden of proof and is
entitled to compensation benefits, the Office is required by statute and regulation to make
findings of fact.13 Office procedure further specifies that a final decision of the Office must
include findings of fact and provide clear reasoning which allows the claimant to “understand the
precise defect of the claim and the kind of evidence which would tend to overcome it.”14 These
requirements are supported by Board precedent.15
ANALYSIS
The Office accepted that appellant sustained tendinitis and de Quervain’s complex of the
right wrist and hand and paid compensation for periods of disability until December 29, 1990,
when she returned to limited-duty work. Appellant claimed that she sustained a recurrence of
total disability on February 19, 1992 due to her accepted right hand and wrist injury. The Office
denied her claim finding that she did not submit sufficient medical evidence to establish such a
recurrence of disability.
In a December 4, 2006 letter, appellant requested reconsideration of her claim that she
sustained a recurrence of disability due to her accepted right hand and wrist injury. She argued
that she had submitted sufficient medical evidence to establish her claim, including reports of
Dr. Azer, an attending Board-certified orthopedic surgeon. Appellant also discussed her prior
reconsideration requests and argued that they should have been considered to be timely
reconsideration requests.
In a March 5, 2007 decision, the Office denied appellant’s request for reconsideration. In
justification of this determination, the Office stated, “We have declined your request for
reconsideration dated December 4, 2006 as this Office shows no decision dated January 26, 2006
as indicated in your letter. We have not reviewed the merits of your case.”
The Board finds that the Office did not provide sufficient findings of fact and reasoning
to explain its determination that appellant was not entitled to a review of the merits of her claim.
The Office did not adequately explain why it did not evaluate appellant’s reconsideration request
12

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides: “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.
13

5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office “shall contain findings of fact and a statement of reasons.”
14

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

15

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

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under the standards of 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.607 discussed above.16 In her
December 4, 2006 letter, appellant addressed the merits of her claim that she sustained a
recurrence of disability due to her accepted right hand and wrist injury. The Office did not
discuss whether appellant’s December 2006 reconsideration request was timely or apply the
appropriate standard for evaluating her reconsideration request after making such a
determination.
For these reasons, the case should be remanded to the Office for a proper evaluation of
appellant’s December 2006 reconsideration request in accordance with the above-described
standards. After such development it deems necessary, the Office should issue an appropriate
decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether the Office
properly denied appellant’s request for further review of the merits of her claim.
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: December 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

See supra notes 9 through 12 and accompanying text.

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