United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2446
Issued: October 2, 2008

Case Submitted on the Record

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

JURISDICTION
On September 27, 2007 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated November 6, 2006 and June 13, 2007 that reduced his
wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to reduce appellant’s
compensation benefits based on his capacity to earn wages as a check cashier for the period
October 7, 2001 to January 4, 2003; (2) whether appellant met his burden of proof to modify the
wage-earning capacity determination; and (3) whether the Office properly determined appellant’s
pay rate for compensation purposes beginning January 20, 1984.

FACTUAL HISTORY
On December 24, 1980 appellant, then a 25-year-old shipwright, sustained an
employment-related injury when he fell through an open hatch.1 The claim was accepted for
bilateral medial meniscus tear, lumbosacral strain and herniated disc at L4-5 and he underwent
numerous surgical procedures and received wage-loss compensation based on the date-of-injury
pay rate of $328.40 a week. Appellant returned to light duty in January 1982. On October 31,
1983 he was granted a schedule award for an 11 percent impairment of the left leg. Appellant
was terminated effective January 20, 1984, due to physical inability to perform his work duties.
At that time his pay rate was $9.68 an hour or $387.20 a week. He has not worked since that
time and was returned to the periodic rolls effective February 28, 1984. Appellant’s
compensation was based on a weekly pay rate of $328.40.
Numerous attempts at vocational rehabilitation were unsuccessful. In 1999 the Office
determined that a conflict in medical evidence was created between appellant’s attending Boardcertified orthopedic surgeon, Dr. Roy T. Lefkoe, and Dr. Steven J. Valentino, a Board-certified
osteopath specializing in orthopedic surgery, regarding his ability to work.2 On August 9, 1999
the Office referred appellant to Dr. Maxwell Stepanuk, a Board-certified osteopath specializing
in orthopedic surgery, for an impartial evaluation. In a September 13, 1999 report, Dr. Stepanuk
noted his review of the record including the history of injury and appellant’s chief complaint of
low back and bilateral lower extremity pain. On examination appellant was 5’10” tall and
weighed 274 pounds. He had considerable pain in the lumbar paravertebral musculature with
muscle spasms. Bilateral straight leg raising examination was positive. Appellant was wearing a
brace on his left knee which was more symptomatic than the right with considerable pain in both
knees. Dr. Stepanuk diagnosed chronic myofascitis, degenerative disc disease with herniations
at L3-4 and L5, bilateral lower extremity radiculopathies, status post left L3-4 and L4-5
laminotomies and degenerative arthritis of both knees and advised that appellant had
nonindustrial bilateral carpal tunnel syndrome and injuries to both shoulders. He opined that
appellant’s residual complaints were directly related to the December 24, 1980 employment
injury, based on objective findings of advanced degenerative arthritis and disc herniations. In a
work capacity evaluation dated September 14, 1999, Dr. Stepanuk advised that appellant could
work four hours daily with alternating activities of two hours of sitting, walking, standing,
operating a motor vehicle, pushing, pulling and lifting with 15-minute breaks and a five-pound
weight limitation.
Appellant was referred to Susan Snedden, a rehabilitation counselor, on January 6, 2000.
On June 13, 2000 rehabilitation services were interrupted because appellant had left knee
surgery. On May 11, 2000 Dr. Stepanuk reviewed a November 19, 1999 lumbar spine magnetic
resonance imaging (MRI) scan which showed degenerative disc disease and bulging at L3-4, L45 and L5-S1 and a left lower extremity MRI scan dated March 9, 2000, which showed advanced
arthritis with meniscal degeneration with a probable tear. He advised that this review did not
change the opinions expressed in the September 14, 1999 work capacity evaluation.
1

This case has been before the Board on two prior occasions.

2

Dr. Lefkoe advised that appellant could work restricted duty for two hours a day and Dr. Valentino advised that
he could work eight hours of restricted duty daily.

2

Rehabilitation services were resumed and, as appellant was unable to secure employment,
on February 13, 2001, Ms. Snedden identified the position of check cashier, as within appellant’s
work restrictions and qualifications and reasonably available in the local labor market. By letter
dated April 24, 2001, the Office proposed to reduce appellant’s compensation benefits based on
his capacity to earn wages as a check cashier. The job classification for the check cashier
position indicated that the part-time weekly wage was $135.00.
Appellant, through his attorney, disagreed with the proposed reduction. In an April 30,
2001 report, Dr. Lefkoe advised that appellant’s condition had deteriorated since he was seen by
Dr. Stepanuk in September 1999 and that he could not work. On August 22, 2001 the Office
again referred appellant to Dr. Stepanuk for examination. In a September 5, 2001 report,
Dr. Stepanuk reviewed the record, appellant’s complaints and findings on physical examination.
He diagnosed chronic myofascitis, degenerative disc disease at L3-4 and L5, disc fragment at
L4-5, bilateral lower extremity radiculopathies, status post laminectomy and bilateral advanced
arthritis of the knees. Dr. Stepanuk opined that appellant was quite incapacitated secondary to
his lumbar and knee conditions but could perform the sedentary duties of a check cashier for four
hours a day.
On September 28, 2001 the Office finalized the reduction of compensation, effective
October 7, 2001, finding that appellant had the wage-earning capacity of a check cashier, for four
hours per day. It applied the Shadrick formula based on a weekly pay rate of $328.40 and found
that appellant had the capacity to earn weekly wages of $68.96 or a loss of wage-earning
capacity of $259.44 per week which yielded weekly compensation at the augmented ¾ rate of
$194.58.3
On October 5, 2001 appellant, through his attorney, requested a hearing. He submitted a
May 14, 2001 report from Dr. Lefkoe who reviewed the check cashier position. Dr. Lefkoe
reiterated that appellant’s condition had deteriorated and advised that he could not work. At the
hearing held on March 6, 2002, appellant testified regarding his work and medical history, his
daily activities and his medical condition. He stated that he still drove and did not use a cane but
could not wear regular clothes or shoes because they were too confining. Appellant argued that
he could not perform the check cashier position because he could not sit for four hours, could not
climb stairs and could not concentrate. By decision dated June 17, 2002, an Office hearing
representative affirmed the September 28, 2001 decision.
On August 13, 2002 appellant requested reconsideration and submitted a July 9, 2002
report from Dr. Lefkoe who noted that appellant had worsening trochanteric bursitis of the right
hip and degenerative changes of the knees. Dr. Lefkoe reiterated his previous findings and
conclusion, advising that appellant was incapable of gainful employment.
3

The formula for determining loss of wage-earning capacity based on actual earnings, was developed in Albert C.
Shadrick, 5 ECAB 376 (1953), has been codified by regulation at 20 C.F.R. § 10.403. Subsection (d) of this
regulation provides that the employee’s wage-earning capacity in terms of percentage is obtained by dividing the
employee’s actual earnings by the current pay rate for the job held at the time of injury. Office procedures indicate
that a determination regarding whether actual wages fairly and reasonably represent wage-earning capacity should
be made after a claimant has been working in a given position for more than 60 days. Hayden C. Ross, 55 ECAB
455 (2004).

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By decision dated November 12, 2002, the Office denied modification of the June 17,
2002 decision.
On February 21, 2003 appellant again requested reconsideration and submitted a
January 7, 2003 report in which Dr. Lefkoe noted that he had fallen at home when his left knee
gave way and developed a large hematoma on his back. In a January 16, 2003 report,
Dr. Jeffrey D. Petersohn, Board-certified in anesthesiology and pain management, advised that
appellant continued to have symptoms of degenerative disease of the lumbar spine, hips and
knees. He stated that appellant did not wish additional surgery and advised that he was totally
disabled. On January 27, 2003 Dr. Lefkoe noted increased back and hip pain.
In a merit decision dated June 18, 2003, the Office again denied modification of the
wage-earning capacity determination.
On November 6, 2003 appellant, through his attorney, requested reconsideration. In a
November 3, 2003 report, Ronald L. Rosenberg, Ph.D., a rehabilitation counselor and licensed
psychologist, reviewed the medical and vocational rehabilitation records, the history of injury
and appellant’s continued complaints of pain and discomfort in his lower back and knees. He
performed vocational testing and advised that appellant had “a strong constellation” of medical
problems including chronic pain that greatly impeded his functioning and raised significant
doubts about his employability, noting that he had a significant emotional overlay, was on
antidepressant medication and was distraught and depressed over his medical status which
compounded his significant physical problems. Dr. Rosenberg concluded that appellant was
disabled from all employment. Dr. Lefkoe also found that appellant could not work.
On January 26, 2004 appellant filed a Form CA-2a, claim for recurrence of disability
alleging that on January 4, 2003 he fell backwards at home because his left knee gave out. He
requested the difference between his reduced compensation and full compensation from
January 4, 2003 forward. By letter dated February 23, 2004, the Office informed appellant of the
evidence needed to support his recurrence claim. Appellant resubmitted reports from Dr. Lefkoe
dated January 7, 2003 to February 3, 2004. Dr. Lefkoe reiterated his findings and conclusions.
By decision dated March 26, 2004, the Office denied appellant’s recurrence claim.
In March 2004, the Office referred appellant to Dr. Maurie D. Pressman, a Boardcertified psychiatrist, for a second opinion evaluation. In an April 21, 2004 report, Dr. Pressman
noted the history of injury, appellant’s medical history and findings on psychiatric evaluation.
He diagnosed depressive disorder, single episode and numerous orthopedic difficulties including
disc disease and degenerative arthritis of both knees with incapacity due to continuing pain and
inability to move, work or be useful. Dr. Pressman advised that appellant’s depression was due
to the December 24, 1980 employment injury and that these had a cumulative wearing-down
effect upon his psyche, compounded by his continual pain, inability to sleep or move around or
engage in rewarding activities of life. He recommended psychotherapy and concluded that
appellant could not work.

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In a May 24, 2004 decision, the Office accepted that appellant sustained a consequential
major depression, but denied modification of the prior wage-earning capacity decisions.
Appellant received compensation retroactive to November 3, 2003, based on a weekly pay rate
of $328.40 and began psychotherapy with Dr. Harry Doyle.
On September 20, 2004 appellant, through his attorney, filed an application for review
with the Board of the March 26 and May 24, 2004 Office decisions. By order dated March 2,
2005, the Board remanded the case to the Office for reconstruction of the case record.4 The
Office reconstructed the record and on September 15, 2005 reissued the March 26 and May 24,
2004 decisions.5 On January 20, 2006 appellant, through his attorney, filed an application for
review with the Board. By order dated September 1, 2006, the Board again remanded the case to
the Office for reconstruction as the record forwarded to the Board was incomplete.6
On November 6, 2006 the Office7 found that appellant was entitled to full compensation
for the period January 4 to November 2, 2003.8 It also found that appellant was not entitled to
increased compensation for the period September 28, 2001 to January 4, 2003.
On November 10, 2006 appellant, through his attorney, requested a hearing, that was held
on March 21, 2007.9 At the hearing, counsel argued that, based on the opinion of Dr. Rosenberg,
appellant had depression since the 1990s and was entitled to compensation for the period
September 28, 2001 to January 4, 2003.
By decision dated June 13, 2007, an Office hearing representative affirmed the
November 6, 2006 decision.

4

Docket No. 04-2278 (issued March 2, 2005).

5

The Office also reissued an August 30, 2004 decision approving an attorney’s fee of $649.00. On January 17,
2006 an Office hearing representative vacated a February 28, 2005 Office decision and remanded the case to the
Office for further development regarding a claimed right hip condition. On June 30, 2006 the Office accepted the
consequential condition of underlying trochanteric bursitis of the right hip.
6

Docket No. 06-600 (issued September 1, 2006).

7

The reconstructed record contains numerous reports describing appellant’s condition after compensation
benefits were resumed in January 2003 and also older reports from Dr. Lefkoe, Drs. M. Darryl Antonacci and
Robert Booth, a Board-certified in orthopedic surgery, Drs. Petersohn and Shailen Jalali, a Board-certified in
anesthesiology and pain management, Dr. Steven Mandel, a Board-certified neurologist, and Dr. Vidyadhar Chitale,
a Board-certified neurosurgeon, who did not discuss appellant’s ability to work.
8

The Office thus accepted that appellant sustained a recurrence of disability on January 4, 2003.

9

In a preliminary decision dated March 29, 2007, the Office found that an overpayment in compensation in the
amount of $9,331.97 had been created because appellant continued to receive augmented compensation after his
son’s 18th birthday on October 25, 2003. On April 30, 2007 it finalized the overpayment decision. Appellant did
not file an appeal of this decision with the Board.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.10 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.11
Section 8115 of the Federal Employees’ Compensation Act12 and Office regulations
provide that wage-earning capacity is determined by the actual wages received by an employee if
the earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings do
not fairly and reasonably represent wage-earning capacity or the employee has no actual
earnings, his wage-earning capacity is determined with due regard to the nature of his injury, the
degree of physical impairment, his usual employment, his age, his qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect his wage-earning capacity in his disabled condition.13 The Office must initially
determine a claimant’s medical condition and work restrictions before selecting an appropriate
position that reflects his or her wage-earning capacity. The medical evidence upon which it
relies must provide a detailed description of the condition.14 Additionally, the Board has held
that a wage-earning capacity determination must be based on a reasonably current medical
evaluation.15
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.16 Finally, application of the principles set forth in Albert C. Shadrick17 will result in the
percentage of the employee’s loss of wage-earning capacity.18

10

James M. Frasher, 53 ECAB 794 (2002).

11

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

12

5 U.S.C. §§ 8101-8193.

13

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 11.

14

William H. Woods, 51 ECAB 619 (2000).

15

John D. Jackson, supra note 11.

16

James M. Frasher, supra note 10.

17

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

18

James M. Frasher, supra note 10.

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In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairments resulting from both injury related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.19
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.20 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.21
ANALYSIS -- ISSUE 1
The Board finds that Dr. Stepanuk’s referee opinion is entitled to special weight and
establishes that appellant had the capacity to earn wages as a clerk cashier for four hours a day
for the period September 3, 2001 to January 4, 2003. Following left knee surgery in June 2000,
vocational rehabilitation services were resumed but appellant was unable to secure employment.
On February 13, 2001 Ms. Snedden, the vocational rehabilitation counselor, identified four
positions she felt fit appellant’s capabilities. The Office determined that appellant had the
capacity to earn wages as a clerk cashier based on Dr. Stepanuk’s September 5, 2001 report.
Dr. Stepanuk, who first examined appellant in September 1999, reviewed MRI scans in
May 2000 and reexamined appellant in September 2001. He again reviewed the record,
appellant’s complaints and noted findings on physical examination. Dr. Stepanuk diagnosed
chronic myofascitis, degenerative disc disease at L3-4 and L5, disc fragment at L4-5, bilateral
lower extremity radiculopathies, status post laminectomies and bilateral advanced arthritis of the
knees. While Dr. Stepanuk opined that appellant was quite incapacitated secondary to his
lumbar and knee conditions, he advised that appellant could perform the sedentary duties of a
check cashier for four hours a day.
Appellant’s attending orthopedic surgeon, Dr. Lefkoe, advised that he was totally
disabled during this period. However, he had been on one side of the conflict in medical
evidence. The Board has held that an additional report from a claimant’s physician, which
essentially repeats earlier findings and conclusions, is insufficient to overcome the special weight
accorded to an impartial medical specialist’s report.22

19

John D. Jackson, supra note 11.

20

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

21

Manuel Gill, 52 ECAB 282 (2001).

22

Roger G. Payne, 55 ECAB 535 (2004).

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The Board finds that Dr. Stepanuk provided well-rationalized evaluations in which he
clearly found that appellant could work four hours a day as a clerk cashier. His opinion is
entitled to the special weight accorded an impartial examiner and therefore constitutes the weight
of the medical evidence to establish that appellant had the physical capabilities to perform the
selected position.23
In a February 13, 2001 report, the Office rehabilitation counselor provided a job
description of cashier clerk, advised that the position was sedentary, which was within
appellant’s medical restrictions and qualifications. The counselor noted that the position was
available both full and part time in sufficient numbers so as to make it reasonably available
within appellant’s commuting area and that the wage for the position was $135.00 per week part
time.
The Board finds that the Office considered the proper factors, such as availability of
suitable employment and appellant’s physical limitations, usual employment, age and
employment qualifications, in determining that the position of clerk cashier represented his
wage-earning capacity on October 7, 2001.24 The weight of the evidence of record establishes
that he had the requisite physical ability, skill and experience to perform the position of clerk
cashier and that such a position was reasonably available within the general labor market of his
commuting area. The Office therefore properly determined that the position of clerk cashier
reflected appellant’s wage-earning capacity.25
LEGAL PRECEDENT -- ISSUE 2
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.26 Office’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”27 Once the wage-earning capacity of an
injured employee is determined, a modification of such determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was, in

23

William H. Woods, supra note 14.

24

James M. Frasher, supra note 10.

25

James Smith, 53 ECAB 188 (2001).

26

Katherine T. Kreger, 55 ECAB 633 (2004).

27

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).

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fact, erroneous.28 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.29
In addition, Chapter 2.814.11 of the Office’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. Office procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If the Office is seeking modification, it must establish that the original rating was in error,
that the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.30
ANALYSIS -- ISSUE 2
On August 13, 2002 appellant first requested that the Office modify the September 13,
2001 wage-earning capacity decision. Once a formal wage-earning capacity decision is in place,
a modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated, or the original determination was, in fact, erroneous.31 The burden of
proof is on the party attempting to show a modification of the wage-earning capacity
determination.32
The Board finds that appellant did not submit sufficient evidence to show that the
Office’s September 13, 2001 wage-earning capacity determination was erroneous.33 There is no
evidence of record that this decision was in error or that appellant was retrained or otherwise
vocationally rehabilitated and the medical evidence submitted is insufficient to show that there
was a material change in the nature and extent of the injury-related condition beginning in
August 2002.
As noted, while Dr. Lefkoe has opined that appellant remained totally disabled during the
period October 7, 2001 to January 4, 2003 and was on one side of the conflict in medical
evidence resolved by Dr. Stepanuk.34 Both Dr. Rosenberg and Dr. Pressman found that appellant
was totally disabled due to a consequential emotional condition. Their reports, however, were
28

Stanley B. Plotkin, 51 ECAB 700 (2000).

29

Id.

30

See Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.814.11 (June 1996).

31

Stanley B. Plotkin, supra note 28.

32

Id.

33

Katherine T. Kreger, supra note 26; Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA) Procedure
Manual, supra note 6.
34

Roger G. Payne, supra note 22.

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dated November 3, 2003 and April 21, 2004 respectively, after appellant was again receiving full
wage-loss compensation. Neither physician specifically mentioned appellant’s condition or
ability to work during the period in question. These reports are insufficient to establish that the
September 28, 2001 wage-earning capacity determination should be modified for the period
October 7, 2001 to January 4, 2003. In this case, appellant has not submitted medical evidence
to establish a material change in the nature and extent of his employment-related conditions.35
LEGAL PRECEDENT -- ISSUE 3
Under section 8101(4) of the Act, “monthly pay” means the monthly pay at the time of
injury or the monthly pay at the time disability begins or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is greater.36
Monetary compensation for total or partial disability due to an employment injury is paid as a
percentage of monthly pay.37
The determination of pay rates for compensation purposes requires a number of
calculations, including the application of certain figures to a computation known as the Shadrick
formula.38 Prior to initiating a calculation using the Shadrick formula, one must obtain accurate
figures for the adjusted weekly pay rate, the current rate of pay for the job held when injured and
the current actual earnings. If any of these initial figures are inaccurate, any calculation under
the Shadrick formula will be inaccurate even if the formula is applied in a proper manner.39
ANALYSIS -- ISSUE 3
In determining appellant’s pay rate for compensation purposes beginning on January 20,
1984 when he stopped work because his light duty had been withdrawn, again in its
September 28, 2001 decision and upon his return to total disability effective January 4, 2003, the
Office based appellant’s compensation on an incorrect pay rate. The record reflects that
appellant’s compensation was based on his date-of-injury pay rate of $8.21 an hour or $328.40
per week. While this was the correct pay rate to be used for the period immediately following
employment injury on December 24, 1980, he returned to a limited-duty position at the
employing establishment in August 1982. Appellant continued to work until his light duty was
withdrawn and he stopped work on January 20, 1984, 17 months later. At that time his pay rate
was $9.68 an hour or $387.20 per week.

35

Stanley B. Plotkin, supra note 28.

36

5 U.S.C. § 8101(4); see Teresa A. Ripley, 56 ECAB 528 (2005).

37

L.H., 58 ECAB ____ (Docket No. 06-1691, issued June 18, 2007).

38

Supra note 3.

39

Paul M. Colosi, 56 ECAB 294 (2005).

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When appellant was returned to the periodic rolls in 1984, his compensation was based
on the date-of-injury pay rate of $328.40. In the Shadrick formula to determine appellant’s
wage-earning capacity, the $328.40 weekly pay rate was again used. When he was returned to
total disability effective November 3, 2003, his compensation was again based on a weekly pay
rate of $328.40. Subsequently, the Office accepted that appellant sustained a recurrence of
disability on January 4, 2003 and his compensation was based on a weekly pay rate of $328.40.
In applying section 8101(4) of the Act, the Office is to determine monthly pay by
determining the date of the greater pay rate, based on the date of injury, date of disability or the
date of recurrent disability.40 Since appellant returned to full-time employment with the
employing establishment in August 1982 and continued in that position until January 1984, the
proper pay rate for compensation purposes would be his pay rate on January 20, 1984, the date of
his recurrent disability or $387.20 per week.
The Board notes that the record is unclear what appellant’s earning capacity beginning
October 7, 2001 would have been in the check cashier position for four hours a day. The job
classification completed by Ms. Snedden on February 13, 2001 provided that weekly wages for a
part-time check cashier were $135.00 yet in applying the Shadrick formula in the September 28,
2001 wage-earning capacity decision, the Office used a figure of $68.96 a week. The case will
therefore be remanded for the Office to determine appellant’s correct compensation beginning
January 20, 1984, to determine the weekly wages of the clerk cashier position for four hours a
day during the period that the loss of wage-earning capacity was in place, i.e., October 7, 2001 to
January 4, 2003 and the correct pay rate for compensation purposes upon his return to total
disability effective October 4, 2003.41
CONCLUSION
The Board finds that the Office met its burden of proof in reducing appellant’s wageearning capacity based on his capacity to earn wages in the constructed position of clerk/cashier
and that he did not meet his burden of proof to modify the wage-earning capacity determination.
The Board, however, finds that the Office used an improper pay rate for compensation purposes
and that the record is unclear regarding the weekly pay rate for the selected position of check
cashier. The case must be remanded to the Office for determination of appellant’s correct rate of
compensation beginning January 24, 1984.

40

R.S., 58 ECAB ____ (Docket No. 06-1346, issued February 16, 2007).

41

Paul M. Colosi, supra note 39.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 13, 2007 be affirmed in part and set aside in part and
remanded to the Office for determination of the proper pay rate for compensation purposes.
Issued: October 2, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, Lakehurst, NJ,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-409
Issued: January 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 26, 2008 appellant filed a timely appeal of the January 2 and August 7,
2008 merit decisions of the Office of Workers’ Compensation Programs, denying his emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his emotional
condition is causally related to a compensable employment factor.
FACTUAL HISTORY
On November 19, 2007 appellant, then a 42-year-old electronics technician, filed a claim
(Form CA-2) alleging work-related stress with a specific date of alleged injury of
October 24, 2006. He first realized that his stress was work related on April 12, 2007.

Appellant claimed that the supervisor treated him differently and that the October event
was the third time his supervisor had “come after” him and that following the event he was
evaluated by an employing establishment nurse who sent him home. He contended that his
supervisor was aware of his stress condition, which caused him to miss work but, he kept
“coming at” him. The employing establishment controverted the claim
By decision dated January 2, 2008, the Office denied appellant’s claim, finding that he
did not sustain an emotional condition in the performance of duty. Appellant did not submit any
evidence establishing that he was harassed by his supervisor.
In January 2008, the Office received a narrative statement from appellant alleging that
supervisors Jay Rodney Moss and Leroy Farr had harassed him on a daily basis since April 2005.
Appellant stated that his problems began in 2005, when he came under the supervision of
Mr. Moss, supervisory general engineer.1 He asserted that Mr. Moss held a grudge against him
because he had been one of the lead plaintiffs in a class action filed against the Navy under the
Federal Labor Relations Act. The litigation was successful and resulted in appellant and other
employees becoming eligible for overtime pay. He claimed that he had received an award of
three years back compensation. Appellant said that Mr. Moss told him directly that he would not
receive overtime or a promotion while he supervised him.
Appellant asserted that Mr. Moss belittled him, criticized his work in front of others,
refused to authorize overtime after giving verbal approvals, yelled at him and berated him,
pounded the desk and required that he undergo a security investigation and that Mr. Moss
supplied negative information about him. He failed to secure a renewed clearance. Appellant
also claimed that Mr. Moss manipulated the schedule on projects so that he would appear late
and limited his ability to work with certain other offices and employees which made his job more
difficult. He stated that he believed he was owed overtime pay which he has never received
because Mr. Moss had confused and manipulated his time records.
Appellant stated that he filed numerous grievances and Equal Employment Opportunity
(EEO) Commission complaints. He claimed he was denied promotions and told he would not be
transferred. As a resolution of his complaints, he was eventually transferred to a different
supervisor in another department on or about July 23, 2007.2
According to appellant, on April 12, 2006 Mr. Moss “went crazy” yelling at him when he
answered the telephone during their talk. On October 24, 2006 the date of injury alleged by
appellant, the January 2008 statement notes that Mr. Moss initiated disciplinary action against
him for failing to follow an order to go to the dispensary upon his return to work. Appellant has
a seizure disorder from an earlier, unrelated injury.3

1

Mr. Moss stated he supervised appellant from July 2005 to July 2007 when appellant was transferred.

2

It appears from the record that appellant was terminated from employment on or about January 2008 because he
was denied a security clearance which was essential to his work.
3

Appellant’s claim for the December 1, 1997 employment injury was assigned file number xxxxxx236. He fell at
work and a sharp piece of metal penetrated his skull. Seizures appear to have continued into 2007.

2

Appellant stated that on April 26, 2007 Mr. Moss berated and yelled at him about his job
duties. He reported that Mr. Moss denied his request for union representation to avoid having an
independent union witness to the conversation. After this encounter, appellant went to the
dispensary and was sent home with high blood pressure and rapid pulse. He was off work until
on or about July 19, 2007. Appellant also alleged that, after this event, he needed unnamed
medications for hypertension, migraines and Xanax.
On July 19, 2007 Mr. Moss attempted to have appellant sign a letter of proposed
suspension to verify his receipt of notice. Appellant stated that he refused to sign and that
Mr. Moss continued to yell at him and demanded that he sign.
The employing establishment responded on a January 10, 2008 when Lynn P. Palush,
injury compensation program administrator, presented a formal controversion of appellant’s
claim and provided a more complete statement of the employer’s position.4 She stated that
Mr. Moss did not harass appellant and only performed his supervisory responsibilities in a
diligent manner. Ms. Palush stated that appellant refused to follow administrative policies and
procedures such as receiving prior approval from a supervisor before working overtime or
requesting leave. On numerous occasions, she reported, appellant worked overtime and later
requested that Mr. Moss annotate his timecard. Ms. Palush asserted that Mr. Moss ensured that
appellant was compensated and explained the proper procedures for requesting and performing
overtime work to him.
With regard to other matters, Ms. Palush reported that in May 2007, appellant had been
suspended for an unexcused absence of more than eight hours. She asserted that Mr. Moss
treated all of his subordinates in the same manner and required them to follow proper policies
and procedures and ensured that their work was completed accurately and in a timely manner.
Ms. Palush contended: “The agency feels possibly the medications and injury [appellant]
suffered in 1997 are causing [him] to perceive the actions of Mr. Moss are more of a personal
attack vs [sic] that of a [sic] effective supervisor carrying out the technical and administrative
responsibilities he is expected to perform.”5
In a narrative statement also received by the Office on January 10, 2008, Mr. Moss
denied appellant’s allegations at length. He denied retaliating against or threatening appellant.
4

The Board sees no evidence that Ms. Palush has direct knowledge of the incidents involved in this claim. Her
statements do not refer to personal knowledge. Therefore, the Board regards her statement as a fair summary of the
information collected and believed relevant by the employing establishment.
5

Ms. Palush provided the Office a January 23, 2008 addendum to the controversion in which she primarily
discussed medical consequences of appellant’s alleged alcohol abuse. She stated:
“This appears to be a continuing problem for [appellant]. We feel alcohol abuse could possibly be
contributing to the medical problems he claims in his CA-2 form. He claims on his CA-2 form
that he is suffering from high blood pressure and his supervisor is the cause. According to
numerous medical articles and publications, alcohol abuse contributes to such things as high blood
pressure, difficulties at work and depression. Some symptoms of depression include trouble
concentrating, making decisions, headaches, fatigue, sleeping problems, dizziness and exhaustion.
Therefore, we contend there is a high probability the alcohol abuse is a large contributor to his
problems he is currently having at work.”

3

Mr. Moss stated that, when he supervised him, appellant actually worked more overtime than
any other employee in the branch. Appellant’s hours had to be adjusted manually when he failed
to follow proper procedures and Mr. Moss stated that he was unaware of any outstanding
retroactive pay changes for appellant. Mr. Moss stated that promotions for electronics
technicians were unavailable and there was no denial as alleged by appellant. He stated that
appellant had never requested special accommodations for a health problem or provides medical
documentation that directly linked work absences to a medical condition. Mr. Moss stated that,
most of the time, appellant did not provide a reason for his absence.
Mr. Moss continued that he had written a glowing testimonial of appellant’s work
performance prior to becoming appellant’s supervisor; and only wanted him to follow
procedures.6 He offered his opinion that appellant resented requirements and supervision, did
not work well with others and was unwilling to accept help even when his lack of progress
impacted the fleet’s needs.
By letter dated January 24, 2008, appellant, through counsel, requested an oral hearing
before an Office hearing representative regarding the January 2, 2008 decision.
At a May 15, 2008 hearing appellant testified along with a corroborating witness, Joan
Freed. Both witnesses were under oath. Appellant testified that he had been a plaintiff in a
successful class action. He said that in April 2005, Mr. Moss told him directly that he would
never get overtime or a promotion as long as he supervised appellant. At first, appellant said he
did not pay attention to the remark, but then he felt Mr. Moss began to scrutinize his work.
Appellant testified that Mr. Moss increased the number of meetings from one a week to three or
four to discuss appellant’s work progress and priorities. Appellant provided a list of other
attendees. At these meetings, Mr. Moss constantly criticized appellant’s work and performance.
Appellant testified that in November 2005, he was told to work on the design and
manufacturing process of a new piece of Navy equipment which he believed to be unsafe for its
use and location on aircraft carriers. He testified that he was told by Mr. Moss to make no
changes in the design but that he complained to the Inspector General’s office. Appellant
repeated in testimony that he feared that someone would be hurt as a result of a defective design.
He felt trapped “between a rock and a hard place” by a direct supervisory order and a fear that
others might be injured by a design he felt he could improve.
Appellant noted he had to work in many locations on the base and that Mr. Moss did not
like the fact that appellant was often not in his regular work space. He felt that Mr. Moss was
inconsistent in assigning work and that he made arbitrary changes in the assignments later.
Appellant also accused Mr. Moss of listening to telephone calls and other conversations outside
his office door.
Appellant identified specific incidents of alleged harassment and abuse in his testimony.
He testified that, on April 26, 2007, Mr. Moss came to his work space and began to berate him
and change his work assignments. Appellant testified that his job description was being changed
6

Mr. Moss stated that he had known appellant for 20 years and that he was the most talented electronics
technician he had ever known.

4

and that Mr. Moss continued, “Yelling and screaming.” He stated that he wanted to leave
because his cardiologist had told him to leave during stressful confrontations but that Mr. Moss
told him to stay where he was. Appellant note that he requested union representation three times
during this encounter but that Mr. Moss stated that the matter was not a union problem. When
the union steward entered appellant’s work space, Mr. Moss left rather than continue the
meeting. Appellant stated that he was feeling ill and went to the dispensary and he testified that
he was sent home. Ms. Freed, a witness for appellant, testified that, on April 26, 2007, she left
appellant’s work space while Mr. Moss was with appellant and got the union steward. In a
signed statement submitted by appellant’s counsel after the hearing, Ms. Freed described
appellant after the incident as “shaking” and “looking like he was going to have a seizure.”
In a second encounter, appellant returned to work on July 19, 2007 after a period of
claimed medical disability following the April 26, 2007 incident. He testified that Mr. Moss
tried to get him to sign some paperwork imposing a six-day disciplinary suspension without pay.
Appellant testified that he refused to sign and that Mr. Moss continued to yell at him.
Appellant’s counsel then submitted the July 24, 2007 report of George Peters Ed.D., a
licensed psychologist, who evaluated appellant as part of an investigation regarding a security
clearance. Dr. Peters diagnosed appellant with mixed personality disorder with possible
paranoid features, seizure disorder, hypertension and problems specific to managing
interpersonal relationships especially with supervisors. He recommended further psychiatric
evaluation for anxiety and insomnia and, in addition, psychological counseling for stress
management.
Dr. Peters also recommended a neurological evaluation for appellant’s
documented seizure disorder, which appeared to the examiner to be uncontrolled. He reported
that appellant stated that he had a serious stress reaction to an April 26, 2007 incident at work.
Dr. Peters also reported that appellant noted that he received a traffic citation on July 19, 2007
because he entered his car hurriedly and drove off before fastening his seat belt because he
wanted to “avoid a particular individual.” At the hearing, appellant testified that he was seeing a
cardiologist and his family physician and expressed a belief that working under the supervision
of Mr. Moss was too stressful for him.
The corroborating witness, Ms. Freed, generally supported appellant’s version of events.
She was not supervised by Mr. Moss or Mr. Farr. Ms. Freed stated that she shared office space
with appellant during the period in question but that she was not always present in her office.
She testified that she had worked for the employing establishment for 28 years. Ms. Freed
testified that she knew appellant and Mr. Moss well and that for a number of years, they had all
been friends.
Ms. Freed testified that, in April 2005, Mr. Moss spoke to her in the parking lot. It was
her testimony that he held a piece of paper and was “smacking it.” The paper concerned the
overtime class action and Mr. Moss asked Ms. Freed if she had “signed it.” Ms. Freed testified
that she had and that almost everyone else had signed it as well. Mr. Moss then asked her if
appellant had signed it and Ms. Freed stated that he had. Ms. Freed testified that Mr. Moss
became angrier and said to her that appellant would never get a promotion or overtime. She
stated that about an hour later, Mr. Moss called and apologized for yelling at her and noted he
had forgotten that she did not work for him. Ms. Freed testified that Mr. Moss then explained to

5

her that he had proposed a budget that did not include the cost of the litigation and that he felt it
would make him look bad.
After that conversation, Ms. Freed testified that Mr. Moss repeatedly yelled at appellant
in her presence and that she felt that she experienced panic attacks from the behavior of
Mr. Moss. She was able to offer limited information about the events of April 26, 2007.
Ms. Freed testified that she was present on July 19, 2007, when Mr. Moss attempted to have
appellant sign some papers connected with his suspension. She testified that she filed a police
report on July 23, 2007 about the behavior of Mr. Moss toward appellant and herself. The
eventual disposition of the matter is not clear from the record.
In addition, Ms. Freed testified that, in 2007, everyone who worked on a particular Navy
camera system received a cash award and a letter of appreciation authorized or approved by
Mr. Moss. Although appellant worked as a central participant in the project he did not receive an
award or a letter. Ms. Freed testified that Mr. Moss told other employees that everyone was
getting a little extra because “one person in the department that was n[o]t getting anything.”
Appellant testified the award was the subject of a grievance but did not mention any disclosure
of information about him by Mr. Moss.
In her post-hearing signed statement, received by the Office on or about June 16, 2008,
Ms. Freed clarified her testimony and stated that she personally overheard Mr. Moss make the
statement to others that appellant was not being included in the awards to other employees. She
stated that she had also been told by other employees that Mr. Moss was publicly discussing
appellant’s noninclusion.
Ms. Freed stated that she felt harassed and used by Mr. Moss when he telephoned to ask
where appellant was. She testified that she listened to voice messages from Mr. Moss which
appellant saved and which she described as “nasty and angry.” Ms. Freed testified that she
believed appellant was being treated unfairly by Mr. Moss.
Ms. Freed noted in her statement that Mr. Moss complicated appellant’s work
assignments by frequently contradicting verbal instructions with e-mails and frequently changing
his team leader for purposes of requesting leave. She testified that Mr. Moss gave verbal
authorizations for appellant’s overtime and then said he could not remember, or that he had not
given any authorization at all.
Ms. Freed also noted in her statement that she had overheard Mr. Moss tell appellant, in
front of other employees, that he was to be replaced by another employee, Rod MacRae. She
stated that she heard Mr. Moss direct appellant to train his own purported replacement.
Appellant did not mention this incident and Ms. Freed did not mention it in her hearing
testimony.
The employing establishment offered comments on the hearing transcript in a
memorandum dated June 12, 2008 signed by F.A. Renz III. The response included further
comments from Mr. Moss referring to page and line cites in the transcript. The employing
establishment also resubmitted a copy of the January 23, 2008 controversion by Ms. Palush and a
report by a psychologist.

6

Mr. Moss again denied all of the allegations made by appellant and Ms. Freed with
regard to inappropriate demeanor and behavior. He repeated his view that appellant was difficult
to supervise and that, as a supervisor, he had done nothing more than try to make appellant
follow the same rules as every other employee.
On the April 26, 2007 and July 19, 2007 encounters with appellant and Ms. Freed,
Mr. Moss wrote after the hearing:
“When [appellant] stated that his blood pressure was going up just talking to me, I
recommended that he go to medical. I never told him he was n[o]t going
anywhere and to sit down. I never denied him union representation. I stated
[that] he did n[o]t need union representation every time we had a meeting. When
the union steward showed up in the office, I chose to end my conversation with
[appellant].”
Concerning July 19, 2007, he wrote:
“Incorrect, see memo[random] of record. Ms. Freed left room as soon as I
entered, came back once and removed her keys and bag then came back a second
time and picked up [appellant’s] keys from the hook on his desk where he always
keeps them. I never went wild, never yelled at the top of my lungs, never grabbed
Ms. Freed, never chased anybody. After [appellant] refused to sign the proposed
suspension letter and left, I [tele]phoned the HR specialist and reported what
happened. I went back to my office and drafted a memo[random] of record
describing the incident and, faxed it to HR.”
These denials refer to pages and lines in the hearing transcript but are almost exact repetitions of
earlier statements and provide no new information about the events.
On the matter of awards, Mr. Moss wrote:
“Never went around discussing anybody’s spot awards. [Appellant] did not
receive any awards at my discretion because I felt he did not deserve one. It was
not appropriate. While [he] should have been working on this [Camera system]
project he was found to have left work and was subsequently suspended for his
actions. [Appellant] was displaying repeated leave abuse and insubordination
resulted in one formal suspension, formal verbal warning regarding verbal abuse
of coworker….”
The statement confirms only that appellant was not given an award and, again, repeats earlier
generalized accusations of bad behavior by appellant.
On the alleged statements reported by appellant and Ms. Freed concerning appellant’s
chances for overtime and promotion, Mr. Moss wrote:
“Fabrications. No statement was ever made regarding overtime or promotions.
[Appellant] was GS 586-12. He worked more OT than any other person in 4883.
There was no payout from 4883 regarding FSLA lawsuit…. There were no
7

promotion opportunities above journeyman level for any GS856 in all of 488 in
the last several years.”
This notation repeats earlier denials but provides no further details.
By decision dated August 7, 2008, an Office hearing representative noted that appellant
was a credible witness but affirmed the January 2, 2008 decision7 finding that appellant had
failed to establish a compensable factor of his employment.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.8 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.9
Where a claimant has not established any compensable employment factors, the Board
need not consider the medical evidence of record.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.11
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,12 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.13
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 under the Federal Employees’
7

It appears that in the August 7, 2008 decision the hearing representative misstated that the issue in the case was
whether appellant was entitled to an additional schedule award for the right upper extremity as she determined that
the evidence of record failed to establish that he sustained an emotional condition in the performance of duty.
8

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

9

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

10

Robert Breeden, 57 ECAB 622 (2006).

11

Jeral Gray, 57 ECAB 611 (2006).

12

28 ECAB 125 (1976).

13

5 U.S.C. §§ 8101-8193.

8

Compensation Act.14 When an employee experiences emotional stress in carrying out his
employment duties and the medical evidence establishes that the disability resulted from his
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of his work.15 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 under the Federal Employees’ Compensation Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.16 As a general rule, an employee’s emotional
reaction to administrative or personnel actions taken by the employing establishment is not
covered because such matters pertain to procedures and requirements of the employer and are not
directly related to the work required of the employee.17 An administrative or personnel matter
will be considered to be an employment factor where the evidence discloses error or abuse on the
part of the employing establishment.18
Under the Federal Employees’ Compensation Act the term “harassment” as applied by
the Board is not the equivalent of “harassment” as defined by other agencies, such as the EEO
Commission, which is charged with statutory authority to investigate and evaluate such matters
in the workplace. Rather, in evaluating claims for workers’ compensation under the Federal
Employees’ Compensation Act, the term “harassment” is synonymous, as generally defined, with
a persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or workers.
Mere perceptions and feelings of harassment will not support an award of compensation.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.19
ANALYSIS
The factual background of this claim presents the interpretations of events offered by the
employing establishment and appellant which conflict on many relevant points. The Board must
discern that evidence which appears most relevant and credible. Given the sharp disagreements
14

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

15

Lillian Cutler, supra note 12.

16

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

17

Felix Flecha, 52 ECAB 268 (2001).

18

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

19

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

9

in the evidence, the Board must look for specificity as to time, circumstance and corroborating
evidence.
Appellant has the burden to prove that alleged events constituting harassment did, in fact,
occur. The claim that the supervisor manipulated appellant’s overtime compensation and leave
is not sufficiently specific with regard to dates and amounts claimed. The employing
establishment has denied knowledge of compensation owed and asserts that appellant’s failure to
follow established procedure for requesting overtime and leave caused any pay or leave errors.
Appellant has asserted that he was denied promotions and transfers and was subjected to
increased scrutiny by his supervisor. There is no evidence, however, from appellant that
promotions were available, nor does the record show that he was denied any promotion he
actually applied for between 2005 and 2007. The employing establishment denies that any
promotion opportunities were available. Accordingly, the Board finds no compensable factor
established in this regard.
20

Appellant has made general accusations that he was yelled at, berated and subjected to
other unprofessional treatment by his supervisor. This is supported by appellant and Ms. Freed,
each of whom testified under oath at the hearing that this was a consistent pattern of behavior by
appellant’s supervisor, Mr. Moss, who had a grudge against appellant. Mr. Moss has flatly
denied behaving in an unprofessional manner toward appellant or Ms. Freed. Further, Mr. Moss
states that appellant was difficult to supervise and had a habit of abusing leave, failing to respect
priorities set by supervision and insubordination. The Board is unable to determine that the
employment factors above, as alleged by appellant, are established because the record is
balanced and refuted by offsetting assertions and denials. A factor is not established.
Appellant has alleged that he was stressed and unhappy over a decision to puce a piece of
equipment to be placed aboard aircraft carriers which he believed was not safely designed.
Appellant wanted the design altered but was told to proceed with the original design. Appellant
complained to the Inspector General’s office. There is conflicting evidence about the final
outcome of appellant’s complaint. The Board finds that appellant was distressed primarily by his
supervisor’s instructions. An employee’s unhappiness with work assignments or perceived poor
management is not compensable.21 The Board does not find a factor.
Both appellant and Ms. Freed testified under oath that in April 2005, Mr. Moss told each
of them separately that because appellant had been a plaintiff in a legal action against the Navy
that he would not receive overtime or a promotion while Mr. Moss supervised him. Mr. Moss
has denied several times in written statements that he made this threat. He points out that he
approved significant overtime for appellant over about two years. This fact does not establish
that the threatening statement was not made but rather that, if made, it was not fully carried out.
He also asserts that no promotions were available to appellant. Again, this may prove, at most,
that no threat could have been carried out. It does not, however, establish that statements related
by appellant and Ms. Freed that a threat was made by Mr. Moss are false. The Board finds that
appellant’s allegation that Mr. Moss made the statements in question is credible. It is specific as
20

Katherine A. Berg, 54 ECAB 262 (2002).

21

Peter D. Butt, Jr., 56 ECAB 117 (2004).

10

to the time period of April 2005. Both appellant and Ms. Freed have testified under oath that the
statements were made directly to them. While Ms. Freed is unquestionably sympathetic to
appellant, there is no reason to believe that she would testify falsely under oath. The threatening
statement made to appellant and repeated to Ms. Freed is evidence tending to show that
Mr. Moss intended to retaliate against appellant for his role in litigation against the Navy. The
threat itself is a compensable factor of employment and it raises an inference that subsequent
actions by Mr. Moss were intended as harassment of appellant.
Similarly, Ms. Freed in her testimony and in her subsequent signed statement stated that
she personally heard Mr. Moss tell other employees that their cash awards in connection with a
camera system project were larger because one person in the department did not get an award.
Appellant, in his testimony noted only that he had filed a grievance on the matter but did not
state he heard comments about himself made by Mr. Moss. While acknowledging that he did not
authorize any award for appellant, Mr. Moss denied making any statement about it to others.
The Board finds that the testimony of Ms. Freed to be credible. There is no independent
evidence in the record showing that appellant played a significant role in the camera system
project. It is possible, as the employing establishment asserts, that appellant was the only person
in the department who did not deserve an award. However, there was no conceivable
administrative reason to disclose appellant’s exclusion from the group award to other employees.
The disclosure of personal information about appellant’s failure to get an award to other
employees constitutes harassment of appellant and is a factor of employment.
Ms. Freed wrote in her signed statement that she personally heard Mr. Moss tell other
employees that Mr. MacRae would replace appellant. Mr. Moss responded in some detail in his
statement that Mr. MacRae was assigned to help appellant with his workload and that both
appellant and Ms. Freed treated Mr. MacRae disrespectfully and were uncooperative. The Board
has held that the assignment of work is an administrative function of the employer and the
manner in which a supervisor exercises his or her discretion falls outside the ambit of the Act.
Absent error or abuse, a claimant’s disagreement or dislike of such a managerial action is not a
compensable factor of employment.22 The record provides only two, contradictory, signed
statements one affirming and the other denying that Mr. Moss discussed Mr. MacRae as
appellant’s replacement with coworkers. It is impossible to determine which of the offsetting
statements is correct. Appellant failed to establish that this alleged statement by Mr. Moss was
made and it is not found to be a compensable employment factor.
Both appellant and Ms. Freed testified that, on April 26, 2007, Mr. Moss entered
appellant’s work space and began to speak loudly with him about his workload and position
description. Appellant noted that he asked to be excused to go to the dispensary and that
Mr. Moss denied his request. Mr. Moss denied this. Appellant asked that a union representative
be present and stated that Mr. Moss denied that request. Mr. Moss stated that he did not deny the
request but told appellant he did not need a union representative at every meeting they had. He
left abruptly when the shop steward arrived. Ms. Freed confirmed that Mr. Moss was loud and
that she went and got the shop steward for appellant. The Board finds that appellant, Mr. Moss
and Ms. Freed agree substantially in their account of these events. They differ in vital details
22

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

11

and in the inferences they draw. Ms. Freed testified that appellant looked sick after Mr. Moss
left and all parties agree that appellant went immediately to the dispensary. He was sent home
for health reasons that day. The Board finds the testimony of appellant and Ms. Freed to be
credible that appellant’s supervisor was loud, abusive, did not allow appellant to have a union
representative present and did not allow him to go to the dispensary. When the union
representative, arrived the supervisor left and appellant went to the dispensary. The Board finds
this event to be harassment of appellant and to be a compensable factor of employment.
Finally, both appellant and Ms. Freed testified, under oath, that when Mr. Moss came to
appellant’s work space on July 19, 2007, to obtain a signature pertaining to appellant’s
suspension, Mr. Moss yelled at both of them “screaming at the top of his lungs.” When appellant
would not sign the paper, Mr. Moss continued loudly to demand a signature. Ms. Freed stated
that she and appellant both had to leave the work space. She went to the police several days later
and filed a report. In his written statements, Mr. Moss denied raising his voice or behaving in an
unprofessional manner. Reprimands, counseling sessions and other disciplinary actions are
administrative matters that are not covered under the Federal Employees’ Compensation Act
unless there is evidence of error or abuse.23 The Board finds that the testimony of appellant and
Ms. Freed is credible. Appellant mentioned this event contemporaneously to Dr. Peters who
included it in his July 24, 2007 report. Ms. Freed’s report to the police of July 23, 2007 is close
in time to the July 19, 2007 incident. At a minimum, the Board finds these contemporaneous
events tend to confirm that the July 19, 2007 incident was disturbing to the witnesses at the time
and that it is not a subsequent fabrication. On this occasion, Mr. Moss unreasonably raised his
voice and continued to demand that appellant sign the paper in question even after appellant said
he would not do so. He ignored appellant’s request to seek medical attention and denied
appellant time to get union assistance. The Board finds that both appellant and Ms. Freed left the
work space in response to inappropriate and unprofessional supervisory behavior. The Board
finds that the manner in which this episode was handled is consistent with a pattern of
harassment of appellant by Mr. Moss and constitutes a factor of employment.
The Board finds the several factors of employment enumerated above to be supported
and specific. Each such allegation is corroborated by hearing testimony and the post-hearing
statement of Ms. Freed. None of the specific events determined to be compensable employment
factors has received anything beyond a general written denial from the employing establishment.
Each event, in succession, represents an instance of harassment, error and abuse on the part of
management first by threatening appellant because of his role in litigation, second in disclosing
to others information about appellant’s exclusion from a group award and third, by corroborated
loud, intimidating behavior at least on April 26 and July 19, 2007.
With regard to the hearing representative’s decision, the Board notes that the decision
describes Ms. Freed’s evidence as “hearsay.” The Board finds that, in the instances identified
previously, Ms. Freed testified to events based upon her own, first-hand, knowledge. This is not
hearsay evidence. In weighing the contradictory evidence in this claim, the Board considered the
fact that appellant and Ms. Freed testified under oath. The hearing representative had the
opportunity to observe the demeanor of each witness and to ask questions. The hearing
23

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

12

representative specifically noted, in her decision, that appellant’s testimony was credible. By
contrast, the statements offered by the employing establishment were not under oath and the
persons who provided information were not subject to questioning. The statements by Mr. Moss
were not corroborated by any other witness or by contemporaneous evidence.
The employing establishment controverted appellant’s claim based in significant part on
lay medical opinion that his complaints could be explained as the result of medication, alcohol
and his bad work attitude. The Board finds these gratuitous suggestions unpersuasive. No
evidence of record tied appellant’s purported alcohol or medication-related condition to any of
the alleged events of the claim. The employing establishment offered no evidence that appellant
was intoxicated or having a reaction to his medication during any of the reported incidents in this
claim. Appellant visited the dispensary and there is no report in the record suggesting he was
under the influence of any substance when examined. Further, laypersons are not competent to
render a medical opinion.24
On the contrary, Dr. Peters offered convincing evidence that appellant suffers from some
emotional or psychiatric condition. The remaining question is whether any medical condition
was caused or exacerbated by the compensable factors of employment found herein.
Appellant’s counsel presented a brief in this appeal, but in light of our review of this case
and holding an independent discussion of appellant’s brief would be cumulative.
CONCLUSION
The Board finds that appellant has established as factors of employment that he was
harassed by his supervisor and that the medical evidence, at minimum, establishes a diagnosed
emotional or psychiatric condition. On remand, the Office should develop and review the
medical evidence to determine whether it establishes a causal relationship between the
compensable employment factors and appellant’s medical condition. After any further
development as the Office deems necessary, it should issue an appropriate decision.

24

Desidero Martinez, 55 ECAB 245 (2004).

13

ORDER
IT IS HEREBY ORDERED THAT the August 7 and January 2, 2008 decisions of the
Office of Workers’ Compensation Programs are reversed and the case is remanded for further
action consistent with the decision of the Board.
Issued: January 8, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1353
Issued: March 21, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 17, 2021 merit decision
and a September 8, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment; and

1
2

5 U.S.C. § 8101 et seq.

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

(2) whether OWCP properly denied appellant’s request for a review of the written record as
untimely filed, pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On April 7, 2021 appellant, then a 30-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he experienced a left knee strain due to factors of his federal
employment, including repetitive walking of 20,000 steps per day, stepping into his van repeatedly,
and climbing many flights of stairs daily. He indicated that he first became aware of his condition
and first realized its relation to his federal employment on April 4, 2021. Appellant stopped work
on April 5, 2021.
In an April 14, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence required and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence. It did not receive a response.
An activity prescription form dated April 6, 2021 from Katherine Hester, an advanced
registered nurse practitioner, noted that appellant was examined following an April 4, 2021
workplace incident. She diagnosed left knee sprain and advised that he could return to work.
By decision dated May 17, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment as it was rendered by
Ms. Hester . It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
On July 2, 2021 appellant was seen by Dr. Marilyn Nayan, a Board-certified family
medicine physician, with ongoing complaints of lower back and leg pain relating to his official
duties as a mail carrier. She indicated that his current symptoms began on June 27, 2021, but that
he had been experiencing pain for six months. Dr. Nayan diagnosed a strain of the muscle and
tendon of the lower back, and radiculopathy in the lumbar region. In duty status reports (Form
CA-17) dated July 2, 9, 16 and 2021, she provided clinical findings of strain of muscle, fascia and
tendon of the lower back and lumbar radiculopathy related to a June 27, 2021 work injury.
Dr. Nayan advised that appellant could return to work with restrictions.
In a diagnostic report dated July 2, 2021, Dr. Aamer Farooki, a Board-certified radiologist,
performed an x-ray of the lumbar spine, which revealed no acute abnormalities.
On July 9, 2021 appellant presented in follow up to Dr. Nayan and related that his
symptoms had improved with medication.
On August 10, 2021 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
In a July 16, 2021 note, Dr. Nayan noted that appellant’s condition was exacerbated by
prolonged walking or standing while working. She further indicated that he could return to work
with limited duties.
2

An August 6, 2021 follow-up note from Dr. Nayan related appellant’s ongoing symptoms
and improvement with medication. In a Form CA-17 of even date, she indicated that he could
return to work.
On August 20, 2021 appellant was seen by Dr. Nayan in follow up. Dr. Nayan noted that
his pain symptoms increased after returning to full-duty work, and further noted that prolonged
walking and carrying heavy bags aggravated his condition. She diagnosed a lumbar strain without
a herniated disc. In a Form CA-17 of even date, Dr. Nayan indicated that appellant could return
to work with restrictions.
By decision dated September 8, 2021, OWCP denied appellant’s request for a review of
the written record as untimely filed, finding that his request was not made within 30 days of the
May 17, 2021 OWCP decision as it was postmarked on August 10, 2021. It further exercised
discretion and determined that the issue in this case could equally well be addressed by a request
for reconsideration before OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 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, 4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or con dition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.7

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. Additionally, the physician ’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted an activity prescription f orm dated April 6,
2021 from Ms. Hester, an advanced registered nurse practitioner, who diagnosed a left knee sprain
following a workplace incident on April 4, 2021. The Board, however, has held that medical
reports signed solely by a nurse practitioner are of no probative value as such providers are not
considered physicians as defined under FECA. 9 This evidence, therefore, is insufficient to
establish appellant’s burden of proof.
As the medical evidence of record is insufficient to establish a diagnosed medical condition
causally related to the accepted factors of appellant’s federal employment, the Board finds that he
has not met his 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”10
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a

8

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

9

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as
physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FEC A); see
also M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020) (nurse
practitioners are not considered physicians under FECA).
10

5 U.S.C. § 8124(b)(1).

4

representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.
OWCP’s regulations provide that the request for a hearing or review of the written record
must be made within 30 days of the date of the decision for which review is sought. 13 Because
appellant’s request was postmarked on August 10, 2021, it post-dated OWCP’s May 17, 2021
decision, by more than 30 days and, therefore, is untimely. Appellant was, therefore, not entitled
to a review of the written record as a matter of right. 14
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 15 The Board finds that, in the September 8, 2021 decision, OWCP properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.16 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for a review of the written record. Accordingly, the
Board finds that OWCP properly denied his request for a review of the written record pursuant to
5 U.S.C. § 8124(b) as untimely filed.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of his federal employment. The Board
11

20 C.F.R. §§ 10.616, 10.617.

12

Id. at § 10.616(a).

13

Supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (September 2020).
14

See P.C., Docket No. 19-1003 (issued December 4, 2019).

15

Id.

16

Id.

5

further finds that OWCP properly denied his request for a review of the written record as untimely
filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the May 17 and September 8, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6