United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, Milan, MI, Employer
__________________________________________

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

Docket No. 14-1444
Issued: October 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 9, 2014 appellant filed a timely appeal of a January 15, 2014 Office of Workers’
Compensation Programs’ (OWCP) merit decision finding that he had received an overpayment
of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation of
$2,275.53 for the period November 19 to December 14, 2013 for which he was not at fault; and
(2) whether the overpayment is subject to waiver of recovery.
FACTUAL HISTORY
On April 3, 2012 appellant, then a 40-year-old correctional officer, filed a traumatic
injury claim alleging that on April 3, 2012 a chair he attempted to sit in flipped forward causing
1

5 U.S.C. § 8101 et seq.

his right knee to hit the floor, leaving him pinned between the chair and the floor. OWCP
accepted his claim for tear of the medial meniscus of the right knee on May 17, 2012. Appellant
underwent right knee arthroscopy with partial medial meniscectomy on July 31, 2012.
Appellant completed a direct deposit sign-up form on July 26, 2012. His attending
physician released him to return to full-time limited-duty work on September 17, 2012, but the
employing establishment was unable to accommodate his restrictions and he was sent home.
Appellant submitted claims for compensation for the period August 26 through
December 1, 2012. His vascular surgeon diagnosed deep vein thrombosis as a result of his
surgery and prescribed Coumadin. Due to this medication, appellant was instructed to avoid all
prisoner contact. OWCP entered him on the periodic rolls on December 12, 2012. Appellant
returned to work in his date-of-injury position as a corrections officer effective
November 19, 2013. He continued to be paid wage-loss compensation for total disability
through December 14, 2013.
On December 12, 2013 OWCP made a preliminary determination that appellant had
received an overpayment of compensation in the amount of $2,275.53 because he received
compensation for total disability after returning to full-time work from November 19 through
December 14, 2013. It found that he was not at fault in the creation of the overpayment as he
received one direct deposit after returning to work. OWCP provided appellant with his appeal
options and an overpayment recovery questionnaire. Appellant did not complete a recovery
questionnaire or provide any financial information to show that he is entitled to waiver.
By decision dated January 15, 2014, OWCP finalized the overpayment and denied waiver
of recovery.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA2 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, excepted in
limited circumstances.4 The implementing regulations provide that compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.5 A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. OWCP’s procedures provide that an overpayment in compensation is created when
a claimant returns to work but continues to receive wage-loss compensation.6
2

5 U.S.C. §§ 8101-8193, 8102.

3

Id.

4

Id. at § 8116(a)

5

20 C.F.R. § 10.500.

6

R.A., Docket No. 14-539 (issued June 24, 2014); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

2

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $2,275.53 for the period November 19 to December 14, 2013. Appellant was placed on the
periodic rolls on December 12, 2012 and received wage-loss compensation for total disability.
The record establishes that appellant returned to work in his date-of-injury position as a
corrections officer effective November 19, 2013. Appellant continued to receive wage-loss
compensation for total disability through December 14, 2013. As noted, he is not entitled to
receive compensation for total disability after he has returned to work and earned his regular
salary. Accordingly, the Board finds that appellant received an overpayment of compensation.
OWCP determined that from November 19 through December 14, 2013 appellant
received $2,275.53 in total net compensation but was not entitled to any compensation during
this period. Appellant did not dispute the fact or amount of the overpayment. OWCP properly
explained how the overpayment occurred and provided this information to appellant with the
preliminary determination of overpayment. There is no evidence that the overpayment did not
occur as found by OWCP. The Board finds that OWCP properly determined that appellant
received an overpayment of compensation in the amount of $2,275.53 from November 19
through December 14, 2013.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.7 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would “defeat the purpose of FECA or would be against equity and
good conscience,” pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations8 provide that recovery of an overpayment
will defeat the purpose of FECA if recovery would cause hardship by depriving a presently or
formerly entitled beneficiary of income and resources needed for ordinary and necessary living
expenses and outlines the specific financial circumstances under which recovery may be
considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
7

5 U.S.C. § 8129(a).

8

20 C.F.R. § 10.436.

3

severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.9
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.10 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant did not establish
entitlement to waiver of recovery of the $2,275.53 overpayment under the above-described
standards. Appellant did not provide a completed overpayment recovery questionnaire or any
financial information to show that he was entitled to waiver of the overpayment within 30 days
of the preliminary overpayment determination.
Despite being advised by OWCP’s
December 12, 2013 letter regarding the importance of providing financial information on an
overpayment recovery questionnaire form, he failed to provide such information or a completed
questionnaire prior to OWCP’s January 15, 2014 decision. For these reasons, OWCP properly
determined that appellant did not show that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience. Therefore, it properly denied
waiver of recovery of the overpayment.12
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,275.53 for the period November 19 to December 14, 2013 for which he was not at fault
and that OWCP properly denied waiver of recovery of the overpayment.

9

Id. at § 10.437.

10

Id. at § 10.438(a).

11

Id. at § 10.438(b).

12

S.H., Docket No. 14-421 (issued August 27, 2014).

4

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 28, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 10-861
Issued: December 8, 2010

Case Submitted on the Record

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

JURISDICTION
On February 17, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs nonmerit decision dated November 18, 2009 denying her request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than one year elapsed from the last merit decision dated February 1,
2005 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128, on the grounds that it was untimely filed and failed to establish clear
evidence of error.
1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On July 11, 2000 appellant, then a 31-year-old mail carrier, filed a traumatic injury claim,
alleging that she injured her neck and spine in the performance of duty when an emergency
vehicle ran a red light. The Office accepted her claim for cervical strain and placed her on the
periodic rolls.
On October 20, 2003 the Office referred appellant for a second opinion examination to
Dr. Lester Lieberman, a Board-certified orthopedic surgeon, who submitted a November 7, 2003
report finding that she could return to full duty and that her accepted condition had resolved.
Dr. Richard Memoli, appellant’s treating physician, continued to support her total disability for
work. The Office found a conflict in medical opinion between the two physicians and referred
appellant to Dr. Kenneth E. Seslowe, a Board-certified orthopedic surgeon, for an impartial
medical examination and an opinion as to whether she had continuing residuals from her
accepted condition and, if so, whether she was disabled as a result of those residuals. In a
February 24, 2004 report, Dr. Seslowe opined that appellant could return-to-full duty and that her
accepted condition had resolved.
In a letter dated March 2, 2004, the Office proposed to terminate appellant’s
compensation and medical benefits based on Dr. Seslowe’s referee opinion, which constituted
the weight of the medical evidence. By decision dated April 19, 2004, it finalized the
termination of appellant’s compensation and medical benefits.
On May 3, 2004 appellant requested an oral hearing. By decision dated February 1,
2005, an Office hearing representative affirmed the April 19, 2004 decision.
On August 12, 2005 appellant filed a claim for a recurrence of disability as of
July 25, 2005. In an October 19, 2005 letter, the Office informed appellant that she could not
claim a recurrence because her “case ha[d] been denied.”
On May 13, 2009 appellant filed a claim for a recurrence of disability, alleging that her
back “started to hurt” as of April 30, 2009. In a November 5, 2009 informational letter, the
Office advised appellant that because her “case ha[d] been denied,” it was unable to consider her
claim for recurrence and no further action would be taken on that claim.
On October 23, 2009 appellant filed a request for reconsideration “for a hearing for a case
-- accident on July 9, 2009.” She stated that she had medical bills and lost wages due to the
initial injury and that she had sustained “a recurrence in 2005 and recently April 30, 2009.”
Appellant submitted an April 29, 2009 report from Dr. Donna M. DeRosa, a chiropractor,
who stated that she was treating her for “a recurring lumbar injury” and advised that she should
refrain from working until her May 13, 2009 evaluation.
By decision dated November 18, 2009, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and did not establish clear evidence of error.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Secretary of Labor may
review an award for or against payment of compensation at any time on his own motion or on
application.2 The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 8128(a). To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant must file her application for review within one year
of the date of that decision.3 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 Act.4
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, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.5 Office regulations and procedure provide that the Office will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set 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.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.7 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11 The Board
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Id. Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id. at § 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.
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See M.L., 61 ECAB ___ (Docket No. 09-956, issued April 15, 2010).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.12
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely and did not establish clear evidence of error.
In her October 23, 2009 letter, appellant requested reconsideration “for a hearing for a
case -- accident on July 9, 2009.”13 She stated that she had medical bills and lost wages due to
the initial injury and that she had sustained “a recurrence in 2005 and recently April 30, 2009.”
The Board notes that appellant did not specifically refer to the February 1, 2005 termination
decision. The content of her letter, however, indicates that she is contesting the termination of
her benefits. Moreover, there is no other final decision of record in this case.14 Therefore, the
Board finds that the October 23, 2009 letter constitutes a request for reconsideration of the
hearing representative’s February 1, 2005 decision.
Appellant’s October 23, 2009 reconsideration request occurred more than one year
following the February 1, 2005 merit decision terminating her compensation and medical
benefits. The Board finds that the Office properly determined that her request was untimely.
Therefore, the issue is whether appellant has established clear evidence of error on the part of the
Office.
Appellant alleged that she has incurred medical bills, has lost wages and has experienced
two recurrences due to the accepted July 9, 2000 injury. Her allegations do not demonstrate
error on the part of the Office. Therefore, they are insufficient to constitute a basis for reopening
her case.

12

Pete F. Dorso, 52 ECAB 424 (2001).

13

The Board notes that appellant’s reference to a July 9, 2009 accident appears to be a typographical error. The
original accepted motor vehicle accident occurred on July 9, 2000. There is no evidence of record to suggest that
appellant was involved in a July 9, 2009 accident.
14

Letters from the Office dated October 19, 2005 and November 5, 2009 regarding appellant’s recurrence claims
do not constitute final Office decisions with concomitant rights of appeal. Rather, they were informational letters
only. Therefore, the Board does not have jurisdiction over the merits of the recurrence claims. See 20 C.F.R.
§ 501.2(c) (the Board has jurisdiction to consider and decide appeals from final decisions; there shall be no appeal
with respect to any interlocutory matter disposed of during the pendency of the case).

4

The only evidence submitted in support of appellant’s reconsideration request was the
April 29, 2009 report from Dr. DeRosa, who noted that she was treating appellant for a recurring
lumbar injury and recommended that she refrain from working until May 13, 2009.
Dr. DeRosa’s report does not raise a substantial question concerning the correctness of the
Office’s decision. She discussed appellant’s current condition and current ability to work.
Dr. DeRosa did not, however, address whether appellant was disabled or had residuals at the
time her benefits were terminated. Therefore, her report is not relevant to the issue which was
decided by the Office and is insufficient to establish clear evidence of error.15
As appellant has failed to establish clear evidence of error, the Office properly declined
to reopen her claim for further review of the merits.
On appeal, appellant states that she continues to need treatment for her injury-related
condition. As noted, the only issue on appeal is whether the Office clearly erred in denying
merit review. For reasons stated, the Board finds that the evidence does not establish clear
evidence of error on the part of the Office.
CONCLUSION
The Board finds that appellant has failed to submit sufficient evidence to establish clear
evidence of error and that the Office properly denied her request for merit review.

15

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, TERMINAL ANNEX
HELIPORT, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 21-0786
Issued: February 16, 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 April 28, 2021 appellant filed a timely appeal from a March 10, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant submitted a timely oral argument request before the Board. 20 C.F.R. § 501.5(b). Appellant contended
that oral argument should be granted so that he can argue that the brain should be included in the list of scheduled
members for determining a schedule award. Pursuant to the Board’s Rules of Procedure, oral argument may be held
in the discretion of the Board. 20 C.F.R. § 501.5(a). The Board, in exercising its discretion, denies appellant’s request
for oral argument because this matter requires an evaluation of the medical evidence presented. As such, the argument
on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal
would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request
is denied and this decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award .
FACTUAL HISTORY
On May 8, 1975 appellant, then a 35-year-old mail foreman, filed a traumatic injury claim
(Form CA-1) alleging that on that day he sustained a left forearm cut during an altercation with
another employee who struck him while sitting at his desk. OWCP accepted the claim for left
forearm laceration and atypical paranoid disorder, post-traumatic syndrome disorder (PTSD), and
major depressive disorder with melancholia. Appellant stopped work on July 28, 1978. OWCP
paid him wage-loss compensation, on the periodic rolls as of June 16, 2002.
On November 1, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated December 31, 2020, OWCP informed appellant that no
medical evidence had been submitted with his claim and informed him of the type of evidence
required to establish his schedule award claim. It advised him that the only accepted conditions
were left forearm laceration, unspecified paranoid state, and PTSD and that there was no provision
under FECA for payment of a schedule award for emotional conditions. OWCP afforded appellant
30 days to provide the requested evidence.
In response to OWCP’s development letter, appellant submitted a January 28, 2021 report
from Dr. Emelita B. Talag, a Board-certified psychiatrist, who diagnosed PTSD and psychotic
disorder. Dr. Talag advised that appellant was permanently disabled from work with no
expectation of any improvement to the degree to function in a workplace or job.
By decision dated March 10, 2021, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body due to his accepted work injury. It noted that he had
previously been informed that there is no provision in FECA to pay a schedule award for an
emotional condition.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the March 10, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

LEGAL PRECEDENT
The schedule award provisions of FECA 4 and its implementing regulations 5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides)6 as the appropriate standard for
evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in accordance
with the sixth edition of the A.M.A., Guides.8 The Board has approved the use by OWCP of the
A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the body
for schedule award purposes. 9
No schedule award is payable for a member, function, or organ of the body that is not
specified in FECA or the implementing regulations. 10 The list of scheduled members includes the
eye, arm, hand, fingers, leg, foot, and toes. 11 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision. 12 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina. 13 Neither FECA nor the
regulations provide for the payment of a schedule award for the permanent loss of use of the back

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

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

7

Id. at § 10.404. See also J.C., Docket No. 20-1071 (issued January 4, 2021); Ronald R. Kraynak, 53 ECAB
130 (2001).
8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(March 2017).
9

J.C., supra note 7; P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

D.K., Docket No. 21-0303 (issued July 8, 2021); D.L., Docket No. 20-0059 (issued July 8, 2020); W.C., 59 ECAB
374 (2008); Anna V. Burke, 57 ECAB 521 (2006).
11

5 U.S.C. § 8107(c).

12

Id.

13

Id. at § 8107(c)(22); 20 C.F.R. § 10.404(a).

3

or the body as a whole. 14 Moreover, FECA and its implementing regulations do not specifically
authorize payment of a schedule award f or loss of cognitive function. 15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted that appellant sustained left forearm laceration and atypical paranoid
disorder, PTSD, and major depressive disorder with melancholia due to the May 8, 1975
employment injury. On November 12, 2020 appellant filed a Form CA-7, claiming a schedule
award.
OWCP, on December 31, 2020, requested that appellant submit a permanent impairment
evaluation from his physician addressing the extent of any employment-related permanent
impairment using the A.M.A., Guides. It also advised that there was no provision under FECA
for schedule awards for emotional condition.
Appellant did not, however, submit an impairment evaluation or other medical evidence
establishing permanent impairment due to a scheduled member of function of the body. OWCP
received a January 28, 2021 report from Dr. Talag documenting appellant’s psychiatric diagnoses.
However schedule awards are not payable under FECA for psychiatric conditions. 16 The Board
has previously explained that FECA does not authorize payment of schedule award benefits for
impairment attributable to mental and/or behavioral disorders. 17 The Board has also previously
explained that the brain is not considered an organ as that term is defined under FECA. 18 Neither
OWCP nor the Board has the authority to enlarge the terms of FECA or to make an award of
benefits under terms other than those specified in the statute. 19 Appellant has not submitted any
medical evidence establishing a permanent impairment due to a scheduled member or function of
the body and thus 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.

14

Id.

15

A.S., Docket No. 12-1375 (issued February 12, 2013); Brent A. Barnes, 56 ECAB 336, 339 (2005).

16

P.L., Docket No. 15-1285 (issued February 5, 2016); Brent A. Barnes, id.

17

A.S., supra note 15.

18

Id.; see also 5 U.S.C. § 8101(19).

19

G.S, Docket No. 17-1318 (issued October 11, 2017); S.K., Docket No. 08-848 (issued January 26, 2009).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 16, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF AGRICULTURE, FARM
SERVICE AGENCY, Warwick, RI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-98
Issued: July 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On October 24, 2011 appellant, through her attorney, filed a timely appeal of a
September 21, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
emotional condition in the performance of duty due to factors of her federal employment.
FACTUAL HISTORY
On March 22, 2010 appellant, a 37-year-old county executive director, filed an
occupational disease claim alleging that she sustained an emotional condition due to factors of
her federal employment. She stated that she experienced stress and anxiety when she was
detailed out of her duty station for six months to one year for training, forcing her to give up her

1

5 U.S.C. § 8101 et seq.

home and children.
Appellant alleged that the employing establishment’s failure to
communicate and plan also contributed to her anxiety.
In a letter dated April 21, 2010, OWCP informed appellant that the evidence submitted
was insufficient to establish her emotional condition claim. Appellant was advised to submit
additional evidence and information, explaining in detail her allegations relating to harassment
and describing any other employment-related conditions or incidents which she believed
contributed to her illness. OWCP also requested a medical report containing a diagnosis and a
rationalized opinion as to the cause of her condition.
On May 20, 2010 the employing establishment controverted appellant’s claim.
Administrative Officer Alison Rose stated that, as a county executive director (CED), appellant
was responsible for employing, training and supervising subordinate county office and field
employees. All newly-hired CED’s are required to satisfactorily complete a 52-week County
Office Trainee (COT) program, of which at least 6 months must be completed at various county
offices. Ms. Rose stated that the previous Rhode Island State Executive Director excused
appellant from completing the required training when she was initially hired because after only
24 days of training, she claimed that she could not continue the training away from her home.
During her five-year tenure as a CED, appellant had serious communication problems with her
staff. Additionally, appellant’s repeated violations of policies and procedures indicated that she
had not received adequate training when she was initially hired as a CED.2
Ms. Rose indicated that the employing establishment informed appellant, by letter dated
December 15, 2009, that she would begin a 6- to 12-month training program beginning
January 11, 2010 to improve her program knowledge and improve deficiencies. The starting
date was later changed to January 19, 2010 at her request. Due to the fact that Rhode Island has
only one office to cover the state, trainees must be sent to other states for training.
The record contains correspondence between appellant and the employing establishment
dated January 21 through May 5, 2010 regarding time and attendance worksheets, sick leave and
training assignments.
In a January 21, 2010 letter, the employing establishment informed appellant that she was
expected to pay full time and attention to her training and that her communication with the home
office would be limited to hours outside of her training schedule. Appellant was also informed
that she did not have an option as to the location of her training. On February 26, 2010 she was
informed that she was being assigned to Houlton, ME for training. Appellant responded by
stating that her assignments were being made to intentionally place her life at risk.

2

The following are examples of such violations: A leave audit confirmed that appellant left work a half hour
early after working through her lunch break and falsified her time sheet by entering an incorrect arrival time. An
investigation revealed that she had instructed a subordinate employee to shred documents and to backdate other
documents in preparation for an audit. Appellant was suspended for 14 days for conduct unbecoming a supervisor.
An investigation found that she had committed multiple violations of agency time and attendance regulations. The
State Grievance Board determined that appellant violated a subordinate employee’s privacy by discussing the
employee’s performance with another employee.

2

In a May 13, 2010 statement filed as an amendment to an Equal Employment
Opportunity (EEO) complaint, appellant alleged discrimination based on disability and sex. She
contended that the 6- to 12-month training requirement was not part of her position description,
noting that the initial posting for her job was advertised as a COT, which did include a required
6-month to 1-year out of the office training. Appellant stated that she officially withdrew her
application because she realized that her family commitments would not permit her to fulfill that
requirement. She ultimately accepted the position as a “CED hard to fill” position, which
required only an abbreviated version of training, which she had completed.
Appellant admitted to having had conduct issues with one of her subordinates, which
resulted in her failure to meet the communication element in her most recent performance
review. She alleged that, during her October 26, 2009 review, Supervisor Frank Bouchard
became very angry and verbally threatened that if she rated one of her subordinates as “does not
meet,” he would then proceed with changing her “successful” ratings to “does not meet.”
Appellant reportedly told Mr. Bouchard that she felt threatened by his remarks and felt that it
was unfair and wrong for him to make such a statement.
On December 15, 2009 appellant was informed that she would be required to participate
in long-term out-of-office training beginning January 11, 2010, based on a recent investigation
and “program weaknesses” discovered through the investigation. She alleged that the same
employee that presented conduct issues had provided false information regarding her time and
attendance. The employing establishment ignored appellant’s pleas to reconsider the off-site
training due to the fact that she was a single parent with a learning-disabled child and would be
forced to give up her home and place her children in her father’s care. Paul E. Brule reportedly
told her that “it is tough, he knows it’s difficult, but it is [her] problem and that the
unemployment rate is 12.9 percent in Rhode Island.” He allegedly made numerous comments
regarding his authority referring to himself as “Washington’s fair haired boy” and that he “can
do just about anything and get any way with it, except for sexual harassment or physical threats.”
At appellant’s request, the employing establishment changed the start date for the training
to January 19, 2010. Appellant was informed that each location would host training for a twoweek period and that, prior to the end of each two-week period, she would be informed of the
next training location in order for her to make necessary travel arrangements. She was advised
to turn in her office keys and told that she was not to return to the Rhode Island office until the
training was complete.
Appellant alleged that the employing establishment unreasonably denied her request for a
rental car, which she claimed to need because her government-issued truck was not safe in “ice
and snow” conditions. She was removed from e-mail distribution lists and the county office
newsletter listing of employees, excluded from biweekly teleconferences and all employee and
orientation meetings and had limited access to inter and intranet and requests. Also appellant’s
requests for document copies (time and attendance sheets and leave slips) went unanswered. On
the last day of scheduled training in West Chester she was notified that she would continue
training in that location for an additional two weeks, at the end of which she was informed by
Mr. Bouchard that her next training location was in Watertown, NY. Appellant experienced
significant difficulties between all training sessions, due to lack of communication and hazardous
weather conditions. On Friday March 14, 2010 her symptoms of stress required hospitalization.

3

In an undated statement, appellant reiterated that she believed that the employing
establishment was intentionally selecting office travel destinations that put her life at risk. She
complained that she was given insufficient notice of her travel assignments to obtain hotel
reservations and that she was arbitrarily moved from location to location. While in the Houlton
office appellant intercepted a fax from Rhode Island District Director Bouchard to SED Todd,
stating: “[Appellant] is weak in personnel management. Do not train her in this area.”
Appellant indicated that she was very upset by the fax and the amount of travel, lack of
communication, lack of planning and deceit on behalf of the employing establishment was
extremely overwhelming and stressful. She traveled thousands of miles in a short period of time,
mostly in severe weather conditions.
In a July 26, 2010 response to appellant’s May 13, 2010 statement, the employing
establishment denied her allegations. Mr. Bouchard reiterated that prior to becoming a CED, a
person is required to satisfactorily complete a 52-week training program COT, which requires
training at various county offices. When appellant was selected as a CED, after being a “PT,”
she was required to complete a COT-like training to become familiar with the various programs
administered by a county office and learn the administrative and supervisory functions of a CED.
She, however, completed only 24 days of training before she claimed that she could not continue
the training away from her home. Mr. Bouchard noted that the previous Rhode Island State
Executive Director had not required appellant to complete the training required by agency rules,
policy and procedure at the time she was hired.
Mr. Bouchard indicated that the vacancy posting did not waive the one-year training
requirement as claimed by appellant. He quoted the vacancy announcement job summary, which
stated:
“Incumbent serves as a [CED] Trainee in the Rhode Island FSA [Farm Service
Agency] [c]ounty [o]ffice. Major Duties: The CED Trainee receives
managerial and program training necessary for the advancement to a full
performance [CED]. Depending on experience, successful completion of an
[a]gency directed training program may be required.”
Mr. Bouchard stated that the Rhode Island FSA state committee endorsed the selection of
appellant for the CED position “with the stipulation that, as she has not completed COT training,
she must satisfactorily complete a training program similar to a COT program and she shall serve
a 1-year managerial probationary period.” Due to weaknesses in program knowledge, as well as
personnel and disciplinary issues, the Rhode Island County Committee and State Executive
Director, with the concurrence of the Director of Field Operations in Washington, DC, directed
her to resume her training out of the office. The training requires employees to “shadow” CED
in other states. Because of past friction between appellant and neighboring states’ employees,
the Directors of both Connecticut and Massachusetts declined their assistance with her training.
She was, therefore, scheduled to train in other Northeast States, including Pennsylvania, New
York, Maine and Vermont. Scheduling was dependent on the current activities of each office
and when a CEO would be available to train appellant.
Mr. Bouchard stated that it was unnecessary for appellant to move from her home during
a storm, as she had a month’s notice of her training.

4

The position description for a CED trainee reflects successful completion of an agency
directed training program may be required.
In a May 10, 2005 memorandum, the Rhode Island state committee recommended
appellant for employment as CED with the stipulation that she must satisfactorily complete a
training program similar to a COT program and that she should serve a one-year managerial
probationary period.
In a decision dated January 25, 2011, OWCP denied appellant’s claim on the grounds that
she had failed to establish a compensable factor of employment.
Appellant submitted medical reports from treating psychologists who opined that she
suffered from depression as a result of work stressors. In an undated report, Lucille Frieden,
PhD., stated that appellant developed anxiety and depression when she was abruptly required to
move out of her home and relocate her children in order to begin an intensive period of training.
Further, stressors included being removed from the employing establishment e-mail account and
other attempts to isolate her. Appellant was angry and upset by arbitrary demands of the job.
On January 31, 2011 appellant requested a telephonic hearing, which was held on
May 10, 2011. At the hearing, she testified that her December 2009 notification of training came
as a complete surprise, as she had never been advised of any problems with her performance.
Appellant opined that the training was given in remote locations and was not relevant to her
regular job assignments. She stated that Mr. Brule had made her life “hell” and forced her to
resign her position. Appellant complained about the procedure followed when she was
investigated for falsifying time sheets, alleging that a subordinate had actually lied about her
actions and that she was eventually exonerated. She stated that she was forced to give up her
home and move her children to her father’s house because of the required training. Appellant
expressed her belief that the agency’s action in requiring her to participate in training was
retaliatory and unreasonable and caused unnecessary hardship. On March 2, 2010 she was given
a fax indicating that she was weak in personnel management but was not to receive training in
that area. Appellant interpreted the fax to mean that the employing establishment had no real
intention of training her in the areas she was deficient.
Appellant submitted documents referenced during the telephonic hearing, including:
time and attendance sheets; an October 27, 2009 memorandum from appellant regarding her
2009 performance evaluation; a December 15, 2009 notice of proposed suspension; and a
December 23, 2009 letter from appellant contesting a proposed five-day suspension.
A fax sent from the Rhode Island State Office on March 1, 2010 to “Bill” stated as
follows:
“Attached is the original plan we put together for [appellant.] Do n[o]t worry
about revising some management and personnel sections as this is a weak point.
Thanks for your help!”
In a September 21, 2011 decision, an OWCP hearing representative affirmed the
January 25, 2011 decision, finding that appellant had failed to establish a compensable factor of
employment.
5

LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his or her regular or specially assigned
employment duties or to a requirement imposed by the employing establishment, the disability
comes within coverage of FECA. The same result is reached when the emotional disability
resulted from the employee’s emotional reaction to the nature of a claimant’s work or her fear
and anxiety regarding her ability to carry out her duties.3 By contrast, there are disabilities
having some kind of causal connection with the employment that are not covered under workers’
compensation law because they are not found to have arisen out of employment, such as when
disability results from an employee’s fear of a reduction-in-force or frustration from not being
permitted to work in a particular environment or to hold a particular position.4 Moreover,
although administrative and personnel matters are generally related to employment, they are
functions of the employer and not duties of the employee. Thus, the Board has held that
reactions to actions taken in an administrative capacity are not compensable unless it is shown
that the employing establishment erred or acted abusively in its administrative capacity.5
When working conditions are alleged as factors in causing disability, OWCP, as part of
its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment, which may be considered by a physician when
providing an opinion on causal relationship and which are not deemed factors of employment
and may not be considered. When a claimant fails to implicate a compensable factor of
employment, OWCP should make a specific finding in that regard. If a claimant does implicate
a factor of employment, OWCP should then determine whether the evidence of record
substantiates that factor.6 When the matter asserted is a compensable factor of employment and
the evidence of record establishes the truth of the matter asserted, then OWCP must base its
decision on an analysis of the medical evidence.7 As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim. Rather the allegations
must be corroborated by the evidence.8

3

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

4

See also Ronald K. Jablanski, 56 ECAB 616 (2005); see Peter D. Butt, Jr., 56 ECAB 117 (2004); Barbara J.
Latham, 53 ECAB 316 (2002).
5

See Charles D. Edwards, 55 ECAB 258 (2004); see also Ernest J. Malagrida, 51 ECAB 287, 288 (2000).

6

Margaret S. Krzycki, 43 ECAB 496 (1992).

7

See Charles D. Edwards, supra note 5.

8

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).

6

With regard to emotional claims arising under FECA, the term harassment, as applied by
the Board is not the equivalent of harassment as defined or implemented by other agencies, such
as the EEO Commission, which is charged with statutory authority to investigate and evaluate
such matters in the workplace. Rather, in evaluating claims for workers’ compensation under
FECA, the term harassment is synonymous, as generally defined, with a persistent disturbance,
torment or persecution, i.e., mistreatment by coworkers. Mere perceptions and feelings of
harassment will not support an award of compensation.9
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced, which establishes that FECA alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under FECA has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.10
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 her
employment.11 Neither the mere 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 are sufficient to establish a causal relationship.12
ANALYSIS
The Board finds that appellant has failed to establish a compensable employment factor.
Therefore, appellant has not met her burden of proof to establish that she sustained an emotional
condition in the performance of duty.
Appellant has not attributed her emotional condition to the performance of her regular or
specially assigned duties under Cutler.13 Indeed, she has in no way implicated as causative her
work responsibilities as a CED with the state of Rhode Island. As made clear under the Cutler
standard, workers’ compensation law is not applicable to each and every illness or injury that is
somehow incidental to an employee’s federal employment. Under Cutler, emotional conditions
arising from general feelings of job insecurity, such as the frustration of an employee in not
receiving a promotion or to work in a particular position or job environment, are not
compensable factors. An emotional condition arising from such factors is generally considered
as being self-generated.14
9

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

10

James E. Norris, 52 ECAB 93 (1999).

11

See Charles D. Edwards, supra note 5.

12

See Ronald K. Jablanski, supra note 4; Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

13

Lillian Cutler, supra note 3.

14

Id.

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Appellant attributes her emotional condition primarily to the employing establishment’s
requirement that she undergo a six-month to one-year training program, whereby every two
weeks she was to move to a different location and to report home every other weekend. These
allegations relate to administrative or personnel matters, which are unrelated to her regular or
specially assigned work duties and do not fall within the coverage of FECA.15 Although the
handling of disciplinary actions and leave requests, the assignment of work duties and the
monitoring of work activities are generally related to the employment, they are administrative
functions of the employer and not duties of the employee.16 The Board has also found, however,
that an administrative or personnel matter will be considered to be an employment factor where
the evidence discloses error or abuse on the part of the employing establishment. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.17 In this case, appellant has not submitted
sufficient evidence to show that the employing establishment committed error or abuse with
respect to this matter. On the contrary, the evidence presented establishes that the employing
establishment acted reasonably under the circumstances in requiring appellant to participate in
training.
Appellant contends that the 6- to 12-month training requirement was not part of her
position description and that any requirement for long-term, out-of-office training had been
waived. She stated that she had completed an abbreviated version of training and had
successfully performed the duties of her position until December 15, 2009 when she was
abruptly informed of the training requirement. Appellant argued that the imposition of the
training requirement was unnecessarily abusive. The evidence, however, reflects that all newlyhired CED’s are required to satisfactorily complete a 52-week COT program, of which at least 6
months must be completed at various county offices. Appellant was excused from completing
the training when she was initially hired because after only 24 days of training, she claimed that
she could not continue the training away from her home. The employing establishment
controverted the claim, however, noting that during her five-year tenure as a CED, appellant had
serious communication problems with her staff and repeatedly violated policies and procedures,
indicating that she had not received adequate training when she was initially hired as a CED.
The evidence establishes and appellant acknowledged, that she had conflicts with coworkers,
subordinates and supervisors.18 Under the circumstances of this case, the Board finds that the
employing establishment’s requirement that appellant undergo long-term, out-of-office training
was reasonable.
15

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath,
44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260,
1266-67 (1988).
16

Id.

17

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

18

Appellant contends assessment of work performance on which the decision to require training was based
unfounded and that one of the investigations was based on statements from an employee that were shown to be false.
Assessments of work performance and investigations are also administrative functions of the employer and she has
not submitted any independent evidence, such witness statements or a grievance, EEO or other administrative
decision which finds that the employing establishment erred or acted unreasonably with regard to the involved
administrative matters.

8

Appellant claimed that by forcing her to move from location to location every two weeks
for a long period of time, the employing establishment essentially required her to give up her
home and children, who would have to relocate to new school system and reside with her father.
Her displeasure, however, represents her frustration from not being permitted to work in a
particular work environment, which is not a compensable factor under FECA.19 The Board notes
that appellant herself was partly responsible for additional travel requirements. The training for
appellant’s supervisory position required the employee to “shadow” CEDs in other states.
Because of past friction between appellant and neighboring states’ employees, the Directors of
both Connecticut and Massachusetts declined their assistance with appellant’s training. Training
was, therefore, required to be scheduled in other Northeast States, including Pennsylvania, New
York, Maine and Vermont. Appellant also alleged that the employing establishment
intentionally chose training destinations that put her life at risk. The Board finds that her claim is
not supported by the facts of the case. Therefore, appellant’s feelings must be considered selfgenerated.
Appellant contends that the employing establishment was “pushing her around” with no
real intention of training her. In support of her claim, she cited a fax sent to a training location
from the Rhode Island State Office on March 1, 2010. The fax advised the trainer not to “worry
about revising some management and personnel sections as this is a weak point.” As the fax in
question involves an administrative matter, the issue is whether there exists any evidence of error
or abuse on the part of the employing establishment. The wording of the fax suggests that
appellant had some weakness in the areas of management and personnel. It also suggests that the
trainer is not to revise sections in the training manual relating to those areas. It does not suggest
that the employing establishment intended to deprive appellant of training in those areas.
Therefore, appellant has not established error or abuse with regard to this matter.
Appellant contends that the training was either redundant or pointless and that her
supervisors’ inability to properly communicate and plan contributed to her emotional condition.
Her dissatisfaction, however, with perceived poor management constitutes frustration from not
being able to work in a particular environment or to hold a particular position and is not
compensable under FECA.20 Appellant did not submit sufficient evidence to show that these
matters rise to the level of a compensable work factor.
Appellant’s allegations regarding the employing establishment’s refusal to authorize a
rental car, instructions received from the district Director while on travel, removal from e-mail
distribution lists and employee listings; exclusion from teleconferences and employee meetings
and limited access to inter and intranet also relate to administrative matters. In response to her
claims, the employing establishment explained that the restrictions were designed to enable her
to devote full time and attention to her training. Appellant has not established that these actions
were unreasonable.
Appellant alleged that during her October 26, 2009 review, Mr. Bouchard became very
angry and verbally threatened that if she rated one of her subordinates as “does not meet,” then
19

See Cydia R. Harrill, 55 ECAB 522 (2004).

20

Id.

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he would change her “successful” ratings to “does not meet.” She also alleged that when she
requested reconsideration of the off-site training requirement, Mr. Brule told her that “it is tough,
he knows it’s difficult, but it is [her] problem and that the unemployment rate is 12.9 percent in
Rhode Island.” He allegedly made numerous comments regarding his authority referring to
himself as “Washington’s fair haired boy” and that he “can do just about anything and get any
way with it, except for sexual harassment or physical threats.” The Board has recognized the
compensability of verbal abuse in certain circumstances. This does not imply, however, that
every statement uttered in the workplace will give rise to coverage under FECA.21 Appellant
provided no evidence to corroborate the alleged statements or actions. She has not alleged, nor
does the evidence reflect, that her supervisor posed any threat to her. The Board finds that
appellant’s emotional reaction to her supervisor’s behavior was self-generated.22
Appellant alleged discrimination based on disability and sex. The Board has held that a
claimant must establish a factual basis for her allegations with probative and reliable evidence.23
Appellant did not provide any evidence to support her allegations. As noted, in order to establish
harassment or discrimination, there must be evidence that the acts alleged or implicated by the
employee did in fact occur.24 She submitted documents relating to an EEOC claim. The Board
notes, however, that the record does not contain a final decision relating to her claim. The
evidence of record is not sufficient to establish a compensable factor of employment regarding
her allegations of harassment and discrimination. Appellant has not substantiated a compensable
factor of employment.
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 failed to meet her burden of proof to establish an
emotional condition arising from her federal employment.25

21

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, supra note 14.

22

See David S. Lee, 56 ECAB 602 (2005).

23

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

24

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

25

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See L.K., Docket No. 08-849 (issued June 23, 2009); Marlon Vera, 54 ECAB 834 (2003);
Margaret S. Krzycki, supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Havasu, AZ, Employer
__________________________________________

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

Docket No. 13-264
Issued: April 8, 2013

Case Submitted on the Record

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

JURISDICTION
On November 7, 2012 appellant filed a timely appeal from a May 11, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied her claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty causally related to factors of her federal
employment.
On appeal appellant generally asserts that her claim is compensable.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 11, 2011 appellant, then a 54-year-old clerk, filed an occupational disease claim
alleging that she was harassed and treated unfairly by Steven Gerstl, a postmaster. She
experienced stress, depression and anxiety and was reminded of treatment by a previous
postmaster who harassed her for two years. Appellant stopped work on April 1, 2011 and did
not return. In a statement dated April 11, 2011, she contended that her start time was first
inappropriately changed in March 2010 and was recently changed. Appellant’s desk was
inappropriately moved when it had been in the same place for 20 years. She noted that she had
temporarily resigned as union president, and explained that she had been harassed by a previous
postmaster, Tom Crawley, and believed it was going to happen again.
The employing establishment controverted the claim. Dominique Thomas, health and
resource management specialist, explained that on April 1, 2011 appellant’s start time was
changed from 6:00 a.m. to 7:00 a.m., effective April 4, 2011. After she initially refused,
appellant accepted the change but did not report for duty on April 4, 2011 and had not returned
to work. Ms. Thomas stated that, due to operational changes in mail arrival times and reduced
volume, carrier start times, were adjusted. As specific to appellant, contractual provisions were
followed and she was given a timely notice of the change.
In an April 13, 2011 statement, Mr. Gerstl noted that he had been postmaster since
November 15, 2003. During that time, he had no reason to believe appellant had been the
subject of any harassment. During the prior several months, the employing establishment had
been undergoing numerous changes to workload and work schedules, noting that the automation
operation was removed and transferred which required a complete review and change in
reporting times for the majority of employees. Mr. Gerstl met with appellant, who was president
of the local American Postal Workers Union (APWU) and discussed possible changes in
reporting times. He proposed reposting all positions as numerous job bids, and that appellant
and Janet Monson, a shop steward, asked to review the proposal. Mr. Gerstl noted that the only
changes they proposed were changes to their start times. After a discussion with appellant, her
start time was changed to 6:00 a.m. In March 2011, sorting machinery was removed. Mr. Gerstl
and management staff discussed what should be done with the empty space. It was decided to
move three carrier zones and a mail processing unit to enhance operations. These changes
included moving the desk occupied by appellant from one side to another. Mr. Gerstl informed
appellant that her desk would be moved on March 19, 2011, and the rearrangement/move was
completed. Additional changes in start times were made in late March 2011, including that
appellant’s report time was changed from 6:00 a.m. to 7:00 a.m. On March 31, 2011 Mr. Gerstl
offered appellant a voluntary change to 7:00 a.m. to avoid reposting her position. Appellant
initially refused to sign the letter, but returned the form on April 1, 2011 and accepted the
change. She called in sick on April 4 to 5, 2011 and on April 6, 2011 submitted a doctor’s slip
stating that she was to be off work until April 20, 2011. On April 7, 2011 Mr. Gerstl wrote to
appellant notifying her that she must provide medical documentation for her absence as outlined
in postal policies. He described the changes in start times for other employees and stated that at
no time was she harassed or treated differently from other postal employees. Mr. Gerstl attached
a copy of the March 31, 2011 letter notifying appellant of the schedule change that she accepted
on April 1, 2011.

2

By report dated April 23, 2011, Pamela J. Swanson, M.Ed., a licensed professional
counselor, advised that she saw appellant on April 14 and 22, 2011. She listed appellant’s report
of work incidents and diagnosed adjustment disorder with mixed anxiety and depressed mood.
Ms. Swanson noted that appellant reported that the events that had happened over the last couple
of months were responsible for her condition.
On July 11, 2011 OWCP informed appellant of the evidence needed to support her claim.
In a statement dated August 21, 2011, appellant alleged that, beginning in December 2010,
Mr. Gerstl consulted with Janet Monson, a union steward, rather than appellant regarding work
matters. Appellant became afraid that they were conspiring against her. She repeated that her
desk had been moved inappropriately and she was not allotted time to set it up after the move.
Mr. Gerstl mandated that appellant work on Saturday and changed her start time. After appellant
stopped work, he moved the union file cabinet and had Debbie Tinnell, supervisor customer
service, empty it into lockers, that she felt was punitive toward her. Appellant filed grievances
against the former postmaster, Mr. Crawley, who allegedly harassed her for two years, and
described incidents that happened when he was postmaster. She attached worksheets of
grievances dated April 1 and 22, 2011 in which she claimed that she was denied union
representation and that there was an improper bid change.
In a June 14, 2011 report, Dr. Francis J. Woo, Jr., a family physician, advised that
appellant had been under his care since April 15, 2011. Appellant complained of harassment and
of turmoil at her place of employment. Dr. Woo listed the diagnoses as provided by
Ms. Swanson. In treatment notes dated April 15 to July 11, 2011, he reiterated appellant’s
complaints, described her condition, treatment and medication regimen. Dr. Woo diagnosed
post-traumatic stress disorder (PTSD). He noted that appellant was seeing Ms. Swanson weekly.
On July 12, 2011 Ms. Swanson noted appellant’s report of difficulties at the post office. She
advised that appellant’s severe anxiety reaction to the most recent harassment was partly PTSD
from her previous experience with a former postmaster, and the events of the last several months
were responsible for her condition.
By decision dated October 12, 2011, OWCP denied appellant’s claim, finding that she
did not establish any compensable factor of employment. It accepted that in March 2011
Mr. Gerstl, the postmaster, advised appellant that her desk would be moved; in March 2011 there
were changes made to the reporting times of the clerks, including appellant; appellant called in
sick from April 4 to 6, 2011 and the postmaster drafted a letter informing her of the proper
medical documentation that she should provide to support her absence; and in June 2011,
management did not approve her request that she be paid leave for only 26 hours per week.
However, OWCP found these incidents were not compensable factors because appellant did not
submit evidence of error or abuse in these administrative functions. It found appellant’s
allegation that Mr. Gerstl and Ms. Monson had conspired against her was not established as
factual.
Appellant timely requested a hearing and submitted evidence regarding alleged
harassment that occurred under Mr. Crawley and Mr. Gerstl. Appellant submitted information
regarding positions being abolished at the employing establishment, letters of warning dated
October 14, 2000, November 9, 2001 and May 30, 2003, 7-day suspensions dated November 7
and December 12, 2001, 2001, a 14-day suspension dated December 18, 2001, and grievances

3

dated 1989, 1999, 2001 and 2003. She submitted correspondence regarding a May 15, 2002
letter of complaint to Charles Davis, district manager, and a June 10, 2002 letter from
Richard M. Lord, manager of post office operations. Appellant also submitted unidentified
information from a September 2000 publication and postal policies.
At the March 7, 2012 hearing, the hearing representative informed appellant that the
claim would be adjudicated based on her original allegations and would not include new factors
alleged after the October 12, 2011 decision. The hearing representative requested that appellant
submit evidence to establish administrative error and abuse. Appellant testified that Mr. Gerstl,
the postmaster, abused his authority and harassed her after he befriended Ms. Monson. She was
given 30 days to provide additional evidence.2
In letters dated March 20, 2012, the employing establishment reiterated that appellant did
not sustain an emotional condition in the performance of duty. In a March 22, 2012 letter,
appellant attributed her condition to the treatment by former postmaster, Mr. Crawley, and
current postmaster, Mr. Gerstl. She contended that Mr. Gerstl did not respect her seniority.
By decision dated May 11, 2012, OWCP’s hearing representative found that appellant
submitted insufficient evidence to establish her allegations as factual. She affirmed the
October 12, 2011 decision, finding that appellant did not establish an emotional condition in the
performance of duty.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.3 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.4 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.5
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,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
2

A representative from the employer listened in at the hearing, which was held telephonically.

3

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

4

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

5

Id.

6

28 ECAB 125 (1976).

4

compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.12 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.13
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.14
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the Equal Employment Opportunity Commission, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under FECA, the term “harassment” is synonymous, as generally defined, with a

7

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

8

Lillian Cutler, supra note 6.

9

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

10

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

11

Roger Williams, 52 ECAB 468 (2001).

12

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

13

Kim Nguyen, 53 ECAB 127 (2001); see Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
14

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

5

persistent disturbance, torment or persecution, i.e., mistreatment by co-employees or workers.
Mere perceptions and feelings of harassment will not support an award of compensation.15
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment.
Appellant has not attributed her emotional condition to the performance of her regular
work duties or to any special work requirement arising from her employment duties as a clerk
under Cutler.16 Rather, her claim pertains to administrative actions that occurred beginning in
2012 and allegations that she was harassed and treated in an abusive manner by Mr. Gerstl, the
postmaster.
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of FECA.17 Absent evidence establishing error or abuse, a claimant’s disagreement or dislike of
such a managerial action is not a compensable factor of employment.18 Appellant alleged that
her schedule was improperly changed, her desk was improperly moved, Mr. Gerstl required
supportive medical documentation for her absences, and her request to use 26 hours of sick leave
rather than 40 for each week of her absence were erroneously denied. The Board finds that the
evidence of record does not establish error or abuse in these matters. Mr. Gerstl explained that
almost all employees’ schedules were changed due to the needs of the employing establishment,
especially when a large portion of the facility’s sorting duties were transferred. The workroom
floor was reconfigured after the sorting machinery was moved, which necessitated moving
appellant’s desk.
Appellant generally asserted that Mr. Gerstl spoke to her in a disrespectful manner. She
did not submit evidence to support her claim of verbal abuse, and thus did not establish a factual
basis for her allegation.19
Generally, complaints about the manner in which a supervisor performs his or her duties
or the manner in which a supervisor exercises his or her discretion fall, as a rule, outside the
scope of coverage provided by FECA. This principle recognizes that a supervisor or manager in
general must be allowed to perform his or her duties and employees will, at times, dislike the
actions taken. Mere disagreement or dislike of a supervisory or managerial action will not be

15

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

16

See James E. Norris, supra note 14.

17

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

18

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

19

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

6

compensable, absent evidence of error or abuse.20 As noted above, Mr. Gerstl fully explained his
administrative actions, including the schedule changes, moving appellant’s desk and notifying
her to provide acceptable medical documentation. The record contains no evidence that
Mr. Gerstl or any employing establishment supervisor or manager committed error or abuse in
discharging management duties.21
Regarding appellant’s contention that she was harassed by Mr. Gerstl, mere perceptions
of harassment or discrimination are not compensable under FECA,22 and unsubstantiated
allegations of harassment or discrimination are not determinative of whether such harassment or
discrimination occurred. A claimant must establish a factual basis for his or her allegations with
probative and reliable evidence.23 In the case at hand, appellant submitted nothing to support
specific actions by Mr. Gerstl to show a persistent disturbance, torment or persecution, i.e.,
mistreatment by employing establishment management.24 Moreover, there is no evidence of
record to support that she was previously harassed by Mr. Crawley. Appellant therefore did not
establish a factual basis for her claim of harassment by probative and reliable evidence.25
The Board concludes that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment.26 Appellant’s emotional reaction must be considered self-generated, in that
it resulted from her perceptions about employing establishment management actions.27
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 did not establish that she sustained an emotional condition
in the performance of duty.

20

Id.

21

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

22

James E. Norris, supra note 14.

23

Id.

24

Beverly R. Jones, supra note 15.

25

See Robert Breeden, 57 ECAB 622 (2006).

26

Leslie Moore, supra note 3.

27

See V.W., 58 ECAB 428 (2007). As appellant failed to establish a compensable employment factor, the Board
need not address the medical evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).

7

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Malta, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-446
Issued: June 22, 2012

Case Submitted on the Record

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 29, 2011 appellant, through his attorney, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) merit decision dated December 7, 2011.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on December 12, 2007, while in the performance of duty.
FACTUAL HISTORY
This case was previously before the Board.2 In an April 12, 2010 decision, the Board
affirmed the June 19, 2008 and April 23, 2009 OWCP decisions, finding that appellant failed to
establish that he sustained an injury on December 12, 2007 in the performance of duty. The
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-1615 (issued April 12, 2010).

Board found that the medical evidence was insufficient to establish his back and leg pain as
causally related to a December 12, 2007 motor vehicle accident. The facts and the history
contained in the prior decision are incorporated by reference.
In a letter dated April 27, 2009, appellant’s representative submitted additional factual
and medical evidence, including a January 24, 2008 motor vehicle accident report and an
April 19, 2009 letter from appellant, who noted that he promptly reported the accident.
Appellant noted that the paperwork was given to him more than two weeks after the accident.
OWCP also received an August 6, 2008 report from a nurse.
In an April 6, 2009 report, Dr. Alfredo B. Cruz, a Board-certified family practitioner,
noted that appellant had recurrent back pain. He explained that x-rays revealed bilateral
sacroiliitis. Dr. Cruz diagnosed ankylosing spondylitis and noted that, on December 12, 2007,
while delivering his route, appellant was in an automobile accident and aggravated his
lumbosacral region. Appellant underwent physical therapy and tried to return to work but was
unable to do so because of back pain. Dr. Cruz advised that a March, 22, 2008 lumbar spine
magnetic resonance imaging (MRI) scan did not show any radiculopathy or entrapment.
Appellant had a full range of motion in the arms and legs but his lumbar spine range of motion
was decreased with forward flexion at 60 degrees and extension at 10 degrees and limited
rotation of the lumbar spine. Dr. Cruz opined that appellant was able to perform his duties as a
mail carrier despite having ankylosing spondylitis and explained that “the automobile accident
aggravated the patient’s condition which deteriorated his work performance.”
In a July 1, 2009 report, Dr. Cruz noted that he first saw appellant on December 18, 2007
for back pain. He related a history that appellant was in a car accident on December 12, 2007
and injured when he was hit on the rear driver’s side. Dr. Cruz found contusions on the back,
buttocks and thigh. He relied upon x-rays and opined that “yes, the accident caused the back
pain.” Dr. Cruz noted that appellant was off work from February 21, 2008. He explained that
appellant had preexisting ankylosing spondylitis.
In a June 9, 2010 report, Dr. Cruz noted treating appellant for several years for
complaints involving the muscles and joints ranging from the hands and wrists to the legs and
feet and indicated that appellant had ankylosing spondylitis. He explained that appellant was
able to work as a rural mail carrier until the work-related automobile accident on
December 12, 2007. Appellant was hit from the rear area of the driver’s side of the vehicle and
had contusions around his back, buttocks and thighs. Dr. Cruz explained that the trauma caused
injury to appellant’s back, which was short of having a fracture of the vertebrae and resulted in
severe ligaments and muscle injuries of the paraspinal and quadratus lumborum muscles. He
explained that the injuries could result in constant pain and morbidity for appellant. Dr. Cruz
advised that these injuries aggravated appellant’s pain from his preexisting ankylosing
spondylitis. The pain was of “such intensity” that it prevented appellant’s return to work as a
mail carrier. Dr. Cruz stated that “the automobile accident has caused his back pain and
aggravated his existing condition of ankylosing spondylitis to a point that he could no longer
work.” Appellant was in constant pain and discomfort around the lumbar area and had an
associated degree of decreased range of motion with his hips and leg. Dr. Cruz noted findings
which included forward flexion which was decreased to 60 degrees, extension to 10 degrees and
limitation of upper rotation from the lumbar spine. He reiterated that there was a causal
relationship between the trauma and the preexisting ankylosing spondylitis. Dr. Cruz opined that
2

appellant was totally disabled and unable to work in any capacity since February 21, 2008. He
further noted that appellant would live “his life in constant pain.”
In a letter dated December 16, 2010, appellant’s representative requested reconsideration.
He contended that Dr. Cruz’s June 9, 2010 report established that appellant sustained an injury
on December 12, 2007.
By decision dated December 7, 2011, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,3
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.4 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The evidence supports that appellant was in a motor vehicle accident on
December 12, 2007. There is no dispute that his vehicle was struck from behind by another
vehicle that date. The Board finds that the medical evidence of record is insufficient to establish
that the employment incident caused an injury.
3

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

4

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

5

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

6

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

7

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

3

The medical reports do not establish that the motor vehicle accident on December 12,
2007 caused a personal injury. The medical evidence contains insufficient reasoning explaining
how the specific employment incident on December 12, 2007 caused or aggravated an injury.
This is particularly important in light of the fact that appellant had a preexisting condition of
ankylosing spondylitis. In the prior decision, the Board noted that the claim was filed about five
months after the accident and that records indicated that the accident was minor with little
damage to the vehicles and no reported injuries.
Appellant submitted several reports by Dr. Cruz. In a June 9, 2010 report, Dr. Cruz noted
that appellant had preexisting ankylosing spondylitis but was able to perform his duties as a rural
mail carrier until the December 12, 2007 automobile accident. He advised that appellant was hit
from the rear area of the driver’s side of the vehicle and had contusions around his back, buttocks
and thighs. Dr. Cruz explained that the trauma caused injury to appellant’s back, which was
“short of having a fracture of the vertebrae.” He opined that “this resulted in severe ligaments
and muscles injuries of the paraspinal and quadratus lumborum muscles.” Dr. Cruz stated that
these injuries were disabling and could result in constant pain and morbidity and aggravated
appellant’s pain from his preexisting ankylosing spondylitis. He noted findings which included
decreased lumbar motion and opined that there was a causal relationship between the trauma and
the existing condition of appellant’s ankylosing spondylitis. In an April 6, 2009 report, Dr. Cruz
noted that appellant had continuing back pain and opined that the “automobile accident
aggravated the patient’s condition which deteriorated his work performance.” In his July 1, 2009
report, he repeated the history of injury and opined that “yes, the accident caused the back pain.”
Dr. Cruz explained that appellant had a preexisting condition of ankylosing spondylitis.
The Board finds that Dr. Cruz’s reports are insufficient to establish appellant’s claim.
The Board has held that an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury is insufficient, without supporting
rationale, to establish causal relation.8 In his contemporaneous December 18, 2007 clinical
notes, Dr. Cruz diagnosed contusions of the back, buttocks and right thigh and low back pain.
Furthermore, a March 22, 2008 lumbar MRI scan was normal. The more contemporaneous
clinical notes make no mention of any fracture of the vertebrae or any specific low back injury
caused by the motor vehicle accident. The Board finds that Dr. Cruz’s opinion is of limited
probative value as it contains insufficient medical rationale explaining how the December 12,
2007 motor vehicle accident caused or aggravated a diagnosed medical condition.9 Although he
asserts that the accident aggravated appellant’s preexisting ankylosing spondylitis, his initial
reports do not support this and his more recent reports do not sufficiently explain why a
relatively minor motor vehicle accident, for which no claim was filed for about five months,
would cause such an aggravation of this condition.
OWCP also received an August 6, 2008 report from a nurse. However, health care
providers such as nurses, are not physicians under FECA. Thus, their opinions on causal

8

Kimper Lee, 45 ECAB 565 (1994).

9

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

4

relationship do not constitute rationalized medical opinions and have no weight or probative
value.10
Because the medical reports submitted by appellant do not sufficiently explain how the
December 12, 2007 incident at work caused or aggravated a diagnosed medical condition, these
reports are of limited probative value and are insufficient to establish that the December 12, 2007
employment incident caused or aggravated a specific 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on December 12, 2007.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

10

Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2).

5