United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, ROCKFORD
CARRIER ANNEX, Rockford, MI, Employer
__________________________________________

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

Docket No. 19-0370
Issued: October 10, 2019

Case Submitted on the Record

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

JURISDICTION
On December 10, 2018 appellant filed a timely appeal from a November 15, 2018 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. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 15, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than seven
percent permanent impairment of the left upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On January 17, 2017 appellant, then a 59-year-old sales, services and distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that she injured her left shoulder that morning
when she slipped on ice in the employing establishment parking lot while in the performance of
duty.3 She stopped work following the incident and returned to full-time, modified-duty
employment on January 19, 2017. OWCP accepted appellant’s claim for left biceps tendon strain,
left trapezius strain, and left rotator cuff tear.
On June 25, 2018 appellant filed a claim for a schedule award (Form CA-7).
Appellant submitted a June 12, 2018 impairment rating by Dr. Mark A. Seldes, a Boardcertified family practitioner. Dr. Seldes reviewed appellant’s medical records and related her
complaints of continued daily left shoulder pain with significant limited range of motion. Upon
examination of her left shoulder, he observed moderate tenderness to palpation over the anterior,
lateral, and posterior aspects. Neer’s and Hawkin’s tests were positive. Dr. Seldes indicated that
range of motion testing was completed after initial warm-up and performed three times. He
explained that the findings were the same each time and reported 75 degrees flexion, 10 degrees
extension, 65 degrees abduction, 10 degrees adduction, 30 degrees external rotation, and 0 degrees
internal rotation. Dr. Seldes diagnosed internal derangement of the left shoulder joint, left shoulder
impingement syndrome, and torn rotator cuff of the left shoulder joint. He noted a QuickDASH
score of 73. Dr. Seldes opined that appellant had reached maximum medical improvement (MMI)
as of June 12, 2018.
Referring to Table 15-5, Shoulder Regional Grid, of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4
Dr. Seldes selected a class 1 diagnosis-based impairment (DBI) for a rotator cuff tear. He
explained that the maximum impairment rating under the DBI methodology is five percent
permanent impairment. Dr. Seldes related that, as an alternative, a range of motion (ROM)
impairment method may be assessed using section 15.7. Utilizing Table 15-34, Shoulder Range
of Motion, he reported that appellant had nine percent permanent impairment for 75 degrees
flexion, two percent permanent impairment for 10 degrees extension, six percent permanent
impairment for 65 degrees abduction, one percent permanent impairment for 10 degrees adduction,
two percent permanent impairment for 30 degrees external rotation, and four percent permanent
impairment for 0 degrees internal rotation. Dr. Seldes calculated a combined 24 percent left upper
extremity permanent impairment due to loss of ROM. He explained that, if more than one method
was appropriate for rating the impairment, the method which produced the higher impairment
3

Appellant lost her balance, but was able to avoid falling to the ground.

4

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

2

rating should be adopted. As the ROM method resulted in 24 percent permanent impairment and
the DBI method resulted in a maximum of 5 percent permanent impairment, Dr. Seldes concluded
that the higher impairment rating of 24 percent based on loss of ROM should be applied to
appellant’s case.
In a development letter dated August 15, 2018, OWCP advised appellant of the type of
evidence needed to establish her schedule award claim, including a statement from her attending
physician that the accepted condition had reached MMI and an impairment rating utilizing the
appropriate portions of the A.M.A., Guides. It afforded her 30 days to submit the necessary
evidence. OWCP subsequently received another copy of Dr. Seldes’ June 12, 2018 impairment
rating.
In an August 23, 2018 report, Dr. Kevin Kuhn, a Board-certified orthopedic surgeon
serving as a district medical adviser (DMA), reviewed the medical evidence of record and noted
the accepted conditions of strain of the left arm biceps tendon, left shoulder strain, and left shoulder
rotator cuff tear. He opined that the ROM method, as used by Dr. Seldes in his June 12, 2018
impairment rating, was not applicable in this case because there was lack of evidence of three
independent measurements and the greatest ROM measurement had not been identified. Dr. Kuhn
noted June 12, 2018 as the date of MMI.
Dr. Kuhn indicated that according to the DBI method, under Table 15-5, Shoulder Regional
Grid, appellant had sustained a class 1 impairment (default three percent) due to residual loss for
partial-thickness rotator cuff tear. He reported a grade modifier for functional history (GMFH)
of 3 (QuickDASH score of 73); a grade modifier for physical examination (GMPE) of 2 (moderate
palpatory findings); and a grade modifier for clinical studies (GMCS) of 2 (moderate pathology).
Applying the net adjustment formula, (3-1) + (2-1) + (2-1), resulted in a net modifier of plus 4,
which raised the default three percent value to five percent permanent impairment of the left upper
extremity permanent impairment. For the diagnosis of left shoulder strain, Dr. Kuhn noted that
appellant had sustained a class 1 impairment (default value 1 percent). He reported GMFH 3
(QuickDASH score); GMPE 2 (moderate palpatory findings); and GMCS 2 (moderate pathology).
Applying the net adjustment formula, (3-1) + (2-1) + (2-1), resulted in a net modifier of plus 4,
which raised the default one percent value to two percent permanent impairment of the left upper
extremity impairment. Dr. Kuhn combined the two DBI-based impairment ratings for a total of
seven percent left upper extremity permanent impairment.
In a September 7, 2018 report, Dr. Seldes noted his disagreement with Dr. Kuhn’s
August 23, 2018 report that the ROM method was not applicable. He explained that in his June 12,
2018 report, he clearly explained that ROM testing had been completed after an initial warm-up
and was performed three times as required by the A.M.A., Guides. Dr. Seldes further related that
since both the DBI and ROM methods could be used to rate appellant’s impairment or condition,
the A.M.A., Guides provides that the method which produced the higher rating must be used. He
concluded that appellant should be awarded the higher impairment rating of 24 percent based on
loss of ROM.
In an October 2, 2018 report, Dr. Kuhn reviewed Dr. Seldes’s September 7, 2018
supplemental report and provided an impairment rating utilizing the ROM method based on
Dr. Seldes’s measurements. Utilizing Table 15-34, Shoulder Range of Motion, he calculated that

3

appellant had 9 percent permanent impairment for 75 degrees with grade 1 modifier, 2 percent
permanent impairment for 10 degrees extension with grade 0 modifier, 6 percent permanent
impairment for 65 degrees abduction with grade 1 modifier, 2 percent permanent impairment for
10 degrees adduction with grade 0 modifier, 8 percent permanent impairment for 0 degrees internal
rotation with grade 0 modifier, and 9 percent permanent impairment for 30 degrees external
rotation with grade 0 modifier, for a total left upper extremity impairment of 36 percent. Dr. Kuhn
further explained that since the ROM modifier and GMFH with the DBI method were both 3, there
was no modification of appellant’s impairment rating and the impairment rating remained
unchanged at seven percent permanent left upper extremity impairment under the DBI method.
He contended that Dr. Seldes failed to convert the total ROM deficit into a ROM modifier and
recommended that Dr. Seldes refer to example 15-25 on pages 477 and 478 of the A.M.A., Guides.
Dr. Kuhn determined that according to Table 15-5, Shoulder Regional Grid, appellant had a
combined seven percent permanent impairment of the left upper extremity due to diagnoses of left
shoulder rotator cuff tear and left shoulder strain.
By decision dated November 15, 2018, OWCP granted appellant a schedule award for
seven percent permanent impairment of the left upper extremity, based on the DMA’s October 2,
2018 report. The period of the award ran for 21.84 weeks from June 12 to November 11, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 8
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the shoulder, reference is made to Table 15-5 (Shoulder Regional
Grid).9 After the class of diagnosis (CDX) is determined from the Shoulder Regional Grid
(including identification of a default grade value), the impairment class is then adjusted by grade

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
9

A.M.A., Guides 401-05.

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modifiers of functional history, physical examination, and clinical studies.10 The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
FECA Bulletin No. 17-0612 provides guidance in applying ROM or DBI methodologies in
rating permanent impairment of the upper extremities. 13 Regarding the application of ROM or
DBI methodologies in rating permanent impairment of the upper extremities, FECA Bulletin No.
17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”14 (Emphasis in the original.)
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”15
10

Id. at 383-492.

11

Id. at 411.

12

The FECA Bulletin No. 17-06 advises that, if the A.M.A., Guides allows for use of ROM for the diagnosis in
question, the DMA should independently calculate impairment using both the ROM and DBI methods and identify
the higher rating for the claims examiner. See FECA Bulletin No. 17-06 (issued May 8, 2017); see also D.F., Docket
No. 17-1474 (issued January 26, 2018).
13

J.M., Docket No. 18-1387 (issued February 1, 2019).

14

V.L., Docket No. 18-0760 (issued November 13, 2018); FECA Bulletin No. 17-06 (May 8, 2018).

15

Id.

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OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.
ANALYSIS
The Board finds that appellant has established that she has 24 percent permanent
impairment of the left upper extremity.
OWCP accepted appellant’s claim for left biceps tendon strain, left trapezius strain, and
left rotator cuff tear as causally related to a January 17, 2017 employment injury. On
November 15, 2018 it granted her a schedule award for seven percent permanent impairment of
the left upper extremity based on the DMA’s October 2, 2018 report. In his October 2, 2018
supplemental report, the DMA calculated 36 percent upper extremity permanent impairment under
Table 15-34 based on Dr. Seldes’ June 12, 2018 left shoulder ROM measurements. 16 Instead of
providing a stand-alone rating based on appellant’s left shoulder ROM deficits, he treated
appellant’s ROM deficit as a GMFH of 3, which he noted was equal to the previous grade modifier
assigned (3) based on appellant’s QuickDASH score. As such, the DMA concluded that there was
no basis to modify his prior DBI rating of seven percent left upper extremity impairment due to
appellant’s shoulder strain and partial rotator cuff tear.
The Board finds, however, that the DMA erred in at least two respects. First, it was
improper to combine impairments based on two separate diagnoses within the same shoulder
regional grid.17 Second, the DMA’s October 2, 2018 impairment rating is inconsistent with FECA
Bulletin No. 17-06, which provides in pertinent part that if the A.M.A., Guides allow for the use
of both the DBI and ROM methods to calculate an impairment rating for the diagnosis in question,
the method producing the higher rating should be used. 18 Because the DMA did not provide an
impairment rating consistent with the A.M.A., Guides based upon ROM or DBI methodology, his
opinion is of diminished probative value. 19
In support of her schedule award claim, appellant submitted a June 12, 2018 impairment
rating report by Dr. Seldes. Dr. Seldes reviewed appellant’s history and conducted an examination
of appellant’s left shoulder. He indicated that ROM testing was completed after initial warm-up
and performed three times. Dr. Seldes noted that appellant had reached MMI as of June 12, 2018.
Referring to Table 15-5, Shoulder Regional Grid, of the A.M.A., Guides, he selected a class 1 DBI
for a rotator cuff tear. He explained that the maximum impairment rating under the DBI
methodology is five percent permanent impairment. Dr. Seldes related that, as an alternative, a
16

A.M.A., Guides 475 (6th ed. 2009).

17

Dr. Seldes provided a DBI rating based on a diagnosis of rotator cuff tear, whereas the DMA incorrectly rated
appellant for both rotator cuff tear and shoulder strain.
18

Supra note 12.

19
M.D., Docket No. 19-0510 (issued August 6, 2019); G.S., Docket No. 13-1649 (issued December 24, 2013);
Mary L. Henninger, 52 ECAB 408 (2001).

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ROM impairment method may be assessed using Section 15.7. Utilizing Table 15-34, Shoulder
Range of Motion, he reported that appellant had 9 percent permanent impairment for 75 degrees
flexion, 2 percent permanent impairment for 10 degrees extension, 6 percent permanent
impairment for 65 degrees abduction, 1 percent permanent impairment for 10 degrees adduction,
2 percent permanent impairment for 30 degrees external rotation, and 4 percent permanent
impairment for 0 degrees internal rotation for a combined 24 percent left upper extremity
permanent impairment due to loss of ROM.
The Board finds that Dr. Seldes properly utilized the A.M.A., Guides in determining that
appellant had 24 percent permanent impairment of the left upper extremity. Dr. Seldes correctly
referenced Table 15-5 and determined that, under the DBI methodology for a rotator cuff tear, the
maximum impairment rating is 5 percent. He also correctly assessed that, as an alternative, a ROM
impairment may be used. The Board notes that Dr. Seldes performed three ROM tests, explained
his calculations for loss of ROM under Table 15-34, and properly determined that appellant had
24 percent left upper extremity impairment due to loss of ROM. Dr. Seldes explained that as the
ROM method provided the higher impairment rating, appellant was entitled to a schedule award
for 24 percent left upper extremity permanent impairment. The Board finds that he properly
applied the standards of the A.M.A., Guides and his opinion is sufficiently well rationalized and
based upon a proper factual and medical background. As he properly calculated that appellant had
24 percent left upper extremity impairment under the ROM method, the Board finds that appellant
is entitled to an additional award of 17 percent. 20 Accordingly, the November 15, 2018 schedule
award shall be modified to reflect entitlement to an additional 17 percent permanent impairment
of the left upper extremity, for a total permanent impairment of 24 percent.
CONCLUSION
The Board finds that appellant has established that she has 24 percent permanent
impairment of the left upper extremity. OWCP previously awarded 7 percent permanent
impairment, and therefore, appellant is entitled to an additional schedule award for 17 percent
permanent impairment for her left upper extremity.

20

See Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.808.5 (March 2017).

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ORDER
IT IS HEREBY ORDERED THAT the November 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: October 10, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, Camp Pendleton, CA,
Employer
__________________________________________

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

Docket No. 14-0841
Issued: July 10, 2015

Case Submitted on the Record

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

JURISDICTION
On March 5, 2014 appellant filed a timely appeal of a February 19, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic emotional
condition in the performance of duty on September 6, 2013.
FACTUAL HISTORY
On September 30, 2013 appellant, then a 57-year-old installation ground safety manager,
filed a traumatic injury claim alleging that he developed a traumatic mental illness on
1

5 U.S.C. § 8101 et seq.

September 6, 2013 after an intense discussion with his supervisor over the submission of two
financial reports. He developed chest pains and a headache.
Appellant’s supervisor completed a statement on October 15, 2013. On September 6,
2013 he requested that appellant provide more information on a project. Appellant then became
defensive and argumentative. Appellant’s supervisor stated, “Remembering that [appellant]
twice before became enraged when asked about providing information … about his job, I
calmingly explained that I needed this information and that it was not an unreasonable request.
At no time did the argument become ‘heated’ or ‘intense’….” Appellant’s supervisor returned
and requested additional information a few hours later and appellant stated that he was
experiencing a severe headache.
Appellant sought treatment at the employing establishment hospital on September 6
and 7, 2013. He reported a heated argument with his command and the development of a
headache and chest pressure. Appellant exhibited right-sided facial droop, slurred speech and
unsteady gait. He underwent cardiac and neurological testing which was negative. Appellant
received diagnoses of anxiety and anxiety-related phenomena. Dr. Earl E. Miller, an osteopath,
diagnosed stress and cerebrovascular accident on September 9, 2013. He stated that appellant
could return to work on November 9, 2013.
In a letter dated October 24, 2013, OWCP requested additional factual and medical
evidence regarding appellant’s claim. Dr. Miller completed a report on October 30, 2013 and
noted that appellant’s hospitalization determined that his chest pain was not cardiac and that he
had no evidence of a stroke. He diagnosed acute stress. Dr. Miller stated, “Patient had a heated
discussion with his command on September 6, 2013 that was followed by a transient ischemic
attack (mini-stroke).”
Dr. Luke Oakley, a Board-certified internist specializing in cardiology, completed a
report on October 29, 2013 and stated that he examined appellant during his hospitalization. He
diagnosed anxiety not otherwise specified. Dr. Oakley stated, “[Appellant’s] anxiety was the
direct result of an argument at work which manifests with physical pain and apparent temporary
neurologic changes.” He stated that appellant’s anxiety symptoms were not consistent with
ischemic heart disease and that neurological testing did not establish a stroke or transient
ischemic attack.
Appellant submitted a narrative statement noting that the discussion with his supervisor
on September 6, 2013 related to two financial data reports. He stated that he had difficulty
explaining the data contained in the reports to his supervisor and had difficulty relating the
department financials using the required report. Appellant stated that after the discussion they
had reached an understanding. The second topic was the Red Line Project which was an
evolving data call with changing data fields which was also difficult to explain to his supervisor.
Appellant noted that he was unable to change the format of the report. He asserted that he could
not explain to his supervisor’s satisfaction his input for the report as it was based on pure
speculation due to the pending government budget. Appellant noted that he was signing
furlough notices and that he could not explain to his supervisor where the regulations described

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the funding of a safety program. He stated that the discussions were “intense” as he felt he had
to explain the same points over and over causing him to become tense. Appellant stated:
“It seems whatever and however I stated a fact or readdressed a position it was
not being received by my supervisor. The intensity increased. Because of my
supervisor’s lack of knowledge of the overall safety department’s financial
program which he was not willing to compromise. To me, it is hard to answer
speculative questions with an ideology that one has to answer the correct way,
i.e., not debatable.”
By decision dated February 19, 2014, OWCP denied appellant’s claim finding that the
evidence had not established that he actually experienced the incident or employment factor
alleged to have caused an injury. It found that the meeting between appellant and his supervisor
was an administrative action and that there was no evidence of error or abuse.
LEGAL PRECEDENT
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,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 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.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.6
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.7 Where the evidence
2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

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

5

Supra note 2.

6

Id.

7

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

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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.8 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.9
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a heated
discussion with his supervisor on September 6, 2013. OWCP denied his emotional condition
claim finding that he had not established any compensable employment factors. The Board must
review whether the alleged incidents and conditions of employment are covered employment
factors under the terms of FECA.
Initially, the Board finds that there are no Cutler factors. Appellant and his supervisor
agree that the discussion in question pertained to work matters, but appellant did not specifically
attribute his claimed emotional and/or physical conditions to his regular or specially assigned
work duties or to a requirement imposed by the employment. Thus, appellant has not established
a compensable employment factor under Cutler.10 Rather, he has alleged error or abuse in
administrative matters.
Appellant attributed his diagnosed condition of anxiety to “intense” discussions with his
supervisor on September 6, 2013 related to two fiscal data reports. He stated that he had
difficulty explaining the data to his supervisor. Appellant stated that his supervisor did not
understand funding of a safety program. He noted that having to explain the same points over
and over caused him to become tense.
The assignment of work is an administrative function of a supervisor.11 The manner in
which a supervisor exercises his or her discretion falls outside FECA’s coverage. This principle
recognizes that supervisors must be allowed to perform their duties, and at times employees will
disagree with their supervisor’s actions. Mere dislike or disagreement with certain supervisory
actions will not be compensable absent error or abuse on the part of the supervisor. Appellant
has indicated that he disagreed with the manner in which his supervisor conducted discussions
regarding fiscal reports and a safety program.12 He has not submitted any evidence of error or
abuse in the method through which his supervisor conducted these discussions. Therefore
appellant has not established a compensable factor of employment in this regard.

8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
9

Roger Williams, 52 ECAB 468 (2001).

10

Supra note 2; A.S., Docket No. 15-101 (issued April 24, 2015).

11

A.S., id.

12

See C.L., Docket No. 14-983 (issued January 23, 2015).

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Appellant’s supervisor indicated that the discussion did in fact occur and stated that
appellant became defensive and argumentative. Appellant alleged that the discussion was
“intense.” While the Board has recognized that verbal abuse, when sufficiently detailed by the
claimant and supported by evidence, may constitute a compensable employment factor, appellant
has provided no support that this occurred.13 The Board has generally held that being spoken to
in a raised or harsh voice does not of itself constitute verbal abuse or harassment.14 Appellant’s
supervisor denied raising his voice or any improper conduct during the meeting on
September 6, 2013 and appellant has provided no corroborative evidence. As appellant has not
established a factual basis for his claim for verbal abuse, he has not established a compensable
factor of employment in this regard.
The Board finds that appellant’s emotional condition is not employment related as it is
based on his frustration over not being allowed to work in a specific environment. Appellant
attributed his condition to difficulties in communicating with his supervisor, in part because he
felt that his supervisor was either unable to understand his position or unwilling to accept his
description of forms and financial information.15 Appellant’s desire for unquestioning
acceptance of his positions regarding financial reports constitutes self-generated frustration is not
compensable under FECA.16
Where a claimant has not established any compensable employment factors, the Board
need not consider the medical evidence of record.17
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 as appellant failed to establish a compensable factor of employment,
he has not met his burden of proof in establishing an emotional condition claim.

13

T.G., 58 ECAB 189 (2006); A.S., Docket No. 15-28 (issued April 20, 2015).

14

Id.; M.D., Docket No. 13-867 (issued September 26, 2014).

15

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

16

M.M., Docket No. 06-1130 (issued September 14, 2006).

17

A.K., 58 ECAB 119 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the February 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.18
Issued: July 10, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective December 27, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
St. Petersburg, FL, Employer
__________________________________________

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Appearances:
Stephanie M. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0233
Issued: December 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 10, 2016 appellant, through counsel, filed a timely appeal from a May 16,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $59,807.99 because OWCP used an incorrect pay rate for the period March 1, 2001
through April 2, 2016; (2) whether appellant is entitled to waiver of the overpayment; and
(3) whether OWCP properly determined that it would recover $500.00 every 28 days from
continuing compensation as repayment of the overpayment.
FACTUAL HISTORY
On December 21, 1998 appellant, then a 49-year-old air traffic controller, filed a
traumatic injury claim (Form CA-1) alleging that on November 15, 1998 he injured his low back
and groin when he slipped on a wet floor. OWCP accepted the claim, assigned OWCP File No.
xxxxxx744, for cervical and lumbosacral strain, cervical and lumbar disc displacement, sciatica,
lumbar neuritis, an aggravation of brachial neuritis, and chronic pain syndrome.
OWCP had previously accepted on July 4, 1977 thoracic, lumbar, and cervical strain and
cervical radiculitis under File No. xxxxxx162. It combined the cases under File No. xxxxxx744.
Appellant stopped work following his November 15, 1998 work injury and received
compensation for total disability beginning January 31, 1999. He resumed his regular full-time
employment on June 15, 1999.
By letter dated January 13, 2001, the employing establishment advised that appellant had
not worked active duty “since January 24, 2000 duty to an unrelated [employing establishment]
issue. [Appellant] has been certified in a variety of pay and nonpay statuses since his last day of
duty on January 24, 2001.” It indicated that he was medically disqualified from work “due to an
unrelated medical issue.”
Appellant, on February 5, 2001, filed a claim for recurrence of disability (Form CA-2a)
on January 11, 2001 causally related to his July 4, 1977 employment injury under File No.
xxxxxx162.
By decision dated July 10, 2001, OWCP found that appellant had not established a
recurrence of disability beginning January 11, 2001 due to his work injury. It found that the
employing establishment had terminated his employment because he no longer met the medical
certifications for his position due to a nonwork-related psychological condition.
Appellant requested a hearing and by decision dated March 19, 2002, an OWCP hearing
representative affirmed the July 10, 2001 decision. The hearing representative noted that
appellant had not been working since January 2000 due to a personnel issue not related to work
injury, but was continued on the rolls of the employing establishment after that time. Appellant
initially sought medical treatment for the alleged recurrence of disability on January 23, 2001.
The hearing representative determined that the medical evidence then of record was insufficient
to establish a recurrence of disability beginning January 2001.
On March 13, 2001 the employing establishment noted that appellant had been off active
duty work since January 24, 2000, but had “been carried in a variety of pay and nonpay status
2

since his last day of work in January 24, 2000.” It noted that he was permanently disqualified
from work as a result of the nonwork-related medical issue.
The employing establishment, in a letter dated October 23, 2002, advised the Office of
Personnel Management (OPM) that, based on a decision of the Merit Systems Protection Board
(MSPB), appellant was retroactively restored to his positon as an air traffic control specialist
effective January 25, 2000, the date he began receiving leave without pay, until his removal on
July 7, 2001. The decision required the employing establishment to pay back pay from
January 2000 to July 7, 2001.
On November 6, 2002 OPM indicated that appellant had received disability retirement
beginning March 1, 2001.
Appellant, on July 14, 2004, filed a claim for compensation (Form CA-7) requesting
wage-loss benefits from March 1, 2001 to July 9, 2003 due to his November 15, 1998
employment injury.
On May 4, 2005 OWCP found that appellant was entitled to compensation for total
disability beginning March 1, 2001 and requested that he elect between OPM benefits and
workers’ compensation. Appellant elected to receive FECA benefits effective March 1, 2001.
OWCP paid him compensation using an effective pay rate date of November 15, 1998, the date
of injury.
In a November 18, 2005 report of telephone call, appellant maintained that he was being
paid at an inaccurate pay rate. On December 15, 2005 the employing establishment advised
OWCP by telephone that he had stopped work on January 24, 2001 at a pay rate of $36.24 per
hour.
In a February 21, 2006 internal memorandum, OWCP found that appellant was entitled to
a weekly base pay rate of $1,454.44 based on a recurrent pay rate date of January 11, 2001. It
paid compensation for total disability from March 1, 2001 to August 31, 2005 using an effective
pay rate date of January 11, 2001.
Appellant, on April 26, 2006, again telephoned OWCP and asserted that it was paying
him compensation at an inaccurate pay rate.
By letter dated August 25, 2006, OWCP requested that the employing establishment
provide the date that appellant last worked and his rate of pay at that time. It noted that it had
received conflicting information regarding whether he stopped work in January 2000 or
January 2001.
On October 25, 2006 the employing establishment advised that appellant “last day of
actual work was on January 24, 2000” with a pay rate at that time of $67,099.00 a year. It
related, “Although [appellant] did not return to duty, [he] continued to be carried in a
combination of annual, sick and administrative leave until the following year, through
January 24, 2001.” Appellant used leave without pay beginning February 11, 2001. The
employing establishment advised that he earned $67,099.00 per year on January 24, 2001.

3

By letter dated December 21, 2006, OWCP advised that it was using a pay rate of
$75,631.00 per year with a pay rate date of January 21, 2001 based on earnings and leave
statements.3 On January 16, 2007 it paid appellant supplemental net compensation in the amount
of $9,961.37 as a pay rate adjustment.
Appellant, on August 26, 2015, maintained that OWCP should pay him premium pay “for
the last 14 years.”
On October 22, 2015 the employing establishment provided earnings and leave
statements for appellant.
OWCP, on November 19, 2015, notified appellant of its preliminary determination that
he received an overpayment of compensation in the amount of $226,825.46 because it paid
compensation at an inaccurate pay rate from March 1, 2001 to November 14, 2015. It found that
it had paid compensation using a recurrent pay rate date of January 11, 2001. OWCP
subsequently received information that appellant last worked on January 24, 2000, but received
sick, annual, and administrative leave through January 24, 2001. It concluded that he was not
entitled to a recurrent pay rate and calculated the overpayment using his date-of-injury pay rate.
OWCP further preliminarily determined that appellant was not at fault in creating the
overpayment.
In a December 9, 2015 response, appellant related that he returned to his usual
employment after his injury on May 10, 1999 rather than October 11, 1999. He maintained that
his last day at work was not January 24, 2000. Appellant submitted a claim for compensation
(Form CA-7) dated June 21, 1999 indicating that he resumed work on May 10, 1999. On the
form he requested compensation from May 9 to June 3, 1999.
On January 4, 2016 OWCP telephoned the employing establishment to determine the
date that appellant resumed work after his November 15, 1998 work injury. By letter dated
January 4, 2016, it advised him that it had voided the November 19, 2015 preliminary
determination of overpayment pending a determination of whether he was entitled to a recurrent
pay rate.
On January 8, 2016 OWCP received time and attendance reports showing that appellant
returned to work full time beginning June 10, 1999.
By letter dated February 10, 2016, OWCP advised that after his work injury appellant
returned to part-time work on May 10, 1999 and to his usual employment on June 10, 1999.
Appellant last worked on January 24, 2000. OWCP found that it should have paid him based on
a pay rate of $1,307.67 per week and effective recurrent pay rate date of January 24, 2000 rather
than at a rate of $1,454.44 and a recurrent pay rate date of January 11, 2001. It indicated that it
had included premium pay in the January 24, 2000 pay rate. In a pay rate calculation form,

3

In another letter dated December 21, 2006, OWCP informed the employing establishment that while it had
advised that appellant earned $67,099.00 per year effective January 24, 2001, earnings and leave statements
reflected a pay rate of $75,631.00 per year.

4

OWCP determined that appellant earned $94.36 per week in holiday, Sunday premium, and night
differential pay, which it added to his base pay of $1,307.67 to find a pay rate of $1,402.03.
In a memorandum dated February 12, 2016, OWCP found that appellant returned to his
regular employment from June 10, 1999 to January 24, 2000. On July 9, 2003 appellant
requested disability compensation beginning March 1, 2001. OWCP determined that he should
have been paid based on a yearly pay rate of $67,099.00 effective January 24, 2000 rather than a
yearly pay rate of $75,631.00 and weekly pay rate of $1,454.55 effective January 11, 2001. It
concluded that it should have paid appellant based on a recurrent pay rate of January 24, 2000
and a weekly pay rate of $1,402.03 per week with premium pay.
On April 8, 2016 OWCP received premium pay rate information from the employing
establishment.
OWCP, by letter dated April 12, 2016, notified appellant of its preliminary determination
that he received an overpayment of compensation in the amount of $59,807.99 because it
incorrectly calculated his compensation pay rate from March 1, 2001 through April 2, 2016. It
found that he last worked on January 24, 2000 and thus was entitled to a recurrent pay rate date
of January 25, 2000. OWCP calculated the pay rate, with holiday and premium pay, as a base
rate of $1,290.37 per week plus $9.28 in Sunday pay, $2.61 in night differential, $5.73 in holiday
pay, and $5.41 in controller-in-charge pay. It determined that appellant received a greater
amount using the date of recurrence pay rate than his date-of-injury pay rate. OWCP found that
it paid him compensation of $952,965.95 from March 1, 2001 through April 2, 2016 when it
should have paid him compensation of $892,887.96, which created an overpayment of
$59,807.99. It advised appellant of its preliminary determination that he was not at fault in
creating the overpayment. OWCP requested that he complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. Additionally, it notified
appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
In a May 9, 2016 response, appellant argued that he sustained a recurrence of disability
on January 23, 2001 and that he filed his notice of recurrence of disability under File No.
xxxxxx162, which was separate from the current case. He advised that OWCP paid him
compensation at a date-of-injury pay rate, which it subsequently adjusted on February 21, 2006
to reflect a recurrent pay rate of $1,454.55 per week or $75,631.00 per year. Appellant advised
that he was not in a leave without pay status until February 26, 2001, and that an MSPB decision
restored him to his position until July 7, 2001.
Appellant submitted a December 21, 2006 letter from the employing establishment
acknowledging that the MSPB had instructed it to retroactively restore him to his positon as air
traffic controller from January 25, 2000 until the date of his removal on July 7, 2001. The
employing establishment advised that it was reviewing his leave usage during that period to
determine the amount of back pay owed.
By decision dated May 16, 2016, OWCP found that appellant received a $59,807.99
overpayment of compensation because it paid him using an inaccurate compensation pay rate
from March 1, 2001 through April 2, 2016. It determined that he was without fault in creating

5

the overpayment, but was not entitled to waiver, noting that he had not submitted the
overpayment recovery questionnaire. OWCP found that it would recover the overpayment by
deducting $500.00 from continuing compensation payments.
On appeal counsel argues that appellant is entitled to a recurrent pay rate based on the
date that his physician found that he was unable to work, January 23, 2001. He further maintains
that the overpayment should be waived.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA 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.4 Pay rate for compensation purposes is defined in section 8101(4) as the monthly pay at
the time of injury, the time disability begins or the time disability recurs, if the recurrence is
more than six months after returning to full-time work, whichever is greater.5
OWCP’s procedures provide: “The dates when compensable ‘disability began’ or
‘disability recurred’ are the dates the employee stopped work due to the injury, not the dates pay
stopped.”6
When an overpayment has been made to an individual under FECA, because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which an individual is entitled.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained cervical and lumbosacral strain and disc
displacement, sciatica, lumbar neuritis, an aggravation of brachial neuritis, and chronic pain
syndrome due to a November 15, 1998 employment injury. Appellant had a prior accepted claim
for cervical radiculitis and thoracic, lumbar, and cervical strain due to a July 4, 1977 work injury,
assigned File No. xxxxxx162.
OWCP paid appellant disability compensation for total disability from January 31 until
June 15, 1999, when he returned to his regular full-time employment. On January 24, 2000 the
employing establishment placed him in an off-work status due to an administrative issue
unrelated to his work injury. It advised OWCP that appellant was medically disqualified from
employment due to a medical condition unrelated to his employment. Appellant used a
combination of sick, annual, and administrative leave until January 24, 2001.

4

5 U.S.C. § 8102.

5

Id. at §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(1)
(September 2011).
7

5 U.S.C. § 8129; see also Ricky Greenwood, 57 ECAB 462 (2006).

6

Appellant alleged that he experienced a recurrence of disability beginning January 11,
2001 due to his July 4, 1977 work injury under File No. xxxxxx162. OWCP found, however,
that the medical evidence of record was insufficient to support that he was unable to work due to
his accepted employment injury.
The MSPB retroactively restored appellant to his positon of air traffic control specialist
from January 25, 2000 until the date of his removal on July 7, 2001.
On July 14, 2004 appellant requested compensation for total disability beginning
March 1, 2001. OWCP, by letter dated May 4, 2005, found that he was entitled to disability
compensation beginning March 1, 2001. It initially found that appellant was entitled to
compensation based on a date-of-injury pay rate of November 15, 1998, but subsequently
determined that he was entitled to compensation using a recurrent pay rate date of
January 11, 2001.
Appellant, on August 26, 2015, maintained that his pay rate was inaccurate because it
failed to include premium pay. In February 2016, OWCP found that it should have paid him
based on a recurrent pay rate date of January 24, 2000, the date he last worked, instead of
January 11, 2001. It calculated that it should have paid appellant based on a yearly pay rate in
effect on January 24, 2000 of $67,099.00, rather than the pay rate of $75,631.00 in effect on
January 11, 2001.
The Board finds that the case is not in posture for decision. As noted, the pay rate for
compensation purposes is the monthly pay at the time of injury, the time disability begins, or the
time disability recurs, if the recurrence is more than six months after returning to full-time work,
whichever is greater.8 After his November 15, 1998 employment injury, appellant resumed his
usual full-time employment on June 15, 1999. He worked until January 24, 2000, when the
employing establishment placed him in a nonpay status for administrative reasons unrelated to
his work injury. As appellant returned to his regular employment for more than six months, he is
entitled to a recurrent pay rate for any recurrence of disability.9 He did not, however, stop work
on January 24, 2000 as a result of disability due to his employment injury and thus did not
sustain a recurrence of disability on that date. Consequently, OWCP erred in finding January 24,
2000 as the applicable pay rate date.
OWCP determined that appellant was entitled to disability compensation beginning
March 1, 2001. In finding an overpayment of compensation, it used January 24, 2000 as the pay
rate date as it was the last day that he performed work for the employing establishment. A work
stoppage, however, is unnecessary for a claimant to be entitled to a recurrent pay rate if he
sustains a new period of total disability due to the accepted employment injury.10 In D.W.,11
8

Supra note 5.

9

See Johnny A. Muro, 19 ECAB 104 (1967).

10

See D.W., Docket No. 14-0912 (issued September 29, 2014); R.N., Docket No. 10-0470 (issued
September 9, 2010).
11

See D.W., id.

7

OWCP had determined that the claimant was not entitled to a recurrent pay rate date of April 19,
2008 because he stopped work in January 2008 under another file number. The Board found,
however, that a work stoppage was not required for application of a recurrent pay rate, but is
instead based on whether the claimant experienced a new period of employment-related
disability.
The Board finds that the case is not in posture for decision. Following this and any
further development, it should determine whether an overpayment exists and the amount of any
overpayment.12
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.13
Issued: December 20, 2017
Washington, DC

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

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

12

In view of the Board’s disposition of the overpayment, it is premature to address the issues of whether OWCP
properly denied waiver and set the rate recovery of the overpayment.
13

Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Hampton, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1130
Issued: September 11, 2017

Case Submitted on the Record

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

JURISDICTION
On May 6, 2016 appellant filed a timely appeal from a March 22, 2016 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
since the last merit decision dated August 10, 2015 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated November 25, 2016, the Board
denied the request for oral argument as the issue on appeal could be fully addressed on the record. Order Denying
Request for Oral Argument, Docket No. 16-1130 (issued November 25, 2016).

On appeal appellant contends that he suffered from post-traumatic stress disorder
causally related to working for 24 years as a letter carrier. He stated that his claim had been
improperly rescinded in 2015.
FACTUAL HISTORY
This case has previously been before the Board on prior appeal.3 The facts as set forth in
the prior decision are hereby incorporated by reference. The relevant facts are as follows.
On May 21, 2009 appellant, then a 49-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging post-traumatic stress disorder (PTSD) due to factors of his federal
employment. In a statement dated June 24, 2009, he explained that he had been arrested in
March 2006 for allegedly damaging the vehicle of a coworker. Appellant alleged that he
experienced anguish, anxiety, nausea, and other symptoms due to the false accusation and his
subsequent arrest. He resigned on June 22, 2006.
OWCP initially denied appellant’s claim on November 5, 2009 finding that appellant had
not established that the employment incident occurred in the performance of duty as alleged.
On December 17, 2009 appellant requested reconsideration. By decision dated March 8,
2010, OWCP modified the denial of the claim, finding that appellant’s occupational disease
claim was untimely filed.
On April 2, 2010 appellant again requested reconsideration. He argued that the
employing establishment knew that he was ill due to his March 2006 arrest and that he had asked
for time off before resigning. Appellant also contended that he was unaware that he had PTSD
until he was diagnosed with that condition in June 2006. OWCP denied appellant’s
reconsideration request on June 10, 2010, finding that he had not raised legal contentions or
submitted relevant and pertinent new evidence warranting merit review.
Appellant appealed to the Board on September 20, 2010. By September 28, 2011
decision, the Board set aside the June 10, 2010 decision remanding the case for further merit
review. The Board noted that appellant’s argument that the employing establishment timely
knew of his injury presented a legal premise with some reasonable color of validity.4
On remand OWCP again denied appellant’s claim in a decision dated February 2, 2012.
Appellant requested reconsideration on July 30, 2012. OWCP reviewed the merits of the claim,
but denied modification on September 25, 2012.
Appellant again requested reconsideration on January 18, 2013 and submitted a report
from Clinical Psychologist Mary Ann Juliano, dated January 11, 2011.
By decisions dated March 20, 2013, OWCP vacated the February 2, 2012 decision and
accepted appellant’s occupational disease claim. It determined that the medical evidence of
3

Docket No. 10-2336 (issued September 28, 2011).

4

Id.

2

record established PTSD causally related to the factors of an employment incident of
June 23, 2006.
Appellant submitted claims for wage-loss compensation (Form CA-7) for the period
June 23, 2006 to December 31, 2011. On July 31, 2013 OWCP denied appellant’s claim for
wage-loss compensation.
Appellant requested a hearing before an OWCP hearing representative on
August 13, 2013. On September 5, 2014 the hearing representative affirmed the July 31, 2013
OWCP decision, noting that the evidence of record suggested that appellant’s claim was
untimely filed as the postmaster had denied discussing the March 2006 arrest with appellant as a
possible emotional condition claim.
On March 24, 2015 OWCP proposed to rescind the acceptance of appellant’s claim. It
noted that the evidence of record established that appellant was ultimately charged by the State
of New York with criminal mischief with regard to vandalizing his coworkers’ vehicle. OWCP
indicated that the evidence did not support that appellant was falsely accused of vandalism, nor
was the evidence now sufficient to establish that any incident occurred within the performance of
duty. It noted that there was no evidence that the employing establishment was on notice at the
time of his resignation of a work-related injury, and that this would suggest that the claim was
untimely filed. OWCP noted that the proposed rescission would affect both medical benefits and
wage-loss compensation benefits.
Appellant submitted no additional evidence in response to the proposed rescission of
benefits. By decision dated April 27, 2015, OWCP rescinded the acceptance of appellant’s claim
effective that date.
By letter dated April 8, 2015 and received by OWCP on May 12, 2015, appellant
indicated his disagreement with the proposal to rescind the approval of his claim. He alleged
that there were many witnesses to the incident, that he did not perform the alleged act, and that
the incident happened in the performance of duty. Appellant contended that his supervisor drove
him to the police station to be arrested. He indicated that his resignation letter explained that he
was resigning due to the incident. Appellant alleged that he would not have resigned from his
job of 24 years had the incident never happened.
On August 10, 2015 OWCP reviewed appellant’s claim on the merits, but denied
modification of the April 27, 2015 decision. It noted that appellant’s claim was properly
rescinded because the evidence received subsequent to the acceptance of appellant’s claim
established that appellant’s claim was untimely filed. OWCP also found that the evidence of
record established that appellant was convicted of a crime and; therefore, the evidence failed to
establish that appellant was falsely accused.
By letter dated October 6, 2015, Colin Asterita, Esq., provided a witness statement in
which he related that he represented appellant with regard to the misdemeanor charge of criminal
mischief, that the case was dismissed, and that there was no conviction or guilty plea of any kind.
He also noted that the case was now sealed pursuant to statutory law. Attorney Asterita argued
that OWCP was under the mistaken impression that appellant had been convicted of the charge.

3

A certificate of disposition indicated that the charges of criminal mischief resulting from
appellant’s March 17, 2006 arrest were dismissed.
By letter dated December 24, 2015, appellant argued that his supervisor at the time of the
incident had driven him to the police station. He indicated that his supervisor was unable to
submit a witness statement because human resources would not allow him to do so. Appellant
contended that his claim was timely filed because he was not aware of his occupational disease
until June 2006 and therefore his claim filed on May 10, 2009 was timely. He also alleged that
he had not committed a criminal act, but was falsely accused of doing so while performing his
normal duties as a letter carrier. Appellant submitted a copy of a portion of an article from an
unidentified newspaper indicating that he allegedly pushed a mail cart into another employee’s
car and was arrested and charged with fourth-degree criminal mischief.
By decision dated March 22, 2016, OWCP denied appellant’s request for reconsideration
without conducting a merit review. It determined that the evidence of record was insufficient to
warrant review of the August 10, 2015 decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.7
ANALYSIS
The Board finds that OWCP reviewed appellant’s request for reconsideration under the
appropriate criteria for timely filed requests for reconsideration, and determined that appellant
had not shown that OWCP erroneously applied or interpreted a specific point of law, did not
advance a relevant legal argument not previously considered by OWCP, and did not submit
relevant and pertinent new evidence not previously considered by OWCP.
The Board finds that the arguments made by appellant on reconsideration are cumulative,
duplicative, or repetitive in nature and are insufficient to warrant reopening a claim for merit
review.8 In the last merit decision, OWCP found that appellant’s claim was denied because it
was untimely filed. The underlying issue in this case is whether appellant has established that
the claim was timely filed.
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(b).

8

Denis M. Dupor, 51 ECAB 482 (2000).

4

The claim centered on an incident that allegedly occurred in March 2006 when appellant
claimed to have been falsely accused of a crime by a coworker and was arrested. Appellant did
not file his claim until May 21, 2009, or over three years after the alleged incident. He has
argued on numerous occasions that the employing establishment knew about his emotional injury
prior to the date that he resigned on June 22, 2006 or, in the alternative, that he did not become
aware of his emotional condition until June 2006. OWCP has repeatedly rejected these
arguments. Accordingly, appellant’s statement on reconsideration that his supervisor was aware
of the injury in a timely fashion and that he did not know of his injury until June 2006 are not
relevant new legal arguments. He has not established that OWCP erroneously applied or
interpreted a specific point of law and he has not advanced a relevant new legal argument.9
Appellant’s arguments are duplicative.
Appellant also failed to submit any relevant and pertinent new evidence. The newspaper
article submitted on reconsideration was previously of record and considered by OWCP in its
August 10, 2015 decision. The Board has held that evidence or argument that repeats or
duplicates evidence previously of record has no evidentiary value and does not constitute a basis
for reopening a case.10
Appellant also submitted a witness statement on October 6, 2015 from Mr. Asterita, Esq.,
who had represented appellant in his criminal case.11 Mr. Asterita. Esq., provided a certificate of
disposition indicating that the criminal case against appellant was dismissed. However, the
underlying issue in this case is whether appellant’s claim was timely filed. Evidence that does
not address the particular issue involved does not constitute a basis for reopening a claim.12 As
this evidence does not address the underlying issue that appellant’s claim was untimely filed, it is
not pertinent new evidence.
Accordingly, as appellant has not met any of the criteria warranting reopening his claim
for further merit review, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

9

See L.D., Docket No. 14-0205 (issued April 7, 2014).

10

C.W., Docket No. 16-1137 (issued December 19, 2016).

11

The Board notes that this letter did not constitute a request for reconsideration of OWCP’s August 10, 2015
merit decision because appellant’s counsel of record before OWCP was Glenn Smith. Mr. Asterita, Esq., was never
authorized to represent appellant before OWCP. There is no evidence of record that Mr. Asterita, Esq., was
appellant’s authorized representative before OWCP on October 6, 2015. R.D., Docket No. 16-894 (issued
October 3, 2016). OWCP’s regulations at 20 C.F.R. § 10.700 provides: “(a) The claims process under FECA is
informal. Unlike many workers’ compensation laws, the [employing establishment] is not a party to the claim, and
OWCP acts as an impartial evaluator of the evidence. Nevertheless, a claimant may appoint one individual to
represent his or her interests, but the appointment must be in writing.” … (c) A properly appointed representative
who is recognized by OWCP may make a request or give direction to OWCP regarding the claims process,
including a hearing. This authority includes presenting or eliciting evidence, making arguments on facts or the law,
and obtaining information from the case file, to the same extent as the claimant.”
12

P.M., Docket No. 15-1902 (issued January 28, 2016).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 22, 2016 is affirmed.
Issued: September 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Benjamin R. Zimmerman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0813
Issued: January 3, 2018

Case Submitted on the Record

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

JURISDICTION
On March 1, 2017 appellant, through counsel, filed a timely appeal from a February 7,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board. By order dated July 26, 2017, the Board
exercised its discretion and denied appellant’s request for an oral argument, finding that appellant’s arguments on
appeal could adequately be addressed in a decision based on a review of the case record. Order Denying Request for
Oral Argument, Docket No. 17-0813 (issued July 26, 2017).

ISSUE
The issue is whether appellant met his burden of proof to establish a permanent
aggravation of right hip osteoarthritis causally related to factors of his federal employment.
FACTUAL HISTORY
On March 31, 2015 appellant, then a 61-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an aggravation of osteoarthritis of the hips
as a result of his federal employment duties. He first became aware of his condition and its
relation to his federal employment on November 25, 2014. Appellant did not stop work. He
submitted a position description with the duties and requirements of a letter carrier.
In a statement dated October 21, 2014, appellant indicated that when his left hip pain
started in March 2012 he initially thought he had pulled a groin muscle. He related that after six
months his left hip still hurt, so his doctor referred him to an orthopedic specialist. Appellant
explained that he underwent an x-ray examination and was told that he had arthritis in his
bilateral hips, left worse than right. He explained that he had worked for the employing
establishment since April 1988 and had worked in three different cities delivering mail and
packages and doing relay runs. Appellant noted that his route required walking with a satchel on
his left shoulder and lifting and carrying a minimum of 35 pounds in his bag. He also noted that
some packages weighed 50 to 70 pounds.
Appellant submitted a November 26, 2012 report from Dr. John F. Yee, a family
practitioner. Dr. Yee related appellant’s complaints of left groin pain and noted that appellant
worked as a mail carrier. Upon physical examination of appellant’s hips, he reported
nontenderness with palpation and range of motion. Dr. Yee diagnosed left groin pain.
In a December 3, 2012 report, Dr. John J. Lynch, a Board-certified orthopedic surgeon,
noted a diagnosis of early degenerative left hip arthritis. He related that appellant worked as a
letter carrier and had complained of left groin discomfort for the past three to four months.
Dr. Lynch reviewed appellant’s history and conducted an examination. He reported mild
restriction of internal rotation of appellant’s left hip with groin discomfort and no tenderness or
swelling. Dr. Lynch indicated that an x-ray scan of appellant’s pelvis and left hip showed early
mild narrowing of the hip joint with mild peripheral spurring. He opined that appellant’s
physical examination findings and x-ray scans were consistent with early degenerative arthritis
of his left hip.
Dr. Lynch continued to treat appellant and in a March 4, 2013 report indicated that
appellant was doing quite well using pain medication. He provided examination findings and
reported that there had been no significant worsening of appellant’s symptoms over the past three
months.
Appellant underwent a bilateral hip x-ray examination by Dr. Brady J. McKee, a Boardcertified diagnostic radiologist. In a March 3, 2014 report, Dr. McKee noted marked
osteoarthritis of appellant’s left hip with complete superior joint space low and sclerosis within
the left femoral head and superior left acetabulum. He reported moderate degenerative changes

2

of the right hip with lateral acetabular spurring and osseous protuberance of the right femoral
head neck junction.
In reports dated January 17 and March 3, 2014, Dr. Lawrence M. Specht, a Boardcertified orthopedic surgeon, indicated that appellant worked as a mail carrier, which required
him to walk a few miles per day with considerable stairs. He reviewed appellant’s history and
noted that appellant complained of increasing left hip pain for over a year. Upon physical
examination of appellant’s left hip, Dr. Specht reported that appellant walked with a significant
left antalgic gait and had pain with deep squatting. He further noted considerable pain with
flexion of appellant’s hip approaching 90 degrees and severe pain with internal rotation to
negative 5 degrees or with further external rotation. Trendelenburg sign was positive with a
single leg stance. Dr. Specht diagnosed progressive arthritis. He noted that appellant was
scheduled for left hip surgery on March 12, 2014.
On March 12, 2014 appellant underwent left anterior total hip arthroplasty surgery.
Appellant subsequently underwent a bilateral hip x-ray examination by Dr. Carl R.
Larsen, a diagnostic radiologist. In an April 29, 2014 report, Dr. Larsen noted slight
degenerative changes of the right femoral head and satisfactory left hip arthroplasty. He related
that the x-ray examination was otherwise normal.
In reports dated April 29 to August 19, 2014, Heather Torre, a certified physician
assistant, indicated that appellant was doing well and had returned to full duty since his left hip
surgery. Upon physical examination of appellant’s left hip, she noted good, pain free range of
motion and smooth, symmetrical gait with walking. Ms. Torre diagnosed status post left anterior
total hip arthroplasty.
Appellant underwent another bilateral hip x-ray examination. In an August 19, 2014
report, Dr. Anita Uppin, a Board-certified diagnostic radiologist, related appellant’s complaints
of left hip pain. She reported left total hip arthroplasty with anatomic alignment and
degenerative changes with rim osteophyte along the right hip.
In a February 20, 2015 radiology report, Dr. Justin W. Kung, a Board-certified diagnostic
radiologist, indicated that he reviewed appellant’s pelvic and left hip radiographs dated
August 19, 2014. He noted a narrowed right femoracetabular joint with a joint space interval at
two millimeters and additional findings consistent with a moderate amount of degenerative
changes with osteophyte formation and subchondral sclerosis. Dr. Kung noted that appellant had
left total hip arthroplasty.
Appellant was also treated by Dr. Byron Hartunian, an orthopedic surgeon. In a
March 17, 2015 report, Dr. Hartunian related that appellant had worked as a letter carrier for the
employing establishment since April 1988. He described appellant’s employment duties as
requiring mostly walking, driving a truck while doing relay work, and repetitive lifting,
squatting, bending, stooping, twisting, climbing, and reaching activities. Dr. Hartunian noted
that appellant also had to lift, move, and carry up to 70 pounds. He related that appellant began
to experience left groin pain in the spring of 2012, but noted no particular trauma to his hips.
Dr. Hartunian discussed the medical treatment that appellant received and noted that a

3

January 17, 2014 x-ray scan showed marked osteoarthritis of the left hip and moderate
degenerative changes of the right hip. He indicated that appellant underwent left hip surgery on
March 12, 2014 and returned to full duty by the end of July 2014. Dr. Hartunian reported that
appellant’s left hip pain had greatly diminished since the surgery, but he still experienced pain,
mild stiffness, and restricted mobility in his right hip.
Upon physical examination of appellant’s left hip, Dr. Hartunian reported no tenderness
and no pain on flexion and rotation of the left hip. Examination of appellant’s right hip showed
palpable tenderness and pain on flexion and rotation. Dr. Hartunian diagnosed status post left
total hip arthroplasty for end-stage degenerative arthritis and right hip arthritis with moderate
narrowing of the superior femoroacetabular joint. He reported that appellant had reached
maximum medical improvement of the left total hip replacement on August 19, 2014 and of his
left hip arthritis on January 17, 2014. Dr. Hartunian discussed the medical condition of arthritis
and the stresses that accelerated the progression of arthritis. He referenced various studies,
which supported the case that appellant’s job duties was a causative contributive factor in the
development and progression of his lower extremity arthritis. Dr. Hartunian explained that the
studies supported appellant’s claim because “[appellant’s] job duties included the offending
activities cited in these studies as causative contributing factors to the development and
progression of lower extremity arthritis.”
In a letter dated April 27, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish his occupational disease claim. It requested that he respond to the
attached development questionnaire in order to substantiate the factual element of his claim and
submit additional medical evidence to establish that his alleged bilateral hip condition was
caused or aggravated by his employment. Appellant was afforded 30 days to submit the
requested information. OWCP issued a similar letter dated April 27, 2015 to the employing
establishment.
In a May 26, 2015 letter, counsel noted that the employment factors alleged to have
caused appellant’s injury were high-impact loading activities that exert repeated local stresses on
the lower extremities such as lifting, carrying, bending, twisting, stooping, and stair climbing.
He further alleged that Dr. Hartunian’s March 17, 2015 narrative report addressed the issue of
causation in clear and explicit detail. Counsel asserted that since appellant met the five basic
elements of his claim under FECA, OWCP should accept his claim.
OWCP received appellant’s response to its development letter. Appellant explained that
he had provided a detailed description of the employment-related activities he believed
contributed to his condition in a previous statement and the position description of a letter
carrier. He indicated that he had performed these activities each day for the past 27 years.
Appellant noted that his medical records also mentioned his complaints of pain with prolonged
sitting, prolonged walking, twisting, bending, and climbing stairs. He related that he was not
aware of the relationship between his bilateral hip condition and his employment until he was
examined by Dr. Hartunian. Appellant clarified that he was no longer receiving medical
treatment from Drs. Yee, Specht, or Lynch and considered Dr. Hartunian to be his treating
physician.

4

OWCP referred appellant’s claim, along with a statement of accepted facts (SOAF) and a
copy of the medical record, to Dr. Christopher B. Geary, a Board-certified orthopedic surgeon,
for a second opinion examination to determine whether appellant’s federal work duties caused,
aggravated, or accelerated appellant’s underlying degenerative hip conditions. The SOAF
provided a detailed list of the accepted physical duties, activities, and requirements performed by
appellant in his position of letter carrier.
In a September 14, 2015 narrative report, Dr. Geary noted that he reviewed the SOAF
and the medical record. He related that appellant had worked as a letter carrier for the employing
establishment and complained of left hip pain since 2012. Dr. Geary discussed the medical
treatment that appellant received and noted that he underwent left hip surgery on
March 12, 2014. Upon physical examination of appellant’s right hip, he reported no tenderness
to palpation and no pain throughout range of motion. Dr. Geary indicated that appellant had full
motor strength throughout the right hip. Examination of appellant’s left hip revealed a wellhealed surgical incision on the anterior aspect of the leg consistent with his previous anterior hip
approach. Dr. Geary provided range of motion findings and noted no pain and full motor
strength. He reported that appellant’s bilateral hip osteoarthritis was a chronic preexisting
degenerative condition, which was not caused by his work-related activities. Dr. Geary further
explained that appellant’s right hip arthritis was temporarily aggravated by his work conditions.
He opined that appellant’s temporary aggravation would cease within one month after ceasing
work-related activities. Regarding appellant’s left hip, Dr. Geary indicated that appellant’s work
activities, as set forth in the SOAF, permanently aggravated appellant’s preexisting osteoarthritis.
He explained that the left hip was a permanent aggravation as appellant had to undergo left total
hip arthroplasty surgery.
OWCP accepted appellant’s claim for permanent aggravation of left hip osteoarthritis and
temporary aggravation of right hip osteoarthritis, based on the second opinion report of
Dr. Geary.4
On September 6, 2016 appellant, through counsel, requested reconsideration and asserted
that he had sustained a permanent aggravation of right hip osteoarthritis. In an attached
memorandum, counsel alleged that it was error to give any probative value to the second opinion
physician’s speculative opinion that the aggravation of appellant’s right hip osteoarthritis “would
cease.” He cited various decisions where the Board rejected a medical opinion because it was
speculative. Counsel also asserted that it was erroneous for Dr. Geary to label the aggravation of
appellant’s right hip osteoarthritis as “temporary” since OWCP’s procedures defined a
permanent aggravation as a condition that would persist indefinitely. He noted that Dr. Geary
concluded that appellant’s right hip arthritis would cease when his work activities cease, but
indicated that appellant has no plans to stop work so it was indefinite for how long appellant’s
work activities, and consequently his right hip osteoarthritis, would persist. Counsel alleged that

4

On November 9, 2015 OWCP received appellant’s request, through counsel, for an oral hearing before an
OWCP hearing representative. By decision dated December 2, 2015, it denied appellant’s request for an oral
hearing as it was not timely filed within 30 days of the October 6, 2015 OWCP decision. OWCP exercised its
discretion and determined that appellant’s claim could equally well be addressed by requesting reconsideration and
submitting evidence not previously considered by OWCP.

5

Dr. Hartunian’s reports explained quite clearly that appellant’s right knee arthritis was
permanently aggravated by his work activities.
In a narrative statement, appellant explained that he had worked as a full-time, full-duty
letter carrier since 1988 and that all his routes were either walking or park and loop routes. He
noted that he continued to work as a letter carrier, despite the constant right hip pain. Appellant
provided a detailed discussion of how he performed his work duties and the physical
requirements of his job. He reiterated that his work-related activities had not ceased and
explained that as he had no present plans to retire, his right hip osteoarthritis would continue
indefinitely.
Appellant submitted an August 30, 2016 report by Dr. Hartunian. Dr. Hartunian
explained that osteoarthritis no longer had a natural progression or ordinary course and was not
considered a disease of aging, citing to a scholarly article. He indicated that referring to the
“natural course” of osteoarthritis was outdated and inconsistent with the current state of medical
knowledge. Dr. Hartunian reported:
“Due to the nature of the disease, all aggravations of arthritis were and must be
permanent. Degenerative arthritis (it is called ‘degenerative’ for a reason) is the
loss of articular cartilage. Aggravation of arthritis contributes to the deterioration
of the articular cartilage. Once lost, the articular cartilage can never be regained,
i.e., revert back to a decreased level of severity.”
By decision dated February 7, 2017, OWCP denied modification of its October 6, 2015
decision. It found that the medical evidence of record was insufficient to establish that he
sustained any additional conditions as a result of factors of his federal employment.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5 To establish causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a causal relationship.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
5

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

6

identified by the employee.8 Neither the fact that a disease or condition manifests itself during a
period of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.9
ANALYSIS
OWCP accepted appellant’s claim for permanent aggravation of left hip osteoarthritis and
temporary aggravation of right hip osteoarthritis. On September 6, 2016 appellant, through
counsel, requested reconsideration, alleging that he had established a permanent aggravation of
right hip osteoarthritis.
The Board finds that the case is not in posture for decision.
In support of his claim appellant submitted medical reports from his attending physician,
Dr. Hartunian, who addressed the impact of appellant’s employment duties on his bilateral hip
conditions. In a March 17, 2015 report, he accurately described appellant’s employment duties
as a letter carrier for the employing establishment. Dr. Hartunian noted that appellant began to
experience left groin pain in the spring of 2012 and discussed the medical treatment that
appellant had received. He related that appellant was diagnosed with left hip osteoarthritis,
which resulted in left hip surgery on March 12, 2014, and subsequent degenerative changes of
the right hip. Dr. Hartunian reported examination findings of palpable tenderness and pain on
flexion and rotation. He opined that appellant’s job duties were “causative contributing factors
to the development and progression of lower extremity arthritis.”
OWCP thereafter undertook further development of appellant’s claim by referring him to
Dr. Geary for a second opinion evaluation. In his September 14, 2015 report, Dr. Geary opined
that appellant sustained a permanent aggravation of left hip osteoarthritis and a temporary
aggravation of right hip osteoarthritis causally related to his federal employment. He related that
appellant had worked as a letter carrier for the employing establishment and noted his review of
the SOAF. Dr. Geary indicated that appellant had complained of left hip pain since 2012 and
discussed the medical treatment he had received, but noted that he had no work-related injury to
either hip. Upon physical examination of appellant’s right hip, he reported no tenderness to
palpation and no pain throughout range of motion. Dr. Geary provided an opinion that
appellant’s right hip arthritis was temporarily aggravated by his employment, but provided no
explanation or basis for such a conclusory opinion.10 The Board finds that while Dr. Geary
provided an opinion on his own physical examination findings, he premised his opinion on the
fact that appellant did not have a prior work-related injury which would have precipitated his
arthritic condition. He was provided with a detailed SOAF which noted all of the accepted
duties, activities, and requirements of the letter carrier position, but Dr. Geary did not provide

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

Jennifer Atkerson, 55 ECAB 317 (2004).

10

J.D., Docket No. 14-2016 (issued February 27, 2015) (a mere conclusory opinion provided by a physician,
without the necessary rationale explaining how and why the work factors were insufficient to result in diagnosed
medical conditions, is insufficient to be granted the weight of the evidence).

7

any medical rationale as to how or why those specific employment duties were insufficient to
cause or permanently aggravate the right hip arthritis.11
Appellant also submitted an August 30, 2016 report, in which Dr. Hartunian responded to
Dr. Geary’s report by citing various scholarly articles and indicating that osteoarthritis was no
longer considered a condition with a natural progression or ordinary course. Dr. Hartunian
reported that “due to the nature of the disease, all aggravations of arthritis were and must be
permanent.” However, he provided little medical rationale to explain how the medical articles he
cited had application to appellant’s particular situation.12 Dr. Hartunian only provided a
generalized statement that all aggravations of arthritis were permanent. Generalized statements
are, however, of little probative value.13 He also did not provide a sufficient medical explanation
of how or why appellant had sustained a permanent aggravation of right hip osteoarthritis as a
result of factors of the accepted duties of his federal employment. Dr. Hartunian’s reports,
therefore, are insufficient to establish appellant’s claim.
The remaining medical evidence of record does not provide any opinion on the issue of
whether appellant has a permanent right hip injury causally related to factors of his federal
employment. In reports dated December 3, 2012 and March 4, 2013, Dr. Lynch related
appellant’s complaints of left groin and hip pain. He provided examination findings and noted
diagnosis of early degenerative left hip arthritis. The Board notes that Dr. Lynch’s reports only
pertain to appellant’s left hip condition, and provided no diagnosis or discussion regarding
appellant’s right hip osteoarthritis condition. Accordingly, these reports fail to establish
appellant’s claim.14 Likewise, Dr. Yee’s November 26, 2012 report, Dr. Specht’s January 17 and
March 3, 2014 reports, and Dr. Kung’s February 20, 2015 radiology report also documented
medical treatment for appellant’s left hip, but did not contain any diagnosis or discussion of
appellant’s permanent aggravation of right hip osteoarthritis condition.15
Appellant also submitted various diagnostic examination reports. In Dr. McKee’s
March 3, 2014, Dr. Larsen’s April 29, 2014, and Dr. Uppin’s August 19, 2014 x-ray reports, the
physicians noted diagnoses of degenerative changes of appellant’s right hip. While the
diagnostic reports contained diagnoses of appellant’s right hip degenerative condition, none of
the physicians opined whether appellant’s degenerative changes were permanent or whether his
condition resulted from appellant’s employment duties. As these diagnostic reports do not
address the issue of temporary or permanent aggravation, and causal relationship, they are of
limited probative value.16
11

R.M., Docket No. 16-0147 (issued June 17, 2016).

12

See J.H., Docket No. 17-0248 (issued May 10, 2017).

13

See generally M.M., Docket No. 14-1488 (issued November 19, 2014).

14

See generally I.D., Docket No. 10-2312 (issued July 25, 2011). To be of probative value a medical report must
diagnose a medical condition and discuss causal relationship.
15

Id.

16

See T.M., Docket No. 17-0068 (issued April 6, 2017).

8

Appellant was also treated by Ms. Torre, a certified physician assistant, who provided
examination notes dated April 29 to August 19, 2014. These notes, however, fail to establish
appellant’s claim because physician assistants are not considered physicians as defined under
FECA and their medical opinions regarding diagnosis and causal relationship are of no probative
value.17 Thus, the Board finds that appellant has not met his burden of proof.
After consideration of the medical evidence of record, the Board finds that although
Dr. Geary provided an opinion that appellant’s right hip arthritic condition was not a permanent
condition, his opinion was conclusory as he did not support his opinion with probative medical
rationale.18 Furthermore, he implied that because appellant had not sustained a prior traumatic
work injury that his arthritic condition could not have been aggravated due to his employment.
Dr. Geary did not specifically address how or why the accepted duties, activities, and
responsibilities of appellant’s federal employment, as set forth in the SOAF, were insufficient to
result in a permanent aggravation of his right hip condition, nor did he provide a well-reasoned
explanation as to how a progressed arthritic condition would be temporary in nature or return to a
baseline condition once aggravated.
It is well established that proceedings under FECA are not adversarial in nature and that
while the employee has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence in order to see that justice is done.19
Once OWCP undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.20 After undertaking
development by scheduling a second opinion examination with Dr. Geary on the issue of causal
relationship, OWCP was responsible for obtaining a rationalized medical opinion on this issue.
As Dr. Geary did not provide such a reasoned opinion, he should be requested to provide
probative medical rationale in support of his prior opinion relating to appellant’s right hip
condition. If he is unable or unwilling to do so, a new second opinion examination should be
scheduled in accordance with OWCP procedures.21
17

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). Section 8102(2) of FECA provides that the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law. See also K.A., Docket No. 161330 (issued December 28, 2016) a physician assistant is not a “physician” under FECA.
18

Supra note 11.

19

Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

20

See B.C., Docket No. 15-1853 (issued January 19, 2016).

21

OWCP’s procedures provide that, if a second opinion specialist submits an opinion which is equivocal, lacks
rationale, or fails to address the specified medical issues, the claims examiner should seek clarification or further
rationale from that physician. When OWCP undertakes to develop the evidence by referring the case to an Officeselected physician, it has an obligation to seek clarification from its physician upon receiving a report that did not
adequately address the issues that OWCP sought to develop. As such, the claims examiner should seek clarification
from the referral physician and request a supplemental report to clarify specifically-noted discrepancies or
inadequacies in the initial second opinion report. Only if the second opinion physician does not respond, or does not
provide a sufficient response after being asked, should the claims examiner request scheduling with another
physician. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.9(j) (September 2010).

9

Following this and any necessary further development on this issue of causal relationship,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this opinion of the Board.
Issued: January 3, 2018
Washington, DC

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

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

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

10