United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TANK COMMAND AUTOMOTIVE
ARMAMENT COMMAND, Warren MI,
Employer
__________________________________________

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

Docket No. 10-1528
Issued: April 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 18, 2010 appellant filed a timely appeal from the April 23, 2010 decision of the
Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an emotional condition in the performance of duty.
FACTUAL HISTORY
On March 19, 2009 appellant, then a 41-year-old traffic management specialist, filed an
occupational disease claim alleging that he developed an emotional condition due to being
1

5 U.S.C. § 8101 et seq.

harassed by coworkers and his supervisor and being overworked and understaffed. He became
aware of his condition and realized it was caused by his work on January 9, 2009. Appellant
stopped work on January 9, 2009 and returned to work on April 13, 2009.
On May 8, 2009 the Office asked appellant and the employing establishment to provide
additional evidence.
In a March 23, 2009 statement, appellant alleged that he was passed over for promotions
in favor of less qualified people. In 2001, Walt Shaffer was promoted to transportation
supervisor and in 2003 Thomas Hinkley was promoted to supervisor but neither candidate had
experience and relied on appellant to resolve problems. In 2004, appellant was assigned two
interns to train without assistance and was also passed over for promotion when Mr. Hinkley
hired another candidate. In 2005, he was given the responsibilities of a retired team leader due to
his experience. When appellant was later made team leader, his job description did not change.
In March 2006, he applied for a transportation and packaging supervisor position but the job was
abolished. In November 2006, Edward Woolverton became the transportation section head and
promoted Marlene Koedding to a Grade 13 logistics management specialist although neither was
qualified. In December 2006, coworker Ray Hasenyager harassed appellant about taking leave
and in a February 2007 team meeting Mr. Hasenyager called him a bully and turned the team
members and Ms. Koedding against him. Appellant alleged that in April 2007 Mr. Hasenyager
mocked him and other team members failed to cooperate with him. In August 2007,
Ms. Koedding assigned him another project and he expressed concern about being overwhelmed
with new missions and staff shortages. In October 2007, Beth Nickell became the head of the
transportation unit and appellant stated that she was unqualified. She made him team leader but
did not change his job description or provide him with instructions on his new duties. On
October 20, 2007 appellant applied for a traffic management specialist job but another candidate
was selected. He asserted that, in October and November 2007, Ms. Nickell and Anna Morris
gave him assignments without guidance or assistance. On January 17 and 18, 2008 appellant
requested his performance standards but Ms. Nickell did not provide mid-term counseling on the
standards until June 16, 2008, eight months after they were due. He alleged that the standards
were written so that he could not exceed them. Appellant asserted that, on January 18, 2008, a
coworker, was assigned to a special project which left appellant’s unit with only two staff
members such that he had to request overtime to complete his duties.
Appellant alleged that, in March 2008, he interviewed for a job and the interviewer stated
that Mr. Woolverton told him that appellant was “very confrontational.” He asserted that he was
not hired because of Mr. Woolverton’s remark. Appellant stated that, on March 18, 2008, he
received conflicting instructions from Ms. Nickell and Ms. Morris about attending mandatory
training and completing other assigned tasks. On June 13, 2008 he requested a desk audit to
obtain a promotion but Mr. Woolverton refused to authorize the audit. Appellant alleged that, on
June 23 and July 14, 2008, he applied for a supervisory position but the position was cancelled.
On September 22, 2008 he requested a transfer but the transportation manager noted having no
power to transfer appellant. Appellant stated that, in the fall 2008, Mr. Woolverton pounded his
hand on his desk and yelled at him in front of team members and later apologized. He noted
that, in November 2008, appellant was assigned two new people to train and was overwhelmed.
In January 2009, he noted planning a luncheon for a retiring colleague but supervisors did not
attend. Appellant stated that, when the coworker left, he had no help and performed all the work

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in a five-person office. He asserted that after he filed several grievances Mr. Woolverton
cancelled job announcements and wrote announcements so that appellant would not qualify.
Appellant submitted treatment notes from a social worker who noted that he could not
work from January 29 to March 17, 2009. He was treated by Dr. Pedor Opochinsky, a Boardcertified psychiatrist, on April 10, 2009 for job-related stress. Appellant diagnosed major
depression and adjustment disorder with mixed emotions.
The employing establishment submitted an April 20, 2009 statement from
Mr. Woolverton who asserted that all of appellant’s duties were reflected in his position
description. Mr. Woolverton noted that many organizational changes occurred during the
realignment of personnel staffing to comply with impending base realignment and closure
restructuring. He noted that appellant erroneously perceived the changes to be against him
personally. In an August 5, 2009 statement, Mr. Woolverton noted that in 2006 Ms. Morris
realigned the teams which resulted in Mr. Shafer being moved to team leader. No position was
abolished as alleged by appellant. Mr. Woolverton noted that there were personality conflicts in
the transportation team that he believed resulted from appellant’s strong personality, which was
not appreciated by others. He noted that Mr. Hasenyager took a downgrade to get away from
appellant. Mr. Woolverton noted that another reorganization occurred in 2007 and Ms. Morris
internally reorganized and assigned the transportation mission to Ms. Nickell and temporarily
promoted Ms. Koedding to chief of inventory. With regard to appellant’s allegation that he
spoke disparagingly of appellant to an administrative interviewer, Mr. Woolverton denied
knowing or speaking to the interviewer. Mr. Woolverton noted assuming the duties of the asset
management group on April 1, 2008 and the position of transportation supervisor was relocated
and restructured to reduce the high supervisor to employee ratio within the group. He noted that
appellant requested a desk audit in June 2008, to obtain a promotion but he denied this request
noting that it was unnecessary because this was a new position with a new job description and
not an expansion of appellant’s job duties. Mr. Woolverton noted that appellant filed a union
complaint about the cancellation of a job announcement, but Mr. Woolverton explained that the
position was cancelled because it was improperly coded.
With regard to the allegation that Mr. Woolverton pounded on a desk, he noted that in
October 2008 he confronted appellant for failure to complete an assignment and slapped the top
of appellant’s desk to get his attention. He denied pounding on the desk. Mr. Woolverton noted
that appellant failed to attend a meeting of high priority, without informing his supervisors. He
denied appellant’s assertion that he worked with only one other staff member and noted that
from December 2008 to January 2009 appellant had two coworkers to assist in the unit and when
a coworker retired another person was hired in January 2009. Mr. Woolverton noted that at no
time were there less than three employees on board. With regard to appellant’s allegation about
supervisors not attending a retirement luncheon, Mr. Woolverton noted that the retiring
employee informed management that she did not want a luncheon. He further noted that
appellant was not given any additional assignments, all his assignments were normal
transportation mission requirements and appellant was very adept at completing his work.
Mr. Woolverton noted that current statistics from April to July 2009 revealed appellant
completed his assignments 67 percent of the time.

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On August 28, 2009 appellant indicated that he could not provide additional witness
statements as coworkers had retired or were reassigned. He submitted an April 16, 2007 e-mail
from Ms. Koedding to Mr. Woolverton, who noted that the traffic management specialist did not
cooperate with appellant as team leader and failed to provide status reports and summaries when
requested. Ms. Koedding further noted that appellant was mocked by a coworker. Appellant
submitted a January 20, 2009 Equal Employment Opportunity (EEO) complaint alleging that he
was discriminated against because of his age and subjected to reprisals for prior EEO activity
and grievances filed. In an EEO witness statement, Mr. Woolverton denied discriminating
against appellant. He further noted that he did not cancel three vacancy announcements based on
appellant filing grievances; rather, the vacancies were cancelled because they had the wrong
career program designator, there was a lack of qualified candidates and an incorrect job title and
occupational series were noted. Mr. Woolverton stated that he did not add duties to an
announcement to purposefully disqualify appellant from a vacant position nor did he preselect
candidates for a position. In an August 31, 2009 e-mail, Ms. Koedding recalled a February 2007
staff meeting where there were unfriendly words between appellant and Mr. Hasenyager but she
did not remember the exact words.
In a decision dated October 23, 2009, the Office denied appellant’s claim finding that the
claimed emotional condition did not occur in the performance of duty.
On October 27, 2009 appellant requested a telephonic hearing which was held on
February 16, 2010. He submitted a copy of his March 23, 2009 statement and a note from
Dr. Opochinsky, both previously of record.
In an April 23, 2010 decision, the hearing representative affirmed the October 23, 2009
Office decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.2
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Act.3 On the other hand the disability is not covered

2

George H. Clark, 56 ECAB 162 (2004).

3

5 U.S.C. §§ 8101-8193.

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where it results from such factors as an employee’s fear of a reduction-in-force or his frustration
from not being permitted to work in a particular environment or to hold a particular position.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS
When disability results from an emotional reaction to regular or specially assigned work
duties or a requirement imposed by the employment, the disability is deemed compensable.7
Appellant did not clearly allege that specific work duties caused his emotional condition. He
alleged that his claimed condition arose because he was overworked and understaffed. Appellant
stated that, the transportation staff normally consisted of five people but on January 18, 2008, his
unit was left with only two members and he asserted that, January 2009, after a coworker’s
retirement he performed all of the work in a five-person office. The Board has held that
overwork, when substantiated by sufficient factual information to corroborate appellant’s
account of events, may be a compensable factor of employment.8 However, the record does not
substantiate his contentions that he was overworked or understaffed. In an August 5, 2009
statement, Mr. Woolverton noted that although the transportation team normally consisted of five
people, the agency was also restructuring and that at no time were there less than three
employees in the unit. He also stated that appellant was not given any additional assignments, all
his assignments were normal transportation mission requirements that fell within his job
description and that appellant was very adept at completing his work. The Board finds that the
evidence is insufficient to establish overwork allegations as Mr. Woolverton explained the
staffing variations and advised that appellant was not given additional duties. Thus, this is not a
compensable factor.
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,9 the Board held that an employee’s emotional reaction to administrative
4

See Lillian Cutler, 28 ECAB 126 (1976).

5

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

6

Id.

7

Penelope C. Owens, 54 ECAB 684 (2003); see Lillian Cutler, supra note 4.

8

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

9

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

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actions or personnel matters taken by the employing establishment is not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
the Act would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.10
Appellant asserted that he was passed over for a promotion a number of times and people
of lesser qualifications were selected. He noted that there was a general lack of promotion
potential in his unit and that promotion announcements were mishandled by his supervisor.
Appellant stated that, on June 13, 2008, he requested a desk audit to obtain a promotion but
Mr. Woolverton refused to authorize the audit and on September 22, 2008 he sought a transfer
which was denied. The granting or denial of a request for a transfer and the assignment to a
different position are administrative functions that are not compensable factors of employment
under the Act, absent error or abuse, as they do not involve appellant’s ability to perform her
regular or specially assigned work duties but rather constitute appellant’s desire to work in a
different position.11 Appellant has not established a compensable employment factor in this
regard.
Mr. Woolverton’s April 20 and August 5, 2009 statements, noted that many
organizational changes and staff realignment occurred due to impending base realignment and
closure restructuring that affected job vacancies. He explained that no position was abolished to
avoid giving appellant a promotion and explained that some jobs were eliminated due to
reorganization or to reduce the high supervisor to employee ratio. Mr. Woolverton explained
that he denied appellant’s request for a desk audit, as it was unnecessary because this was a new
position with a new job description and not a change in appellant’s duties. He denied making
disparaging remarks in March 2008 about appellant to a potential employer and there is no
evidence otherwise supporting appellant’s assertion. Appellant has presented no corroborating
evidence to support that the employer acted unreasonably with regard to his promotion and
transfer requests.
Appellant alleged that in 2004 and November 2008, he was assigned two interns to train
without assistance and in 2005 and 2007 he was given all the responsibilities of the team leader
but his position description was not changed to reflect his new duties. In August 2007, he
alleged that Ms. Koedding assigned him a project and he expressed concern about being
overwhelmed with new missions and inadequate staffing. In October and November 2007,
appellant alleged that Ms. Nickell and Ms. Morris gave him missions to complete without
guidance or assistance. The Board notes that the assignment of work is an administrative
function12 and the manner in which a supervisor exercises his or her discretion falls outside the
10

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

11

Id.; see also Peter D. Butt Jr., 56 ECAB 117 (2004). The Board has also held that the failure to be promoted is
not compensable as it does not involve the employee’s ability to perform his regular or specially assigned duties, but
constitutes the employee’s desire to work in a different position. C.S., 58 ECAB 137 (2006).
12

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

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ambit of the Act. Absent evidence of error or abuse, appellant’s mere disagreement or dislike of
a managerial action is not compensable.13 The Board finds that she has not offered sufficient
evidence to establish error or abuse regarding his work assignments. The evidence does not
establish that the employing establishment acted unreasonably in assigning work. In an April 20,
2009 statement, Ms. Woolverton noted that appellant’s position description reflects that all
assigned duties were within his description. He further noted that appellant was not given any
additional assignments.
Appellant asserted that on January 17 and 18, 2008, he requested his performance
standards from his supervisor, Ms. Nickell and she failed to provide mid-term counseling on the
standards until June 16, 2008, eight months after they were due. He further alleged that the
standards were written in a way that he could never have exceeded them. Appellant also alleged
that he received conflicting instructions from Ms. Nickell and Ms. Morris on March 18, 2008
regarding attending a mandatory training and completing other assigned tasks. The Board has
found that an employee’s complaints concerning the manner in which a supervisor performs his
duties as a supervisor or the manner in which a supervisor exercises his supervisory discretion
fall, as a rule, outside the scope of coverage provided by the Act. This principle recognizes that
employees will at times dislike the actions taken by their supervisors, but that mere disagreement
or dislike of a supervisory or management action will not be actionable, absent evidence of error
or abuse.14 The Board has also held that the handling of evaluations is generally related to the
employment, it is an administrative function of the employer and not a duty of the employee.15
Appellant presented no corroborating evidence to support that the employer’s actions in these
matters rose to the level of compensable error or abuse. There is no evidence substantiating that
the employer acted unreasonably in these matters.
Appellant alleged that he was harassed by management and coworkers. He asserted that
Mr. Hasenyager harassed him about using leave, called him a “bully” during a February 2007
team meeting, mocked him and turned the other team members against him. Appellant alleged
that, after filing grievances, Mr. Woolverton cancelled job announcements, wrote job
announcements so that appellant would not qualify and sabotaged a job opportunity by making
disparaging remarks about appellant to the interviewer. He also stated that, in 2008,
Mr. Woolverton pounded his hand on his desk and yelled at him in front of other team members.
As noted above, matters related to promotions and job assignments are administrative in
nature and appellant did not establish that the employer acted unreasonably in these matters.
With regard to the other matters alleged, to the extent that incidents alleged as constituting
harassment by a supervisor are established as occurring and arising from appellant’s performance
of his regular duties, these could constitute employment factors.16 However, for harassment to
13

See Peter D. Butt Jr., supra note 11 (allegations such as improperly assigned work duties, which relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned work duties do not fall
within the coverage of the Act); see Barbara J. Latham, 53 ECAB 316 (2002).
14

See Marguerite J. Toland, 52 ECAB 294 (2001).

15

See supra note 11.

16

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

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give rise to a compensable disability under the Act, there must be evidence that harassment did
in fact occur. Mere perceptions of harassment are not compensable under the Act.17
The factual evidence does not support appellant’s claim of harassment. Appellant noted
filing an EEO claim for harassment and discrimination but the Board has held that grievances
and EEO complaints, by themselves, do not establish that workplace harassment or unfair
treatment occurred.18 None of the information submitted by him regarding EEO matters showed
that the employer acted improperly. Appellant submitted an e-mail from Ms. Koedding dated
April 16, 2007 who noted that the traffic management specialists did not cooperate with
appellant as team leader, failed to provide status reports and summaries and mocked appellant.
The Board notes that it is unclear how this general mention of lack of cooperation and mocking
rises to the level of compensable harassment. It is unclear what statements were made to mock
appellant, what the lack of cooperation entailed and the duration of such actions. Ms. Koedding
recalled a meeting in February 2007 where there were unfriendly words between appellant and
Mr. Hasenyager but she did not remember exactly what was stated. Likewise, Mr. Woolverton
denied harassing or discriminating against appellant. He further denied that he disparaged
appellant to an interviewer. The evidence is insufficient to establish these matters as
compensable work factors.
To the extent appellant is alleging that he was verbally abused by Mr. Haysenger or
Mr. Woolverton, the Board has generally held that being spoken to in a raised or harsh voice
does not of itself constitute verbal abuse or harassment.19 The records support that
Mr. Woolverton slapped appellant’s desk to get his attention and spoke frankly regarding
appellant’s failure to attend a priority meeting but this is insufficient, by itself, to warrant a
finding that the matters amounted to verbal abuse.20 Mr. Woolverton provided a reasonable
explanation for his actions. He denied acting inappropriately in the matter and also explained
that appellant’s strong personality was the reason for conflicts and that Mr. Haysenger took a
voluntary downgrade to get away from appellant. Appellant did not otherwise submit evidence
to support that Mr. Woolverton’s or Mr. Haysenger’s actions constituted verbal abuse.
Consequently, appellant has not established his claim for an emotional condition as he
has not attributed his claimed condition to any compensable employment factors.21
CONCLUSION
The Board finds that appellant did not establish that he sustained an emotional condition
in the performance of duty.
17

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence). Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).
18

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

19

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

20

Peter D. Butt Jr., supra note 11.

21

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the April 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 08-387
Issued: June 6, 2008

Case Submitted on the Record

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

JURISDICTION
On November 19, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated March 7 and August 15, 2007, which terminated
her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective March 7, 2007 on the grounds that she no longer had any residuals or disability causally
related to her accepted right carpal tunnel syndrome and cubital tunnel syndrome; and
(2) whether she had any continuing employment-related residuals or disability after
March 7, 2007.
FACTUAL HISTORY
On December 6, 1996 appellant, then a 34-year-old mail processing clerk, filed a claim
for an occupational disease assigned number 09-0423792. On August 22, 1996 she first became

aware of pain in her right hand and arm which resulted from working on a machine and lifting
trays. By decision dated April 9, 1997, the Office denied appellant’s claim. Appellant did not
submit any medical evidence establishing that she sustained an injury in the performance of duty.
In an April 30, 1997 letter, appellant requested reconsideration. By decision dated
May 9, 1997, the Office set aside the April 9, 1997 decision, finding that appellant sustained an
injury in the performance of duty. On May 9, 1997 the Office also accepted appellant’s claim
for right carpal tunnel syndrome.1 On July 8, 1997 it authorized right carpal and ulnar tunnel
release which was performed on July 29, 1997 by Dr. Jerrold A. Laskin, an attending surgeon.2
By letter dated March 17, 2006, the Office requested that appellant submit a medical
report from an attending physician which addressed whether she had any continuing residuals or
disability causally related to her accepted condition. Also on March 17, 2006 the Office
accepted appellant’s claim for right cubital tunnel syndrome.
On March 27, 2006 appellant advised the Office that she was not under the care of any
physician. By letter dated April 7, 2006, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions, to Dr. Mark J. Janicki, a Board-certified
neurologist, for a second opinion medical examination. Dr. Janicki was asked to provide
appellant’s current diagnoses and determine whether she could return to her regular work duties,
40 hours per week without restrictions and whether she had any permanent impairment based on
the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001).
In a May 2, 2006 medical report, Dr. Janicki reviewed a history of appellant’s accepted
employment-related injuries and medical treatment. On physical and motor examination, he
reported:
“[Appellant] appeared in no acute distress. Her higher cortical functions and
organic sensorium appeared to be intact. [Appellant] had full range of motion of
her head and neck. No tender or trigger points were encountered. Adson’s
maneuver was negative. Speech was clear. No cervical or supra infraclavicular
were appreciated. Cranial nerves all appeared to be intact. Specifically there was
no Horner’s syndrome. More specifically, upper extremity examination did not
reveal any obvious atrophy. [Appellant’s] muscle bulk appeared to be good
throughout her arms and distally into her hands bilaterally. No tremor or
involuntary movements were noted. Muscle tone was normal and symmetrical.
No trigger points were elicited at the cubital tunnel. Tinel’s was negative,
1

Appellant stopped working at the employing establishment on June 27, 1997. On October 4, 1999 she began
working in for a private employer. On October 3, 2004 appellant became a youth worker.
2

On December 18, 1998 appellant filed another claim for an occupational disease assigned number 09-0449414.
She alleged that on November 1, 1997 she first became aware of her left carpal tunnel syndrome and first realized
that it was caused by her former federal employment. By decision dated March 11, 1999, the Office denied the
claim. It found the evidence of record insufficient to establish that appellant sustained an injury in the performance
of duty. On March 27, 2006 the Office doubled this claim and the instant claim into a master claim assigned number
09-0423792.

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however, Phalen’s did cause some paresthesias and discomfort again only in her
little finger. Motor examination revealed good strength in her upper extremities.
Muscles tested included the biceps, triceps, deltoid, pronator teres, wrist flexors
and extensors, abductor pollicis brevis, first dorsal interosseous and abductor
digiti minimal. No obvious or major strength loss was noted. Sensory
examination to pinprick and light touch did not reveal any abnormalities at this
time.
Reflexes at biceps, triceps and brachioradials were normal and
symmetrical.”
Dr. Janicki stated that he was unable to identify much pathology on examination. He
reviewed a March 2002 electromyogram (EMG) and nerve conduction velocity (NCV) study and
recommended a repeat study. Dr. Janicki opined that appellant probably had a certain amount of
discomfort in her hand and arm but he did not find much neuropathology at the time of his
examination. He stated that some of her description may be related more to tendinitis or even
bursitis. Dr. Janicki concluded that additional testing was necessary to respond to the Office’s
questions.
On August 25, 2006 Dr. Janicki performed an EMG and NCV study. They were reported
as normal and there was only slight/minimal prolongation of the median palmar sensory latency.
Dr. Janicki stated that this was typically not symptomatic of carpal tunnel. He did not identify
any other neurogenic lesions in the right upper extremity.
In a November 14, 2006 report, Dr. Janicki stated that he was unable to provide a specific
diagnosis for appellant’s right hand/arm condition either electrophysically or clinically by his
examination. He stated that there may be some evidence of tendinitis or bursitis involving the
pain in her right hand/arm. Dr. Janicki was not able to totally determine whether appellant could
return to work at that time. He believed that she was experiencing some discomfort unrelated to
neuropathology. From a neurological standpoint, appellant did not have any limitations in her
motion or any limitations that could be brought on by what aggravated her pain. She did not
have any neuropathology causing her pain. Dr. Janicki concluded that he could not rate any
impairment to appellant’s right arm. He concluded that he was not qualified to judge whether
she had pain from another source such as an orthopedic condition, i.e., tendinitis or bursitis.
On December 7, 2006 the Office requested that Dr. Janicki clarify whether appellant had
any residuals of her accepted conditions. It again asked him to determine whether she could
return to her regular work duties, 40 hours per week.
In a supplemental report dated December 21, 2006, Dr. Janicki opined that appellant did
not have any residuals of her employment-related right carpal tunnel or cubital syndrome based
on his physical and objective findings. He opined that she could return to work duties as a mail
processor, 40 hours per week.
By letter dated January 25, 2007, the Office issued a notice of proposed termination of
compensation based on Dr. Janicki’s medical opinion. It provided 30 days in which appellant
could respond.

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Appellant submitted a February 22, 2007 report of Dr. David Steiman, a Board-certified
internist, who reviewed a history of her employment-related right carpal tunnel syndrome and
medical treatment. Dr. Steiman was not sure what happened over the last 10 years with regard to
appellant’s right hand condition but stated that she did not satisfactorily recover from it. On
physical examination, he reported a slight decrease to pinprick on the right hand consistent with
a median nerve problem versus C6 radiculopathy. Reflexes were decreased but symmetrical of
the biceps and triceps. Motor examination showed a global weakness in the right upper
extremity. Appellant had no focal weakness. She had a weak grip and opponens pollicis, and
weakness in the biceps and triceps. Dr. Steiman initially thought appellant simply had a
neuralgia-type problem or causalgia in the nerve that never fully recovered from surgery as
apposed to the possibility of radiculopathy at C6 which caused pain in her arm and hand. He
stated that her examination was not simply focal as the August 25, 2006 EMG/NCV study
seemed to rule that out. Dr. Steiman related that appellant had a positive Tinel’s sign over the
right median nerve but he thought it may have been old.
By decision dated March 7, 2007, the Office terminated appellant’s compensation
benefits effective that date. It accorded weight to Dr. Janicki’s medical opinion. On March 27,
2007 appellant requested a review of the written record by an Office hearing representative.
In a July 12, 2007 form report, Dr. Laskin stated that appellant suffered from right cubital
tunnel syndrome. He indicated with an affirmative mark that the diagnosed condition was
caused by an employment activity. Dr. Laskin could not list the period of appellant’s total
disability.
By decision dated August 15, 2007, an Office hearing representative affirmed the
March 7, 2007 decision. The hearing representative found that Dr. Janicki’s medical opinion
represented the weight of the medical opinion evidence.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits based on the opinion of Dr. Janicki, a referral physician, who reviewed a
history of appellant’s employment-related right carpal tunnel syndrome and cubital tunnel
syndrome. Dr. Janicki reported essentially normal findings on physical examination and noted
3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

that diagnostic studies of the right upper extremity were essentially normal. He opined that
appellant no longer had any residuals or disability due to her accepted employment-related
injuries. Dr. Janicki explained that there were no physical or objective findings of residuals or
disability causally related to the accepted conditions. He concluded that appellant could perform
her regular work duties as a mail processor, 40 hours per week.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.5 Dr. Janicki fully discussed the history of injury and explained
that there were no objective findings to establish that appellant had any continuing employmentrelated residuals or disability. The Board finds that his opinion is detailed, well rationalized and
based upon a complete and accurate history. The Board finds that Dr. Janicki’s opinion
represents the weight of the medical evidence. It establishes that appellant no longer has any
residuals or disability causally related to her employment-related right carpal tunnel syndrome
and cubital tunnel syndrome. The Office met its burden of proof to terminate compensation.
Dr. Steiman’s report stated that appellant had continuing symptoms related to her right
hand and arm as she had not satisfactorily recovered from her employment-related right carpal
tunnel syndrome. He opined that a positive Tinel’s sign over the right median nerve “may” have
been old. Dr. Steiman’s opinion, however, that appellant’s positive Tinel’s sign may have been
old is speculative in nature. The Board has held that medical opinions which are speculative or
equivocal in character have little probative value.6 Further, Dr. Steiman did not specifically
relate his finding to the accepted employment-related conditions. The Board finds that
Dr. Steiman’s report is insufficient to overcome the weight accorded to Dr. Janicki’s medical
opinion.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.7 To establish a 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 factual and medical background, supporting such a causal
relationship.8 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.9 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
5

See Ann C. Leanza, 48 ECAB 115 (1996).

6

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
7

See Manuel Gill, 52 ECAB 282 (2001).

8

Id.

9

Elizabeth Stanislav, 49 ECAB 540 (1998).

5

whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
ANALYSIS -- ISSUE 2
The only medical evidence submitted by appellant regarding employment-related
residuals or disability after March 7, 2007 is Dr. Laskin’s July 12, 2007 report. Dr. Laskin
indicated with an affirmative mark that appellant’s right cubital tunnel syndrome was caused by
an employment activity. He did not list the period of her total disability. The Board finds that
Dr. Laskin’s report is insufficient to establish appellant’s claim as a report which only addresses
causal relationship with a checkmark without more by way of medical rationale explaining how
the incident caused the injury, is insufficient to establish causal relationship and is of diminished
probative value.11 Further, he did not identify any period of total disability due to appellant’s
accepted employment-related injuries.
The Board finds that appellant did not submit the necessary rationalized medical evidence
to substantiate that the claimed continuing residuals or disability on or after March 7, 2007 were
causally related to her accepted employment-related injuries.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
March 7, 2007 on the grounds that she no longer had any residuals or disability causally related
to her accepted employment-related right carpal tunnel syndrome and cubital tunnel syndrome.
The Board further finds that appellant failed to establish that she had any continuing
employment-related residuals or disability after March 7, 2007.

10

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

11

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

6

ORDER
IT IS HEREBY ORDERED THAT the August 15 and March 7, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-35
Issued: July 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 4, 2012 appellant, through his attorney, filed a timely appeal of a
September 28, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating compensation benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective April 8, 2012; and (2) whether appellant has met his burden of
proof to establish a consequential emotional condition.
On appeal counsel argued that the reports from the impartial medical examiner were not
sufficiently detailed or well reasoned to constitute the weight of the medical evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2009 appellant, then a 56-year-old mail handler, injured his head and neck
while driving a forklift in the performance of duty. OWCP accepted his claim for scalp
contusion and neck sprain by decision dated September 23, 2009.
In a report dated February 2, 2010, appellant’s attending physician, Dr. Richard J. Berger,
an osteopath, described the employment injury, noting that a truck pulled away while appellant
was still loading it with a forklift. This caused the forklift to fall off of the truck and appellant
struck his head on the top of the forklift. Appellant continued to have persistent neck pain and a
magnetic resonance imaging (MRI) scan confirmed a herniated cervical disc with spinal stenosis
aggravated by trauma. Dr. Berger diagnosed cervical radiculopathy. He opined that appellant
was totally disabled until March 1, 2010. Appellant underwent epidural steroid injections, but
did not return to work.
On October 21, 2010 OWCP referred appellant for a second opinion evaluation by
Dr. Robert Allen Smith, a Board-certified orthopedic surgeon. Appellant underwent a second
MRI scan on November 10, 2010 which demonstrated multilevel degenerative disc and joint
disease with multilevel central and foraminal stenosis. In a report dated November 19, 2010,
Dr. Smith described appellant’s employment injury and his accepted conditions. He examined
appellant’s neck and found no spasm, atrophy, trigger points or deformity. Dr. Smith stated that
appellant’s neurological examination was normal with no deficit or sign of radiculopathy and he
diagnosed degenerative disc disease of the neck. He opined that appellant’s accepted condition
had resolved and that he had no residuals due to these conditions. Dr. Smith found that appellant
could return to regular work. He further stated that there was no evidence that appellant’s
cervical degenerative disease was caused, aggravated, accelerated or precipitated by his July 29,
2009 employment injury.
Dr. Leonard A. Bruno, a Board-certified neurologist, examined appellant on
December 14, 2010. He diagnosed cervical degenerative joint disease with left foraminal
stenosis and left-sided C6 radiculitis. Dr. Bruno described appellant’s employment injury and
performed a physical examination. On January 6, 2011 he attributed appellant’s C5-6 disc
herniation to his July 29, 2009 employment injury as well as exacerbation and aggravation of
underlying cervical spondylosis. Dr. Bruno found that appellant had limited range of motion in
the cervical spine due to pain and stiffness. He recommended a two-level anterior cervical
discectomy and fusion.
OWCP found a conflict of medical opinion between Dr. Smith and Dr. Berger as to the
degree of appellant’s disability, the need for referral to a neurosurgeon and the necessity of
further treatment. It referred appellant, a statement of accepted facts and a list of questions to
Dr. E. Michael Okin, a Board-certified orthopedic surgeon, on February 2, 2011.
In a report dated February 22, 2011, Dr. Okin reviewed appellant’s history of injury.
Appellant reported constant aching in his neck radiating down to his left upper extremity.
Dr. Okin stated that, during the course of the interview process, appellant demonstrated
reasonably good fluidity of motion in his neck and was able to flex such that his chin almost
touched his chest, but that there was significant discordance on formal examination. He stated

2

that appellant had limited flexion and extension with a jerky motion and some symptom
magnification as well as no fluidity of the motion of his neck. Dr. Okin reviewed appellant’s
cervical MRI scan and found significant disc degenerative disease of the cervical spine with
multilevel cord impingement at C4-5 and C6-7. He diagnosed significant disc degenerative
disease of the cervical spine with multilevel foraminal stenosis and central spinal stenosis, as
well as symptom magnification with regards to the cervical spine examination. Dr. Okin did not
find any objective evidence to substantiate appellant’s subjective complaints. He stated that
appellant had preexisting arthritic changes in the cervical spine. Dr. Okin advised that appellant
could return to his date-of-injury position with limitations due to his underlying cervical disc
disease. He requested a formal job description of appellant’s mail handler position.
In a report dated February 28, 2011, Dr. Bruno stated that appellant’s C5-6 disc
herniation was a result of his July 29, 2009 work injury. He also found left upper extremity
radiculopathy and again recommended surgery.
In a letter dated December 22, 2011, OWCP proposed to terminate appellant’s
compensation and medical benefits as he had no continuing disability or medical residuals based
on Dr. Okin’s report.
Counsel responded on January 22, 2012 that appellant’s preexisting depressive disorder
was aggravated by the work injury. He submitted a January 19, 2012 report from Dr. Harry A.
Doyle, a Board-certified psychiatrist, who diagnosed major depressive disorder and pain disorder
with psychological factors. Dr. Doyle stated that the pain disorder was due to appellant’s
July 29, 2009 work injury and associated physical limitations. He stated that appellant was
experiencing serious emotional and cognitive symptoms resulting in total disability. Dr. Doyle
described appellant’s work injury as appellant was driving a forklift off a truck at the loading
dock when the truck pulled away and the forklift hit the loading dock causing him to hit his head
violently on the forklift cage. Appellant experienced immediate severe neck and head pain. He
experienced increasingly severe headaches and consulted Dr. Berger on July 30, 2009.
Dr. Doyle also noted appellant’s family history and his preoccupation with his pain symptoms
and functional disabilities. He noted that Dr. Okin had referred to symptom magnification, but
opined that appellant’s symptoms were the result of pain disorder and major depressive disorder.
Dr. Doyle stated:
“It is my opinion that [appellant] developed a pain disorder following the work
injury due to accident-related stressors including chronic pain, which was
unresponsive to conservative treatment, and persistent physical impairments and
limitations due to pain. [Appellant] became increasingly depressed by the lack of
improvement in his chronic pain condition and hopeless about recovering his
former level of physical functioning and subsequently experienced a recurrence of
a major depressive disorder. Therefore, it is my opinion that the Pain Disorder
and major depressive disorder are related to the work injury on July 29, 2009.”
He opined that appellant was totally disabled due to his work-related emotional conditions.
By decision dated March 30, 2012, OWCP terminated appellant’s compensation and
medical benefits effective April 8, 2012. It found Dr. Doyle’s report was not based on a proper

3

factual background and failed to address the lack of objective findings or significant symptom
magnification noted by Dr. Okin. OWCP found that Dr. Doyle did not address whether appellant
continued to have residuals of the accepted soft tissue injuries from the July 29, 2009 work
injury. It determined that Dr. Okin’s report represented the weight of the medical opinion
evidence establishing that appellant had no ongoing medical residuals or disability due to his
accepted employment injury.
Counsel requested a telephone hearing before an OWCP hearing representative on
April 1, 2012. He submitted a report dated April 26, 2012 from Dr. Berger. Dr. Berger noted
appellant’s history of injury and stated that appellant had no neck pain prior to his employment
injury. He opined that appellant had sustained an aggravation of herniated disc and acute
radiculopathy as a result of the employment injury. Counsel appeared at the oral hearing on
July 17, 2012. He argued that Dr. Okin’s report was not sufficiently detailed or well reasoned to
terminate appellant’s compensation and medical benefits.
Following the oral hearing, Dr. Bruno submitted a report dated August 13, 2012 and
diagnosed herniated disc at C5-6. He recommended cervical fusion.
By decision dated September 28, 2012, the hearing representative affirmed the March 30,
2012 termination decision finding that Dr. Doyle’s report was not based on a proper factual
background and that Dr. Okin’s report was entitled to the weight of the medical evidence and
established that appellant had no employment-related disability or residuals.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.2 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.3 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.4 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.5
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.6 This is called a referee
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

Id.

6

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

4

examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.7
In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.8
ANALYSIS -- ISSUE 1
Appellant injured his head and neck when a truck pulled away from the dock while he
was loading the truck with a forklift. OWCP accepted that appellant sustained a head laceration
and neck sprain as a result of jumping clear of the falling forklift and striking his head on the
roof of the forklift. Appellant did not return to work. Drs. Berger and Bruno opined that he had
sustained a permanent aggravation of his underlying cervical disease requiring surgery. OWCP
referred appellant to a second opinion physician, Dr. Smith, who found that appellant’s injuryrelated conditions had resolved without permanent aggravation of his underlying cervical
condition. Due to this conflict of medical opinion evidence, it referred appellant to Dr. Okin for
an impartial medical examination to resolve the issues of disability and medical residuals due to
appellant’s accepted employment injury.
In a February 22, 2011 report, Dr. Okin provided physical findings noting that appellant
demonstrated reasonably good fluidity of motion in his neck and was able to flex such that his
chin almost touched his chest, but that there was significant discordance on formal examination.
He found some symptom magnification as well as no fluidity of the motion of his neck.
Dr. Okin reviewed appellant’s MRI scan of the cervical spine and found significant disc
degenerative disease of the cervical spine with multilevel cord impingement at C4-5 and C6-7.
He diagnosed significant disc degenerative disease of the cervical spine with multilevel
foraminal stenosis and central spinal stenosis, as well as symptom magnification with regards to
the cervical spine examination. Dr. Okin opined that there was no objective evidence to
substantiate appellant’s subjective complaints. He stated that appellant had preexisting arthritic
changes in the cervical spine. Dr. Okin concluded that appellant could return to his date-ofinjury position with limitations due to his cervical disc disease. He found that appellant’s
accepted employment-related injuries had resolved and noted that appellant exhibited symptom
magnification.
The Board finds that Dr. Okin’s report is entitled to the special weight of the medical
evidence and establishes that appellant’s accepted injuries resolved with no disability and no
medical residuals. Dr. Okin’s report was based on a proper factual history and included detailed
findings on examination as well as reasoning in support of his opinion that appellant’s accepted
conditions of head laceration and neck sprain had resolved. Based on this report, OWCP met its
burden of proof to terminate appellant’s compensation benefits.

7

R.C., 58 ECAB 238 (2006).

8

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

5

Following Dr. Okin’s report and the proposed notice of termination, appellant submitted
a report from Dr. Doyle, a Board-certified psychiatrist, who attributed appellant’s symptom
magnification as identified by Dr. Okin, to a pain disorder caused by his accepted employment
injuries. Dr. Doyle provided a detailed report noting appellant’s history of injury and explaining
why he believed that appellant had developed an emotional condition as a consequence of his
accepted employment injury. As OWCP had not accepted this condition as a result of
appellant’s employment injury,9 this report does not address appellant’s accepted condition and
is not sufficient to create a conflict with Dr. Okin’s report regarding appellant’s physiological
conditions.
Appellant also submitted a report dated February 28, 2011 from Dr. Bruno attributing
appellant’s C5-6 disc herniation and left upper extremity radiculopathy to his July 29, 2009 work
injury. In an April 26, 2012 report, Dr. Berger described appellant’s history of injury and stated
that appellant had no neck pain prior to his employment injury. He opined that appellant had
sustained an aggravation of herniated disc and acute radiculopathy as a result of the employment
injury. These reports do not contain the necessary physical findings and medical reasoning to
meet or overcome the weight of Dr. Okin as the impartial medical examiner. Neither physician
provided an explanation of how appellant’s accepted employment injury resulted in the
additional conditions. Furthermore, as Drs. Berger and Bruno were on one side of the conflict
that Dr. Okin resolved, the additional reports from these physicians is insufficient to overcome
the weight accorded Dr. Okin’s report as the impartial medical specialist or to create a new
conflict with it.10
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective April 8, 2012.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
As is noted by Larson in his treatise on workers’ compensation, once the work-connected
character of any injury has been established, the subsequent progression of that condition
remains compensable so long as the worsening is not shown to have been produced by an
independent nonindustrial cause and so long as it is clear that the real operative factor is the

9

JaJa K. Asaramo, 55 ECAB 104 (2004).

10

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

6

progression of the compensable injury, associated with an exertion that in itself would not be
unreasonable under the circumstances.11
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.12
ANALYSIS -- ISSUE 2
In response to OWCP’s proposed termination of compensation, counsel alleged that
appellant had developed a consequential emotional condition, aggravation of his preexisting
depressive disorder. In support of this claim for a consequential injury, appellant submitted a
detailed report with rationale from Dr. Doyle diagnosing major depressive disorder and pain
disorder with psychological factors and clearly opining that appellant’s current psychological
conditions were due to his accepted employment injury. OWCP did not address the claimed
consequential injury in either the March 30, 2012 initial termination decision or the
September 28, 2012 decision of the hearing representative. The Board finds that this aspect of
appellant’s claim requires additional development of the medical evidence. On remand, OWCP
should refer appellant and a statement of accepted facts to a second opinion physician to
determine whether appellant’s underlying emotional condition was aggravated by his accepted
employment injury. After this and such other development as OWCP deems necessary, OWCP
should issue an appropriate decision on this issue.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits. The Board further finds that OWCP failed to address
appellant’s claim for a consequential emotional condition.

11

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994)l

12

Charles W. Downey, 54 ECAB 421 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the September 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed and remanded for additional development of the
consequential injury.
Issued: July 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, Oklahoma City, OK,
)
Employer
)
__________________________________________ )
G.T., Appellant

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

Docket No. 07-793
Issued: September 13, 2007

Case Submitted on the Record

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

JURISDICTION
On January 24, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s merit decision dated December 22, 2006
finding that he received an overpayment of compensation, that he was not at fault in the creation
of the overpayment, that he was not entitled to waiver of the overpayment and that the
overpayment should be recovered by deducting from appellant’s continuing compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$3,004.36, as the Office failed to withhold the appropriate life insurance premiums; (2) whether
appellant was entitled to waiver of the overpayment and (3) whether the Office should recover
the overpayment by deducting $300.00 every 28 days from his continuing compensation
benefits.

FACTUAL HISTORY
On January 21, 1988 appellant, then a 31-year-old test equipment operator, sustained a
traumatic injury when he sprained his back while moving a load of metal pallets. The Office
accepted his claim for low back strain and herniated nucleus pulposus L5-S1. Appellant
underwent a lumbar laminectomy on February 18, 1988. He returned to light-duty work and, on
August 8, 1991, sustained a recurrence of total disability. The Office authorized repeat surgery
on September 9, 1993. Appellant returned to light-duty work on December 13, 1993. The
Office granted him a schedule award for six percent impairment to his left lower extremity. The
Board affirmed this decision of the Office on March 13, 1997.1 The employing establishment
terminated appellant’s employment on November 12, 1995. On March 30, 1998 appellant
elected to receive compensation benefits through the Office.
By decision dated August 24, 2004, the Office reduced his compensation benefits based
on his capacity to earn wages in the constructed position of information clerk. Appellant
requested an oral hearing on the issue of his wage-earning capacity on July 23, 2005. By
decision dated August 2, 2005, the Branch of Hearings and Review denied his request for an oral
hearing as untimely.
On September 21, 2004 the Office made a preliminary determination that appellant
received an overpayment of compensation for the period June 21, 1998 to August 9, 2003, in the
amount of $819.06. The Office stated that the overpayment occurred as it failed to collect basic
life insurance premiums. The Office found that appellant was not at fault in the creation of the
overpayment. Appellant requested waiver of this overpayment and a prerecoupment hearing on
October 10, 2004. By decision dated October 22, 2004, the Office finalized the preliminary
overpayment determination. The Branch of Hearings and Review considered appellant’s claim
and, by decision dated March 23, 2005, set aside the October 22, 2004 decision. The hearing
representative stated:
“Based on a review of the Office’s payment history records for this case, it
appears that the Office has not determined the correct premiums that should have
been deducted for [appellant’s] life insurance on and after May 1, 1998. I did not
find evidence that the Office made any life insurance premium deductions for the
period May 1, 1998 to June 20, 1998. For the period June 21, 1998 to August 7,
2004, the only premium deductions appear to have been for Optional Insurance
(Options A, B and C). (It is unclear why the Office deducted premiums for that
type of coverage, as OPM [Office of Personnel Management] did not indicate that
[appellant] was eligible to continue that particular type of coverage.) For the
period August 8, 2004 to the present, premiums have been deducted for Basic
Life and Optional Life Insurance. It does not appear that any deductions have
been made for [p]ost-[r]etirement coverage or that the Office used the salary rate
given by OPM to calculate the insurance premiums.”

1

Docket No. 95-826 (issued March 13, 1997).

2

On remand the Office made a preliminary finding that appellant had received an
overpayment in the amount of $3,004.36 on July 18, 2002. It found that it failed to collect postretirement basic life insurance premiums for the period June 21, 1998 to July 9, 2005. The
Office found that appellant was not at fault in the creation of the overpayment.
The Office provided calculations of the amount of optional life insurance benefits it had
collected, the amount of $2,509.66. It noted that appellant had paid basic life insurance from
August 8, 2004 to July 9, 2005 in the amount of $108.90. The Office found that appellant was
due $2,618.56. It then calculated that appellant owed basic life insurance premiums from
June 21, 1998 to April 24, 1999 in the amount of $583.44; from April 25, 1999 to January 25,
2003 in the amount of $3,132.08 and from January 26, 2003 to July 9, 2005 in the amount of
$1,849.60, for a total overpayment of $5,622.92. The Office reduced the total overpayment
amount of $5,622.92, by the amount owed appellant, $2,628.56 and found that appellant owed
the balance of $3,004.36.
Appellant requested a prerecoupment hearing on July 27, 2005. He appeared at the
hearing held on October 17, 2006 and stated his belief that this hearing was regarding his wageearning capacity determination. The hearing representative allowed appellant 30 days to submit
financial information in support of his request for waiver of the overpayment. Appellant
submitted documentation to the hearing representative concerning his household monthly
income.
By decision dated December 22, 2006, the hearing representative affirmed the Office’s
July 18, 2005 preliminary finding of fact and amount of overpayment. She concluded that
appellant was not at fault in the creation of the overpayment but was not entitled to waiver as
recovery would neither defeat the purpose of the Federal Employees’ Compensation Act or be
against equity and good conscience. The hearing representative found that the overpayment
should be recovered by deducting $300.00 every 28 days from appellant’s continuing
compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
The Act provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.2
When an overpayment has been made to an individual because of error of fact or law, adjustment
shall be made under regulations prescribed by the Secretary of Labor by decreasing later
payments to which the individual is entitled.3
Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.4 The coverage of basic life insurance is effective unless waived5 and the
2

5 U.S.C. §§ 8101-8193, 8102(a).

3

5 U.S.C. § 8129(a).

4

5 U.S.C. § 8702(a).

5

5 U.S.C. § 8702(b).

3

premiums for basic and optional life coverage are withheld from the employee’s pay.6 At
separation from the employing establishing, the FEGLI insurance will either terminate or
continue under “compensationer” status. If the compensationer chooses to continue basic and
optional life insurance coverage, the schedule of deductions made will be used to withhold
premiums from his or her compensation payments.7 When an under withholding of life
insurance premiums occurs, the entire amount is deemed an overpayment of compensation
because the Office must pay the full premium to the OPM upon discovery of the error.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has received an overpayment of compensation due to the
under-withholding of his basic life insurance premiums. However, the Office has not properly
determined the amount of the overpayment. It determined that appellant received an
overpayment of compensation in the amount of $5,622.92. The Office, however, erred by
offsetting the amount of overpayment with the over collection of optional life insurance
premiums and prior payments of basic life insurance premiums in the amount of $2,618.56.
Although such an offset appears administratively straightforward, the Board finds that it
circumvents established legal procedures and protections. Extensive due process rights attach to
any attempt by the Office to recoup benefits already paid, even if paid in error.9 In Califano v.
Yamasaki,10 the Supreme Court held that, due process required the Social Security
Administration to defer any measures to recover suspected overpayments until, inter alia, it
informed the claimant of the grounds for waiver under the Social Security Act. The wording of
the waiver provision in the Social Security Act is similar to that in the Federal Employees’
Compensation Act and the Director of the Office has determined that the holding of the Supreme
Court in Califano v. Yamasaki is applicable to the recovery of overpayments under the Federal
Employees’ Compensation Act.11
The Office’s offset practice, as exercised in the December 22, 2006 decision, precludes
the proper consideration of waiver of the entire amount of the overpayment. The Office’s
practice also permits an unrestricted recovery of the offset portion of the overpayment without
regard to the relevant factors set forth in 20 C.F.R. § 10.441(a).12 The Board finds that such

6

5 U.S.C. § 8707.

7

5 U.S.C. § 8706(b).

8

5 U.S.C. § 8707(d); Keith H. Mapes, 56 ECAB ___ (Docket No. 03-1747, issued October 20, 2004).

9

Robert L. Curry, 54 ECAB 675, 677 (2003).

10

442 U.S. 682 (1979).

11

Federal (FECA) Procedure Manual, Part 6 -- Debt Management (September 1994). Robert L.Curry, supra note

9.
12

This section states that, in collecting an overpayment of compensation the Office shall decrease later payment
of compensation by, taking into account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to minimize any hardship.

4

practice denies administrative due process with respect to the amount offset.13 The case will,
therefore, be remanded for the Office to properly calculate the entire amount of the overpayment
of compensation.
CONCLUSION
The Board finds that the Office properly found that appellant received an overpayment of
compensation due to the under-withholding of basic life insurance premiums. It further finds
that the Office improperly offset the overpayment amount by optional life insurance premiums
improperly deducted by the Office. The case will be remanded for the Office to properly
calculate the amount of the overpayment and to consider waiver of the entire amount of the
overpayment. After conducting such further development as is deemed necessary, the Office
shall issue a de novo decision.14
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed as to the fact of the overpayment. The
December 22, 2006 decision is remanded for further action consistent with this decision of the
Board.
Issued: September 13, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

Diana L. Booth, 52 ECAB 370, 373 (2001).

14

Due to the failure of the Office to properly calculate the amount of the overpayment, it is not necessary for the
Board to address the issues of waiver of the overpayment and the scheduled recovery of the overpayment.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-427
Issued: November 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from the September 14, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding schedule award
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a five percent permanent impairment of her right arm, for which she received a schedule award.
FACTUAL HISTORY
On February 1, 1996 appellant, then a 52-year-old clerk, filed an occupational disease
claim asserting that as of November 4, 1988 she developed carpal tunnel syndrome due to
repetitive work tasks. OWCP accepted the claim for right carpal tunnel syndrome. Appellant
1

20 C.F.R. § 8101 et seq.

did not stop work. A diagnostic testing report of the right upper extremity dated November 7,
1988 was positive for right carpal tunnel syndrome. In May 1996 appellant underwent right
carpal tunnel release.
In a separate claim, OWCP accepted that as of October 1, 1995 appellant developed left
carpal tunnel syndrome. On January 17, 2008 it awarded a schedule award for a 10 percent
impairment of the left upper extremity in connection with this claim. Appellant also sustained a
subsequent right elbow contusion and OWCP denied two claims filed for a subsequent right
shoulder condition.
In September 2009 Dr. Nicholas P. Diamond, an attending osteopath, applied the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) to his findings from July 2007. He stated that findings of
negative right Tinel’s and Phalen’s tests, negative carpal compression, right 4/5 grip strength and
diminished hand/wrist range of motion and light-touch sensation. Dr. Diamond calculated a six
percent impairment referable to right carpal tunnel syndrome and a five percent impairment for a
right rotator cuff tear. For carpal tunnel syndrome, he cited the sixth edition of the A.M.A.,
Guides at Table 15-23. Dr. Diamond calculated grade modifiers of one for testing, three for
functional history and two for physical examination, for a total rating of six percent. He placed
appellant at maximum medical improvement as of June 19, 2007.
OWCP referred the file to Dr. Craig Uejo, a Board-certified occupational medicine
physician serving as an OWCP consulting physician. In a June 3, 2010 report, Dr. Uejo
calculated a five percent permanent impairment of the right arm. He noted that Dr. Diamond
calculated grade modifiers of one for test findings, three for functional history based on
complaints of right hand numbness and weakness and two for physical examination referable to
diminished sensation, for a total of six points based on such grade modifiers. Divided by three
the final grade modifier was two. Dr. Uejo noted that while Dr. Diamond calculated a modifier
of three for functional history, such a modifier required evidence that the patient required
assistance to perform self-care activities. He opined that as there was no indication that appellant
required assistance to perform self-care, the appropriate modifier for functional history was two,
not three. Dr. Uejo noted that the functional history was the same grade modifier as Table 15-23
and as a result there was no adjustment to the default rating of five percent.
On June 7, 2010 OWCP awarded a schedule award for a five impairment of the right arm
based on Dr. Uejo’s opinion. In June 16, 2010 letter, counsel argued that it should have issued a
schedule award as calculated under the fifth edition of the A.M.A., Guides.
Appellant requested a review of the written record by OWCP’s hearing representative. In
a September 14, 2010 decision, OWCP’s hearing representative affirmed its June 7, 2010
decision finding that Dr. Diamond had not justified his higher impairment rating under the sixth
edition of the A.M.A., Guides.

2

LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. In Harry D. Bulter,4 the Board noted that Congress delegated authority to the
Director of OWCP regarding the specific methods by which permanent impairment is to be
rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as a uniform standard
applicable to all claimants and the Board has concurred in the adoption.5 On March 15, 2009 the
Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of
OWCP should reflect use of the sixth edition of the A.M.A., Guides.6
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.7 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.8 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.9
ANALYSIS
The Board finds that OWCP properly accorded weight to the opinion of Dr. Uejo, a
Board-certified occupational medicine physician who served as its consulting physician to find
that appellant had a five percent permanent impairment of her right arm.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

43 ECAB 859 (1992).

5

Id. at 866.

6

FECA Bulletin No. 09-03 (March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA) Procedure
Manual, Part 1 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.(6)(a) (January 2010).
7

See A.M.A., Guides 449, Table 15-23 (6th ed. 2009).

8

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
function scale score. Id. at 448-49.
9

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b (June 1993). This portion of OWCP procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”

3

Dr. Uejo properly made reference to Table 15-23 (Entrapment/Compression Neuropathy
Impairment) on page 449 of the sixth edition of the A.M.A., Guides.10 He provided reasoning for
his choice of grade modifiers from the table for the various categories, including test findings,
history, physical findings and functional scale, based on the findings of Dr. Diamond, an
attending osteopath. Dr. Uejo then correctly averaged the grade modifiers and applied the
appropriate formulas and calculations. He explained that Dr. Diamond’s findings supported only
two and not three as the grade modifier for functional history. Dr. Diamond erroneously
included a rating for a nonoccupational right shoulder condition. OWCP was not required to
include such shoulder injury in the impairment rating.11
There is no evidence that Dr. Uejo erred in his determination that there was a five percent
impairment of the right upper extremity referable to carpal tunnel syndrome. Dr. Uejo’s
impairment rating provided the only impairment rating of record consistent with the sixth edition
of the A.M.A., Guides and constitutes the weight of the medical opinion evidence.
On appeal, counsel argues that OWCP unnecessarily delayed the development of
appellant’s case such that the assessment of his permanent impairment was made under the sixth
edition of the A.M.A., Guides rather than the fifth edition, hence resulting in a lower impairment
rating. OWCP received a September 2009 impairment evaluation of Dr. Diamond and
appropriately evaluated it under the standards of the sixth edition of the A.M.A., Guides which
became effective May 1, 2009. Counsel has not shown that an unnecessary delay in the
development of appellant’s case occurred.
Counsel asserts that appellant has a property right in a schedule award benefit under the
fifth edition and a protected property interest cannot be deprived without due process, citing
Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976).12 In this
case, appellant is simply making a claim for a schedule award. She is not in receipt of schedule
award benefits nor is OWCP attempting to terminate any benefits. Appellant has not established
a vested right to a schedule award decision under the fifth edition of the A.M.A., Guides. In
recent schedule award cases, it has been argued on appeal that the fifth edition should be used
based on the date of maximum medical improvement or as of the date the schedule award claim
was filed. The following may be used as a standard response. In Harry D. Butler,13 the Board
noted that Congress delegated authority to the Director regarding the specific methods by which
permanent impairment is to be rated. Pursuant to this authority, the Director adopted the
A.M.A., Guides as a uniform standard applicable to all claimants and the Board has concurred in
the adoption.14 On March 15, 2009 the Director exercised authority to advise that as of May 1,
10

Supra note 7.

11

See supra note 9. There is no indication in the record that this was a preexisting or work-related condition.

12

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient, and due process would not
require an evidentiary hearing.
13

43 ECAB 859 (1992).

14

Id. at 866

4

2009 all schedule award decisions of OWCP should reflect use of the sixth edition of the
A.M.A., Guides.15 The applicable date of the sixth edition is as of the schedule award decision
reached. It is not determined by either the date of maximum medical improvement or when the
claim for such award was filed, nor has appellant identified any procedural due process which he
has been denied. The cases cited by appellant are not applicable to the present case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a five percent permanent impairment of her right arm, for which she received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

15

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claim, Chapter 2.808.6(a)
(January 2010).

5