United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, ARMY AVIATION
SUPPORT FACILITY TWO, Birmingham, AL,
Employer
__________________________________________

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

Docket No. 08-2110
Issued: May 6, 2009

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 July 28, 2008 appellant filed a timely appeal from a July 14, 2008 decision of the
Office of Workers’ Compensation Programs denying his schedule award claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.2, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a ratable hearing loss in
the performance of duty.
FACTUAL HISTORY
On September 5, 2007 appellant, then a 49-year-old retired helicopter flight instructor,
filed an occupational disease claim for binaural high frequency hearing loss due to exposure to
hazardous noise at work from November 1, 1992 until his retirement on June 8, 2007. The
employing establishment confirmed appellant’s prolonged exposure to aircraft engine noise, jet

noise and heavy ground equipment from 82 to 117 decibels. Appellant wore appropriate hearing
protection. He first became aware of his condition and related it to his federal employment on
January 24, 2001. Appellant explained that he delayed filing the claim as the employing
establishment was aware of his hearing loss as of January 24, 2001. He submitted a February 13,
2001 waiver from the employing establishment acknowledging his hearing loss but allowing him
to continue working as a flight instructor.
In a January 2, 2008 letter, the Office advised appellant of the additional evidence needed
to establish his claim. It instructed him to submit audiometric findings and other test results
from his attending physician.
Appellant submitted employing establishment audiograms dated from April 20, 1993 to
September 21, 2005, obtained through a hearing conservation program.1 The employing
establishment audiograms show a progressive high frequency hearing loss. In an April 25, 2001
report, an employing establishment health employee noted that appellant had a high frequency
hearing loss in his right ear and was counseled regarding this loss. Appellant also submitted
unsigned audiograms from a private hospital dated from August 31, 2000 to June 21, 2006.
The Office obtained a second opinion from Dr. Dennis G. Pappas, Jr., a Board-certified
otolaryngologist. In a May 28, 2008 report, Dr. Pappas reviewed a history of occupational noise
exposure and performed a clinical examination. He diagnosed an asymmetric sensorineural
hearing loss, greater on the right. Dr. Pappas ordered a magnetic resonance imaging scan to rule
out retrocochlear pathology. Audiometric testing performed that day for the right ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed decibel losses
of 5, 10, 10 and 50 respectively. Testing for the left ear at the frequency levels of 500, 1,000,
2,000 and 3,000 cps revealed decibel losses of 5, 15, 5 and 25 decibels.
On June 13, 2008 the Office referred Dr. Pappas’ report and audiometric findings to an
Office medical adviser for a determination of impairment according to the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). In a June 17, 2008 report, the Office medical adviser totaled the decibel losses for the
right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps of 5, 10, 10 and 50 to equal
75. He then divided this total by 4 to obtain the average hearing loss at those cycles of 18.75
decibels. The average of 18.75 decibels was then reduced by the 25 decibel “fence” to equal
zero, resulting in a zero percent loss of hearing for the right ear. The medical adviser then
totaled the 5, 15, 5 and 25 decibel losses in the left ear at the frequency levels of 500, 1,000,
2,000 and 3,000 cps to equal 50. He then divided this total by 4 to obtain the average hearing
loss at those cycles of 12.5 decibels. The average of 12.5 decibels was then reduced by

1

The Board has held that a program of annual audiometric examination conducted by an employing
establishment in conjunction with an employee testing program, if such audiograms demonstrate a hearing loss, is
sufficient to constructively establish actual knowledge of a hearing loss such as to put the immediate supervisor on
notice of an on-the-job injury. See James A. Sheppard, 55 ECAB 515 (2004). Appellant participated in a hearing
conservation program from 1993 through 2005. In an April 25, 2001 report, the employing establishment
acknowledged appellant’s right high frequency hearing loss. The Board finds that this report is sufficient to
constructively establish the employing establishment’s actual knowledge of appellant’s hearing loss.

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25 decibels to equal zero, resulting in a zero percent loss of hearing for the left ear. The Office
medical adviser found that appellant had a nonratable bilateral sensorineural hearing loss.
On June 13, 2008 the Office accepted that appellant sustained a bilateral hearing loss in
the performance of duty. Appellant claimed a schedule award on June 30, 2008.
By decision dated July 14, 2008, the Office denied appellant’s schedule award claim on
the grounds that his accepted bilateral hearing loss was not ratable, finding that the Office
medical adviser properly applied the A.M.A., Guides to Dr. Pappas’ evaluation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining permanent loss or loss of use, of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides (5th ed. 2001), has been adopted by the Office
for evaluating schedule losses and the Board has concurred in such adoption.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps the losses at each
frequency are added up and averaged.5 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.7 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing loss.8
ANALYSIS
The Office accepted that appellant sustained a binaural hearing loss due to hazardous
noise exposure at work. To determine appellant’s entitlement to a schedule award, the Office
obtained a second opinion report and audiometric test results from Dr. Pappas, a Board-certified
2

5 U.S.C. §§ 8101-8193.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

A.M.A., Guides 250.

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Id.

6

Id.

7

Id.

8

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

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otolaryngologist. The Office then referred Dr. Pappas’ findings to an Office medical adviser for
calculation of a schedule award according to the A.M.A., Guides.
The Office medical adviser properly applied the Office’s standardized procedures to the
May 28, 2008 audiogram obtained by Dr. Pappas.9 Testing for the left ear at the frequencies of
500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 5, 15, 5 and 25 decibels, respectively.
These decibel losses were totaled at 50 and divided by 4 to obtain the average hearing loss per
cycle of 18.75. The average of 18.75 was then reduced by the 25 decibel fence to equal
0 decibels for the right ear.10 Following the same mathematical procedure, the medical adviser
totaled the 5, 10, 10 and 50 decibel losses in the right ear at the frequency levels of 500, 1,000,
2,000 and 3,000 cps to equal 75. He divided the total by 4 to obtain the average hearing loss at
those cycles of 18.75 decibels, reduced by 25 decibels to equal zero. The medical adviser then
computed that appellant had a zero percent binaural hearing loss. Based on the Office medical
adviser’s interpretation of Dr. Pappas’ findings, the Office denied appellant’s schedule award
claim.
The Board finds that the Office medical adviser applied the proper standards to the
findings in the May 28, 2008 report of Dr. Pappas and accompanying audiogram performed on
his behalf. The result is a zero percent binaural hearing loss. The Board further finds that the
Office medical adviser properly relied upon the May 28, 2008 audiogram as it was part of
Dr. Pappas’ evaluation and met all the Office’s standards.11 Therefore, the Office properly found
that appellant had a zero percent binaural hearing loss due to hazardous noise exposures at work.
CONCLUSION
The Board finds that appellant has not established that he sustained a ratable hearing loss
in the performance of duty.

9

While the record contains prior audiograms, there is insufficient information accompanying these audiograms to
demonstrate that they met the Office’s standards for audiograms used in the evaluation of permanent hearing
impairments. M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007); Federal (FECA) Procedure
Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter 3.600.8(a) (September 1994).
10

The decibel fence is subtracted as it has been shown that the ability to hear everyday sounds under everyday
listening conditions is not impaired when the average of the designated hearing levels is 25 decibels or less. See
A.M.A., Guides at 250.
11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter
3.600.8(a) (September 1994).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 14, 2008 is affirmed.
Issued: May 6, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0520
Issued: March 22, 2022

Case Submitted on the Record

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

On February 14, 2022 appellant filed an appeal from a December 3, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0520.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees ’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the December 3, 2020 decision was June 1, 2021. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
December 3, 2020 OWCP decision, the Board finds that the appeal docketed as No. 2 2 -052 0 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained her failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 22-0520, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0520 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, WARWICK POST
OFFICE, Warwick, NY, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1596
Issued: April 23, 2020

Case Submitted on the Record

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

JURISDICTION
On July 22, 2019 appellant, through counsel, filed a timely appeal from an April 23, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted December 6, 2017 employment incident.
FACTUAL HISTORY
On January 12, 2018 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 6, 2017 she injured her left knee while in the
performance of duty. She explained that she was walking into the breakroom in order to fill a
water bottle and when she put her foot down on the floor, her shoe did not move while the rest of
her body continued in motion and rotated to the right. Appellant noted that she heard a pop in her
left knee and felt unbearable pain and a burning sensation. On the reverse side of the claim form
appellant’s postmaster, J.V., contended that she was not in the performance of duty when the
alleged injury occurred because she was walking to fill a water bottle. Appellant did not stop
work.
In an attached statement, appellant explained that around 12:15 p.m. she finished loading
her Long-Life Vehicle (LLV) and went back into the office in order to fill her water bottle before
beginning her route. She noted that, as she made her way past two tubs and stepped onto the open
floor, her left foot stuck to the floor while her whole body continued to turn towards the right. As
her body continued to turn to the right, appellant heard and felt a pop and felt unbearable pain and
burning in her left knee. She further noted that she could hardly walk or stand and had to be helped
by two of her coworkers. Appellant then informed her supervisor, D.H., and her postmaster of her
injury and told them she was not sure what she should do. She completed her route and informed
her supervisor, and postmaster that the pain in her left knee had not gotten any better. Appellant’s
postmaster then asked her if she was going to file a claim. Appellant again indicated that she did
not know and went to show him where her injury took place.
On January 16, 2018 appellant’s postmaster issued an authorization for examination and/or
treatment (Form CA-16) noting that appellant was walking and heard a pop in her knee on
December 6, 2017.
In a January 17, 2018 medical note, Dr. Andrew Beharrie, a Board-certified orthopedic
surgeon, held appellant off from work from January 17 through 21, 2018.
In a January 18, 2018 letter, the postmaster controverted appellant’s claim. He explained
that, when he saw appellant crying from her injury and asked her if she would be filing a claim,
she responded by saying she would assess how her knee felt later that day. When she returned to
the office later that day, he again asked her if she would be filing a claim and asked appellant to
show him what happened. The postmaster noted that for the remainder of December appellant
went the whole month without mentioning her knee again.

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In a January 19, 2018 statement, appellant’s supervisor indicated that, at the beginning of
December 2017, appellant informed her of an injury she suffered while heading towards the
bathroom and that she did not want to file a claim because it was unnecessary.3
In a development letter dated January 26, 2018, OWCP informed appellant of the
deficiencies of her claim and advised her of the type of factual and medical evidence necessary to
establish her claim. It provided a questionnaire for her completion to provide further details
regarding the circumstances of the claimed December 6, 2017 employment injury. OWCP also
requested that appellant submit a narrative medical report from her treating physician which
provided a diagnosis and the physician’s rationalized medical explanation as to how the alleged
employment incident caused the diagnosed condition. It afforded appellant 30 days to submit the
necessary evidence.
In response, appellant submitted a January 17, 2018 medical report from Dr. Beharrie, who
noted that appellant presented with left knee pain following the alleged December 6, 2017
employment incident. Dr. Beharrie reported that, while walking through the office, she twisted
her knee and heard a pop. He further reported that appellant experienced immediate pain that had
continued since and noted that it had become more difficult to continue working. In a diagnostic
report of even date, Dr. Teresa Karcnik, a Board-certified diagnostic radiologist, noted that an
x-ray of appellant’s left knee revealed degenerative joint disease and no evidence of a fracture or
dislocation. Based on his evaluation, Dr. Beharrie diagnosed primary osteoarthritis of the left knee
and administered a cortisone injection to her left knee. His assessment also revealed that her injury
was work related and recommended that she remain out of work until January 22, 2018.
In response to OWCP’s questionnaire, appellant provided a February 1, 2018 statement.
She countered the employing establishment’s letter by asserting that neither her postmaster nor
supervisor asked her during the month of December into January if she needed to file a claim.
Appellant further indicated that, throughout the month of December, she mentioned the pain in her
knee several times to both the postmaster and her supervisor, but employees were advised not to
request any annual or sick leave because no time off during the holiday season would be approved.
In a February 12, 2018 medical report, Dr. Beharrie noted that appellant experienced some
relief with the cortisone injection and that she had not yet been approved for physical therapy. He
again noted a diagnosis of primary osteoarthritis of the left knee due to a work-related injury.
Dr. Beharrie answered “yes” to a question asking whether appellant’s history of injury was
consistent with his findings. He also provided an attending physician’s report (Part B of a Form
CA-16) in which he described an injury to the left knee after she twisted her left knee at work and
heard a pop on December 6, 2017. Dr. Beharrie checked a box marked “yes” indicating that

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In a January 25, 2018 letter, the employing establishment again controverted appellant’s claim for continuation of
pay, stating that her claim should be barred because she had not filed her Form CA -1 within 30 days of her injury. In
an attached letter, the postmaster again explained that he asked appellant on two separate occasions whether she was
going to file a claim or not on the day of her injury. He noted that on January 12, 2018 appellant informed him that
the pain in her knee was unbearable, that she could not sleep and filed a Form CA -1 to address her injury. The
postmaster also noted that appellant did not miss any work until January 17, 2018.

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appellant’s condition was caused or aggravated by her employment activity. In a medical note of
even date, he recommended appellant remain out of work for six weeks.
In a February 13, 2018 letter, the employing establishment again controverted appellant’s
claim, contending that she provided conflicting statements about how her injury occurred.
By decision dated March 5, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s medical
condition and the accepted employment incident.
On March 15, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted physical therapy notes dated from March 12 to 28, 2018 from Kevin
Stafford, a physical therapist, in which he detailed therapy sessions addressing her left knee
conditions.
In a medical report dated March 26, 2018, Dr. Beharrie noted that appellant experienced
mild improvement after she began her physical therapy on March 12, 2018.
Dr. Marvin Weingarten, a Board-certified radiologist, performed a magnetic resonance
imaging (MRI) scan of appellant’s left knee. In a June 19, 2018 diagnostic report, he diagnosed a
radial tear of the posterior horn of the medial meniscus with internal myxoid degeneration in the
body and posterior horn.
In a July 23, 2018 report, Dr. Pankaj Kaw, Board-certified in internal medicine, noted that
appellant’s MRI scan revealed a degenerative medial meniscus tear. He explained that, based on
his evaluation and Dr. Beharrie’s notes, appellant’s medial meniscus tear resulted from her
underlying osteoarthritis. Dr. Kaw further explained that, due to the twisting nature of the injury,
it appears most likely that she flared up her osteoarthritis from the injury.
A telephonic hearing was held before an OWCP hearing representative on August 7, 2018.
During the hearing, appellant testified that she had no history of problems with her left knee prior
to December 6, 2017 and, again, explained the events of the employment incident and the medical
treatment she received afterwards. The hearing representative advised appellant of the type of
medical evidence necessary to establish her claim and held the case record open for 30 days for
the submission of additional evidence. No additional evidence was received.
By decision dated October 4, 2018, OWCP’s hearing representative affirmed the March 5,
2018 decision.
On April 17, 2019 appellant, through counsel, requested reconsideration of OWCP’s
October 4, 2018 decision.
In a March 22, 2019 narrative medical report, Dr. Beharrie explained that degenerative
meniscus tears are very common in the setting of osteoarthritis of the knee. He noted that, as
osteoarthritis progresses, the contact pressure in the joint increases and the increased pressure
results in greater stresses on the meniscus as the quality and strength of the tissue in the meniscus

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diminishes with age. As a result of these factors, patients with arthritis are more likely to de velop
a degenerative meniscus tear because the meniscus is more susceptible to damage. Dr. Beharrie
further explained that, prior to her injury, appellant had preexisting arthritis of her knee, but was
asymptomatic and that she may have also had preexisting degenerative meniscus tears. The
twisting injury to her knee caused significant force across her arthritic joint and this likely resulted
in an acute meniscus tear or worsening of a preexisting tear. Additionally, Dr. Beharrie explained
that appellant’s injury may have caused a new tear in a previously intact meniscus or resulted in a
progression of preexisting tear. He also noted that the injury caused a flare up of inflammation in
her knee, which resulted in aggravation of her baseline arthritis and associated meniscus tear.
By decision dated April 23, 2019, OWCP denied modification of the October 4, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged. 8 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury 9.
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship. 10 The opinion of the physician
4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

K.V., Docket No. 18-0723 (issued November 9, 2018).

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must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a March 22, 2019 medical report in which
Dr. Beharrie explained that patients with arthritis are more likely to develop a degenerative
meniscus tear due to contact pressure in the joints increasing, greater stress on the meniscus, and
the diminished strength of the tissue in the meniscus with age. He reported that, prior to appellant’s
injury, she had preexisting arthritis in her knee, but was asymptomatic for a meniscus tear and that
she may have also had a preexisting degenerative meniscus tear. Dr. Beharrie opined that the
December 6, 2017 twisting injury to appellant’s knee caused significant force across her arthritic
joint that likely resulted in an acute meniscus injury or the worsening of a preexisting tear. He
also attributed the aggravation of her arthritis and associated meniscus tear to the inflammation in
appellant’s knee from her injury.
Accordingly, the Board finds that, while Dr. Beharrie’s May 22, 2019 report is not fully
rationalized, it is sufficient to require further development as his opinion demonstrates knowledge
of appellant’s preexisting left knee conditions and he identified the December 6, 2017 employment
incident which appellant consistently claimed had precipitated her left knee injury. He also noted
physical findings upon examination and treatment consistent with his noted mechanism of injury
and provided an opinion citing to the facts of the case. Thus, the Board finds that Dr. Beharrie’s
opinion is sufficient to require further development of the record by OWCP.12
It is well established that, proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. 13 OWCP has an obligation to see that justice is
done.14
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
evidence of record to a district medical adviser or an appropriate Board-certified physician. The
selected physician shall provide a rationalized opinion addressing whether the diagnosed left knee
conditions are causally related to the accepted December 6, 2017 employment incident. If the
physician opines that the diagnosed conditions are not causally related, he or she must provide
11

I.J., 59 ECAB 408 (2008).

12

J.J., Docket No. 19-0789 (issued November 22, 2019); J.G., Docket No. 17-1062 (issued February 13, 2018);
A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J. Carlone, supra note 9; Horace Langhorne, 29
ECAB 820 (1978).
13

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
14

R.B., Docket No. 18-0162 (issued July 24, 2019); K.P., Docket No. 18-0041 (issued May 24, 2019).

6

rationale explaining the opinion. Following this and any other further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim.15
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2019 merit 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.
Issued: April 23, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

15

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COLUMBIA REGIONAL OFFICE,
Columbia, SC, Employer
__________________________________________

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

Docket No. 11-309
Issued: September 27, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 19, 2010 appellant timely appealed the July 26, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which denied her claim for an
employment-related emotional condition. 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 this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On February 18, 2010 appellant, then a 31-year-old rating specialist, filed an
occupational disease claim (Form CA-2) alleging that her disabilities had worsened due to
1

5 U.S.C. § 8101 et seq.

extreme stress and harassment associated with her workers’ compensation claim.2 She described
her injuries as bipolar disorder, migraine headaches and fibromyalgia and January 2, 2007 as the
date of injury. It was not until January 19, 2010 that appellant reportedly first realized her
condition was caused or aggravated by her employment.
In a February 23, 2010 statement, appellant claimed to have been harassed from 2007 to
2010 due to poor management. She alleged that her previous supervisor, Mark VanMeter,
continuously harassed her in 2007 and 2008. Mr. VanMeter allegedly stated “cruel things” to
her. As a consequence, appellant experienced severe depression and flare-ups of her
fibromyalgia. In May 2007, Mr. VanMeter commented about her absence due to chronic fatigue
syndrome. Appellant alleged that he told her that perhaps it was time she found another
occupation. She perceived Mr. VanMeter’s remarks as very insulting.
On or about June 4, 2007, Mr. VanMeter allegedly threw a file at appellant and walked
away without saying a word. Appellant stated that he came back 30 minutes later and did it
again. On December 19, 2007 Mr. VanMeter allegedly told her to throw away or take home all
personal items. Appellant stated that she left work early that day and cried all afternoon.
Another alleged incident occurred on December 21, 2007. That morning appellant
reported to work following a dentist’s appointment. She claimed to have requested more leave
than she actually needed for her dental appointment. Mr. VanMeter told appellant she should not
have come in a ½-hour early and that she could not get back the leave previously requested. He
sarcastically stated that he would amend appellant’s time card, but not until January 1, 2008.
On January 3, 2008 Mr. VanMeter allegedly told appellant that she was being placed on a
performance improvement plan and that the matter would be addressed in a meeting scheduled
for January 7, 2008. Appellant was upset by the news and cried for about 30 minutes.
On March 14, 2008 appellant allegedly overheard Ricky Ard say that the “‘rating
specialists [were] sitting on their lazy asses and working all their easy shit first.’” She also heard
Mr. Ard say something about those “‘damn trainees.’” Mr. VanMeter was reportedly present.
Appellant felt these remarks were an insult to the entire Rating Board, who in her opinion
worked very hard.
Appellant stated that she was the victim of Mr. VanMeter’s April Fools’ Day prank.
Mr. VanMeter allegedly whispered in her ear that she would be moving to triage. Appellant
asked whether she should keep the information to herself or if it was okay to tell others.
Mr. VanMeter allegedly told her it was fine to tell other people. Appellant stated that she then
asked Allison if she was leaving triage. Allison reportedly did not know what appellant was
talking about. After word got back to Ricky (Ard), Mr. VanMeter came out and told them all it
was just an April Fools’ joke. Appellant claimed she became nervous and confused for about
two hours and could not think straight.

2

Appellant had recently filed a claim (Form CA-1) for a January 11, 2010 left knee injury she reportedly
sustained while traveling on employment-related business in Orlando, Florida (File No. xxxxxx870).

2

On April 2, 2008 Mr. VanMeter was planning on pulling another office prank when
appellant intervened and told the likely target what was going on. Appellant stated that
Mr. VanMeter tried to lie about it and stated that “someone [did not] know what they [were]
talking about,” and “should sit down and shut up.” She stated that “someone” was her and that
she was offended by Mr. VanMeter’s “‘joke.’” Appellant claimed to have been harassed later
that day when Mr. VanMeter addressed her in the elevator stating, “‘There’s my girl. She can
take any of you down.’”
Appellant alleged that on April 25, 2008 Mr. VanMeter called her in to his office and told
her that someone reported that she was talking every afternoon. She claimed the allegations
were false. Appellant found it difficult to concentrate on her work as she was too upset.
During the period 2009 to 2010, appellant claimed harassment by her current supervisor,
Dave R. Wilson. She stated that Mr. Wilson was not particularly helpful when she had questions
and most times his attitude was “‘I don’t know.’” Sometimes appellant would wait days for an
answer. She alleged that it took an entire week before someone submitted her January 2010
workers’ compensation claim. Due to a clerical error, appellant was underpaid by approximately
$300.00, in January 2010. She believed Mr. Wilson was partly to blame for this payroll error,
which took several weeks to resolve. Appellant alleged that neither her supervisor nor the
human resources liaison, Marisol Rice, was particularly responsive to her requests for assistance
in processing her claim.
Appellant alleged that on January 22, 2010 Mr. Wilson questioned why her doctor
proposed keeping her off work for another week because of a strain. She stated that the last
straw was when Mr. Wilson did not respond to her February 18, 2010 e-mail regarding missing
food from her desk and an office refrigerator. Appellant subsequently filed for disability
retirement and her last day was February 19, 2010.
Appellant provided various e-mails from January to February 2010 regarding
leave/payroll issues associated with her prior workers’ compensation claim. The e-mails alleged
that she was underpaid $298.96 because of a payroll coding error regarding her January 11, 2010
absence. That was the day appellant injured her left knee, and there was some questions as to
continuation of pay (COP/CP) was the appropriate code to enter. She also perceived an error
with respect to her annual and sick leave balances, which had been reported in one-tenth
increments rather than quarter or half-hour increments.
On January 28 and 29, 2010 appellant exchanged e-mails with Mr. Wilson regarding the
amount of time she should devote to assigned duties. She had missed work due to her
January 11, 2010 left knee injury and had fallen behind. Appellant asked Mr. Wilson if she
could spend additional time on a special project (TPSS Module) she had been assigned.
Mr. Wilson first allowed her to spend two hours a day in accordance with the project guidelines,
but later increased the time allotted to four hours a day. He instructed appellant to devote the
remaining four hours to her regular duties as a rating specialist. Appellant annotated both
e-mails that she considered Mr. Wilson’s responses to be rude.
The employing establishment did not respond to appellant’s allegations with respect to
Mr. VanMeter. Mr. Wilson provided a March 9, 2010 statement that he had supervised appellant

3

for approximately three months beginning in November 2009. Appellant was reportedly the
most productive rating specialist of the 45 he supervised and received an “Outstanding” on her
performance appraisal. Mr. Wilson commented on appellant’s January 11, 2010 left knee injury
and the steps he took regarding her claim. He indicated that he had in fact acted on appellant’s
February 18, 2010 e-mail regarding missing food. While Mr. Wilson did not reply to the e-mail,
he spoke with appellant and questioned several other employees to see if they too were missing
items. He distributed a February 23, 2010 e-mail to all rating specialists informing them of what
occurred and advising staff to secure their personal property during daytime hours. Mr. Wilson
also reported the matter to his supervisor. There was no indication by appellant that she wanted
to file a criminal complaint for alleged theft. Mr. Wilson noted that appellant advised him by
e-mail on February 24, 2010 that she was filing for retirement disability and that February 19,
2010 was her last day at work.
The medical evidence included a September 26, 2007 report from Dr. Suneetha Morthala,
who diagnosed fibromyalgia syndrome.3 In a February 18, 2010 report, Dr. Eric R. Williams, a
Board-certified psychiatrist, noted that he had been treating appellant since January 2, 2007. Her
current diagnosis was bipolar disorder. Due to her bipolar disorder and other medical problems,
appellant’s condition fluctuated at times. Dr. Williams stated that for the past few weeks her
condition had deteriorated due to increasing amounts of stress from work and other sources. He
further noted that the recent effects of stress on appellant’s physical and mental well-being had
been observed and documented. Dr. Williams advised that, if there was any possible way to
reduce the amount of stress and anxiety at work, it would be most helpful in returning appellant
to her best level of professional performance, as well as keeping her symptoms under control.
By decision dated July 26, 2010, OWCP denied appellant’s claim. It found that she
failed to establish any compensable employment factors.
LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. 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.5 Disability is not compensable, however, when it results from factors such as an
3

Dr. Morthala is a Board-certified internist with a subspecialty in rheumatology.

4

See Kathleen D. Walker, 42 ECAB 603 (1991).

5

Pamela D. Casey, 57 ECAB 260, 263 (2005).

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employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.6
An employee’s emotional reaction to administrative or personnel matters generally falls
outside the scope of FECA.7 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.8 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities,
such action will be considered a compensable employment factor.9
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting her allegations with
probative and reliable evidence.10 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter, OWCP must base its
decision on an analysis of the medical evidence.11
ANALYSIS
Appellant claimed to have been harassed by two supervisors over a three-year period
from 2007 to 2010. She identified a number of employment incidents that related to the filing of
a January 2010 workers’ compensation claim for a left knee injury. The “last straw” was
appellant’s supervisor’s alleged failure to respond to an e-mail regarding certain food items
missing from appellant’s desk and the office refrigerator. Appellant did not allege that the
claimed emotional condition resulted from performing her regular or specially assigned work
duties. The Board finds that she has not established a compensable employment factor under
Cutler.12
Appellant alleged several incidents regarding a former supervisor, Mr. VanMeter. She
claimed Mr. VanMeter harassed her from 2007 to 2008 and stated cruel things. Appellant
alleged an April Fools’ Day Parade, the denial of involving Mr. VanMeter leave and a
performance improvement plan. For appellant to prevail on her claim, she must support her
allegations and establish error or abuse on behalf of her supervisor.13 Although the employing
6

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

7

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

8

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

9

Id.

10

Kathleen D. Walker, supra note 4.

11

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
12

Supra note 6.

13

Kathleen D. Walker, supra note 4.

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establishment did not specifically respond to appellant’s allegations regarding Mr. VanMeter, the
Board notes that appellant did not substantiate any of her various allegations regarding
harassment.14 Appellant did not submit any witness statements or other evidence to substantiate
her allegation. She did not substantiate verbal abuse or error or abuse in the leave denial.
Accordingly, appellant has not established any compensable employment factors with respect to
her alleged interactions with Mr. VanMeter.
The remaining complaints involved appellant’s most recent supervisor, Mr. Wilson, and
various incidents that stemmed from her filing of a workers’ compensation claim in
January 2010. The handling of appellant’s claim for a January 11, 2010 left knee injury has no
bearing on her day-to-day or specially-assigned duties.15
Although processing a compensation claim is generally related to the employment, it is
an administrative function of the employer and not a duty of the employee, and thus, not
compensable absent evidence of error or abuse by the employer.16 Appellant claimed that it took
an entire week before someone submitted her January 2010 workers’ compensation claim.
However, she did not substantiate this allegation, nor did she demonstrate how an alleged weeklong delay in processing the claim was either erroneous or abusive. Appellant also alleged that
her supervisor, Mr. Wilson, and the human resources liaison, Ms. Rice, were not responsive to
her requests for assistance regarding her workers’ compensation claim. These particular
allegations are vague and unsubstantiated. As previously noted, appellant must support her
allegations with probative and reliable evidence.17
Appellant also indicated that a clerical error resulted in her being underpaid by
approximately $300.00. She stated that Mr. Wilson was partly to blame for the January 2010
payroll error, which reportedly took a couple of weeks to resolve. The various e-mails submitted
by appellant document that she was in fact underpaid due to a coding error associated with her
January 11, 2010 absence due to injury. While time and attendance issues are generally related
to the employment, they are administrative functions of the employer, and not duties of the
employee.18 The record does not demonstrate that appellant’s employer, and particularly
Mr. Wilson, was at fault with respect to the coding error regarding her January 11, 2010 absence
due to injury. The evidence reflects that, once appellant brought the payroll error to
Mr. Wilson’s attention, the issue was resolved in a matter of days, not a couple of weeks as
claimed. Appellant reported the problem to Mr. Wilson on Friday, February 5, 2010, and the
matter was resolved by February 11, 2010.

14

For harassment to give rise to a compensable employment injury there must be evidence that harassment
occurred. Donna J. DiBernardo, 47 ECAB 700, 703 (1996). The mere perception of harassment is not
compensable. Id.
15

David C. Lindsey, Jr., 56 ECAB 263, 270-71 (2005).

16

Id.

17

Kathleen D. Walker, supra note 4.

18

T.G., 58 ECAB 189, 197 (2006); Joe M. Hagewood, 56 ECAB 479, 488 (2005).

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Appellant identified a couple of e-mails she received from Mr. Wilson as being “rude.”
She had requested a block of time to work on a special project she had fallen behind on due to
her January 11, 2010 left knee injury. Mr. Wilson initially allowed appellant two hours a day to
devote to the special project, but subsequently increased it to four hours. Ostensibly, the
January 28 and 29, 2010 e-mail exchange between appellant and Mr. Wilson is benign. It is not
readily apparent why appellant found Mr. Wilson’s responses “rude.” Furthermore, she did not
specifically take issue with the amount of time Mr. Wilson allotted to her various assigned
duties.19 Consequently, any emotional reaction to the above-noted e-mail exchange is not
compensable.
Appellant also claimed that Mr. Wilson had not responded to her February 18, 2010
e-mail regarding stolen food. In his March 9, 2010 statement, Mr. Wilson indicated that, while
he did not reply to the e-mail, he did in fact address the issue with appellant. He also noted that
he had spoken with other employees to see if they had any similar experiences. Mr. Wilson
claimed to have reported the matter to his supervisor. Additionally, he stated that he sent an email to the staff on February 23, 2010 informing them of what occurred and advising the staff to
secure their personal property during daytime hours. Appellant was likely unaware of this e-mail
because her last day of work was February 19, 2010. Consequently, the Board finds that
appellant has not substantiated her allegation that Mr. Wilson failed to address her concerns
regarding missing food items.
The few remaining allegations pertain to so-called harassment by Mr. Wilson. Appellant
claimed that he was not particularly helpful when she had questions. She stated that most times
Mr. Wilson’s attitude was “‘I don’t know.’” Appellant also stated that sometimes she would
wait days for an answer. She further alleged that, on January 22, 2010, Mr. Wilson questioned
why her doctor proposed keeping her off work for another week just because of a strain.
Allegations of harassment must be substantiated by reliable and probative evidence.20 The mere
perception of harassment will not suffice.21 The noted instances of alleged harassment by
Mr. Wilson are unsubstantiated, and therefore, not compensable.
As the above analysis demonstrates, appellant has not established any compensable
employment factors. Some of her allegations were either vague or unsubstantiated, while others
pertained to administrative or personnel matters generally excluded from coverage under FECA.
As to this latter category, appellant has not demonstrated error or abuse on the part of her
employer. Moreover, she did not specifically implicate her regular or specially assigned duties
as a factor in her claimed emotional condition. Because appellant failed to establish a
19

Assigning work and monitoring performance are administrative functions of a supervisor. Donney T. DrennonGala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D. Edwards, 55 ECAB 258,
270 (2004). The manner in which a supervisor exercises his 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. Linda J. Edwards-Delgado, 55 ECAB 401,
405 (2004).
20

Joel Parker, Sr., 43 ECAB 220, 225 (1991).

21

Donna J. DiBernardo, supra note 14.

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compensable factor of employment, OWCP properly denied her claim without addressing the
medical evidence of record.22
CONCLUSION
Appellant failed to establish that she sustained an emotional condition in the performance
of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

Garry M. Carlo, supra note 11.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Flushing, NY,
Employer
__________________________________________

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

Docket No. 12-1698
Issued: January 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 7, 2012 appellant filed a timely appeal from a February 27, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.

1

The last merit decision in this case was a November 16, 2009 decision which denied his traumatic injury claim.
For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. 20 C.F.R. § 501.3(d)(2). For final adverse decisions of OWCP issued on or after November 19, 2008, a
claimant must file an appeal within 180 days of the decision. 20 C.F.R. § 501.3(e). Because more than 180 days
has elapsed between the most recent merit decision dated November 16, 2009 to the filing of this appeal on
November 30, 2011 the Board lacks jurisdiction to review the merits of this case.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to establish clear evidence of error.
FACTUAL HISTORY
This case was previously before the Board. By decision dated March 11, 2011, the Board
affirmed a March 11, 2010 nonmerit OWCP decision which found that it properly denied
appellant’s request for reconsideration under 5 U.S.C. § 8128(a).3 In another decision dated
August 8, 2011, the Board denied his petition for reconsideration of the March 11, 2011 Board
decision.4 The facts and circumstances as set forth in the prior decisions are hereby incorporated
by reference.
On September 14, 2011 appellant submitted a request for an oral hearing.
In a decision dated November 10, 2011, an OWCP hearing representative denied
appellant’s request for an oral hearing. He found that the Board previously issued an August 8,
2011 decision regarding appellant’s request for reconsideration. The hearing representative
determined that the Branch of Hearings and Review did not have jurisdiction to review decisions
of the Board. OWCP also exercised its discretion and determined that the issue in this case could
equally well be addressed by requesting reconsideration from OWCP.
On November 22, 2011 appellant filed a request for reconsideration alleging again that on
March 24, 2008 he sustained a lower back injury while he was on the clock and reasonably
fulfilling the duties of his limited-duty assignment.
Appellant submitted various e-mails from his employing establishment discussing his
return to work status regarding when he was authorized to return to work and his work
restrictions.
Appellant also submitted a deposition transcript of Victor Arroyo, appellant’s supervisor,
regarding an Equal Employment Opportunity Commission (EEOC) complaint that he filed.
Mr. Arroyo described appellant’s duties under the April 13, 2007 limited-duty job offer and
acknowledged that he received appellant’s medical restrictions.
Appellant also resubmitted the April 13, 2007 limited-duty job offer, Dr. Arroyo’s
February 20, 2008 report which determined that the job offer was within his restrictions,
3

Docket No. 10-1567 (issued March 11, 2011). On March 27, 2008 appellant, then a 54-year-old electronic
technician, filed a traumatic injury claim alleging that on March 24, 2008 he sustained a lower back injury when he
bent down to retrieve his bag from his toolbox in the locker room. By decisions dated May 13 and December 15,
2008, OWCP denied his claim finding insufficient evidence to establish that he sustained a back injury causally
related to the March 24, 2008 employment incident. In a decision dated November 16, 2009, OWCP modified its
December 15, 2008 decision and denied appellant’s claim finding that he was not performing any work-related
duties at the time of the March 24, 2008 incident.
4

Docket No. 10-1567 (issued August 8, 2011).

2

appellant’s various narrative statements, a March 4, 2008 letter from appellant refusing the offer
for modified assignment because it was not reasonably accommodating, a March 27, 2008
OWCP letter informing him that his limited-duty job offer was found suitable and that he had 30
days from the date of the letter to either accept or deny the job offer and a May 17, 2007
employee assignment sheet.
By decision dated February 27, 2012, OWCP denied appellant’s request for
reconsideration finding that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.5 The
Board has found that the imposition of the one-year time limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6 OWCP may still
reopen a claimant’s case for merit review, even if the claimant’s applications was not filed within
the one-year time limitation, if claimant’s application demonstrates clear evidence of error on the
part of OWCP in its most recent merit decision.
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest on
its face that OWCP committed an error.7 Evidence that does not raise a substantial question
concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of
error.8 It is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion.9 The evidence submitted must not only be of sufficient probative value to
create a conflicting medical opinion or establish a clear procedural error, but must be of
sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of OWCP’s decision.10 This entails a limited review by
OWCP of the evidence previously of record and whether the new evidence demonstrates clear
evidence of error on the part of OWCP.11 In this regard, it will limit its focus to a review of how
the newly submitted evidence bears on the prior evidence of record.12 The Board makes an

5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Annie L. Billingsley, 50 ECAB 210 (1998).

11

Id.

12

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

3

independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that it improperly denied merit review in the face of such evidence.13
ANALYSIS
In its February 27, 2012 decision, OWCP properly determined that appellant failed to file
a timely application for merit review. It had issued its most recent merit decision on
November 16, 2009. Appellant’s request for reconsideration was dated November 22, 2011,
more than one year after November 16, 2009. Accordingly, his request for reconsideration was
not timely filed. Appellant must therefore demonstrate clear evidence of error on the part of
OWCP in issuing its November 16, 2009 decision.
The Board finds that appellant’s request for reconsideration does not establish clear
evidence of error. OWCP denied his traumatic injury claim on the grounds that the record did
not establish that the March 24, 2008 employment incident occurred in the performance of duty
as he was not performing any duty or function required by his employment in connection with
his alleged injury. The record reveals that appellant had refused an offer of limited duty and was
not expected to report to work at the time of the March 24, 2008 employment incident. In
support of reconsideration request, appellant submitted e-mails from his employing
establishment and EEOC deposition transcripts regarding his medical restrictions and ability to
return to limited duty. This evidence, however, is insufficient to establish that OWCP erred in
denying appellant’s claim as it does not raise a substantial question as to the correctness of
OWCP’s decisions. Appellant asserts that he was asked to report to work. This assertion alone
does not demonstrate clear evidence of error on the part of OWCP.14 None of the evidence,
including the documents submitted with the untimely request for reconsideration, demonstrated
that he actually was working on March 24, 2008 or performing any duties required by his
employment at the time of the incident.
Appellant has not provided any argument or evidence of sufficient probative value to
shift the weight of the evidence in his favor and raise a substantial question as to the correctness
of OWCP’s November 16, 2009 decision. Consequently, OWCP properly denied his
reconsideration request as his request does not establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely.

13

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

14

See D.W., Docket No. 08-2318 (issued May 20, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lansing, MI, Employer
__________________________________________

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

Docket No. 10-941
Issued: January 11, 2011

Case Submitted on the Record

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

JURISDICTION
On February 24, 2010 appellant filed a timely appeal from the September 17, 2009 and
February 2, 2010 merit decisions of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
injury to both hips causally related to factors of his employment.
FACTUAL HISTORY
On September 2, 2008 appellant, then a 67-year-old mail clerk, filed two occupational
disease claims (Form CA-2) which were administratively combined. He alleged that he
developed aggravation of the right hip and underwent a hip replacement as a result of awkward
lifting, torso twisting to sort mail, and prolonged walking and standing on concrete. Appellant
first became aware of his condition on March 19, 2003 and of its relationship to his employment
on June 19, 2008. He also alleged that his left hip had early symptoms of failure similar to the

right hip, due to prolonged walking, standing, pulling equipment on concrete and twisting of the
torso in an awkward manner while sorting mail. Appellant first became aware of his left hip
condition in 2006 and of its relationship to his employment on June 17, 2008.1
Appellant submitted a June 19, 2008 report from Dr. John W. Ellis, Board-certified in
family medicine, who reviewed appellant’s medical history and provided findings on physical
examination. He underwent total right hip replacement in 2003 but had continued pain on his
right hip and developed pain in the left side. Dr. Ellis indicated that appellant first developed
right hip pain in 2002 with pain worsening after prolonged standing. On examination there was
decreased range of motion in both the right and left hip with some crepitation in the left hip.
Dr. Ellis diagnosed arthritis to both hips as a result of prolonged standing when working for the
U.S. Postal Service. He explained that prolonged standing put increased stress on the cartilage
and blood vessels, causing traumatic degenerative arthritis in both hips requiring the right total
hip replacement in 2003. Dr. Ellis recommended continued treatment and medication with the
possibility for future surgery.
By letter dated September 8, 2008, the employing establishment controverted appellant’s
claim on the grounds that there was no medical evidence to support that his injuries were caused
by his work activities.
In a letter dated July 8, 2009, the Office requested additional medical evidence, including
copies of examination and treatment records for both hips dating back to when care was first
provided.
In a June 25, 2003 report, Dr. J. Wesley Mesko, a Board-certified orthopedic surgeon,
found appellant to have some limitation of range of motion, particularly with abduction and
internal rotation. He noted that for eight years appellant had complaints of intermittent pain in
his gluteal cheek and groin area, becoming more disabling in April 2003 due to ground tilling for
planting flowers. Dr. Mesko evaluated appellant’s previous May 2003 x-ray films and
documented stage IV degenerative arthritis with bone-on-bone contact. He also noted a large
medial and inferior osteophyte on the right hip and cystic change in the superolateral acetabulum
of the left hip. Dr. Mesko diagnosed degenerative arthritis of the right hip which had become
refractory to medical management and treatment, recommending total hip arthroplasty. In a
July 10, 2003 certification form, he indicated that appellant was to have right total hip
replacement on August 28, 2003.
In a factual statement, appellant contended that his duties as a mail clerk had a causal
effect on his right hip replacement in 2003. He noted that he worked the dock area for a
considerable length of time which involved manipulating heavy equipment both on and off
trucks and trailers, as well as twisting, turning, pushing and pulling equipment which affected his
limbs.
1

Appellant began working for the United States Postal Service as a mail clerk in 1977. He stopped work on
August 3, 1987 due to occupational injuries until a return to restricted duties as an air processor on
September 16, 1996. Appellant’s new duties included sorting express and overnight mail, processing mail, and
occasionally lifting up to 25 pounds. He stopped work on January 24, 2006 due to a shoulder injury and returned to
restricted duties on May 13, 2006.

2

By decision dated September 17, 2009, the Office denied appellant’s claim finding that
the medical evidence did not establish that his hip conditions were related to the accepted work
activities.
On January 21, 2009 appellant, through his representative, requested reconsideration.
The Office received additional treatment and diagnostic reports dated May 7, 2003 to
February 15, 2004. In an August 5, 2003 preoperative health assessment, Aruna Kundi, M.D.
found appellant had severe degenerative joint disease with severe right hip pain and noted he was
scheduled for a right total hip replacement on August 28, 2003.
Appellant also submitted reports from Dr. Mesko dated August 31, 2003 to
February 15, 2004. In an August 31, 2003 discharge summary, Dr. Mesko stated that, despite
conservative medical management and activity modification, appellant underwent right total hip
athroplasty on August 28, 2003 due to disabling pain in his right hip. In an October 15, 2003
x-ray report, he noted a right total hip arthroplasty present, acceptably positioned with no
progressive radiolucencies, component migration or osteolysis evident.
Dr. Mesko’s
February 25, 2004 postsurgical follow up indicated that the wound was well healed, muscle tone
was normal, and motor flexors and abductors were 5 out of 5 for both hips.
In a January 20, 2010 factual statement, appellant stated that his right hip gradually lost
function, in all probability, due to prolonged standing and repeated awkward body movements
from congested work areas while maneuvering heavy loaded equipment. He further stated that
he had not sought invasive treatment for his left hip and was utilizing exercise and medication
for the pain.
By decision dated February 2, 2010, the Office denied modification of its September 17,
2009 decision on the grounds that the medical evidence of record failed to establish the causal
relationship between appellant’s hip conditions and the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is am “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

3

conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.6 Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background 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 identified by the employee. This
medical opinion must include an accurate history of the employee’s employment injury, and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
The Office accepted that appellant engaged in lifting packages, standing, walking and
sorting mail in his employment activities as a mail clerk. It denied his claim on the grounds that
the evidence failed to establish a causal relationship between those activities and his claimed hip
conditions. The Board finds that the medical evidence of record is insufficient to establish that
appellant sustained right and left hip injuries causally related to factors of his employment as a
mail clerk.
Appellant was initially evaluated by Dr. Mesko on June 25, 2003. Dr. Mesko diagnosed
degenerative arthritis of the right hip and noted a large medial and inferior ostephye on the right
hip and cystic change in the superolateral acetabulum of the left hip. He further indicated that
appellant’s pain in his gluteal cheek and groin area had become more disabling since April 2003
4

Elaine Pendleton, supra note 2.

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

D.U., 61 ECAB ___ (Docket No. 10-144, issued July 27, 2010).

7

James Mack, 43 ECAB 321 (1991).

4

due to gardening. The remaining reports of Dr. Mesko establish that appellant underwent total
right hip replacement in 2003 as a result of degenerative arthritis. His February 25, 2004
postsurgical follow up indicated that appellant’s wound was well healed, muscle tone was
normal, and motor flexors and abductors were 5 out of 5 for both hips.
Dr. Mesko did not offer a rationalized opinion on the causal relationship between
appellant’s diagnosed condition and the factors of employment in this claim.8 Moreover, his
report indicated that appellant’s most immediate hip complaints in June 2003 were related to
gardening and planting flowers, not his job at the post office. Although Dr. Mesko provided a
diagnosis of degenerative arthritis, none of his reports mentioned a work-related cause or
aggravation of appellant’s hip conditions. Medical reports not containing adequate rationale on
causal relationship are of diminished probative value on that issue and are insufficient to meet an
employee’s burden of proof.9 Therefore, Dr. Mesko’s medical reports are insufficient to meet
appellant’s burden of proof.
In an August 5, 2003 preoperative health assessment, Dr. Kundi diagnosed severe
degenerative joint disease with right hip pain. While she diagnosed a hip condition, she did not
identify the cause of the problem and did not mention appellant’s employment activities. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.10 Without
medical reasoning explaining how appellant’s employment factors caused the hip condition,
Dr. Kundi’s report is insufficient to meet appellant’s burden of proof.11
In his June 19, 2008 report, Dr. Ellis stated that appellant had a total right hip
replacement in 2003 but continued to have pain in his right hip and developed pain in his left.
Based on his review of appellant’s medical records and physical examination, he diagnosed
arthritis in both hips, noting appellant showed decreased range of motion in both the right and
left hip with some crepitation in the left hip. Dr. Ellis determined that the hip conditions were
caused by prolonged standing which put increased stress on the cartilage and blood vessels.
Dr. Ellis had no contact with appellant prior to his June 19, 2008 evaluation. He
reviewed a number of appellant’s medical records but failed to identify appellant’s work duties,
especially how long he worked for the post office, how many hours he stood in a day, the periods
and the frequency of other physical movements and tasks, and the amount of time he took off.
Dr. Ellis did not explain how appellant’s job duties could have caused the hip injury other than
offering a generalized opinion that standing while working placed a stress on the cartilage and
blood vessels of the hips. Though he opined that appellant’s work situation was the factor that

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

10

C.B., 61 ECAB ___ (Docket No. 09-2027, issued May 12, 2010); S.E., 60 ECAB ___ (Docket No. 08-2214,
issued May 6, 2009).
11

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008).

5

led to the development of his hip arthritis, he did not provide a well-rationalized opinion on the
causal relationship.
The report of Dr. Ellis covered a number of appellant’s medical conditions and affected
body parts.12 While briefly noting a history of appellant’s hip injuries, Dr. Ellis did not discuss
appellant’s years of prior treatment for his hips. The report contained no medical records
specific to appellant’s hips. Moreover, Dr. Ellis did not address the reports of Dr. Mesko or
Dr. Kundi and did not cite medical records that were roughly contemporaneous with appellant’s
hip surgery in 2003. It is not clear that he had a fall or accurate history of medical treatment.
Dr. Ellis failed to mention or consider facts identified by Dr. Mesko, such as the
existence of an osteophyte on the right hip and the significant worsening of appellant’s hips
following work in the garden. He did not consider alternative causes for appellant’s hip
problems such as gardening or the natural progression of arthritis. Dr. Ellis did not review the
reports and test results of physicians who had previously treated appellant for his hip conditions.
Lacking a complete and accurate factual background, sufficient medical record review and
rationale, his report is insufficient to establish that appellant’s hip conditions were causally
related to his employment as a mail clerk.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.13 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.14 Causal relationships must be established by rationalized medical opinion evidence.
Appellant failed to submit such evidence and the Office properly denied his claim for
compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his right
and left hip injuries are causally related to factors of his employment as a mail clerk.

12

In his June 19, 2008 report, Dr. Ellis also evaluated appellant’s shoulders, elbows, wrists, hands, knees, ankles,
toes, feet and neck.
13

Daniel O. Vasquez, 57 ECAB 559 (2006).

14

D.D., 57 ECAB 734 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2010 and September 17, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 11, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7