United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
U.S. POSTAL SERVICE, DELAWARE
PROCESSING & DISTRIBUTION CENTER,
New Castle, DE, Employer
__________________________________________

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

Docket No. 08-138
Issued: June 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 18, 2007 appellant filed a timely appeal from two decisions of the Office of
Workers’ Compensation Programs, the August 6, 2007 decision denying a claim for wage-loss
compensation, and the September 13, 2007 decision, denying her claim for recurrence of
disability. 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 established that her claim for compensation for
disability for two hours on July 20, 2007 is due to the accepted August 4, 2005 employment
injury; and (2) whether appellant established that she sustained a recurrence of total disability
commencing January 26, 2007 related to her accepted condition of contusion and sprain of the
thoracic spine.

FACTUAL HISTORY
On August 4, 2005 appellant, then a 50-year-old clerk, sustained a traumatic injury when
another employee hit her in the back with an all purpose container. She was disabled from work
until September 22, 2005, when she began working a light-duty position. On October 4, 2005
the Office accepted her claim for contusion and strain of the thoracic spine. On October 11,
2005 appellant accepted the position of modified clerk, with restrictions against bending,
stooping, twisting or lifting over 15 pounds.
On January 26, 2006 Dr. Rachael Smith, a Board-certified osteopathic physician
specializing in physical medicine and rehabilitation, stated that appellant continued to experience
symptoms in her mid-back. She noted that appellant’s light-duty position required her to
repetitively lift and transfer sacks of mail. Dr. Smith stated that this was an inhibiting factor and
that a sedentary job would help her healing process. On February 6, 2006 appellant accepted a
sedentary light-duty position casing mail. On March 9, 2006 Dr. Smith reported that appellant
was feeling much better and was under less physical stress since switching jobs. Noting that
repetitive lifting and bending would aggravate appellant’s condition and prevent improvement,
she recommended work restrictions.
Based on Dr. Smith’s findings, the employing
establishment continued to provide appellant with a temporary sedentary position. In a report
dated November 3, 2006, she stated that appellant was managing her chronic thoracic spine pain
well and that her work restrictions should be made permanent.
On November 15, 2006 the Office referred appellant for a second opinion examination to
determine the extent of her injury-related condition.
On December 28, 2006 Dr. Richard DuShuttle, a Board-certified orthopedic surgeon,
reviewed the medical history and conducted a physical examination. He stated that appellant had
a history of arthritis, but denied having back pain prior to her employment injury in August 2005.
Dr. DuShuttle noted that she had been treated with medication and physical therapy. On
physical examination he found that appellant had full cervical rotation with mild stiffness and
tenderness to palpitation in the thoracic area. Dr. DuShuttle found no radiculopathy or
neurological or sensory deficit. He diagnosed a thoracic strain, status post work injury.
Dr. DuShuttle opined that appellant had reached maximum medical improvement and that,
because of the continuing residuals of her employment injury, she should perform only light-duty
work. He stated that appellant was capable of working eight hours per day with permanent
restrictions against lifting more than 20 pounds.
On January 26, 2007 Dr. Smith modified appellant’s permanent work restrictions to limit
her to six hours of work per day and to require the use of the handicap case. The employing
establishment offered appellant a light-duty position from January 26 to April 20, 2007 based on
these restrictions.
On February 1, 2007 the Office provided the employing establishment with a copy of
Dr. DuShuttle’s report and asked that a permanent light-duty position of eight hours per day be
provided for appellant.

2

On February 8, 2007 appellant submitted a claim for compensation for the two hours of
leave without pay taken each day from January 26 to February 2, 2007. She filed a similar claim
every two weeks thereafter.
In a letter dated February 13, 2007, the Office notified appellant that Dr. Smith had not
provided any medical rationale for her six-hour work limitation. The Office requested medical
evidence explaining why she was no longer capable of working eight hours per day.
On February 26, 2007 the employing establishment offered appellant the permanent lightduty assignment of sorting mail in the handicap case with use of a chair for eight hours per day.
The offer included the notation that appellant was currently working six hours per day on her
physician’s recommendation pending approval by the Office. She accepted the position.
On March 3, 2007 Dr. Smith stated that appellant’s six-hour work limit was medically
necessary because the repetitive motion associated with her job increased her thoracic pain and
muscle spasms. When appellant worked more than six hours in a day, the burning pain and
spasms limited her capacity to continue working.
On March 13, 2007 the Office paid appellant for the leave without pay taken from
January 26 to March 2, 2007. The Office continued to grant appellant’s claims for wage-loss
compensation on a regular basis thereafter.
On April 25, 2007 the Office found a conflict between the opinions of Dr. DuShuttle and
Dr. Smith on the issue of how many hours appellant could work per day and how much weight
she could lift. To resolve the conflict, the Office referred appellant to an impartial medical
examiner.
On June 20, 2007 Dr. Jerry Case, a Board-certified orthopedic surgeon, examined
appellant and reviewed her medical records. On physical examination, he found that she had
thoracic and lumbar flexion to 90 degrees, extension to 20 degrees and lateral bending to
20 degrees bilaterally. Dr. Case noted mild tenderness in the upper thoracic area. He found no
other clinical abnormalities, including muscle spasms, in the back or lower extremities. Dr. Case
reviewed appellant’s x-rays and noted widespread degenerative changes, most significantly in
the lower thoracic spine, where she had no complaints of pain. He reported that an August 17,
2005 magnetic resonance imaging (MRI) scan showed multi-level degenerative changes, but no
disc herniation. A bone scan conducted on September 14, 2005 revealed no abnormalities in the
thoracic region.
Dr. Case diagnosed contusion and strain of the thoracic spine superimposed on
preexisting degenerative arthritic changes. He noted that appellant’s complaints were in her
upper thoracic spine, which had very minimal findings of abnormality on the MRI scan and
x-rays. Dr. Case could not explain why she would continue to have significant pain so long after
her injury. He opined that appellant could work eight hours per day and lift up to 20 pounds, but
that she should avoid repeated bending and twisting because of her arthritic findings and
subjective complaints. Dr. Case found that appellant’s condition was unlikely to improve.
On July 9, 2007 appellant filed a claim for compensation for leave without pay taken
from June 25 to July 6, 2007.
3

By decision dated July 12, 2007, the Office denied appellant’s claim for compensation
for disability for two hours per day from June 25 to July 6, 2007. It found that Dr. Case’s
June 20, 2007 opinion, which was entitled to the special weight of the medical evidence,
established that she could work eight hours per day, rather than six hours per day.
By decision dated July 19, 2007, the Office informed appellant that the conflict between
Dr. Smith and Dr. DuShuttle had been resolved. It stated that, effective June 21, 2007, appellant
was required to work eight hours per day with a 20-pound weight restriction. The Office
requested that the employing establishment assign appellant a permanent light-duty position that
met the limitations described by Dr. Case.
On July 23, 2007 appellant filed a claim for compensation for two hours of leave without
pay taken each day from July 9 to 20, 2007.1
By decision dated August 6, 2007, the Office amended the July 19, 2007 decision. It
granted appellant’s compensation claims through July 19, 2007, the date she received official
notice of the decision regarding her change in work status.2
On August 21, 2007 appellant filed a notice of recurrence of disability, Form CA-2a,
alleging that she experienced a recurrence on January 26, 2007, when her physician reduced her
hours from eight to six to stabilize and lessen the effects of her employment injury. She stated
that her previous work restrictions did not improve the symptoms of her job-related injury and,
by January 26, 2007, her repetitive motions and overhead reaching had exacerbated them.3
Appellant also contended that the Office should have expanded her accepted conditions to
include the aggravation of her preexisting thoracic disc disease.
In a report dated August 15, 2007, Dr. Smith provided an overview of appellant’s course
of treatment for mid-back pain since October 2005. She indicated that, during that time, the
nature of appellant’s complaints remained the same. Because appellant’s condition improved
after she began working in a sedentary position, Dr. Smith continued to recommend those
restrictions. On November 3, 2006 she opined that the restrictions should be permanent.
Dr. Smith stated that appellant called her on December 14, 2006 and requested that her work
restrictions be adjusted to a maximum of six hours per day because of increased mid-back pain
due to time spent driving and working. She made the requested change because she thought that
it was reasonable.4 On January 26, 2007 Dr. Smith added the use of the handicap case to
1

Appellant also filed wage-loss claims for July 23 to August 31 and September 18 to 29, 2007. However, these
claims were not in the record at the time of the Office’s August 6, 2007 decision. As the Office has not issued a
decision addressing the subsequent claims, the Board has no jurisdiction to consider them. See 20 C.F.R. § 501.2(c).
2

Though the Office does not discuss the July 12, 2007 decision, it appears as if that decision was also superseded
by the August 6, 2007 decision, because it denied compensation for a period prior to the accepted date of notice,
which was July 19, 2007.
3

Appellant indicated on the claim form that she continued to work six hours per day based upon her physician’s
recommendations. Thus, it appears that she is claiming compensation for disability for two hours per day.
4

Dr. Smith seems to indicate that she changed the work restrictions on December 14, 2006, but there is no record
of any such change until January 26, 2007, when she also recommended use of the handicap case.

4

appellant’s work restrictions. She stated that appellant had “the same complaint” and that she
provided “the same treatment” at the January 26, 2007 appointment and all subsequent
appointments. Dr. Smith concluded her report by opining that appellant would not be able to
return to regular duty, but was able to work within the restrictions she had outlined on
January 26, 2007.
By decision dated September 13, 2007, the Office denied appellant’s claim for recurrence
of disability on the grounds that the evidence was not sufficient to establish a material worsening
of her condition that rendered her unable to perform her assigned light-duty work. It noted that
the impartial medical examiner’s opinion, which carried the special weight of the medical
evidence, established that appellant was capable of working eight hours per day and lifting
20 pounds.5
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act6 has the
burden of proving the essential elements of his claim by the weight of the evidence presented.7
Compensation for wage loss is available only for periods during which an employee’s accepted
condition prevents her from earning her wages.8 Even if the Office has accepted that appellant
sustained an injury in the performance of duty, she still has the burden of establishing that her
accepted condition resulted in disability during the specific periods for which she is claiming
compensation.9 The duration of a disability is a medical issue that must be proved by a
preponderance of the reliable, probative and substantial evidence.10
When an employee claims compensation for leave used because of an alleged injury or
disability, the Office has the responsibility of determining whether the employee was disabled
during those periods.11 The Board will not require the Office to pay compensation for disability
in the absence of any medical evidence directly addressing the particular periods of disability for
which compensation is claimed. To do so would have the effect of allowing employees to selfcertify their disability and entitlement to compensation.12 There is no requirement that an
employee show an independent medical evaluation for each day of claimed disability, but the

5

On October 9, 2007 appellant requested an oral hearing on this decision. On October 12, 2007 she withdrew her
request for an oral hearing so that she could pursue an appeal with the Board.
6

5 U.S.C. §§ 8101-8193.

7

William A. Archer, 55 ECAB 674 (2004); Nathaniel Milton, 37 ECAB 712 (1986).

8

Judith A Cariddo, 55 ECAB 348 (2004); see also 20 C.F.R. § 10.500(a).

9

Dorothy J. Bell, 47 ECAB 624 (1996).

10

Edward H. Horton, 41 ECAB 301 (1989).

11

Glen M. Lusco, 55 ECAB 148 (2003); Laurie S. Swanson, 53 ECAB 517 (2002).

12

Fereidoon Kharabi, 52 ECAB 291 (2001).

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employee must provide some medical evidence that she was disabled on those days.13 When
dealing with an accepted employment injury, a narrative medical opinion directly addressing the
dates of claimed disability is generally sufficient to demonstrate disability for those periods.14
The Act provides that, if there is a disagreement between a physician making an
examination for the United States and the physician of the employee, the Secretary must appoint
a third physician to make an examination.15 Likewise, the implementing regulations states that if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an Office medical adviser or consultant, the
Office must appoint a third physician to make an examination. This is called a referee
examination and the Office is required to select a physician who is qualified in the appropriate
specialty and who has had no prior connection with the case.16 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background, must be given special weight.17
ANALYSIS -- ISSUE 1
The Office compensated appellant for all claimed periods of wage loss from January 26
through July 19, 2007. The issue to be established is whether appellant was disabled for the two
hours on July 20, 2007 for which she sought compensation.
On December 28, 2006 Dr. DuShuttle, a Board-certified orthopedic surgeon acting as a
second opinion physician, opined that appellant had reached maximum medical improvement
related to her thoracic strain. He stated that she was capable of working eight hours per day with
permanent restrictions against lifting more than 20 pounds. On January 26, 2007 appellant’s
treating physician, Dr. Smith, a Board-certified osteopathic physician specializing in physical
medicine and rehabilitation, modified her permanent work restrictions. In addition to the
existing restrictions against bending, stooping, twisting and lifting over 15 pounds, she included
a limit of six hours of work per day and a requirement that appellant use a handicap case to sort
mail. Dr. Smith later stated that the changes were necessary because the repetitive motions of
appellant’s job caused increased burning and spasms in her back when she worked more than six
hours. The Office began compensating appellant for the two hours per day she no longer
worked. However, it properly found that there was a conflict between Dr. DuShuttle and
Dr. Smith on the issue of appellant’s work restrictions and referred her to an impartial medical
examiner to resolve the conflict.
13

Id. (finding that “less than definitive medical evidence” may be adequate proof of disability when an employee
has an accepted employment-related condition and a physician has provided a medical opinion that the effects of the
condition are likely to reoccur).
14

See William A. Archer, supra note 7.

15

5 U.S.C. §§ 8101-8193, 8123(a).

16

20 C.F.R. § 10.321.

17

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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On June 20, 2007 Dr. Case, a Board-certified orthopedic surgeon, examined appellant
and found that her thoracic and lumbar spine had flexion to 90 degrees, extension to 20 degrees
and lateral bending to 20 degrees bilaterally. He noted mild tenderness in the upper thoracic area
but no muscle spasms or other clinical abnormalities in the back or lower extremities. Dr. Case
conducted a review of appellant’s medical history. He found that her x-rays indicated
widespread degenerative changes along the spine, most significantly in the lower thoracic area,
where she had no complaints of pain. Dr. Case reported that an August 17, 2005 MRI scan
showed multi-level degenerative changes, but no disc herniation and that a September 14, 2005
bone scan revealed no abnormalities in the thoracic region.
Dr. Case diagnosed contusion and strain of the thoracic spine superimposed on
preexisting degenerative arthritic changes. He found that appellant’s condition was unlikely to
improve. Dr. Case noted that, despite her subjective complaints, her upper thoracic spine had
very minimal findings of abnormality on the MRI scan and x-rays. He stated that he could not
explain why she would continue to have significant pain so long after her injury occurred.
Dr. Case opined that appellant could work eight hours per day and lift up to 20 pounds, but that
she should avoid repeated bending and twisting because of the arthritis on her spine and her
subjective complaints. The Board finds that the opinion of Dr. Case is entitled to the special
weight of the medical evidence because it is sufficiently well rationalized and based on proper
factual and medical background.
Appellant filed a claim for disability from work for two hours on July 20, 2007 due to her
employment injury. However, Dr. Case’s opinion, which resolved the conflict between
Dr. DuShuttle and Dr. Smith on the issues of appellant’s disability, indicates that she was
capable of working eight hours per day. Appellant submitted no additional medical evidence
specifically addressing her disability from work on July 20, 2007.
The Board finds that the special weight of the medical evidence, as represented by
Dr. Case, establishes that there was no disability on July 20, 2007. Thus, the Board finds that
appellant has not met her burden of proof to establish that she was disabled for two hours on
July 20, 2007.
LEGAL PRECEDENT -- ISSUE 2
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weigh of reliable, probative and substantial evidence.18 To
establish a claim for recurrence of disability, a claimant must establish that she experienced a
spontaneous material change in the employment-related condition without an intervening injury
or new exposure to the work environment that caused the illness.19
An employee who is disabled from her date-of-injury position by employment-related
residuals has the burden of establishing by the weight of reliable, probative and substantial
evidence that she sustained a recurrence of disability such that she cannot perform her light-duty
18

Edward W. Spohr, 54 ECAB 806 (2003).

19

Philip L. Barnes, 55 ECAB 426 (2004); Carlos A. Marrero, 50 ECAB 117 (1998); 20 C.F.R. § 10.5(x).

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position. As part of this burden of proof, the employee must show either a change in the nature
and extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements.20
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained a thoracic strain and contusion on
August 4, 2005. The issue to be resolved is whether appellant has established that she sustained
a recurrence of total disability causally related to this injury. Because she has not alleged a
change in her light-duty requirements, she must show a spontaneous change in the nature or
extent of her employment-related condition.
Appellant alleged that Dr. Smith reduced her hours in January 2007 in an effort to
stabilize her employment injury. She stated that her long-standing employment restrictions did
not lessen the symptoms of her employment injury and that the repetitive motion and overhead
reaching associated with her position exacerbated her condition. The Board notes that this claim,
on its face, does not appear to meet the requirements for a recurrence of disability because the
allegedly worsening condition was not spontaneous, but brought on by repetitive motions and
overhead reaching. These activities constitute new exposure to the work environment and are
therefore not the basis for a recurrence of disability claim, but rather, a new occupational disease
claim.21
The Board finds that the medical evidence does not provide evidence of a change in
appellant’s condition commencing on January 26, 2007. In a report dated August 15, 2007,
Dr. Smith indicated that the nature of appellant’s complaints did not change over the course of
her treatment. She stated, however, that appellant’s condition improved after she began working
in a sedentary position in March 2006. On November 3, 2006 Dr. Smith opined that the existing
restrictions should be made permanent. On December 14, 2006 appellant telephoned Dr. Smith
and requested that her work restrictions be adjusted to a maximum of six hours per day. She
reported increased mid-back pain due to her driving and working hours. Dr. Smith stated that
she made the requested change because it seemed reasonable given appellant’s complaints of
increased mid-back pain. However, she provided no objective clinical findings regarding a
worsening of appellant’s physical condition in December 2006 or January 2007 or any time
thereafter. Dr. Smith stated only that appellant’s complaints and the treatment offered were the
same as previously and did not change going forward. The Board has held that medical evidence
must include rationale explaining how the physician reached the conclusion she is supporting.22
The Board finds that the opinion of Dr. Smith is insufficient to establish that appellant’s
condition changed in nature or extent commencing on January 26, 2007 because she provided no
medical rationale explaining why a change to a six-hour work restriction was “reasonable” in
appellant’s case.
20

Terry R. Hedman, 38 ECAB 222 (1986).

21

See Bryant F. Blackmon, 56 ECAB 752 (2005) (change in appellant’s condition was not spontaneous because
exposure to new employment factors broke the chain of causation).
22

Beverly A. Spencer, 55 ECAB 501 (2004).

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The Board also notes that, as discussed above, the June 20, 2007 report of Dr. Case
carries the special weight of the medical opinion evidence on the issue of appellant’s work
limitations. Though Dr. Case did not directly address the issue of recurrence of disability, he did
opine that appellant was capable of working eight hours a day in a light-duty position and that
there was no explanation for continued pain causally related to the August 4, 2005 employmentrelated injury. His factual findings do not support appellant’s claim that she sustained a change
in the nature or extent of her employment condition on January 26, 2007.
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability on January 26, 2007.
CONCLUSION
The Board finds that appellant has not established that her claim for compensation for
two hours of disability on July 20, 2007 was due to the accepted August 4, 2005 employment
injury. The Board also finds that she has not established that she sustained a recurrence of
disability commencing January 26, 2007 related to her accepted condition of contusion and
sprain of the thoracic spine.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 13 and August 6, 2007 are affirmed.
Issued: June 10, 2008
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 14-86
Issued: April 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 16, 2013 appellant filed a timely appeal of a September 30, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,558.99 from September 24, 2011 through
June 21, 2013; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required repayment of the overpayment by deducting $300.00 from
appellant’s compensation benefits every 28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 1, 2010 appellant, then a 50-year-old mail processor, filed an occupational
disease claim alleging injuries to the right foot and leg as a result of standing and walking in the
performance of duty. On June 23, 2010 OWCP accepted her claim for tenosynovitis of the right
foot and ankle and a longitudinal tear of the right posterior tibial tendon. On January 13 and 28,
2011 it accepted the additional conditions of rupture of the right posterior tibial tendon, adultacquired right flat foot deformity and right plantar fibromatosis. Appellant stopped work on
September 15, 2010 upon being advised that no work was available within her current physical
restrictions. Her compensation was deposited directly into her bank account.
In a February 15, 2011 letter, OWCP advised appellant of her weekly compensation
beginning February 13, 2011. The letter listed various forms of life insurance and health benefits
and indicated whether deductions were being made. OWCP advised appellant that, if she had
basic or optional life insurance and/or health benefits, but no reduction was listed, that she
needed to contact OWCP immediately. It informed her that she would be responsible for the
premiums. The letter noted that no deductions were being made for Postretirement Basic Life
Insurance. In a May 16, 2013 letter to OWCP, an official from the Office of Personnel
Management advised that appellant had elected Postretirement Basic Life Insurance and that
September 24, 2011 was the commencing date for making deductions for this insurance.
In a July 10, 2013 letter, OWCP advised appellant of its preliminary determination that
she received a $2,558.99 overpayment of compensation because deductions for Postretirement
Basic Life Insurance were not made from September 24, 2011 through June 21, 2013. It advised
appellant of its preliminary determination that she was without fault in the creation of the
overpayment. OWCP requested that she complete and submit an enclosed financial
questionnaire (Form OWCP-20) within 30 days of the letter.2 Appellant did not respond.
In a September 30, 2013 decision, OWCP determined that appellant received a $2,558.99
overpayment of compensation because deductions for Postretirement Basic Life Insurance were
not made for the period September 24, 2011 through June 21, 2013. It found that she was not at
fault in creating the overpayment of compensation, but that the circumstances of her case did not
warrant waiver of recovery, because she had not provided justification for OWCP to waive
recovery of the overpayment. Noting appellant’s failure to submit information to support a
finding that adjustment or recovery would defeat the purpose of FECA or be against equity and
good conscience, OWCP required repayment of the overpayment by deducting $300.00 from her
compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one

2

The record contains documents showing that, if deductions had been made for Postretirement Basic Life
Insurance during the period September 24, 2011 through June 21, 2013, the deductions would amount to $2,558.99.

2

or more of the options.3 The coverage for basic life is effective unless waived4 and premiums for
basic and optional life coverage are withheld from the employee’s pay.5
FECA and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue his or her basic life insurance coverage without cost under
certain circumstances6 and may also retain the optional life insurance.7 At separation from the
employing establishment, the FEGLI insurance will either terminate or be continued under
compensationer status.8 If the compensationer chooses to continue basic and optional life
insurance coverage, the schedule of deductions made while the compensationer was an employee
will be used to withhold premiums from his or her compensation payments.9 Thus, while
receiving disability compensation in lieu of retirement benefits, the former employee is
responsible for all insurance premiums.10
When premiums are underwithheld, an overpayment arises because OWCP must pay the
full amount to OPM upon discovery of the error.11
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $2,558.99 overpayment of compensation.
Appellant elected to receive Postretirement Basic Life Insurance effective September 24, 2011.
While in compensationer status, she remained responsible for all insurance benefits, including
the premiums for Postretirement Basic Life Insurance.12 The record establishes that the
deductions for Postretirement Basic Life Insurance during the period September 24, 2011
through June 21, 2013 amounted to $2,558.99. The Board finds that appellant received a
$2,558.99 overpayment of compensation.13

3

5 C.F.R. § 870.201.

4

Id. at § 870.204(a).

5

Id. at § 870.401(a).

6

Id. at § 870.701, subpart G.

7

Id. at § 871.201, subpart B.

8

Id. at § 870.501.

9

Id. at § 872.410, subpart D.

10

Scherri L. Stanley, 53 ECAB 433, 435 (2002).

11

S.H., Docket No. 12-166 (issued June 14, 2012); J.R., Docket No. 11-285 (issued September 22, 2011).

12

See supra notes 8 through 10.

13

See L.P., Docket No. 12-1897 (issued March 15, 2013).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA14 provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustments shall be made by decreasing later
payments to which an individual is entitled.15 The only exception to this requirement is found in
section 8129(b) of FECA, which provides that adjustments or recovery may not be made when
incorrect payments have been made to an individual who is without fault and when such
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.16
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment.17 OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in sections 10.434 and 10.437 of the
implementing federal regulations.18
Section 10.438 of FECA’s implementing regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver and no further request for waiver shall be considered until the requested information is
furnished.19
ANALYSIS -- ISSUE 2
OWCP advised appellant by July 10, 2013 notice of its preliminary determination of the
$2,558.99 overpayment and that she was not at fault in the creation of same. It determined that
she was not at fault because she had no notice or knowledge that proper deductions were not
being made for OPM life insurance premiums. Although appellant was without fault, she
nonetheless bears responsibility for providing the financial information necessary to support the
request for waiver. OWCP properly requested that she submit information regarding her income,
assets and expenses by completing a questionnaire and providing supporting documentation.
However, appellant did not provide any of the requested financial information or documentation.
In the absence of the information requested, OWCP could not determine whether or not recovery

14

5 U.S.C. § 8129(a).

15

Id.

16

Id. at § 8129(b).

17

James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

18

20 C.F.R. §§ 10.434 and 10.437.

19

Id. at § 10.438; Linda Hilton, 52 ECAB 476, 479 (2001).

4

of the overpayment would defeat the purpose of FECA or be against equity and good conscience.
Therefore, it properly denied waiver of recovery.20
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provide that, if an
overpayment of compensation has been made to one entitled to future payments, proper
adjustment shall be made by decreasing subsequent payments of compensation, 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.21
When an individual fails to provide requested information on income, expenses and assets,
OWCP should follow minimum collection guidelines, which state in general that government
claims should be collected in full and that, if an installment plan is accepted, the installments
should be large enough to collect the debt promptly.22
ANALYSIS -- ISSUE 3
Appellant was in receipt of continuing compensation benefits and OWCP determined that
repayment of the overpayment would be made by deducting $300.00 from appellant’s
compensation every 28 days. The Board notes that she failed to provide information on her
income, expenses and assets, and that OWCP followed collection guidelines by requiring
installments large enough to collect the debt promptly. The Board will affirm OWCP’s
determination regarding rate of recovery.23
CONCLUSION
The Board finds that OWCP properly found that an overpayment of $2,558.99 was
created. The Board finds that it properly denied waiver of recovery. The Board further finds
that OWCP properly required repayment of the overpayment by deducting $300.00 from
appellant’s compensation payments every 28 days.

20

See supra note 17.

21

Id. at § 10.441.

22

Gail M. Roe, 47 ECAB 268, 276 (1995).

23

See J.H., Docket No. 09-1830 (issued September 13, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2013 is affirmed.
Issued: April 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, GATEWAY ANNEX,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 08-713
Issued: September 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2008 appellant filed an appeal of July 5 and October 22, 2007 decisions
of the Office of Workers’ Compensation Programs denying her claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether the Office properly found that appellant did not establish that she
was totally disabled for work for the period December 24, 2005 to January 9, 2006 causally
related to accepted injuries.
FACTUAL HISTORY
The Office accepted that on or before March 17, 2003 appellant, then a 39-year-old
parcel post distribution clerk, sustained a resolved aggravation of traumatic osteoarthritis of the

left ankle with arthropathy.1 It later accepted a head injury, cervical radiculitis and right upper
extremity contusions sustained on July 23, 2004.2 She received compensation for intermittent
work absences in 2003 through November 2005.
Dr. Bruce E. Cohen, an attending Board-certified orthopedic surgeon, submitted reports
in 2003 diagnosing severe post-traumatic osteoarthritis of the left ankle.3 Dr. Robert B.
Anderson, an attending Board-certified orthopedic surgeon, treated appellant from March 2003
onward. On August 16, 2004 he performed an open decompression and debridement of the left
anterior ankle joint with hardware removal. Dr. Anderson submitted progress notes.
Appellant worked four hours a day limited duty through 2005 with restrictions provided
by Dr. Anderson.4 The Office obtained a second opinion on October 21, 2005 from
Dr. Surendrapal Mac, a Board-certified orthopedic surgeon, who diagnosed degenerative posttraumatic arthritis of the left ankle with a clonus deformity. Dr. Mac opined that appellant was
able to work eight hours a day with restrictions.
On January 9 and 20, 2006 appellant filed a claim for total wage-loss compensation for
the period December 24, 2005 to January 20, 2006. The Office accepted a period of total
disability beginning January 10, 2006.
In a January 10, 2006 form report, Dr. A. Randall Moss, an attending Board-certified
family practitioner, noted treating appellant on December 19 and 26, 2005 and January 2, 2006
for headaches related to the accepted July 23, 2004 head injury. He referred appellant to
Dr. Robert Ringel, a neurologist.
In a January 10, 2006 report, Dr. Anderson diagnosed significant post-traumatic arthritis
of the left ankle with chronic pain worsened by activity. He restricted appellant to working four
hours a day.
In a February 17, 2006 letter, the Office found a conflict of medical opinion between
Dr. Anderson, for appellant, and Dr. Mac, for the government, regarding the nature and extent of

1

The Office initially denied the claim for left ankle osteoarthritis by decision dated July 24, 2003. It accepted the
claim following additional medical development.
2

The left ankle claim was assigned File No. 06-2084338. The head injury and right arm claim was assigned File
No. 06-2119413. The Office in an April 10, 2007 letter, found that appellant submitted sufficient medical evidence
to establish a total disability for work from December 26 to 29, 2006. It paid the remaining four hours of
compensation each day for that period. There is no clear indication that the Office formally doubled the two claims.
3

The Office obtained a second opinion on January 13, 2004 from Dr. Eugene N. Powell, Jr., a Board-certified
orthopedic surgeon, who opined that walking and standing at work caused a temporary aggravation of appellant’s
preexisting left ankle osteoarthritis due to a November 1989 ankle fracture with open reduction and internal fixation.
4

Appellant claimed a schedule award on March 1, 2005. There is no final decision of record regarding the
schedule award claim.

2

her injury-related conditions. It planned to appoint an impartial medical examination to resolve
the conflict. There is no impartial medical report of record.5
By decision dated May 15, 2006, the Office denied appellant’s claim for wage-loss
compensation for the period December 24, 2005 to January 20, 2006. It found that appellant
submitted insufficient rationalized medical evidence to establish disability for the claimed
period.
In a June 2, 2006 letter, appellant requested reconsideration. She submitted a March 7,
2006 report from Dr. Moss, who noted examining appellant on December 19 and 26, 2005 and
January 2, 2006 for head pain related to the July 23, 2004 injuries. Dr. Moss referred appellant
to Dr. Ringel.
By decision dated July 19, 2006, the Office modified the May 15, 2006 decision to accept
that appellant was disabled from January 10 to 20, 2006. It found that appellant submitted
insufficient medical evidence to establish the claimed disability for work from December 24,
2005 to January 9, 2006.
In a July 25, 2006 letter, appellant requested reconsideration. She submitted a July 11,
2006 report from Dr. Ringel diagnosing cervical myofascial pain and noting work restrictions.
In a July 20, 2006 report and chart note, Dr. Anderson stated that appellant was able to perform
light duty as of January 10, 2006 for four hours a day. Appellant also submitted a September 30,
2004 magnetic resonance imaging scan of her right shoulder showing rotator cuff edema,
tendinisis and a possible tear.
By decision dated August 31, 2006, the Office denied modification of the prior decision
on the grounds that the medical evidence submitted did not address the claimed period of
disability.
In a September 11, 2006 letter, appellant requested reconsideration. She contended that
the Office had already paid her 40 hours of wage-loss compensation for the period December 24,
2005 to January 6, 2006 as she was working only four hours a day due to accepted head and neck
injuries.
By decision dated October 4, 2006, the Office denied modification on the grounds that
the medical record did not demonstrate objective findings of disability during the disputed
period.
In an October 27, 2006 letter, appellant requested reconsideration. She submitted work
restrictions from Dr. Anderson relevant to October 2006. Appellant also submitted an
5

The Office conducted second opinion referrals in March 2006 to Dr. Bogdan Gheorghiu, a Board-certified
neurologist, and Dr. James Bethea, a Board-certified orthopedic surgeon. Dr. Gheorghiu diagnosed cervical
radiculopathy attributable to the July 23, 2004 injuries. Dr. Bethea diagnosed right shoulder pain and left ankle
osteoarthritis. On July 24, 2006 the Office appointed Dr. Wesley A. Carr, Jr., a Board-certified neurologist, as
impartial medical examiner, who declined to perform the examination. On November 30, 2006 the Office appointed
Dr. John Robert Absher, a Board-certified neurologist, as impartial medical examiner. There is no report from
Dr. Absher of record.

3

October 27, 2006 report from Dr. Moss, who noted treating her for headaches with cervical
radiculopathy due to the accepted July 23, 2004 head, neck and arm injuries. Dr. Moss stated
that “[s]pecifically she was NOT to work from December 24, 2005 until seen by Dr. Ringel on
January 23, 2006.” (Emphasis in the original.)
By decision dated January 11, 2007, the Office denied modification on the grounds of
insufficient medical evidence. It found that Dr. Moss provided no findings or rationale
explaining why appellant was totally disabled for work during the claimed period.
In a February 20, 2007 letter, appellant requested reconsideration.
additional medical evidence.

She submitted

In December 22, 2006 slips and a February 6, 2007 report, Dr. Anderson held appellant
off work on December 5 and December 26 to 29, 2006 due to an exacerbation of left ankle pain
attributable to walking and standing at work.6
In a February 20, 2007 form report, Dr. Moss noted treating appellant on December 19
and 26, 2005 and January 2, 2006 for sequelae of the July 23, 2004 head injury. In a
February 26, 2007 report, he stated that appellant was under his care for injury-related
cervicogenic headaches and radiculopathy from December 24, 2005 to January 20, 2006.
Dr. Moss noted that appellant received compensation from January 10 to 20, 2006 for the same
diagnoses. He emphasized that he held appellant off work from December 24, 2005 through
January 20, 2006 pending an appointment with Dr. Ringel.
By decision dated July 5, 2007, the Office denied modification on the grounds that the
medical evidence did not establish the claimed disability for work from December 24, 2005 to
January 9, 2006. It found that Dr. Moss did not provide medical rationale as to why the accepted
injuries would continue to disable appellant for work during the disputed period.
In an August 10, 2007 letter, appellant requested reconsideration. She noted that the
Office paid compensation from January 10 to 22, 2006 based on Dr. Moss holding her off work
pending the appointment with Dr. Ringel. Appellant contended that the Office did not explain
why it would not compensate her for the period December 24, 2005 to January 9, 2006 based on
the same medical evidence. She submitted a July 30, 2007 letter from Dr. Moss agreeing with
appellant’s contentions, noting that she was “sincere and accurate in her assessment.” Dr. Moss
requested that the Office reconsider its denial of compensation for the disputed period.
By decision dated October 22, 2007, the Office denied modification on the grounds that
the medical evidence was insufficient to warrant modification. It found that Dr. Moss’ praise of
appellant’s character was not medical rationale sufficient to establish her claim. The Office
noted reviewing medical evidence submitted right shoulder and head injury claim7 and that the
6

In an April 10, 2007 letter, the Office found that appellant submitted sufficient medical evidence to establish a
total disability for work from December 26 to 29, 2006. It paid the remaining four hours of compensation each day
for that period.
7

File No. 06-2119413.

4

decision pertained to both claims. It found that a January 2, 2006 treatment note submitted under
the head injury claim did not indicate any period of total disability.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act8
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.9
To establish a causal relationship between a claimed period of disability claimed and the
accepted employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background, supporting such a causal relationship.10 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.11 Rationalized medical evidence is evidence which
includes a physician’s rationalized medical 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
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.12
ANALYSIS
The Office accepted that appellant sustained an aggravation of left ankle osteoarthritis, a
head injury, right upper extremity contusions and cervical radiculitis in the performance of duty.
On January 9 and 20, 2006 appellant claimed wage-loss compensation for the period
December 24, 2005 to January 20, 2006. By decision dated May 15, 2006, the Office denied
compensation for the claimed period of disability on the grounds that appellant submitted
insufficient medical evidence establishing total disability for work for that period. It then
accepted a period of total disability beginning January 10, 2006. In six subsequent merit
decisions dated from July 19, 2006 to October 22, 2007, the Office denied appellant’s claim for
compensation from December 24, 2005 to January 9, 2006 on the grounds she submitted
insufficient rationalized medical evidence to establish total disability for this period.
Appellant submitted reports from Dr. Anderson, an attending Board-certified orthopedic
surgeon. In January 10 and July 20, 2006 reports, Dr. Anderson diagnosed post-traumatic
arthritis of the left ankle and noted work restrictions. He also addressed appellant’s condition in
periods not relevant to the period in dispute. As Dr. Anderson did not find appellant totally
8

5 U.S.C. §§ 8101-8193.

9

Amelia S. Jefferson, 57 ECAB 183 (2005).

10

Manuel Gill, 52 ECAB 282 (2001).

11

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

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

5

disabled for work for any period from December 24, 2005 to January 9, 2006, his reports are of
little probative value in establishing the claimed period of total disability.
Dr. Moss, an attending Board-certified family practitioner, treated appellant on
December 19 and 26, 2005 and January 2, 2006 for headaches related to the accepted July 23,
2004 head injury. He referred appellant to Dr. Ringel, a neurologist. Dr. Moss noted in an
October 27, 2006 report that he held appellant off work from December 24, 2005 through
January 20, 2006 pending the appointment with Dr. Ringel. He contended that because the
Office accepted a period of disability from January 10 to 20, 2006, it should compensate
appellant from December 24, 2005 to January 9, 2006 as he also held her off work for that
period. However, Dr. Moss did not provide objective findings or medical rationale explaining
how and why the accepted injuries disabled appellant for work for the claimed period. This lack
of rationale greatly diminishes the probative value of his reports.13
Appellant also submitted a September 30, 2004 imaging report and a July 11, 2006 report
from Dr. Ringel. Neither report addressed the claimed period of disability.
The Board therefore finds that appellant submitted insufficient rationalized medical
evidence to establish that she was totally disabled for work from December 24, 2005 to
January 9, 2006 due to the accepted injuries. However, the Board further finds that there are two
administrative matters in the case that require additional development.
First, the Office predicated its October 22, 2007 decision, in part, on evidence not before
the Board on the current appeal. It noted reviewing evidence under File No. 06-2119413,
regarding a head and shoulder injury, as well as File No. 06-02084338 now before the Board.
The Office found that a report in File No. 06-2119413 did not establish the claimed period of
total disability. However, this report is not of record in the case file now before the Board under
File No. 06-2084338. In order to perform a fully informed adjudication of the issues, the Board
must be able to review the complete evidentiary basis for the Office’s October 22, 2007 decision.
Therefore, the case must be remanded to the Office for reconstruction of the record, including
doubling the case record from File No. 06-02084338 with File No. 06-2119413.
Second, the Board finds that there is an unresolved conflict of medical opinion in the
case. The Office found a conflict of medical opinion as of October 21, 2005 between
Dr. Anderson, for appellant, and Dr. Mac, a second opinion physician for the government,
regarding the nature and duration of her injury-related conditions. However, there is no impartial
medical report of record. On return of the case, the Office shall obtain an appropriate impartial
medical opinion to resolve the conflict of opinion pursuant to section 8123(a) of the Act.14
Following this and any other development deemed necessary, the Office shall issue an
appropriate decision in the case.

13

See Frank D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports
lacking rationale on causal relationship are entitled to little probative value).
14

5 U.S.C. § 8123(a).

6

CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 22 and July 5, 2007 are set aside and the case remanded
for further development consistent with this decision.
Issued: September 24, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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Appearances:
Kerry A. Scates, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1810
Issued: December 2, 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 August 2, 2011 appellant filed a timely appeal of a June 29, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP), denying her request for an oral hearing
before an OWCP hearing representative. 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 June 29, 2011
decision. Since more than 180 days has elapsed since the December 17, 2008 schedule award
decision and more than one year has elapsed since the January 18, 2008 termination of
compensation, and the filing of this appeal, the Board lacks jurisdiction to review the merits of
the schedule award or termination issues pursuant to 20 C.F.R. § 501.3(e).2

1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing
before an OWCP hearing representative.
FACTUAL HISTORY
In the present case, OWCP accepted bilateral carpal tunnel syndrome resulting from
appellant’s duties as a mail handler. By decision dated January 31, 2007, it issued a schedule
award for a three percent right arm impairment commencing October 31, 2006. Appellant
received wage-loss compensation through January 19, 2008 for an employment-related
disability. By decision dated January 18, 2008, OWCP terminated compensation for wage-loss
and medical benefits. On December 17, 2008 it issued a schedule award for a five percent
permanent impairment to the left arm. Pursuant to the schedule award, appellant received
compensation from January 20 to April 14, 2008.
On June 3, 2011 OWCP received an appeal request form indicating that appellant
requested an oral hearing. The postmark date was May 24, 2011. Appellant did not provide a
date of the request or identify the date of the decision, although the request form itself was dated
January 18, 2008.
By decision dated June 29, 2011, OWCP denied the request for an oral hearing. It found
the request was untimely and stated that it had exercised its discretion and determined the issue
in the case could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides in pertinent part:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this title is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”3
As section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a
hearing, a claimant is not entitled to a hearing as a matter of right unless the request is made
within the requisite 30 days.4
The Board has held that OWCP, in its broad discretionary authority to administer FECA,
has power to hold hearings in circumstances where no legal provision is made for such hearings,
and OWCP must exercise its discretion in such circumstances.5

3

5 U.S.C. § 8124(b)(1).

4

See William F. Osborne, 46 ECAB 198 (1994).

5

Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26 ECAB 354 (1975).

2

ANALYSIS
A request for a hearing must, as noted above, be made within 30 days after the date of the
issuance of OWCP final decision. The postmark date of the hearing request was May 24, 2011.
To the extent that appellant was requesting a hearing with respect to the January 18, 2008
termination decision, the request is untimely. To the extent that appellant was requesting a
hearing on the January 31, 2007 schedule award for the right arm, or the December 17, 2008
schedule award for the left arm, the request is also untimely.
Since the hearing request was untimely, appellant is not entitled to an oral hearing as a
matter of right. OWCP must exercise its discretionary authority to grant or deny a hearing even
though the request is untimely filed. In this case, it advised appellant that she could submit
additional relevant evidence on the issue through the reconsideration process. This is considered
a proper exercise of OWCP’s discretionary authority.6
The Board accordingly finds that OWCP properly denied the request for an oral hearing.
The request was untimely and OWCP exercised its discretion in denying the request.
On appeal, appellant indicated that she was not being allowed to return to work even
though there was sufficient work available within her work restrictions. She referred to a recent
arbitration decision in her case. If appellant has a specific claim for compensation under FECA
she may pursue such a claim with OWCP. The Board can only review final adverse decisions of
OWCP in a case arising under FECA.7 In this appeal the only final decision under review was
the June 29, 2011 denial of a hearing. For the reasons noted, the Board must affirm the June 29,
2011 decision based on the evidence of record.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing
before an OWCP hearing representative.

6

See Mary E. Hite, 42 ECAB 641, 647 (1991).

7

20 C.F.R. § 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2011 is affirmed.
Issued: December 2, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 15-0478
Issued: July 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On December 29, 2014 appellant filed a timely appeal of an August 22, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an emotional condition due to factors of her federal employment.
FACTUAL HISTORY
Appellant, a 53-year-old distribution supervisor, filed an occupational disease claim
(Form CA-2) on September 18, 2013 alleging an emotional condition sustained in the
performance of duty. She asserted that she was subjected to harassment and retaliation on the
part of management and as a result became depressed.
1

5 U.S.C. § 8101 et seq.

By letter dated October 1, 2013, OWCP advised appellant that she needed to submit
additional information in support of her claim. It requested that appellant describe in detail the
employment-related conditions or incidents which she believed contributed to her emotional
condition.
In a September 18, 2013 statement, received by OWCP on October 28, 2013, appellant
alleged that management subjected her to harassment and treated her in a discriminatory manner
for approximately three to four years. She asserted that the employing establishment made her
work alone in areas to which other employees had not been assigned and made her work the
floor on weekends, despite the fact that she asked management not to assign her weekend work.
Appellant alleged that these actions on the part of management were retaliatory. She reported
that she had filed Equal Employment Opportunity (EEO) claims in response to the harassment
and retaliation that she was subjected to. Appellant asserted that this harassment and retaliation
created a very stressful work environment. In addition, she alleged that there were incidents in
which some of her employees had been on drugs and had engaged in physical altercations with
her, other managers, and the postal police. Appellant also alleged that there were situations
where employees had brought guns onto the postal premises. She further alleged that
management harassed her about work performance after failing to provide her with sufficient
staff to complete her assignments. Appellant asserted that as a result of these situations she
experienced problems with sleeping, eating, and her interpersonal relationships.
In a June 26, 2013 report, received by OWCP on October 31, 2013, Dr. Ramesh Parikh, a
Board-certified psychiatrist, advised that appellant had been off work since June 2013 because
her job had become too stressful. He related that she was irritable, moody, sad, easily angered,
and had difficulty concentrating. Appellant reported to him that some of these stresses began
three or four years ago. She also informed him that management required her to work nights
supervising up to 50 people, which led to her gaining considerable weight and undergoing lap
band surgery. Dr. Parikh advised that appellant was involved in a work incident in which one of
her charges threatened her with a gun, which was essentially her breaking point. Appellant had
to take leave from work and she remained off work for six months. She related that she returned
to work for six weeks; however, another incident occurred in which another one of her
employees became violent while using illegal drugs, though the violence was not directed toward
her. Dr. Parikh reported that she continued working until she could no longer function at the
workplace. Appellant was taken off of work for six months, until October 2012. Dr. Parikh
asserted that she felt overwhelmed and unable to adjust to the work environment, becoming
extremely anxious, agitated, getting loud at times, and having crying episodes and yelling at
people. He opined that, as a result of this work-related stress, appellant began eating more and
gaining weight, and she experienced chest pain to the extent that she feared having a heart attack.
Dr. Parikh diagnosed major depressive disorder, severe anxiety disorder, and severe
avoidant and schizoid personality. He concluded that that appellant’s work stressors had been
gradually building up to the point where she was unable to cope with work pressures or perform
and function at work. Dr. Parikh opined that all of her current mental stressors were the direct
result of the pressures that she was experiencing at work. He advised that the manner in which
she was treated by her supervisors and the manner in which she was responding had aggravated
her preexisting psychological stressors and led him to conclude that her current condition was
directly related to the pressures of her job at the employing establishment.

2

In response to OWCP’s October 1, 2013 developmental letter, appellant submitted an
October 17, 2013 statement in which she made the following allegations:
(1) In September 2010 one of her employees, J.J., brought a gun to work. This
was very disturbing to her because she had to give him a notice about him being
on disability. The employee allegedly told her “I know what to do with you,” and
the postal police found empty beer cans and a gun in his car. She felt threatened
by this incident and did not believe that management handled it properly;
(2) On January 25, 2011 employee F.J. was on illegal drugs and became violent,
fighting with her, a distribution manager, and the postal police. This was very
stressful for her;
(3) She was twice required to work the entire first floor on Saturday and Sunday
nights (November 18 to 19, 2012 and April 7 to 8, 2013). This involved five
different sections of the mail distribution units, an assignment which exceeded her
capacities. She either had to supervise all of these units by herself or sometimes
train someone to work the areas to assist her. She asserted that this was extremely
stressful because she lacked sufficient employees and equipment to run the area,
yet she was still required to meet the dispatch mail quota and numbers and make
deadlines. In addition, on many occasions management personnel said demeaning
and degrading things to her and cursed and yelled at her. She asserted that
management had since realized that this was too much responsibility for one
person and had since assigned some additional employees to help to work that
area.
(4) There were numerous occasions when management disciplined her or
threatened her with discipline, allegedly without sufficient cause. On January 14,
2012 she received a Letter of Warning. She appealed and the action was later
rescinded. On September 19, 2012 appellant had to be hospitalized due to panic
attacks which she attributed to work-related stress. She was off work on
September 20 and 21, 2012 and thought she was having a heart attack. On
October 18, 2012 the employing establishment denied her request to attend a
family funeral which was scheduled initially on her off day. She alleged that
management intentionally changed the leave schedule in order to force employees
to readjust their days off, an action which inconvenienced many people and was
done out of meanness and spite. On November 23 and 25, 2012 management
conducted pre-disciplinary interviews, but she was not disciplined. She believed
that these interviews were conducted simply to harass her. On January 24, 2013,
she received a Letter of Absence Inquiry from management. She believed that
management intentionally listed the wrong dates in the letter in an attempt to
confuse her, which is typical of the harassment management regularly perpetrates
toward her.2 She related that she was disciplined for missing a dispatch and was
not provided an interview to submit her side of the story.
2

Appellant alleged that this letter requested documentation to support time off beginning January 13, 2013,
although her absence began January 17, 2013.

3

(5) On February 22, 2013 a manager granted appellant leave without pay
(LWOP) instead of approving the paid sick leave she had requested. This
prevented her from receiving her regular pay, in addition to her holiday pay,
which made her go to another manager to persuade him to change her pay status;
(6) On March 11, 2013 three managers were talking in a derogatory manner
toward her, a conversation which was broadcast over the employing
establishment’s radio system. This was an incident which embarrassed and
humiliated her;
(7) On April 12, 2013 a manager talked in a derogatory manner toward her and
yelled at her;
(8) On June 3, 2013 two managers called her into the office and harassed her
about staffing;
(9) She had been subjected to disrespectful treatment and harassment by
management since October 18, 2012. This resulted in the deterioration of her
mental and emotional health. She experienced crying episodes, sleeplessness, and
developed an eating disorder which caused her to undergo lap band surgery. The
employing establishment created a hostile work environment and appellant feared
for her safety and her life. She admitted having “an attendance issue,” but only
because of all of the harassment she continually received and the stress to which
she was subjected.
In a November 12, 2013 statement, Ms. Samika N. Collins, a manager of distribution
operations (MDO) controverted appellant’s claim and rebutted her assertions. With regard to
appellant’s statement that employees had brought guns onto the postal premises and that she had
been threatened and was caused stress by these incidents, management advised that on
August 28, 2010 the postal police noticed a gun in an employee’s car. This employee received a
notice of removal on October 3, 2010, but never threatened a supervisor or employee, including
appellant. Other than this incident, Ms. Collins asserted that the employing establishment was
not aware of any other employee who had been disciplined for this type of misconduct and that
there was no substantiation for her allegations.
The employing establishment rebutted her account of the November 14, 2010 incident
involving the employee’s use of illegal drugs. Ms. Collins asserted that during the six months
appellant took off from work allegedly due to her emotional condition, appellant was actually
undergoing plastic surgery. Appellant was conducting an investigative interview with this
employee after he requested sick leave because of his illness and he did not want to fill out the
proper paperwork. She contacted an MDO who requested his time card. When the employee
refused to provide it, the MDO called the postal police and an altercation ensued between the
recalcitrant employee and postal police. There was no violence toward appellant or the MDO
since the MDO had taken control over the incident. The employee received a notice of removal
on March 4, 2011 and was removed on November 30, 2011. Ms. Collins asserted that
management had a zero tolerance policy when it came to dealing with such disturbances.

4

Ms. Collins noted that appellant alleged that she was harassed by several managers, in
particular, R.I., but failed to provide any substantiation or corroboration for any alleged, specific
incidents of harassment and failed to identify which managers were harassing her other than R.I.
She further asserted that many of the periods for which she claimed harassment were not
consistent with its attendance records.3 With regard to her allegations of being overburdened by
insufficient staff and being forced to work weekends, Ms. Collins reported that she was not given
any responsibilities above and beyond those assigned to other supervisors who performed similar
tasks. She further advised that there is no mail delivered on Sunday morning and that the
majority of postal employees are not at work during the weekend. Ms. Collins also noted that
appellant had five hours of sick leave and a negative 64 hours of annual leave.
By decision dated March 26, 2014, OWCP denied appellant’s claim finding that she
failed to establish any compensable factor of employment and thus fact of injury was not
established. It found that the incidents of harassment did not occur as alleged, as she provided
no evidence corroborating or substantiating these alleged incidents.
By letter dated May 15, 2014, appellant requested reconsideration. She reiterated her
previous allegations and asserted that she had provided documentation showing that she had
been disciplined unjustly by the employing establishment.
In an April 2, 2014 report, Dr. Parikh reiterated that appellant continued to focus on her
work issues. He related that appellant was recently asked to contact the employee assistance
program due to her problems with coworkers. Appellant was preoccupied with how her coworkers were making fun of her, hiding her stuff, and harassing her by engaging in acts like
killing insects on her station. Dr. Parikh advised that when appellant confronted another
supervisor who had taken one of her employees, her manager yelled at her instead and she
became so upset that she sent an email complaining about this harassment. He reiterated his
previous diagnoses and his opinion that her conditions were caused by work factors.
In an April 10, 2014 report, Dr. Parikh reiterated his previous findings and conclusions in
addition to appellant’s accounts of work-related incidents in which management allegedly acted
inappropriately and caused her stress and anxiety. Appellant did not submit any additional
factual evidence in support of her request for reconsideration.
By decision dated August 22, 2014, OWCP denied modification of the March 26, 2014
decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
3

The employing establishment advised that its records showed that appellant was off work intermittently from
October 2012 to June 6, 2013. It asserted that she was out due to scheduled and unscheduled absences for the
following periods in which she also alleged harassment: December 29, 2012 through January 5, 2013; January 17 to
February 4, 2013; March 16 to 31, 2013; April 18, 2013; and May 18 to 19, 2013.
4

28 ECAB 125 (1976).

5

explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.5 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.6 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.7 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus disability
is not covered when it results from an employee’s fear of a reduction-in-force, nor is disability
covered when it results from such factors as an employee’s frustration in not being permitted to
work in a particular environment or to hold a particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.9 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.10 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.12

5

Supra note 1

6

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

7

Supra note 4.

8

Id.

9

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

10

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
11

Roger Williams, 52 ECAB 468 (2001).

12

Alice M. Washington, 46 ECAB 382 (1994).

6

ANALYSIS
Appellant has alleged an emotional condition due to being overworked due to staffing
shortages. Pursuant to Cutler13 this allegation could constitute a compensable employment
factor if appellant establishes that her regular job duties or a special assignment caused an
emotional condition. 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.14 The Board finds, however, that appellant submitted no evidence supporting her
allegation that she was unable to complete her supervisory duties due to a staffing shortage.
Without evidence substantiating the allegation, appellant has failed to meet her burden of proof
to establish a compensable factor of employment under Cutler.15 As appellant did not otherwise
attribute her claimed condition to particular duties performed on particular dates, she has not
established an employment factor under Cutler.16
Appellant further attributed her emotional condition to stress caused by staffing
shortages. In McEuen,17 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters is not covered under FECA as such matters pertain to procedures
and requirements of the employing establishment and do not bear a direct relation to the work
required of the employee. The Board noted, however, that coverage under FECA would attach if
the facts surrounding the administrative or personnel action established error or abuse by
employing establishment superiors. 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.18
Appellant has provided no evidence supporting for her allegations sufficient to establish
error or abuse in an administrative action under McEuen. Regarding her allegations that
management did not provide her sufficient staff to complete the workload, appellant did not
provide any evidence that the employing establishment acted in an abusive or unreasonable
manner in this regard. Appellant asserted that she lacked sufficient employees and equipment to
run the area, yet she was still required to meet the dispatch mail quota and numbers in order to
make deadlines. However, she has not submitted evidence regarding the necessary staffing
levels, nor has she described any unreasonable actions by management which prevented proper
staffing.19

13

Supra note 4.

14

See Bobbie D. Daly, 53 ECAB 691 (2002); T.M., Docket No. 15-1774 (issued January 20, 2016).

15

K.S., Docket No. 15-1426 (issued December 29, 2015).

16

Supra note 4.

17

See Thomas D. McEuen, supra note 10.

18

See G.C., Docket No. 15-1231 (issued February 2, 2016).

19

Georgia F. Kennedy, 35 ECAB 1151 (1984).

7

Appellant has also provided insufficient evidence to establish that the employing
establishment acted unreasonably or committed error in discharging its administrative duties
with regard to her work assignments. She alleged that she was twice required to work the entire
first floor on Saturday and Sunday nights, which was comprised of five different sections of the
mail distribution units. These allegations were not substantiated. Appellant has not provided
any additional information or corroborating evidence, such as witness statements, regarding the
circumstances of her work assignments so as to establish the context under which they were
made. Ms. Collins reported that appellant was not given any responsibilities above and beyond
those assigned to other supervisors who performed similar tasks. She also noted that there was
no mail delivered on Sunday morning and that the majority of postal employees are not at work
during the weekend. Appellant did not submit any evidence to substantiate that any of her work
assignments were in error or were abusive.
Regarding appellant’s allegation that she developed stress due to the uncertainty of her
job duties and her insecurity about maintaining her position, the Board has previously held that a
claimant’s job insecurity is not a compensable factor of employment under FECA.20 The Board
has held that an employee’s dissatisfaction with perceived poor management constitutes
frustration from not being permitted to work in a particular environment or to hold a particular
position and is not compensable under FECA.21
Although the handling of disciplinary actions is generally related to the employment, it is
an administrative function of the employing establishment.22 The Board notes that appellant
asserted that several of the disciplinary actions taken by management, including letters of
warning, predisciplinary interviews, and letters of absence of inquiry were either rescinded or not
fully processed by the employing establishment. However, the mere fact that personnel actions
were later modified or rescinded does not, in and of itself, establish error or abuse.23 The Board
finds that appellant has failed to establish error or abuse with regard to her allegation that the
employing establishment acted improperly in issuing her letters of warning, letters of absence
inquiry and predisciplinary interviews. As appellant has failed to show that management’s
actions demonstrated error or abuse on the part of management, they are not compensable.24
The Board similarly notes that matters pertaining to leave use are generally not covered
under the Act as they pertain to administrative actions of the employing establishment and not to
the regular or specially assigned duties the employee was hired to perform.25 Appellant has
provided no substantiation for her assertions that management’s handling of leave was arbitrary
or unfair. Ms. Collins reported that as of November 12, 2013 appellant had a balance of 5 hours
of sick leave and negative 64 hours of annual leave, indicating that she had been awarded ample
20

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

21

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

22

See Janet I. Jones, 47 ECAB 345 (1996).

23

Supra note 21.

24
25

Id.
Elizabeth Pinero, 46 ECAB 123 (1994).

8

leave for numerous periods. Appellant admitted that she had an attendance problem in her
October 2013 statement. Thus, the Board finds that as appellant has failed to show that these
actions amounted to error or abuse on the part of management, they are not compensable.
Appellant alleged that management erred by failing to deal appropriately with the
incident in which an employee allegedly brought a loaded gun to the workplace and the incident
in which an employee under the influence of drugs became defiant, unruly, and in engaged in a
violent confrontation with management. These assertions were refuted by Ms. Collins in her
November 12, 2013 statement. Ms. Collins advised that on August 28, 2010 a postal policeman
noticed a gun and two empty beer cans in an employee’s car and that this employee consequently
received a notice of removal on October 3, 2010. She asserted, contrary to appellant’s assertion,
that the employee did not threaten appellant or any other employee. Ms. Collins also rebutted
appellant’s assertion that employees brought guns to the workplace, stating that no other
incidents had occurred in which employees were found to have guns on the premises or were
disciplined for this type of conduct. In addition, she rebutted her account of the November 14,
2010 incident involving the unruly employee under the influence of illegal drugs. Appellant
alleged that she was interviewing an employee who claimed to have an illness which required
time off who requested sick leave, but refused to fill out the proper paperwork. She asserted that
the employee became hostile, violent, and started a physical altercation with her. Ms. Collins,
however, reported that appellant contacted a superior who called the postal police. An
altercation thereafter ensued between the employee and the postal police. Ms. Collins asserted
that appellant was not involved in this physical altercation because the supervisor took control of
the situation. She reported that management had a zero tolerance policy with regard to such
incidents, which was reflected when it issued a notice of removal on March 4, 2011 to the unruly
employee and removed him on November 30, 2011. Ms. Collins also asserted that during the six
months off from work referenced by Dr. Parikh, in which appellant was allegedly disabled due to
her emotional condition, she was actually undergoing plastic surgery. Verbal altercations and
difficult relationships with coworkers and supervisors/managers, when sufficiently detailed and
supported by the record, may constitute compensable factors of employment.26 However, this
does not imply that every ostensibly abusive or threatening statement uttered in the workplace
will give rise to coverage under FECA. For appellant to prevail on her claim, she must support
her allegations with specificity and reliable evidence. The Board finds that appellant’s
statements and actions are not proven with specific dates and times and as such are not
sufficiently established as true.
The Board finds that these allegations on the part of appellant were refuted by
Ms. Collins’ responses. Ms. Collins sufficiently addressed each of her allegations and
demonstrated that management acted appropriately in its administrative capacity with regard to
each of these situations which arose in the work environment.27

26

L.M., Docket No. 13-267 (issued November 15, 2013).

27

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993);

9

Appellant has also not established her allegations that management engaged in a pattern
of harassment, intimidation, or discrimination. She asserted that her problems begin around
October 18, 2012, when management began to subject her to disrespectful treatment and
harassment. Appellant alleged that on March 11, 2013 three managers were talking in a
derogatory manner toward her, a conversation which was broadcast over the employing
establishment’s radio system; that on April 12, 2013 a manager talked in a derogatory manner
toward her and yelled at her; and that on June 3, 2013 two managers called appellant into the
office and harassed her about staffing. She alleged that these incidents and others created a
hostile work environment. Appellant has also asserted that she was harassed in retaliation of
EEO claims she has filed. However, these assertions are not supported by the record. The
primary reason for requiring factual evidence from the claimant in support of her allegations of
harassment in the workplace is to establish a basis in fact for the contentions made, as opposed to
mere perceptions of the claimant which in turn may be fully examined and evaluated by OWCP
and the Board.28 Appellant did not provide sufficient evidence to establish that she was harassed
by management or treated in a discriminatory manner.29 Mere perceptions of harassment or
discrimination are not compensable; a claimant must establish a basis in fact for the claim by
supporting her allegations with probative and reliable evidence.30
The Board has reviewed all of appellant’s allegations of harassment, abuse, and
mistreatment on the part of management, and finds that while she disapproved of how the
employing establishment managed the workplace, this did not rise to the level of a compensable
act. Appellant’s allegations constitute mere perceptions or generally stated assertions of
dissatisfaction with a certain superior at work which do not support her claim for an emotional
condition.31 She has not submitted evidence sufficient to establish that the employing
establishment engaged in a pattern of harassment and intimidation toward her or created a hostile
workplace environment.
The Board finds that appellant has not established a compensable work factor. For this
reason, the medical evidence will not be considered.32 The Board will affirm the August 22,
2014 decision denying compensation for an alleged emotional condition.
Appellant may submit new evidence or argument with a written request for
reconsideration 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.

28

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

29

See Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
30

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

31

See Debbie J. Hobbs, 43 ECAB 135 (1991).

32

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

10

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish an
emotional condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2016
Washington, DC

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

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

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

11