United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 15-1020
Issued: November 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 2, 2015 appellant, through counsel, filed a timely appeal from a December 8,
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 over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate wage-loss
compensation and medical benefits effective October 7, 2013, and (2) whether appellant has met
her burden of proof to establish continuing employment-related disability or residuals after
October 7, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 10, 2009 appellant, then a 43-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a right hip injury in the
performance of duty on November 9, 2009. She indicated on the claim form that she was
walking, bending, and sweeping when she felt right hip pain. Information provided on the claim
form did not indicate that appellant had stopped work. The record indicates that appellant began
to receive supplemental roll payments for partial disability as of December 26, 2009. OWCP
accepted the claim on January 12, 2010 for right hip and lumbar sprains. On April 1, 2010 it
expanded the claim to include right knee sprain.
Appellant was treated by Dr. Timothy Duffey, an osteopath. In a report dated
November 9, 2010, Dr. Duffey noted that appellant had returned to work shortly after her
November 9, 2009 injury, but then had been off work for six months. Appellant continued to
have right knee pain, and a May 10, 2010 magnetic resonance imaging (MRI) scan report noted a
tear of the lateral meniscus. Dr. Duffey opined that the work injury aggravated a preexisting
right knee osteoarthritis and caused the torn meniscus. By report dated June 13, 2011, he noted
that a partial lateral meniscectomy of the right knee was performed.
The record indicates that on September 22, 2012 appellant accepted a part-time
modified-duty position, including a 15-pound lifting restriction. Appellant received wage-loss
compensation offset for actual earnings. On September 25, 2012 OWCP expanded the claim to
include aggravation of right knee osteoarthritis.
OWCP referred appellant for a second opinion examination with Dr. Manhal Ghanma, a
Board-certified orthopedic surgeon. In his February 19, 2013 report, Dr. Ghanma provided a
history and results on examination. He opined that the accepted hip, lumbar, and right knee
sprains had resolved. Dr. Ghanma reported there was no evidence of a continuing aggravation of
right knee osteoarthritis, and any aggravation would have been a temporary flare-up of
symptoms. He opined that appellant could perform her date-of-injury position and there was no
employment-related disability.
Appellant returned to a full-time, modified-duty position on March 1, 2013. Dr. Duffey
noted in a March 26, 2013 report that appellant continued to have work restrictions with respect
to her right knee as she continued to have swelling and pain, with a diminished ability to walk.
OWCP determined that a conflict in the medical evidence existed between Drs. Duffey
and Ghanma with respect to appellant’s employment-related condition and disability. To resolve
the conflict, Dr. Michael Lefkowitz, a Board-certified orthopedic surgeon, was selected as a
referee physician.
In a report dated July 9, 2013, Dr. Lefkowitz provided a history, results on examination,
and noted his review of the medical evidence. He opined that the employment-related hip, back,
and knee sprains had resolved, noting that they were soft tissue injuries that had been resolved
since the 2009 injury. Dr. Lefkowitz noted that an aggravation of right knee osteoarthritis was
not the cause of appellant’s current symptoms, but that her current symptoms related instead to
right hip arthritis. He noted that she was clear that her initial symptoms did not occur in the right

2

knee, and that right knee pain could arise from hip arthritis. Dr. Lefkowitz further noted,
“Numerous physician reports as well as [appellant’s] own reported injury point to a mechanism
more involving the hip than the knee. Therefore, I do not believe the medical evidence in fact
supports an aggravation substantial of the right knee osteoarthritis, but instead if anything would
have supported osteoarthritis of her right hip. This of course is a retrospective review and thus I
am not suggesting that appellant add aggravation of the right hip arthritis, but rather simply that
the diagnosis of osteoarthritis aggravation of her right knee is not medically supported by this
chart.” Dr. Lefkowitz opined that the “aggravation of preexisting osteoarthritis I do not believe
is currently the main cause of her symptoms and in addition I am unclear as to whether this
should have been an allowed condition. Therefore, I do not believe that appellant’s current
residual limitations are based on her work-related conditions. I do, however, feel that her
medical conditions, which again are not work related, are causing her to have limitations in her
activities. I do not feel that it is safe for her to kneel or squat.”
By letter dated September 5, 2013, OWCP advised appellant that it proposed to terminate
her compensation for wage-loss and medical benefits.2 Appellant was advised to submit
evidence or argument within 30 days. She submitted an October 1, 2013 report from Dr. Duffey,
stating that she continued to have right knee pain.
By decision dated October 7, 2013, OWCP terminated compensation for wage-loss and
medical benefits, finding that the medical evidence established that appellant’s accepted
employment-related conditions had resolved.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
in a letter dated October 9, 2013. A hearing was held on April 15, 2014. By decision dated
June 27, 2014, the hearing representative affirmed the October 7, 2013 termination. He found
the weight of the evidence rested with Dr. Lefkowitz.
Appellant requested reconsideration by letter dated September 9, 2014. She submitted an
August 11, 2014 report from Dr. Charles May, an osteopath. Dr. May wrote that he did not
understand how OWCP could accept the report of Dr. Lefkowitz, who did not accept right knee
osteoarthritis aggravation. He opined that appellant had an employment-related aggravation of
right knee osteoarthritis. In a report dated September 12, 2014, Dr. Duffey noted that he had last
seen her on October 1, 2013. He noted that appellant had damage to the articular surface of the
right knee from the work injury. Dr. Duffey opined that she had sustained a lateral meniscus tear
from the employment injury. He noted that appellant had abnormal mechanics and misalignment
of the knee that would increase in severity over the years.
By decision dated December 8, 2014, OWCP reviewed the case on its merits, but denied
modification.

2

According to the record, appellant was not then receiving wage-loss compensation. As noted above, she had
returned to full-time work on March 1, 2013.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her hemployment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.3 The right to medical
benefits for an accepted condition is not limited to the period of entitlement to compensation for
disability. To terminate authorization for medical treatment, OWCP must establish that appellant
no longer has residuals of an employment-related condition which require further medical
treatment.4
It is well established that when a case is referred to a referee medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.5
ANALYSIS -- ISSUE 1
In the present case, OWCP accepted that appellant sustained right hip, right knee, and
lumbar sprains, as well as aggravation of right knee osteoarthritis, in the performance of duty on
November 9, 2009. It terminated compensation, effective October 7, 2013. With respect to the
accepted conditions, it is OWCP’s burden of proof to terminate compensation for wage-loss and
medical benefits.6
OWCP found that a conflict existed under 5 U.S.C. § 8123(a) with respect to the status of
appellant’s employment-related conditions.7 Attending physician Dr. Duffey opined that
appellant continued to have an employment-related aggravation of right knee osteoarthritis
causing work restrictions. A second opinion physician, Dr. Ghanma, opined in a February 19,
2013 report that appellant’s employment-related conditions had resolved. OWCP properly
determined that a conflict existed in the medical opinion evidence and selected Dr. Lefkowitz as
a referee physician to resolve the conflict.

3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

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

5

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

6

As noted above, the record indicated that appellant had returned to full-time work as of March 1, 2013 and had
not been receiving wage-loss compensation at the time of the October 7, 2013 decision.
7

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulation 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 OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321.

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The Board finds that Dr. Lefkowitz provided a rationalized opinion that appellant’s
accepted conditions had resolved. Dr. Lefkowitz explained that the accepted sprains were soft
tissue injuries that had resolved. As to the aggravation of right knee osteoarthritis, counsel
argued before OWCP’s hearing representative that Dr. Lefkowitz had failed to acknowledge that
it was an accepted condition. Dr. Lefkowitz, however, did indicate that it was an accepted
condition, and in the context of a termination, the issue is whether appellant continued to have
residuals of the aggravation of right knee osteoarthritis. If he had failed to address the accepted
condition then his opinion would be of diminished probative value.8 In this case, however,
Dr. Lefkowitz clearly opined that appellant did not have continuing right knee osteoarthritis. He
explained that her right knee symptoms were instead due to right hip osteoarthritis.
As to the accepted conditions in this case, the Board finds that Dr. Lefkowitz represents
the weight of the medical evidence. As noted above, a rationalized opinion from a referee
physician is entitled to special weight. OWCP, therefore, met its burden of proof to terminate
compensation for wage-loss and medical benefits for the accepted conditions effective
October 7, 2013.
LEGAL PRECEDENT -- ISSUE 2
Appellant has the burden to establish any additional conditions for which compensation is
claimed as causally related to the employment injury.9 After termination or modification of
benefits, clearly warranted on the basis of the evidence, the burden for reinstating compensation
benefits shifts to appellant. In order to prevail, appellant must establish by the weight of the
reliable, probative, and substantial evidence that he had an employment-related condition or
disability which continued after termination of compensation benefits.10
ANALYSIS -- ISSUE 2
After the June 27, 2014 decision, affirming the termination of compensation, appellant
requested reconsideration and submitted an August 11, 2014 report from Dr. May. This report is
insufficient to meet her burden of proof to establish a continuing employment-related disability
after October 7, 2013. Dr. May reported that he did not understand how OWCP could accept the
report of Dr. Lefkowitz. The report of Dr. Lefkowitz provided a rationalized medical opinion
that the accepted conditions had resolved. Dr. May opined that appellant had an aggravation of
right knee osteoarthritis, but did not discuss whether she continued to have an
employment-related disability after October 7, 2013. He did not provide a rationalized medical
opinion on the issue of continuing disability.
Appellant also submitted a September 12, 2014 report from Dr. Duffey. Dr. Duffey
noted that he last treated her on October 1, 2013. He, however, does not provide a rationalized
8

See P.G., Docket No. 13-0902 (issued February 20, 2014).

9

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989); see also G.B., Docket
No. 14-1241 (issued June 22, 2015).
10

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

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opinion with respect to a continuing employment-related disability after October 7, 2013.
Dr. Duffey reported that appellant had damage to the articular surface of the right knee, opined
that a meniscus tear was causally related to the November 9, 2009 employment injury, and that
the condition continued to cause symptoms.11 He did not, however, provide a rationalized
medical opinion based on a complete history.12 Dr. Duffey did not discuss the employment
injury, the medical history, or the mechanism of injury explaining why he believed appellant
sustained a lateral meniscus tear in the performance of duty on November 9, 2009.
It is appellant’s burden of proof to establish a continuing employment-related disability
after proper termination of compensation. The Board finds the medical evidence submitted is
insufficient to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds OWCP met its burden of proof to terminate compensation for wage-loss
and medical benefits for the accepted conditions. The Board further finds that appellant did not
meet her burden of proof to establish an employment-related continuing disability after
October 7, 2013.

11

As noted in the factual history, appellant underwent right knee arthroscopic surgery on June 13, 2011.

12

Medical rationale is a medically sound explanation for the opinion offered. See Ronald D. James, Sr., Docket
No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 (1983)(the evidence must convince the
adjudicator that the conclusion drawn is rational, sound and logical).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2014 is affirmed.
Issued: November 13, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boulder, CO, Employer
__________________________________________

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Appearances:
Gregory A. Hall, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1780
Issued: July 20, 2007

Case Submitted on the Record

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

JURISDICTION
On July 31, 2006 appellant, through her attorney, filed a timely appeal of a June 12, 2006
merit decision of the Office of Workers’ Compensation Programs, denying her recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this decision.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
beginning on May 21, 2004 causally related to her March 2, 2002 employment injuries.
FACTUAL HISTORY
On March 4, 2002 appellant, then a 44-year-old part-time flexible carrier, filed a
traumatic injury claim. She alleged that on March 2, 2002 she sustained a cervical strain as a
result of using a double satchel system to carry a very heavy load that weighed from 40 to
45 pounds for 4½ hours while in the performance of duty. The Office accepted her claim for
cervical strain and displacement of a cervical disc without myleopathy. It authorized anterior

discectomy and fusion and plating at C5-6 and C6-7 which were performed on January 8, 2003
by Dr. James S. Ogsbury, a Board-certified orthopedic surgeon.
Appellant accepted the employing establishment’s February 13 and 27, 2003 offers of
limited-duty work. She missed work intermittently from February 10 through June 16, 2003 due
to medical appointments, pain management and therapy. On July 10, 2003 appellant accepted
the employing establishment’s limited-duty job offer. She missed work intermittently from
July 12, 2003 through March 30, 2004 for physical therapy.
On January 20, 2004 appellant filed claims for compensation (Form CA-7) for the period
December 13, 2003 through January 9, 2004. She indicated that she was performing modified
work with restrictions. Appellant submitted medical records regarding her cervical condition.
By letter dated January 28, 2004, the Office advised appellant that her claim could not be
paid at that time as she failed to submit medical evidence which established that her work hours
were reduced or that she had any medical appointments scheduled on the claimed dates. The
Office provided 30 days in which appellant could submit the necessary medical documentation
to establish her claim.
Appellant submitted additional medical records regarding her cervical condition. In form
reports dated February 27 and March 30, 2004, Dr. Daniel J. Gerber, an attending Boardcertified physiatrist, opined that she could work six to eight hours a day with restrictions.
By decision dated April 14, 2004, the Office denied appellant’s claim for compensation
for the period December 13, 2003 through January 9, 2004. It found that she failed to submit
contemporaneous medical evidence to establish her claim. The Office found that appellant’s
attending physician released her to return to light-duty work six to eight hours a day and she
failed to submit medical evidence establishing that this work restriction had changed. It also
found that, based on the average number of hours worked one year prior to appellant’s pay rate
effective date, she was entitled to 33 hours per week.
By letter dated May 11, 2004, appellant’s attorney advised the Office that he had
previously submitted an entry of appearance on behalf of appellant and that he had not received a
response to his requests for information regarding her claim, including the April 14, 2004
decision. Counsel requested that the Office reissue this decision with a new date so that he could
properly review appellant’s legal rights with her.
On May 20, 2004 the Office reissued its April 14, 2004 decision, which denied
appellant’s claim for compensation for the period December 13, 2003 through January 9, 2004.
On May 24, 2004 the Office received Dr. Gerber’s May 11, 2004 approval of the
employing establishment’s modified-duty job offer.1

1

Previously, on March 30, 2004, Dr. Gerber found that appellant could not perform the duties of a modified-duty
position offered to her by the employing establishment because it did not meet her lifting restriction of 5 to 10
pounds.

2

On June 3, 2004 appellant filed a claim (Form CA-2a) alleging that she sustained a
recurrence of disability on May 21, 2004 as a result of the employing establishment’s withdrawal
of her limited-duty work assignment. Also on June 3, 2004 she filed a (Form CA-7) claim for
compensation for the period May 22 through June 5, 2004. Appellant submitted a hospital
emergency room report dated April 12, 2004, which stated that she suffered from acute chronic
low back pain. Dr. Gerber’s May 19, 2004 report stated that appellant expressed ongoing
stressors at work regarding a recent referral for formal retraining. He stated that the results were
good from a current mix of migraine and pain medications with no compliance on appellant’s
part. In a June 18, 2004 report, Dr. Gerber diagnosed lumbar radiculopathy and stated that
appellant’s prognosis was good.
On June 14, 2004 the Office received the employing establishment’s May 11, 2004
controverted claims. It stated that she failed to submit medical documentation to her supervisors
or to anyone else at the employing establishment for the claimed dates. The employing
establishment also stated that modified work was made available to appellant during the claimed
period. It indicated that she was charged absent without leave (AWOL) until May 17, 2004
when she suddenly returned to work with no medical documentation for her absence or ability to
return to work.
In a June 18, 2004 letter, appellant requested an oral hearing before a hearing
representative regarding the Office’s May 20, 2004 decision. Her attorney contended that the
record contained sufficient medical evidence to support her claim for compensation. She
submitted Dr. Gerber’s April 12, 2004 emergency room treatment note which stated that she
suffered from acute low back pain.
By letter dated June 22, 2004, the Office advised appellant that the evidence submitted
was insufficient to establish her recurrence of disability claim. The Office addressed the factual
and medical evidence she needed to submit to establish her claim.
On July 6, 2004 the Office received a copy of appellant’s June 3, 2004 CA-2a form
claim. On the reverse of the form, the employing establishment stated that appellant’s limitedduty assignment was not withdrawn from her. It indicated that she refused to sign an offer for a
job that was within her restrictions.
By letter dated August 2, 2004, appellant’s attorney advised the Office that he did not
receive a copy of its June 22, 2004 developmental letter. He stated that appellant missed work
from May 8, 2004 until she returned to work on May 19, 2004 and that she used sick leave
during this period. Counsel indicated that, two days after returning to work, the employing
establishment, on May 21, 2004, sent appellant home because it was no longer able to
accommodate her medical condition. He contended that she was not claiming a recurrence of
disability beginning May 8, 2004, but rather she was alleging that she sustained a recurrence of
disability on May 21, 2004. Counsel stated that this dismissal constituted a withdrawal of
limited-duty work which by definition constituted a recurrence of disability. He also stated that
appellant’s recurrence of disability claim was not medical in nature since it arose from the
employing establishment’s actions. He indicated that prior to May 8, 2004 she performed
limited-duty work that was later withdrawn by the employing establishment. Counsel concluded

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that appellant had not suffered any new injuries since her return to work on May 19, 2004 and
that she had been off work since May 21, 2004.
By decision dated September 22, 2004, the Office denied appellant’s recurrence claim.
The evidence of record was insufficient to establish that she sustained a recurrence of disability
beginning May 8, 2004 causally related to her March 2, 2002 employment injuries.
In a letter dated October 19, 2004, appellant, through her attorney, requested an oral
hearing before an Office hearing representative regarding the Office’s May 20 and
September 22, 2004 decisions.
By decision dated February 10, 2005, an Office hearing representative affirmed the
May 20 and September 22, 2004 decisions, finding that the evidence of record was insufficient to
establish that appellant was disabled for work during the periods December 13, 2003 through
January 9, 2004 and beginning May 8, 2004. The hearing representative also found that
appellant failed to establish that her limited-duty position was withdrawn by the employing
establishment.
In a letter dated March 30, 2005, appellant’s attorney reiterated his contention that she
sustained a recurrence of disability due to the employing establishment’s withdrawal of her
limited-duty job on May 20, 2004. He argued that she was entitled to compensation from
May 20, 2004 until the date she returned to work.
On April 1, 2005 the employing establishment reiterated its contention that it did not
withdraw appellant’s limited-duty position from her. Rather, she refused to accept a position
within her restrictions.
On May 17, 2005 appellant filed a CA-2a form claim alleging that she sustained a
recurrence of disability on May 20, 2004. She stated that on May 20, 2004 the employing
establishment withdrew her limited-duty job. The employing establishment told her to leave and
that she would be contacted by its injury compensation control office for vocational
rehabilitation placement.
By letter dated June 7, 2005, the Office closed appellant’s May 17, 2005 recurrence of
disability claim. It stated that the issue of whether the employing establishment had withdrawn
her limited-duty position had already been adjudicated and denied twice, on September 22, 2004
and April 4, 2005.2
In a letter dated February 9, 2006, appellant, through her attorney, requested
reconsideration of the hearing representative’s February 10, 2005 decision. Counsel stated that
he was only seeking reconsideration of this decision with regard to the Office’s September 22,
2004 decision. He argued that appellant sustained a recurrence of disability on May 21, 2004
2

In the April 4, 2005 decision, the Office found that appellant did not sustain a recurrence of disability from
February 8 to 28, 2005. The evidence of record was insufficient to establish that she was totally disabled during the
claimed period or that the employing establishment withdrew her limited-duty position. On February 28, 2005
appellant accepted the employing establishment’s February 18, 2005 offer for a modified clerk position.

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and not May 8, 2004 as a result of the employing establishment’s withdrawal of her limited-duty
position. Counsel contended that the Office improperly calculated appellant’s average earnings
for the period December 13, 2003 to January 9, 2004. He further contended that all of
appellant’s employment-related conditions had not been accepted by the Office. Lastly, counsel
argued that medical records from David D. Robinson, Ph.D., were sufficient to establish that
appellant sustained an employment-related emotional condition for which she was entitled to
compensation.
By letter dated May 1, 2006, the employing establishment reiterated that it did not
withdraw appellant’s limited-duty position. It further contended that her earnings were properly
calculated. The employing establishment argued that appellant’s absences from work were selfdirected and, therefore, the period covered by these absences were not compensable. It also
argued that her claim had been accepted for several conditions other than a cervical strain.
Lastly, the employing establishment contended that the medical evidence of record did not
establish that appellant sustained an emotional condition in the performance of duty. It stated
that it had submitted all medical records pertaining to appellant.
In a December 23, 2004 letter, Gina M. Munoz, a station manager at the employing
establishment, stated that she advised appellant on May 20, 2004 that she could no longer work
because she had not accepted a job offer. Ms. Munoz stated that, during a redress mediation on
August 31, 2004, appellant was asked to produce a copy of a signed job offer and to date she had
failed to do so.
By decision dated June 12, 2006, the Office affirmed the February 10, 2005 decision. It
found that appellant was contending that she sustained a recurrence of disability on May 21,
2004 rather than on May 8, 2004. The Office further found the evidence of record insufficient to
establish that she sustained a recurrence of disability due to the employing establishment’s
withdrawal of her limited-duty position on May 21, 2004.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position, or the medical evidence of record
3

20 C.F.R. § 10.5(x).

4

Id.

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establishes that she can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the employment-related condition or a
change in the nature and extent of the light-duty job requirements.5
Office’s procedure manual defines recurrence of disability to include withdrawal of a
light-duty assignment made specifically to accommodate the claimant’s condition due to the
work-related injury.6 The procedure manual also indicates that, to constitute recurrence of
disability, the withdrawal of a light-duty position must have occurred for reasons other than
misconduct or nonperformance of job duties.7 The Board has held that a claimant’s showing that
light-duty work was unavailable constitutes a change in the nature or extent of light-duty
requirements sufficient to establish a recurrence of disability.8
ANALYSIS
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability due to withdrawal of a limited-duty position. She does not
allege that she was totally disabled beginning on May 21, 2004 due to her accepted employmentrelated cervical strain and displacement of a cervical disc without myelopathy. Instead, appellant
asserts that the employing establishment withdrew her limited-duty position beginning on
May 21, 2004, the date on which she was told that work was no longer available.
In this case, the employing establishment advised appellant to stop working on May 20,
2004 because she refused to sign a limited-duty job offer that was within her restrictions. The
Board has held that, when a claimant stops work for reasons unrelated to her accepted
employment injury, she has no disability within the meaning of the Federal Employees’
Compensation Act.9 Though this dismissal acted effectively as a withdrawal of light-duty status,
it cannot form the basis for a disability compensation claim because the dismissal had nothing to
do with appellant’s ability to perform the limited-duty requirements of the offered position. As
the withdrawal of her position was premised on the misconduct, the loss of her position under
these circumstances does not establish a recurrence of disability.10 Additionally, the record is
devoid of any medical evidence establishing that appellant did not and/or could not perform the
offered limited-duty assignment at the time that the employing establishment dismissed her from
work due to misconduct. Dr. Gerber, an attending physician, approved of the offered position.
5

Barry C. Peterson, 52 ECAB 120, 125 (2000); Terry R. Hedman, 38 ECAB 222 (1986).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(1)(c) (May 1997).

7

Id.

8

Jackie B. Wilson, 39 ECAB 915 (1988).

9

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(1)(c) (May 1997); see
also John W. Normand, 39 ECAB 1378 (1988); Carolyn R. Gray, (Docket No. 05-1700, issued June 20, 2006).
10

See 20 C.F.R. § 10.5(x); see also Lester Covington, 47 ECAB 539, 542 (1996); Major W. Jefferson, III,
47 ECAB 295, 298 (1996).

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The Board finds that appellant did not submit sufficient evidence to meet her burden of
proof in establishing that she sustained a recurrence of disability beginning on May 21, 2004.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained a recurrence of disability beginning on May 21, 2004 causally related to her accepted
employment-related conditions on the grounds that the employing establishment withdrew lightduty work.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2006 and February 10, 2005 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 20, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF HEARINGS & APPEALS,
Hato Rey, PR, Employer
__________________________________________

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

Docket No. 08-2032
Issued: May 18, 2009

Case Submitted on the Record

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

JURISDICTION
On July 17, 2008 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs’ dated February 5 and May 20, 2008 that denied her claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
stress-related condition causally related to her federal employment. On appeal she alleged that
her condition was employment related and that she was exposed to asbestos during her federal
employment.
FACTUAL HISTORY
On May 3, 2007 appellant, then a 54-year-old senior legal claims technician, filed a Form
CA-2, occupational disease claim alleging severe depression and anxiety caused by harassment
and persecution. She was first aware of her condition on August 6, 1979 and its relationship to

her employment on December 16, 1985.1 In attached statements, appellant alleged that she had
been physically and mentally ill for many years and sustained mini-strokes, facial paralysis with
loss of memory and vision and speech impediment in 2003. She was allegedly harassed and
discriminated against by her supervisors, Pablo Rodriguez and Jesus Rodriguez-Noble, who lied
on her compensation claim form, violated her privacy, forced her to retire, and improperly called
police on two occasions. Appellant’s requests for special accommodation were denied. Because
her computer did not work properly, her ability to perform her work was impeded, she was given
inadequate training and improperly suspended from April 19 to 30, 2004. Mr. Rodriguez also
placed negative comments regarding her job performance in her personnel file.
Appellant submitted documents regarding an Equal Employment Opportunity
Commission (EEOC) claim, including an informal resolution finalized on January 11, 2007. The
agreement, which was in full satisfaction of all claims filed by her, allowed her to retire on
disability no later than October 31, 2006. The employing establishment agreed to remove from
appellant’s personnel file any reference to a 10-day suspension served in 2004 and any reference
to a September 2006 proposed removal and agreed to pay her $7,500.00. The agreement neither
confirmed nor denied her allegations and the employing establishment admitted to no
discrimination or retaliation or other prohibited personnel practices.
In a March 14, 2003 letter, Mr. Rodriguez advised appellant that she needed to submit
medical reports to establish that she was fit to return to work due to her physical and emotional
conditions. The reports were to provide mental and physical work limitations. Mr. Rodriguez
noted that appellant’s work was mostly sedentary with some walking, standing, bending and
carrying of files and records. He noted that she had been provided accommodation limiting the
scope of her duties. In a November 16, 2004 statement, he responded to appellant’s EEOC
complaint contending that she was not discriminated against. Mr. Rodriguez stated that in 2003
and 2004 appellant had severe health problems related to depression and a stroke but never
requested reasonable accommodation under the handicapped guidelines. Based on her health,
management and union officials agreed to a reduced, temporary workload. She was only
assigned case preparation duties and was relieved of mailroom, scheduling, typing, master
docket and receptionist duties and responsibilities, even though the modification of appellant’s
duties adversely impacted the group. Mr. Rodriguez stated that she was not discriminated
against by either the March or April 2004 management actions.
In a proposal to terminate dated September 20, 2006, Lillian Rodriguez, group
supervisor, stated that on August 22, 2003, appellant was reprimanded because of disruptive
behavior at work on two occasions. On October 9, 2003 she became extremely disruptive,
screaming, ranting and verbally threatening her own life and the lives of other employees.
Ms. Rodriguez stated that local police and Federal Protective Service officers were called due to
safety concerns for appellant and coworkers. She also described events that occurred on June 15,
2006, stating that appellant walked into an awards meeting and began speaking very loudly as it
was concluding and disregarded a directive by the director and chief judge that the meeting had
ended, continuing to speak loudly, accusing management of awarding employees who had
testified against her in an EEOC case. Ms. Rodriguez related that appellant then walked to a
1

Appellant stopped work on November 3, 2006.

2

coworker’s workstation and accused her of participating in a plot and that the chief judge had to
intervene due to appellant’s aggressive attitude towards the employee. Appellant refused to
leave the premises when ordered by the director and chief judge and returned to her workstation
where she continued to speak loudly. A union representative was called and, after a 20-minute
telephone conversation, appellant left the premises. Ms. Rodriguez noted that the Federal
Protective Service had been called but the officer waited in reception and did not come into
contact with appellant. She stated that for two hours appellant interfered with the mission and
operation of the employing establishment. Ms. Rodriguez proposed to remove her from her
position as senior case technician, noting that she was on administrative leave and was not to
enter the employing establishment premises.
By letter dated December 4, 2007, the Office advised appellant to submit a statement
which clearly outlined the basis of her claim, and a chronological account of all factors that she
considered responsible for her condition. On December 26, 2007 appellant requested 30
additional days to submit information.
In a decision dated February 5, 2008, the Office denied her claim. It found that appellant
failed to establish a compensable factor of employment or that she sustained a stress-related
condition in the performance of duty.
On February 18, 2008 appellant requested reconsideration, reiterating her allegations of
harassment and discrimination at work. In a January 15, 2008 statement, appellant stated that her
emotional and physical conditions were caused by discrimination, harassment and chastisement
by her managers, who showed favoritism to other employees. She also alleged harassment by
coworkers. Appellant alleged that Ms. Rodriguez was given too much work, that management
did not provide accommodation for her health needs or take her health problems into
consideration when assigning work. It did not allow her to deal with the public because of her
facial paralysis. Appellant contended that her privacy was violated, that her time and attendance
were monitored, that she was given insufficient training, that her computer was damaged, and
she was improperly suspended for disruptive behavior. In letters dated January 29 and
February 8, 2008, she alleged that she was forced to retire on disability.
In a January 28, 2008 report, Dr. Luis M. Dorta Hernandez, a psychiatrist, noted that
appellant had been under his care since July 2004. He described symptoms of acute anxiety,
anguish and melancholia with frequent episodes of agitation, irritability and hostility, frequent
episodes of auditory and visual hallucinations, episodes of acute disorientation and suicide
attempts in 1998 and November 2006, with only a partial response to treatment. Dr. Hernandez
stated that in June 2006 appellant was wrongfully accused of threatening coworkers. She
experienced anguish, anxiety and fear when the state police were called and from that day on she
was prohibited from returning to work. He advised that appellant’s psychiatric illness was
incapacitating with persistent dysphoria, melancholy, anxiety and irritability that obstructed her
capacity to assume and finish tasks, maintain minimally healthy social relations, caused memory
deficits, difficulty in concentrating and frequent episodes of agitation and hostility which
impeded her capacity to develop and maintain adequate relations with others. Dr. Hernandez
diagnosed schizoaffective disorder, depressed type, rule out multiple sclerosis, gastroesophageal
reflux, history of multiple cerebrovascular accidents, and partial gastric resection.

3

By decision dated May 20, 2008, the Office denied modification of the February 5, 2008
decision.2
LEGAL PRECEDENT
To establish an emotional or stress-related condition in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or stress-related disorder; and (2) factual evidence identifying employment factors or incidents
alleged to have caused or contributed to her condition; and (3) rationalized medical opinion
evidence establishing that the identified compensable employment factors are causally related to
her stress-related condition.3 If a claimant does implicate a factor of employment, the Office
should then determine whether the evidence of record substantiates that factor.4 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.7
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.8 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.9 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.10

2

On September 18, 2008 appellant requested reconsideration with the Office and submitted additional evidence.
By letter dated October 22, 2008, it informed appellant that, as she had an appeal before the Board, no further action
would be taken on her reconsideration request.
3

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

4

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

5

Id.

6

Lillian Cutler, 28 ECAB 125 (1976).

7

5 U.S.C. §§ 8101-8193.

8

See Pamela D. Casey, supra note 3.

9

Lillian Cutler, supra note 6.

10

Jeral R. Gray, 57 ECAB 611 (2006).

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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 the Act.11 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.12
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.13
With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEOC, which is charged with statutory authority to investigate and evaluate such matters
in the workplace. Rather, in evaluating claims for workers’ compensation under the Act, the
term “harassment” is synonymous, as generally defined, with a persistent disturbance, torment or
persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and feelings of
harassment will not support an award of compensation.14
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment. She alleged that she worked in a hostile work environment and was
harassed by her managers. Appellant alleged that her privacy was violated, that she was
improperly suspended and forced to retire, police were improperly called, that she was not
provided the accommodation of working at home four days a week, was given additional work,
provided inadequate training, which her computer did not work properly and negative comments
were placed on her performance appraisal.
Regarding appellant’s claim that she was improperly suspended and forced to retire, an
EEOC informal resolution finalized on January 11, 2007 stipulated that she agreed to retire.
While the resolution also noted that her suspension would be removed from her personnel file,
the findings of other federal agencies are not dispositive with regard to questions arising under
the Act and the Office is not bound by the findings and conclusions of or the EEOC.15 The
agreement between appellant and the employing establishment explicitly stated that it was not to

11

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

12

Kim Nguyen, 53 ECAB 127 (2001).

13

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

14

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

15

Irene St. John, 50 ECAB 521 (1999).

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be construed as an admission of any wrongdoing. She did not establish an employment factor in
this regard.16
Regarding appellant’s contentions that the employing establishment provided inadequate
training and that her computer was broken, these allegations relate to administrative or personnel
matters and appellant did not submit evidence to show that the employing establishment
committed error or abuse with respect to these matters.17 She also alleged that she should have
been allowed to work at home four days a week. Not being permitted to work in a particular
environment or to hold a particular position is not compensable.18 Similarly, appellant’s
contention that comments were improperly appended to her performance appraisal is not
compensable. This allegation, too, relates to administrative or personnel matters and again, she
did not submit evidence to show that the employing establishment committed error or abuse in
that regard.19 The Board finds that appellant’s contentions regarding these administrative
matters are not compensable.20
Regarding the police, Ms. Rodriguez described appellant’s disruptive behavior on
October 9, 2003 and June 15, 2006. Generally, complaints about the manner in which a
supervisor performs his or her duties or the manner in which a supervisor exercises his or her
discretion fall, as a rule, outside the scope of coverage provided by the Act. This principle
recognizes that a supervisor or manager must be allowed to perform his or her duties and
employees will, at times, dislike the actions taken. Mere disagreement or dislike of a supervisory
or managerial action will not be compensable, absent evidence of error or abuse.21 The Board
finds that it was reasonable for the police to be called on these two occasions when appellant’s
behavior became disruptive and threatening. She therefore did not establish this as a
compensable factor.
Appellant also generally alleged that her privacy was violated. She, however, did not
refer to specific incidents. There is therefore no factual evidence to establish this assertion.
While appellant generally alleged that she was given extra work, she did not provide any
evidence to document the alleged overwork. Consequently, this allegation is not established by
the evidence.22 Appellant contended that she was harassed by the employing establishment.
However, mere perceptions of harassment or discrimination are not compensable under the
Act.23 Unsubstantiated allegations of harassment or discrimination are not determinative of
16

Lori A. Facey, 55 ECAB 217 (2004).

17

Brian H. Derrick, 51 ECAB 417 (2000).

18

Peter D. Butt, Jr., 56 ECAB 117 (2004).

19

Jamal A. White, 54 ECAB 224 (2002).

20

Charles D. Edwards, supra note 11.

21

T.G., 58 ECAB ____ (Docket No. 06-1411, issued November 28, 2006).

22

Bonnie Goodman, 50 ECAB 139 (1998).

23

James E. Norris, supra note 13.

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whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations with probative and reliable evidence.24 As noted, appellant submitted
an EEOC informal resolution. This agreement, however, neither confirmed nor denied her
allegations and the employing establishment admitted to no discrimination or retaliation or other
prohibited personnel practices. Appellant was not to use the agreement in any judicial or other
administrative proceeding as evidence to prove the existence of discrimination or retaliation or
other prohibited personnel practices. She submitted no evidence to show a persistent
disturbance, torment or persecution, i.e., mistreatment by coemployees or workers.25 The Board
therefore finds that appellant did not establish a factual basis for her claim of harassment by
probative and reliable evidence.26
As the record lacks probative evidence to support appellant’s claim, the Board finds that
she has not established a compensable employment factor of employment. She therefore did not
establish that she sustained a stress-related condition in the performance of duty as alleged.27
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty.

24

Id.

25

Beverly R. Jones, supra note 14.

26

See Robert Breeden, 57 ECAB 622 (2006).

27

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002). Regarding her claim on appeal that she was
exposed to asbestos at the employing establishment, the record does not indicate that she has filed a claim for
compensation for asbestos exposure and the Office has not issued a final decision in that regard. The Board’s
jurisdiction is limited to reviewing final decisions of the Office. Karen L. Yaeger, 54 ECAB 323 (2003). Lastly, the
Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this
evidence, however, as the Board’s review is limited to the evidence in the case record at the time the Office issued
its final decision. D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the May 20 and February 5, 2008 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: May 18, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1363
Issued: April 6, 2011

Case Submitted on the Record

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

On April 20, 2010 appellant filed for review of a November 12, 2009 decision of the
Office of Workers’ Compensation Programs that denied her request for reconsideration as
untimely and not establishing clear evidence of error.1 The appeal was docketed as No. 10-1363.
The Board has duly considered the matter and finds that appellant’s reconsideration
request was timely filed. On appeal, appellant contended that she submitted a timely request for
reconsideration. She mailed her request packet on May 12, 2009 within one year of the June 17,
2008 Office decision denying her claim.2 Appellant cited to a signed return receipt that
documented the Office received her request on May 14, 2009 at 10:41 a.m.3 The Board notes

1

The most recent merit decision was issued by the Office on June 17, 2008. For final adverse decisions issued
prior to November 19, 2008 a claimant had up to one year to file and appeal to the Board. See 20 C.F.R.
§ 501.3(d)(2) (2008). For final adverse Office decisions issued on or after November 19, 2008, a claimant has 180
days to file an appeal with the Board. See 20 C.F.R. § 501.3(e) (2009).
2
3

The Office denied appellant’s claim for wage-loss commencing January 23, 2008.

Appellant submitted new evidence with her appeal. The Board’s review of a case is limited to the evidence of
record at the time of the Office’s final decision from which an appeal is made. See 20 C.F.R. § 501.2(c)(1).

that the record reflects that on May 15, 2009 the Office scanned appellant’s letter of May 11,
2009 requesting reconsideration into evidence.
As the record establishes that the Office timely received appellant’s request for
reconsideration within one year of the June 17, 2008, it erroneously applied the standard for clear
evidence of error to the consideration of her request. The case will be remanded to the Office to
proceed with a review of appellant’s reconsideration application under the legal standard
applicable to a timely request.4
IT IS HEREBY ORDERED THAT the November 12, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action in
conformance with this order and an appropriate decision on appellant’s request for
reconsideration.
Issued: April 6, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4

20 C.F.R. § 10.606(b)(2). See Donald M. Campbell, 55 ECAB 241 (2004).

2


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

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1286
Issued: January 13, 2020

Case Submitted on the Record

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

JURISDICTION
On May 21, 2019 appellant, through counsel, filed a timely appeal from a March 19, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3
1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 19, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence
for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish partial disability from
work for the period May 14 through 25, 2018 due to her accepted March 29, 2017 employment
injury.
FACTUAL HISTORY
On March 29, 2017 appellant, then a 41-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she injured her left knee and both wrists while in the
performance of duty. She stopped work on March 29, 2017. On May 23, 2017 OWCP accepted
appellant’s claim for left wrist sprain, left wrist contusion, right wrist sprain, right wrist contusion,
left knee sprain, left knee contusion, left elbow sprain, and left elbow contusion.4
On May 25, 2018 appellant filed a claim for compensation (Form CA-7) for the period
May 14 through 25, 2018. Her time analysis form (Form CA-7a) indicated that she worked
approximately four hours per day during this period and used approximately four hours of leave
without pay (LWOP).
In a June 7, 2018 development letter, OWCP noted that it had received no evidence in
support of the claimed period of disability. It requested additional evidence to establish disability
from work during the period claimed. OWCP afforded appellant 30 days for response.5
On March 5, 2018 Dr. Alan J. Dayan, a Board-certified orthopedic surgeon, diagnosed left
knee internal derangement and left hip osteoarthritis. He recommended a left knee arthroscopy and
left hip replacement. Dr. Dayan found that appellant was totally disabled, but noted that she would
like to work in an indoor light-duty position. In notes dated May 30, June 29, and August 1, 2018,
he diagnosed left knee internal derangement. Dr. Dayan indicated that appellant was working
part time with restrictions.
By decision dated September 18, 2018, OWCP denied appellant’s claim for disability for
the period May 14 through 25, 2018. It found that the medical evidence of record was insufficient
to establish that her partial disability for work was due to the accepted employment injury.

4
Appellant had requested that her claim be accepted for additional conditions. By decision dated June 9, 2017,
OWCP denied her March 29, 2017 traumatic injury claim for the diagnosed conditions of left hip strain, exacerbation
of left hip osteoarthritis, left elbow lateral epicondylitis, and left knee internal derangement finding that she had not
established causal relationship between these conditions and her accepted March 29, 2017 employment injury. On
November 29, 2017 appellant, through counsel, requested reconsideration of the June 9, 2017 decision. By decision
dated February 26, 2018, OWCP denied modification of the June 9, 2017 decision. Beginning on June 15, 2017
appellant filed claims for compensation (Form CA-7) requesting wage-loss compensation from May 14 through
September 1, 2017. By decision dated September 15, 2017, OWCP denied her claims for wage-loss compensation
beginning May 14, 2017.
5

Appellant filed an additional Form CA-7 for the period May 25 through June 8, 2018. The accompanying Form
CA-7a indicated that she worked approximately four hours per day during this period and used approximately four hours
of LWOP. OWCP has not issued a final decision regarding this period of claimed partial disability and the Board will
not address this issue on appeal. 20 C.F.R. § 501.2(c).

2

On September 26, 2018 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
In a September 28, 2018 note, Dr. Dayan examined appellant due to her left knee and left
hip pain. He diagnosed left knee torn meniscus as demonstrated on July 3, 2017 magnetic resonance
imaging (MRI) scan and joint space narrowing of the left hip with subchondral sclerotic and cystic
changes as demonstrated by x-ray. Dr. Dayan recommended left knee arthroscopy. OWCP
continued to receive progress reports from him.
In a letter dated December 14, 2018, OWCP’s Branch of Hearings and Review informed
appellant that oral hearing was scheduled for January 28, 2019 at 9:00 a.m. On January 28, 2019
appellant, through counsel, requested that the oral hearing be changed to a review of the written
record. In a letter dated January 28, 2019, OWCP allowed appellant an additional 15 days to submit
evidence and noted that the employing establishment then had 20 days to comment prior to issuance
of the review of the written record.
OWCP received January 28, and February 28, 2019 progress reports from Dr. Dayan noting
the March 29, 2017 employment injury and that she was unable to return to full-duty work due to
her torn meniscus in the left knee. Dr. Dayan noted that he had requested authorization for her left
knee surgery beginning on April 21, 2017.
By decision dated March 19, 2019, OWCP’s hearing representative affirmed the
September 18, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the essential
elements of his or her claim.7 Under FECA the term disability means incapacity, because of an
employment injury, to earn the wages that the employee was receiving at the time of injury.8 For
each period of disability claimed, the employee has the burden of proof to establish that he or she
was disabled from work as a result of the accepted employment injury.9 Whether a particular injury
caused an employee to be disabled from employment and the duration of that disability are medical
issues which must be proven by the preponderance of the reliable probative and substantial medical
evidence.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
6

Supra note 2.

7
M.C., Docket No. 18-0919 (issued October 18, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); Nathaniel Milton,
37 ECAB 712 (1986).
8

A.S., Docket No. 17-2010 (issued October 12, 2018); S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746
(2004); 20 C.F.R. § 10.5(f).
9

K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

10

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

3

claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish partial disability
from work for the period May 14 through 25, 2018 due to her accepted March 29, 2017 employment
injury.
Appellant filed a Form CA-7 requesting wage-loss compensation for four hours of LWOP
per day for the period May 14 through 25, 2018.
In support of her claimed period of partial disability, appellant submitted a series of medical
reports from Dr. Dayan. In notes dated March 5, 2018 through February 28, 2019, Dr. Dayan
diagnosed left knee internal derangement, bilateral wrist internal derangement, and left hip
osteoarthritis. On January 28, 2019 he noted that appellant had a torn meniscus in the left knee,
which he had first reported required surgical treatment on April 21, 2017. However, none of the
conditions diagnosed by Dr. Dayan have been accepted by OWCP as causally related to the
March 29, 2017 employment injury.12
Whether a claimant’s disability is related to an accepted condition is a medical question
which must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and supports
that conclusion with sound medical reasoning.13 The record does not contain a medical opinion
addressing appellant’s disability from work for the period May 14 through 25, 2018 due to the
accepted conditions. As the medical evidence addressing the claimed period of disability only
references diagnosed conditions which have not been accepted as employment related, the Board
finds that she has not met her burden of proof to establish employment-related disability for the
period claimed.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish partial disability
from work for the period May 14 through 25, 2018 due to her accepted March 29, 2017 employment
injury.

11

J.B., Docket No. 19-0715 (issued September 12, 2019).

12

Where an employee claims that a condition not accepted or approved by OWCP was due to an employment injury,
he or she bears the burden of proof to establish that the condition is causally related to the employment injury. M.M.,
Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
13

M.C., Docket No. 18-0919 (issued October 18, 2018); R.C., 59 ECAB 546 (2008).

4

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Rainer Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1965
Issued: February 4, 2015

Case Submitted on the Record

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

JURISDICTION
On September 11, 2014 appellant, through her attorney, filed a timely appeal from a
March 18, 2014 merit decision and a June 28, 2014 nonmerit 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 appellant has established an emotional condition in the
performance of duty; and (2) whether OWCP properly denied reconsideration under 5 U.S.C.
8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 30, 2012 appellant, then a 44-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she sustained major depression, generalized anxiety
disorder, and panic attacks due to work stress on or before April 16, 2012. She did not stop
work.
In a December 3, 2012 letter, OWCP advised appellant of the type of additional evidence
needed to establish her claim, including a detailed statement of the work factors alleged to have
caused the claimed emotional conditions and a statement from her attending physician explaining
how and why those factors would cause those conditions. It afforded her 30 days to submit such
evidence.
In response, appellant submitted a November 19, 2012 letter from Dr. Thomas A.J.
Patamia, an attending Board-certified psychiatrist, noting that he treated her beginning on
April 1, 2012 for major depression, generalized anxiety disorder, and panic attacks. Dr. Patamia
opined that “[b]oth cumulative factors and certain acute exposures, some work related, have
contributed to these conditions and could potentially exacerbate them in the future.”
By decision dated January 4, 2013, OWCP denied appellant’s claim as fact of injury had
not been established. It noted that she had not provided the time, date, and place of any alleged
incidents, what occurred, and who was involved.
In a January 11, 2013 letter, appellant requested reconsideration. He described an alleged
pattern of supervisory harassment and discrimination. Appellant described a November 1, 2012
incident in which Carolyn Ewell, an acting supervisor, was unable to recruit volunteers to go
from priority mail to another section. During a stand-up talk about the assignment, Ms. Ewell
allegedly pointed at employees. She ordered appellant to take the assignment as there were no
volunteers. When appellant asked questions, Ms. Ewell “became quite angry and belligerent ….
She stuck her finger in [appellant’s] face and [stated], ‘You have to go there right after lunch.
Do [not] you understand English?’ [Appellant] felt this attack was based on her fact that she is
Asian/Indian.” She filed an Equal Employment Opportunity (EEO) complaint based on race or
ethnicity, with redress mediation on January 15, 2013.
Appellant submitted six coworker statements dated from October 4 to 9, 2012 asserting
that a male supervisor was intimidating to his subordinates. She also provided EEO preliminary
grievance documents, mediation forms, and additional medical evidence.
In a November 16, 2012 report, Dr. Patamia noted a history of depression and anxiety
prior to the present claim. He diagnosed major depression, generalized anxiety disorder, and
panic attacks. Dr. Patamia noted that the conditions were “aggravated by work-related stress.”
Dr. Laura R. Kaufman, an attending physician Board-certified in occupational medicine
and family practice, submitted reports dated from January 7 to February 20, 2013, diagnosing
recurrent major depressive disorder, generalized anxiety disorder, and panic attacks, based on
Dr. Patamia’s opinion. She noted that appellant had “difficulties with anxiety/depression since
March 2012 [d]ue to family issues/health problems.” Dr. Kaufman noted appellant’s account of

2

“harassment at work, stress by acting supervisor on November 1, 2012, [e]mbarrassed in front of
numerous coworkers.”
In a January 7, 2013 letter, the employing establishment asserted that appellant’s stress
was self-generated.
By decision dated May 7, 2013, OWCP denied modification, finding that the additional
evidence submitted did not establish the claim. It noted that appellant had not submitted witness
statements to corroborate the specific alleged November 1, 2012 incident with Ms. Ewell as
factual.
In a June 10, 2013 letter, appellant requested reconsideration asserting that new evidence
was sufficient to establish fact of injury.2 He submitted a November 1, 2012 statement by H.K.,
appellant’s coworker, recalling that during a November 1, 2012 stand-up talk, Ms. Ewell ordered
appellant to go from priority mail to another section as no one volunteered for the assignment.
“We had lunch right after the stand-up. During wash up time [H.K. saw] them talking by the
office. … And I heard Ms. Ewell making a comment that ‘Don’t you understand English? I
already told you that you have to go.’ [Appellant] went to the restroom and started crying.”
On December 20, 2013 OWCP prepared a statement of accepted facts, accepting as a
factor of employment that on November 1, 2012, “following a ‘stand-up’ meeting with several
coworkers in the priority section, Ms. Ewell gestured with her finger toward [appellant’s] face
and exclaimed: ‘Do [not] you understand English.’” It found as factual, but noncompensable,
that Ms. Ewell directed appellant to work outside of her section or pointing at appellant and her
coworkers during the stand-up meeting. OWCP found that appellant had not established as
factual that the November 1, 2012 accepted incident involving Ms. Ewell constituted
discrimination on the basis of race or ethnicity.
In a December 20, 2013 letter, OWCP requested that Dr. Patamia review the statement of
accepted facts and explain if the November 1, 2012 remarks by Ms. Ewell caused or aggravated
the claimed emotional condition. In a January 10, 2014 report, Dr. Patamia opined that the
November 1, 2012 incident in which Ms. Ewell pointed at appellant and asked if she understood
English “did aggravate [appellant’s] preexisting conditions.” He explained that appellant
“directly stated this relationship to [her] in our visit on November 15, 2012 and the temporal
relationship to her condition worsening and the ‘accepted events’ stated in the SOAF [statement
of accepted facts.” Dr. Patamia stated that he did not have sufficient information to determine
the duration of the aggravation or a return to work prognosis, as he had not seen appellant since
January 28, 2013 “due to loss of insurance” after OWCP denied the claim. He referred to
Dr. Kaufman’s opinion regarding the duration of any work-related condition and appellant’s
prognosis.
On March 6, 2014 OWCP obtained a second opinion from Dr. Gary R. Hudak, a Boardcertified psychiatrist, who reviewed the medical record and the statement of accepted facts.
Dr. Hudak noted that appellant’s history was “somewhat vague and nonspecific,” with
psychiatric care and medication by Dr. Patamia in 2010 and 2011 after the death of her father in
2

Appellant also submitted copies of medical reports and coworker statements previously of record.

3

2009. On examination, he related her account that she was “able to work at her current
workplace as long as she avoided the offensive supervisor.” Appellant was oriented to time,
place, and her abstract reasoning was intact. Dr. Hudak diagnosed “[m]ajor depressive disorder
with anxious symptoms, preexisted the claim on a more probable than not basis and not made
worse by it.” He stated that “[s]tressors include[d] death of biological father in 2009 with
resultant, apparent prolonged grief.” Dr. Hudak opined that there was “no evidence that a work
event caused or contributed to [appellant’s] mental health condition.” He explained that the
“diagnosed emotional condition preexisted the claim. There is no aggravation, precipitation, or
acceleration due to employment event as described in the SOAF [statement of accepted facts].”
Dr. Hudak noted that it appeared that appellant had a “preexisting mood disorder consistent with
major depressive symptoms, and anxiety resulting from nonindustrial-related stress primarily due
to the death of her father and in assimilating her mother into the current family living
conditions.” He emphasized that “work condition[s] did not contribute or aggravate any mental
health condition.” Dr. Hudak found appellant able to perform full-time regular-duty work.
By decision dated March 18, 2014, OWCP partially vacated its May 7, 2013 decision,
finding that appellant had established the November 1, 2012 incident with Ms. Ewell as a
compensable factor of employment. It denied the claim on the grounds that causal relationship
was not established because the medical evidence did not establish that the accepted work
incident caused or aggravated an emotional condition. OWCP accorded the weight of the
medical evidence to Dr. Hudak, who provided a detailed, well-reasoned report, based on a
complete medical, and factual history, explaining that the November 1, 2012 incident did not
aggravate or accelerate appellant’s preexisting mood disorder.
In a March 25, 2014 letter, appellant requested reconsideration. She contended that there
was a conflict between Dr. Patamia and Dr. Hudak requiring selection of an impartial medical
specialist. Appellant requested to participate in selection of the impartial medical specialist “to
assure fairness in the case.”
By decision dated June 27, 2014, OWCP denied reconsideration on the grounds that
appellant’s reconsideration request did not contain new, relevant evidence, or legal argument.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Where disability results from an employee’s reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.5 To establish entitlement to benefits, a claimant must establish a factual
basis for the claim by supporting the allegations with probative and reliable evidence.6 This
burden includes the submission of a detailed description of the employment factors or conditions
which appellant believes caused or adversely affected the condition, or conditions for which
compensation is claimed.7
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship.8 If a claimant implicates a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, it must base its decision on an analysis of the medical evidence.9
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition due to a pattern of
supervisory harassment, and a November 1, 2012 incident of harassment and discrimination by
Ms. Ewell. OWCP found the November 1, 2012 incident, in which Ms. Ewell asked appellant if
she understood English, constituted a compensable employment factor. It denied the claim on
the grounds that the medical evidence was insufficient to establish a causal relationship between
the accepted incident and the claimed emotional condition.
In support of her claim, appellant submitted reports from Dr. Patamia, an attending
Board-certified psychiatrist. On November 16 and 19, 2012 Dr. Patamia noted a history of
preexisting depression and anxiety, aggravated by unspecified “work-related stress,” and
unidentified acute exposures. On January 10, 2014 he opined that the accepted November 1,
2012 incident aggravated appellant’s preexisting conditions, based on her remarks during a
November 15, 2012 visit and the temporal relationship to a worsening of her condition. While
Dr. Patamia noted an apparent temporal relationship between a decline in appellant’s condition
and the November 1, 2012 incident, the Board has held that a temporal relationship alone is
insufficient to establish causal relationship.10

5

5 U.S.C. §§ 8101-8193. Lillian Cutler, 28 ECAB 125 (1976).

6

Ruthie M. Evans, 41 ECAB 416 (1990).

7

Effie O. Morris, 44 ECAB 470 (1993).

8

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

9

Marlon Vera, 54 ECAB 834 (2003).

10

Louis R. Blair, Jr., 54 ECAB 348 (2003).

5

Dr. Kaufman, an attending physician Board-certified in occupational medicine and family
practice, submitted reports dated from January 7 to February 20, 2013, reiterating Dr. Patamia’s
psychiatric diagnoses. She attributed appellant’s condition to family issues and health problems
beginning in March 2012, as well as the accepted November 1, 2012 incident.
The Board finds that neither Dr. Patamia nor Dr. Kaufman provided sufficient medical
rationale explaining how and why the November 1, 2012 incident would cause or aggravate
appellant’s preexisting psychiatric conditions. The physicians did not set forth the mechanism
whereby the November 1, 2012 incident would aggravate or accelerate preexisting depression,
anxiety, and panic attacks. Therefore, the opinions of Dr. Patamia and Dr. Kaufman are
insufficient to meet appellant’s burden of proof in establishing causal relationship.11 Also,
Dr. Patamia omitted the etiology of appellant’s preexisting psychiatric conditions from his
reports. The Board has held that medical opinion based on an incomplete history is of
diminished probative value.12
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Hudak, a Board-certified psychiatrist and second opinion physician, who submitted a
March 6, 2014 report, based on a statement of accepted facts and a comprehensive medical
history. Dr. Hudak explained that appellant had a preexisting mood disorder due to the death of
her father in 2009. He emphasized that the accepted November 1, 2012 occupational incident
did not cause or contribute to her mental health condition. Dr. Hudak predicated his opinion on a
complete factual and medical history and a thorough clinical examination. His explanation
clearly negates the claimed causal relationship between the November 1, 2012 incident and an
emotional condition. OWCP’s March 18, 2014 decision was therefore proper in denying
appellant’s claim due to a lack of causal relationship between the claimed emotional condition
and Ms. Ewell’s November 1, 2012 remark.
Appellant also attributed the claimed emotional condition to Ms. Ewell directing
appellant to work outside of her section and pointing at her on November 1, 2012. OWCP found
that the coworker affidavits and factual statements did not establish as factual that Ms. Ewell
pointed at appellant. Under these circumstances, appellant failed to establish a compensable
employment factor in this regard. Also, the Board finds that an employee’s dissatisfaction with
the way a supervisor exercises discretion in assigning work is not compensable absent error or
abuse.13 Appellant did not submit evidence establishing that Ms. Ewell’s directive that she
perform work in another section was erroneous or abusive. Therefore, she has not established
the work assignment as a compensable employment factor. OWCP’s March 18, 2014 decision
was proper in this regard.
Appellant also alleged a pattern of supervisory harassment and discrimination, and that
the accepted November 1, 2012 incident constituted discrimination on the basis of race or
ethnicity. For harassment or discrimination to give rise to a compensable disability under FECA,
11

Deborah L. Beatty, 54 ECAB 340 (2003).

12

Douglas M. McQuaid, 52 ECAB 382 (2001).

13

Donney T. Drennon-Gala, 56 ECAB 469 (2005); Linda J. Edward-Delgado, 55 ECAB 401 (2004).

6

there must be probative and reliable evidence that harassment or discrimination did in fact
occur.14 Mere perceptions of harassment, retaliation, or discrimination are not compensable
under FECA.15 While OWCP accepted that on November 1, 2012 Ms. Ewell asked appellant,
who self-identifies as Asian/Indian, if she understood English, there is insufficient evidence that
this remark constituted racial or ethnic discrimination. Also, the coworker statements were too
vague to establish a pattern of harassment by Ms. Ewell. These statements did not identify the
date, place, and time of any specific incident. Therefore, the Board finds that appellant did not
establish her allegations of harassment and discrimination as factual. OWCP’s March 18, 2014
decision therefore properly denied her claim on the grounds that her allegations of harassment
and discrimination were not established as factual.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,16
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.17 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.18
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge her burden of proof.19 She need only submit
relevant, pertinent evidence not previously considered by OWCP.20 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(2) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.21

14

Supra note 9.

15

Kim Nguyen, 53 ECAB 127 (2001).

16

5 U.S.C. § 8128(a).

17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

19

Helen E. Tschantz, 39 ECAB 1382 (1988).

20

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

21

Annette Louise, 54 ECAB 783 (2003).

7

ANALYSIS -- ISSUE 2
Appellant requested reconsideration by March 25, 2014 letter, asserting a conflict
between Dr. Patamia, her attending psychiatrist, and Dr. Hudak, the second opinion physician.
She requested to participate in selection of the impartial medical specialist. OWCP denied
reconsideration by June 27, 2014 decision, finding that the March 24, 2014 letter did not contain
new, relevant evidence, or argument.
The Board finds that OWCP appropriately denied reconsideration as appellant’s
argument was not relevant to the claim. The critical issue was the causal relationship of a
claimed emotional condition to an accepted November 1, 2012 work incident. Appellant’s
remarks did not address that issue. Therefore, they do not comprise a basis for reopening the
case.22
A claimant may be entitled to a merit review by submitting new and relevant evidence or
argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, appellant contends that OWCP wrongfully deprived her of the opportunity to
participate in the selection of an impartial medical examiner. As stated above, the probative
quality of Dr. Hudak’s opinion clearly exceeds that of Dr. Patamia. As the opinions of the two
physicians are not of equal weight, there is no conflict of medical opinion in this case.
Therefore, there was no reason to select an impartial medical examiner.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty as alleged. The Board further finds that OWCP properly
denied reconsideration.

22

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 28 and March 18, 2014 are affirmed.
Issued: February 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9