United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 08-1768
Issued: May 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 3, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ March 12, 2008 decision denying compensation for wage loss. Under
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 was entitled to wage-loss compensation benefits between
December 22, 2007 and March 14, 2008 causally related to her federal employment.
FACTUAL HISTORY
On November 3, 2007 appellant, a 52-year-old window clerk, filed a claim for benefits,
alleging that she injured her left wrist while pulling a drawer.
In a Form CA-20 report dated November 5, 2007, Dr. Artis Woodward, a specialist in
anesthesiology and appellant’s treating physician, diagnosed left wrist sprain. He noted wrist
pain extending into the left arm, with palpatory tenderness in the left wrist and forearm, and
increased pain with gripping, grasping, palmar flexing and dorsiflexing on examination.
Dr. Woodward placed appellant on total disability until December 5, 2007.

By letter dated January 25, 2007, the Office noted that it had originally handled appellant’s
claim administratively as a routine, uncontroverted case resulting in minimal or no time lost from
work, which permitted medical payments up to $1,500.00. However, as appellant’s medical
payments had exceeded $1,500.00, it stated that it was required to formally adjudicate her claim.1
The Office accepted appellant’s claim for left wrist sprain.
Appellant submitted CA-7 forms requesting compensation for wage loss for the following
periods: December 22, 2007 to January 4, 2008; January 5 to 18, 2008; January 19 to
February 1, 2008; February 2 to 15, 2008; and February 16 to 29, 2008.
In a return to work slip dated January 11, 2008, Dr. Woodward indicated that appellant
could return to work on January 30, 2008 based on the “specific medical condition” for which he
had been treating her.
By letter dated January 31, 2008, the Office asked appellant to submit probative,
rationalized medical evidence establishing disability for the period December 22, 2007 to
January 4, 2008 and from January 5 to 14, 2008.
In a return to work slip dated January 29, 2008, Dr. Woodward indicated appellant should
continue on disability until February 28, 2008, at which time she could return to work. He
indicated again that this instruction was based on the “specific medical condition” for which he
had been treating her.
In a February 3, 2008 report, responding to an employing establishment questionnaire,
Dr. Woodward stated that appellant was unable to perform modified work due to her diagnosed
left wrist sprain. He indicated that appellant was experiencing a prolonged recovery period due
to suspected entrapment syndrome and estimated that she could return to work on
March 1, 2008.
In a February 6, 2008 Form CA-20 report, Dr. Woodward indicated that he had examined
and treated appellant on five occasions between November 16, 2007 and January 29, 2008. He
reiterated his previous diagnosis and findings on examination and indicated that appellant
demonstrated positive Tinel’s and Phalen’s tests of the left wrist. Dr. Woodward stated that
appellant was totally incapacitated and was incapable of any repetitive use or activity involving
the left hand. He advised that appellant was restricted from pushing, pulling or lifting.
Appellant submitted a February 13, 2008 electromyelogram report, which indicated mild
ulnar neuropathy at the elbow.
In a February 20, 2008 Form CA-20 report, Dr. Woodward reiterated his previous
diagnosis of left wrist sprain. He indicated he had placed appellant’s left wrist in a splint and
placed her on total disability until March 14, 2008.
By decision dated March 12, 2008, the Office denied appellant’s claim for compensation
based on wage loss, finding that she failed to establish that her total disability as of
December 22, 2007 and continuing was causally related to her accepted employment injury. It
1

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.14
(January 2004).

2

indicated that the medical evidence appellant submitted was not well rationalized and did not
explain the nature of the underlying condition in sufficient detail to support such an extended
period of disability.
On April 15, 2008 appellant requested a review of the written record.
By decision dated May 16, 2008, the Office denied appellant’s request for a review of the
written record. It stated that appellant’s request was postmarked April 18, 2008, which was more
than 30 days after the issuance of the Office’s March 12, 2008 decision, and that he was
therefore not entitled to a hearing as a matter of right. The Office nonetheless considered the
matter in relation to the issue involved and denied appellant’s request on the grounds that the
issue was factual and medical in nature and could be addressed through the reconsideration
process by submitting additional evidence.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim by the weight of the
evidence.3 Under the Act, the term disability is defined as an inability, due to an employment
injury, to earn the wages the employee was receiving at the time of injury, i.e., an impairment
resulting in loss of wage-earning capacity.4 For each period of disability claimed, the employee
has the burden of establishing that he or she was disabled for work as a result of the accepted
employment injury.5 Whether a particular injury causes an employee to become disabled for
work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.6 The fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.7 The Board will not require the Office to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed. To do so would essentially allow an employee to self-certify
his disability and entitlement to compensation.8

2

5 U.S.C. §§ 8101-8193.

3

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

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

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

6

Gary L. Watling, 52 ECAB 278 (2001).

7

Manual Garcia, 37 ECAB 767 (1986).

8

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

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Chapter 2.807.17(c) of the Federal (FECA) Procedural Manual, states:
“c. Medical Evidence. Absent information that the claimant has returned to duty,
the CE may authorize the payment of compensation for wage loss based on
medical evidence of injury-related disability for the period claimed or the period
for which compensation is being authorized.
(1) Medical evidence may take the form of:
(a) Form CA-16, Form CA-20 or Form CA-17 with a period of
disability indicated.
(b) Medical notes from the attending physician indicating that the
claimant is not to work until the next scheduled office visit, at
which time he/she will be reevaluated.
(c) Hospital records indicating disability for the period in question.
(d) A current narrative medical report indicating disability for the
period in question or projecting disability through the period
claimed.”9
ANALYSIS
In the instant case, the Office accepted appellant’s claim for left wrist sprain and
authorized continuation of pay from November 3 to December 22, 2007. Appellant subsequently
submitted CA-7 forms covering the period December 22, 2007 to February 29, 2008. In support
of her claim, she submitted several reports and disability slips from the attending physician,
Dr. Woodward. These reports indicated periods of disability, restricted appellant from work
until her next scheduled office visits, and projected disability through the periods claimed. On
January 11 and 29, 2008 return to work slips, Dr. Woodward indicated that appellant should
continue on disability until January 30 and February 28, 2008, respectively, after which he
expected her to return to work. He stated on both of these disability slips that he was keeping her
out of work due to the “specific medical condition” for which he had been treating her. In his
February 3, 2007 report, Dr. Woodward advised that appellant was unable to perform modified
work due to her diagnosed left wrist sprain and was experiencing a prolonged recovery period
due to suspected entrapment syndrome. In his February 6, 2008 Form CA-20 report, he
indicated that testing demonstrated positive Tinel’s and Phalen’s tests of the left wrist, that
appellant, was totally incapacitated and was incapable of any repetitive use or activity involving
the left hand; and he restricted appellant from pushing, pulling or lifting. In his Form CA-20
dated February 20, 2008, Dr. Woodward stated that he had placed appellant’s left wrist in a
splint and placed her on total disability until March 14, 2008.
The Board finds that the medical evidence appellant submitted above was sufficient to
support total disability for the periods claimed. The reports from Dr. Woodward clearly met the
9

Federal (FECA) Procedural Manual, Part 2 -- Claim, Continuation of Pay and Initial Payments, Chapter
2.807.17(c) (March 2004)

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standard for establishing entitlement to total disability compensation for an accepted condition
set out in Chapter 2.807.17(c) of the Federal (FECA) Procedural Manual. The standard utilized
by the Office to determine appellant’s entitlement to total disability compensation is not
applicable to the facts of this case. The Office asked appellant to submit evidence which was
“probative and well rationalized” explaining the nature of the underlying condition, which
constitutes the standard for establishing an injury in the performance of duty. However, the
Office had already accepted that appellant sustained a left wrist sprain in the performance of duty
on November 3, 2007. Dr. Woodward submitted medical reports which were sufficient to
establish that appellant was entitled to compensation for total disability based on her accepted left
wrist condition for the periods requested, pursuant to the applicable protocols of the Federal
(FECA) Procedural Manual, as stated above. The Board therefore reverses the March 12, 2008
Office decision.10
CONCLUSION
The Board finds that appellant has met her burden of proof in establishing that she was
entitled to additional compensation for wage loss for the period December 22, 2007 to March 14,
2008 causally related to her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2008 decision of the Office of
Workers’ Compensation Programs be reversed and the case is remanded to the Office to
determine the amount of compensation to which appellant is entitled.
Issued: May 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

As the Board has reversed the March 12, 2008 Office decision, the May 16, 2008 decision denying appellant’s
request for a review of the written record is moot and need not be considered.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
INTERNAL REVENUE SERVICE, Ogden, UT,
Employer
__________________________________________

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Appearances:
Jimmy Roberts, representative, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1248
Issued: March 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated December 21, 2007 in which an Office hearing
representative affirmed the denial of her claim. Under 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 in establishing that she sustained
an injury to her right fibula on December 19, 2006.
FACTUAL HISTORY
On January 23, 2007 appellant, then a 54-year-old clerk, filed a Form CA-1, traumatic
injury claim, alleging that she sustained an injury to her left fibula on December 19, 2006 when
her ankle twisted while she was walking on an uneven floor. She felt a sharp pain but did not
think it was anything serious. When the pain persisted, appellant sought medical attention a few

days later from NowCare where fractures were diagnosed.1 The employing establishment
controverted the claim on the grounds that it was untimely filed and did not happen at work.
Appellant’s supervisor, Brian Wood, stated that she “was simply walking in a corridor and said
that she fell.” Appellant stopped work on or about January 19, 2007.
By letter dated January 29, 2007, the Office advised appellant of the factual and medical
documentation needed to establish her claim. It requested that she submit comprehensive
medical reports from a treating physician which included a reasoned explanation as to how the
alleged incidents caused her claimed injury.
In a February 2, 2007 statement, appellant’s husband noted that, on December 19, 2006
as they were traveling home, she told him that she had twisted her ankle when she stepped on a
transition plate at the edge of the carpet while walking in a hallway leading to the Boyer
Building. Appellant did not think her injury was serious at the time. However, on December 23,
2006 x-rays showed three fractures on her fibula. Mr. Roberts advised the physician that the
injury had occurred at work. When he inquired about completing a CA-1 form, the physician
informed him that she did not know if workers’ compensation would accept the injury because of
appellant’s low bone density. He also told appellant’s physician, Dr. Richter, a Board-certified
orthopedic surgeon, that appellant had injured herself at work but had not yet reported it.
Appellant subsequently filed a claim on January 19, 2006 with her supervisor, Mr. Wood, by email. When she went to work on January 20, 2007 to get some personal items from her desk, she
alleged that Mr. Wood had become hostile about the CA-1 claim form.
In a February 9, 2007 statement, appellant’s husband maintained that the claim was
timely filed; appellant initially received treatment at NowCare from a registered nurse
practitioner and she was in pain until she received medical care on December 23, 2006. He
confirmed there were no witnesses to appellant’s injury.
In a February 9, 2007 statement, appellant related the events which transpired on
January 20, 2007 with Mr. Woods. The clinic notes from NowCare dated December 23 and 26,
2006, noted a history of right ankle pain for four days and diagnosed a stress fracture and low
bone density. An undated Calton Harrison Clinic form noted a December 19, 2007 date of injury
and a history of “at work stepped on crack in pavement -- stumbled, limped around for 4 days.”
In a January 19, 2007 report, Dr. Richter advised that appellant was being followed for a
right distal fibular fracture which she apparently sustained on December 19, 2006. He noted that
appellant was referred to the orthopedic trauma clinic for medical management. A January 19,
2007 x-ray report was enclosed.
The employing establishment submitted a January 23, 2007 witness statement from
coworker Lori Taylor and a February 10, 2007 statement from Mr. Wood. Ms. Taylor noted that
she had a conversation with appellant regarding her broken foot during the week of
January 8, 2007. Appellant told her that she thought she hurt her ankle by twisting it when she
had slipped on snow and ice at her home. She did not think it was broken as she did not fall
down and continued to walk on it for several days before seeing a physician.
1

Appellant’s husband was designated as her authorized representative on January 19, 2007.

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Mr. Wood was not aware of the alleged work injury until he received a CA-1 form. He
maintained that appellant had not considered filing a claim until she learned that surgery might
be needed. Mr. Wood questioned appellant about the incident and asked her to sign the CA-1
form. They discussed her leave balances, the time she needed to be off work and possible
accommodations upon return to work. Mr. Wood acknowledged that he had been advised that
her injury had occurred at her home.
By decision dated March 12, 2007, the Office denied the claim on the grounds that the
evidence did not establish that appellant’s injury occurred as alleged.
In letters dated April 11 and 25, 2007, a representative from the NowCare billing office
advised that appellant was seen from December 23, 2006 to January 15, 2007 under her health
insurance. In an April 26, 2007 NowCare form, a physician with an illegible signature advised
that it was “undetermined” whether appellant’s ankle condition was the result of an industrial
injury or exposure as “patient informed clinic after initial visit that incident had occurred at
work.”
On April 11, 2007 appellant requested a hearing that took place on September 19, 2007.
She noted that she was working full time with physical restrictions which the employing
establishment accommodated. Appellant had filed an Equal Employment Opportunity (EEO)
complaint based on an initial failure to accommodate her restrictions and noted that she filed a
grievance on February 2, 2007 over her annual performance appraisal.
In a March 14, 2007 e-mail, Lisa Sargent, a coworker recalled that appellant stated that
she was not sure where she had hurt her leg. She noted that if appellant had commented on
workers’ compensation it would only be if she had hurt herself on the job.
In a September 19, 2007 statement, appellant’s husband contended that Mr. Wood had
attempted to sabotage her claim. He indicated that appellant did not slip and fall at home on
December 19, 2006 as the weather records submitted from the Farmers’ Almanac had no
measurable snow in the Ogden area during the period December 15 through 19, 2006.
On October 3, 2007 Mr. Woods denied that he had questioned the validity of appellant’s
claim due to her grievance of her performance appraisal. He indicated that appellant filed a
grievance on February 2, 2007, two weeks after he had received her workers’ compensation
claim. Mr. Wood noted that appellant’s grievance was ultimately dismissed as untimely. As he
had not been appellant’s supervisor for 60 days at the time of the evaluation, her appraisal was
based on evaluations provided by her previous managers. Mr. Woods noted that appellant took
her prescheduled annual/vacation leave on December 20 and 21, 2006 and did not call in sick
those days. Appellant only worked half the night on December 22, 2006 before going home
sick. Mr. Wood advised that appellant had been accommodated since she returned to work in
early May 2007. He acknowledged that the employing establishment had requested medical
documentation regarding her ability to ambulate and, when she did not provide such information,
she was sent home until such medical documentation was provided. Mr. Wood noted that she
later filed an EEO complaint, claiming that the employing establishment failed to accommodate
her work restrictions. He also discussed the weather conditions from December 10 to 15, 2006.

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On November 12, 2007 appellant’s husband reiterated that appellant did not slip and fall
on ice while at home. He disputed Mr. Wood’s comments regarding the weather conditions
during the period in question.
By decision dated December 21, 2007, an Office hearing representative affirmed the
March 12, 2007 decision denying appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.4 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
An employee may establish that the employment incident occurred as alleged, but fail to show
that his disability and/or condition related to the employment incident.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. An injury does not have to be
confirmed by eyewitnesses in order to establish that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.6 An employee has not met
his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.7 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast doubt on an employee’s statements in determining whether a

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
5

Shirley A. Temple, 48 ECAB 404 (1997).

6

See Betty J. Smith, 54 ECAB 174 (2002).

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Id.

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prima facie case has been established.8 However, an employee’s statement regarding the
occurrence of an employment incident is of great probative force and will stand unless refuted by
strong or persuasive evidence.9
ANALYSIS
The Office denied appellant’s traumatic injury claim on the grounds that she did not
establish that the December 19, 2006 incident occurred as alleged. Appellant alleged that she
twisted her ankle as she was walking on an uneven floor at the employing establishment on
December 19, 2006. The record establishes that she first sought medical attention on
December 23, 2006. Although appellant sought medical treatment shortly after the alleged
incident, her claim cannot be accepted if her statements are not consistent with the surrounding
facts and circumstances and her subsequent course of action. As noted, a claimant has not
established an employment incident where there are inconsistencies in the evidence that cast
serious doubt as to the validity of the claim. In this case, there are a number of inconsistencies in
the evidence that cast doubt on the validity of her claim.
Appellant stopped work on January 19, 2007, 30 days after the alleged work incident of
December 19, 2006. However, she did not provide the employing establishment any notice of
her alleged injury until she stopped work on that date. The record does not provide a clear
explanation as to why there was a 30-day delay in giving the employing establishment notice of
the alleged injury. The record reflects that she worked on December 19, 2006 and was
subsequently on scheduled leave on December 20 and 21, 2006 she apparently worked half her
shift on December, 22, 2006 before going home sick.
Appellant sought medical treatment a few days after the alleged incident of
December 19, 2006. However, appellant told him the medical evidence does not clearly address
any history of an injury sustained at work. Appellant’s husband asserted, appellant told him of
her injury while traveling home on December 19, 2006 and that he told her physicians that the
injury occurred at work. However, none of the medical notes from NowCare or Dr. Richter
provided a history of injury or address how her ankle condition was the result of her work duties.
In an April 26, 2007 NowCare form, an unidentified physician advised that it was
“undetermined” whether appellant’s ankle condition was the result of a work injury as “patient
informed the clinic after initial visit that incident had occurred at work.” Although the record
contains an undated Calton Harrison Clinic Fracture Form, which notes the December 19, 2007
date of injury, the history of injury on the form -- “stepped on crack in pavement” -- is not
consistent with appellant’s account that she stepped on an uneven floor.

8

Linda S. Christian, 46 ECAB 598 (1995).

9

Gregory J. Reser, 57 ECAB 277 (2005).

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Furthermore, appellant had conversations with her family and coworkers about her ankle
condition but failed to advise her supervisor of an injury at work until January 19, 2007, 30 days
after the alleged incident.10 The record contains statements from appellant’s husband and her
daughters, which are generally supportive of her claim. However, other statements from
appellant’s coworkers are not consistent with a history of injury while at work. Ms. Sargent
recalled that appellant was not sure where she hurt her leg. Ms. Taylor, stated that appellant told
her that she injured herself at home, when she slipped on snow and ice. Appellant submitted
excerpts from The Farmer’s Almanac for December 15 to 23, 2006 and various photographs, to
support her contention that there was no snow or precipitation on the ground during this period.
However, this alone does not establish that her injury occurred at work, as claimed. The
statements from appellant’s coworkers, combined with her failure to report the alleged injury
until January 19, 2007, after her ankle condition worsened, or to clarify the reasons for her delay
in notifying the employing establishment, cast serious doubt on the validity of her claim.
Although appellant alleged bias by the employing establishment and the coworkers, she did not
submit any evidence confirming her contentions.11
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a right fibula injury on December 19, 2006, as alleged.

10

Appellant’s contentions regarding Mr. Wood’s response to her filing of this claim, or the employing
establishment’s actions taken with respect to her performance appraisal and removal from work because of the need
for medical documentation are not germane to whether the December 19, 2006 injury occurred at the time, place and
in the manner alleged.
11

As appellant did not establish an employment incident alleged to have caused her injury, it is not necessary to
consider any medical evidence. Bonnie A. Contreras, 57 ECAB 364 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 21, 2007 is affirmed.
Issued: March 17, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 19-0582
Issued: April 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 18, 2019 appellant filed a timely appeal from a September 5, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 15, 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could be adequately
addressed based on a review of the case record. Order Denying Oral Argument, Docket No. 19-0582 (issued
July 15, 2020).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 6, 2016 appellant, then a 58-year-old case advocate, filed an occupational disease
claim (Form CA-2) alleging that she developed anxiety and stress due to factors of her federal
employment. She explained that she experienced a rapid heartbeat, sweating, body aches, and
crying, particularly before she arrived to work in the morning, which started to affect her family
and social life. Appellant noted that she first became aware of her condition and its relation to her
federal employment on January 7, 2016. On the reverse side of the claim form, the employing
establishment indicated that she stopped work and was last exposed to the claimed conditions on
May 24, 2016.
Appellant provided a June 9, 2016 narrative statement and alleged that she was harassed
by management because of her job performance. She noted that she was promoted from an intake
advocate, General Schedule (GS)-7 pay grade, to a case advocate, GS-9 pay scale, in
September 2014. Appellant alleged that for five years she had not received a step increase, and
that for three of the five years she had not received a job performance award. She asserted that
her position as a case advocate was very stressful, that she had over 80 cases, and that she was still
learning the job. Appellant alleged that she was threatened with termination if her performance
did not improve. She noted that she used leave when her job stress overwhelmed her and that,
when she returned to work on May 28, 2016, management had inputted her leave and attendance
time as her final pay. A coworker helped appellant to correct the attendance form.
Appellant recounted that on May 28, 2016 S.S. her second-line supervisor, requested a
meeting. During the meeting she asked if appellant wanted to return to her GS-7 position.
Appellant asked about her pay and asserted that she was told that she could retain her pay for two
years. She was informed that if she remained as a case advocate and her job performance did not
improve then she would “be given a pink slip.” Appellant alleged that after speaking with the
union and asking for the offer in writing, she was then informed that she could not retain her pay
and that S.S. had posted the case advocate position to the public. She used leave due to
experiencing stress following this incident. When appellant returned from leave, she indicated
that she was unable to access her computer as a coworker had used it and not signed out.
Appellant related that S.S. subsequently asked to meet with her, but appellant asserted that
she did not want to talk to S.S. and alleged that S.S. was in denial about the job she offered to
appellant. She alleged that S.S accused her of calling S.S. a liar, and began to yell and scream at
her. Appellant denied making this slur or acting disrespectfully toward her supervisor or manager.
Appellant sought medical treatment on January 7, 2016 for possible depression and stress
at work. On January 10, 2016 Dr. Afshan S. Malik, a Board-certified family practitioner,
diagnosed acute stress reaction beginning December 17, 2015. On May 17, 2016 he diagnosed
anxiety reaction, unspecified.
In a June 20, 2016 statement, appellant’s supervisor, A.D., noted that appellant had stopped
work on May 24, 2016. She indicated that appellant referred to a May 28, 2016 meeting which
actually took place on April 28, 2016. A.D. noted that appellant had no job performance issues or
performance concerns until becoming a case advocate. She indicated that appellant was promoted
to a case advocate in September 2014, attended four training courses, and was provided with three

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different on-the-job instructors. A.D. asserted that appellant was not performing her duties at an
acceptable level and the employing establishment offered to return her to her prior position of
intake advocate. She indicated that appellant received performance awards in 2012, 2014, and
2015 while working as an intake advocate. A.D. alleged that appellant was disrespectful to her
and to other employees in the office. She denied that appellant was threatened with termination.
A.D. also denied inputting appellant’s time for her.
In a July 1, 2016 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire for her completion. In a
separate development letter of even date, OWCP requested that the employing establishment
provide additional information including comments from a knowledgeable supervisor and an
explanation of appellant’s work activities. It afforded both parties 30 days to submit the necessary
evidence.
On July 19, 2016 A.D. responded to OWCP’s July 1, 2016 development letter. She
disagreed that all case advocates where struggling and noted that a new employee was hired on
July 12, 2015 and that this case advocate had successfully completed all formal training and was
working independently at a fully successful level. A.D. asserted that management had offered
appellant a chance to return to her previous position noncompetitively and that it had indicated
that she would maintain retained pay for two years. However, it noted that this issue required
further research. A.D. denied that appellant was threatened with removal.
A.D. alleged that appellant made comments that management was intentionally trying to
deceive her and threatened her due to time keeping errors. S.S. acknowledged that she became
frustrated with appellant’s repeated accusations and raised her voice when advising appellant that
she would not tolerate her telling staff members that she was a liar.
A.D. noted that appellant was promoted to the position of GS-9 case advocate on
September 4, 2014 and completed the required training and was assigned an on-the-job instructor.
Appellant required an extension of the training from June 30 until December 18, 2015 when she
was released to work independently in her position.
On May 14, 2016 appellant requested to work four, 10-hour days a week which was
approved. However, due to significant absences, management recorded her time in an effort to
ensure that she was paid appropriately. When appellant returned to work, the prior pay period had
been classified as her “final pay period.” She alleged that this was a threat by management. A.D.
denied this allegation.
On September 4, 2015 management determined that appellant’s performance was
insufficient to merit within-grade promotion, but that the promotion was in fact made. It made
concessions to reduce her case inventory and provided on-the-job instruction. A.D. reported that
appellant demonstrated minimal improvement in maintaining an inventory and effectively
assisting customers. She noted that case advocate was a relatively demanding position and
involved the planning, scheduling, and coordination of resolution activities and contacts with a
high volume of taxpayers seeking assistance, often within prescribed time frames. On April 22,
2016 management was given the authority to backfill appellant’s intake advocate position. It met

3

with her on April 28, 2016 and offered her the opportunity to noncompetitively return to her
previous position. Management advised appellant of the need to fully explore the financial and
other ramifications of such a decision if she was interested.
On February 29, 2016 appellant’s annual evaluation reflected a minimally successful
performance rating. It noted concerns of unscheduled absences which hindered inventory
management practices, as well as management’s ability to provide assistance and coaching. A.D.
again denied that the employing establishment threatened to terminate appellant or give her a “pink
slip.”
In a September 9, 2016 statement, appellant alleged that in April 2016 A.D. and S.S. spoke
to appellant in a conference room about refilling the intake advocate position following her
promotion as she was struggling with the case advocate position. She asserted that S.S. informed
her that she would be allowed to retain appellant’s GS-11 pay in a GS-7 position for two years.
Appellant further asserted that S.S. informed appellant that if she did not take the downgrade and
her job performance did not improve she would be give a “pink slip.” The managers afforded
appellant two weeks to make a decision. Appellant spoke with a union representative and was
directed to get the downgrade offer in writing. S.S. then informed appellant that she would not be
entitled to GS-11 pay, but would be paid at a GS-7 salary. Appellant protested the change in terms,
and S.S. alleged that she had not told appellant that she was definitely going to get GS-11 pay rate
in the GS-7 position.
Appellant noted that, after using sick leave for a week, she returned to work and was unable
to enter her time and attendance as the system contained a “final pay” status code. After an
additional two-week period of sick leave, she was unable to utilize her computer as it had been
locked. Appellant indicated that S.S. came to her workstation and she requested union
representation. She alleged that S.S. was screaming, yelling, and accusing her of calling her a liar.
Appellant stopped work on that date. She attributed her emotional condition to getting the case
advocate promotion in September 2014, which was no longer a competitive position such that she
was promoted to a GS-11 with one year in grade and a successful job performance. Appellant
alleged that she was unable to meet the expectations of her position and that management was
harassing her in an effort to make her retire or quit.
In a September 8, 2016 report, Dr. Louis Duchin, a Board-certified psychiatrist, diagnosed
major depression and attributed this condition to workplace stress.
OWCP, in an October 11, 2016 development letter, requested additional factual and
medical evidence in support of appellant’s emotional condition claim. It provided her with a
questionnaire for her completion and afforded her 30 days to respond.
Appellant provided a statement from her daughter, noting that appellant informed her that
her position was stressful, that management was talking about her job performance, that appellant’s
work performance was never enough, that nothing she did was right, and management was
continually pointing out mistakes. She worked late to complete her work and management
continued to find her work insufficient.

4

By decision dated December 8, 2018, OWCP denied appellant’s emotional condition claim
finding that the evidence of record was insufficient to establish that she was injured in the
performance of duty. It accepted as factual that she was given the option of returning to a lowergrade position as her performance as a case advocate was not improving. OWCP found no
evidence of error or abuse by the employing establishment and that appellant’s reaction was not
compensable. It denied the remainder of her allegations as not factually substantiated.
On January 6, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
During the oral hearing held on June 8, 2017, appellant testified that she was promoted to
case advocate in September 2014 as a GS-9 and to a case advocate GS-11 in September 2015. She
alleged that the case advocate position required a year of training, was detailed, complex, and
stressful. Appellant alleged that everyone received extended training from nine months to a year.
In her June 2015 mid-year-evaluation, she was informed that she was not performing adequately.
The employing establishment then offered appellant to return to the intake advocate position.
On June 29, 2017 S.S. responded to the hearing transcript and alleged that training
extensions were not universal and that the request for a fourth extension for appellant was denied.
She also noted that appellant had qualified the return to the intake advocate position by noting that
appellant might not retain her GS-11 pay. S.S. asserted that, after putting the offer in writing, she
was advised that appellant had indicated that she had lied to her. During a meeting with appellant,
she made several derogatory comments which resulted in S.S. raising her voice and informing her
that she would not tolerate being called a liar. S.S. denied threatening to give appellant a “pink
slip.”
In a July 5, 2017 response to the hearing transcript, A.D. asserted that problems existed
with appellant’s performance as it related to her technical knowledge and decision making after
training. She alleged that S.S. informed appellant that she might be able to retain her pay and
grade and that she would explore that option if appellant was interested. When appellant requested
the offer in writing, S.S. contacted a personnel specialist and learned that appellant could not retain
her pay. A.D. confirmed that S.S. yelled at appellant noting that she was frustrated with appellant.
Appellant disagreed with these responses on July 14, 2017. She asserted that she was
having problems keeping up with her job duties and that the job was stressful. Appellant also
alleged that management was harassing her.
By decision dated July 28, 2017, OWCP’s hearing representative denied her emotional
condition claim, finding that appellant had not substantiated a compensable factor of employment
and.
On June 10, 2018 appellant, through counsel, requested reconsideration of the July 29,
2017 decision. In a May 31, 2018 statement, appellant alleged that all she wanted to do was to
learn her job so she could help the customer to the best of her ability. She alleged that when she
became a GS-11 her job performance was no longer good enough. Appellant continued to allege
that management harassed her by constant criticism.

5

By decision dated September 5, 2018, OWCP denied modification of its prior decision. It
found that appellant had not substantiated a compensable factor of employment.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; (2) rationalized medical evidence establishing that he or she has
an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence
establishing that the emotional condition is causally related to the identified compensable
employment factors.3
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 explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.5
When disability results from an emotional reaction to regular or specially assigned work duties or
a requirement imposed by the employment, the disability is deemed compensable.6
Allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim.7 Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.8 Personal perceptions alone are
insufficient to establish an employment-related emotional condition, and disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force, or frustration from
not being permitted to work in a particular environment, or to hold a particular position.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than regular or specially assigned
work duties of the employee and are not covered under FECA.10 Where the evidence demonstrates

3

W.F., Docket No. 18-1526 (issued November 26, 2019); C.M., Docket No. 17-1076 (issued November 14, 2018);
C.V., Docket No. 18-0580 (issued September 17, 2018); Kathleen D. Walker, 42 ECAB 603 (1991).
4

28 ECAB 125 (1976).

5

G.M., Docket No. 17-1469 (issued April 2, 2018); Robert W. Johns, 51 ECAB 137 (1999).

6

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, supra note 4.
7

A.C., id.

8

G.R., Docket No. 18-0893 (issued November 21, 2018).

9

A.C., supra note 6.

10

C.V., supra note 3.

6

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.11
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.12
Mere perceptions of harassment or discrimination are not compensable under FECA.13 Aclaimant
must substantiate allegations of harassment or discrimination with probative and reliable
evidence.14 Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred.15 Additionally, verbal altercations and
difficult relationships with supervisors, when sufficiently detailed by the claimant and supported
by the record, may constitute factors of employment. This does not imply, however, that every
statement uttered in the workplace will give rise to coverage under FECA.16
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and work conditions. OWCP denied her emotional condition claim, finding
that she had not established a compensable employment factor. The Board must, therefore,
initially review whether these alleged incidents are covered employment factors under the terms
of FECA.17
Appellant attributed her emotional condition in part to Cutler factors. She alleged that her
new job was very stressful, that she had over 80 cases, and that she was still learning the job.
Appellant asserted that the case advocate position required a year of training and was detailed and
complex. She alleged that she was unable to meet the expectations of this position. On July 14,
2017 appellant again asserted that she was having problems keeping up with her job duties and
that the job was stressful. She contended that all she wanted to do was to learn her job so she could
help the customer to the best of her ability and that when she became a GS-11 her job performance
was no longer good enough. Appellant alleged that she was offered the opportunity to return to
her intake advocate position as she was struggling with the case advocate position.

11

Id.

12

O.G., Docket No. 18-0350 (issued August 7, 2019); K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB
622 (2006).
13

A.E., Docket No. 18-1587 (issued March 13, 2019); M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB
657 (2006).
14

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 12.

15

T.Y., Docket No. 19-0654 (issued November 5, 2019); G.S., Docket No. 09-0764 (issued December 18, 2009);
Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C. Owens, 54 ECAB 684 (2003).
16

Y.B., Docket No. 16-0193 (issued July 23, 2018); Marguerite J. Toland, 52 ECAB 294 (2001).

17

Y.W., Docket No. 19-1877 (issued April 30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

7

A.D., appellant’s supervisor, confirmed that appellant had no job performance issues or
performance concerns until becoming a case advocate. She noted that, despite attending four
training courses and working with three different on-the-job instructors, appellant was not
performing her case advocate duties at an acceptable level. On September 4, 2015 management
determined that appellant’s performance was insufficient to merit within-grade promotion, but that
the promotion was in fact made. It made concessions to reduce her case inventory and provide onthe-job instruction. A.D. reported that appellant demonstrated minimal improvement in
maintaining an inventory and effectively assisting customers. On July 5, 2017 she asserted that
problems existed with appellant’s performance as it related to her technical knowledge and
decision making after training. A.D. noted that case advocate was a relatively demanding position
and involved the planning, scheduling, and coordination of resolution activities and contacts with
a high volume of taxpayers seeking assistance often within prescribed time frames. The employing
establishment offered to return appellant to her prior position of intake advocate as a consequence
of her poor performance.
The Board has held that conditions related to stress from situations in which an employee
is trying to meet his or her positions requirements are compensable.18 The evidence in this case is
sufficient to establish that appellant experienced difficulty in fully performing her regular assigned
duties. The employing establishment did not dispute her description of her difficulties performing
her job duties. Under Culter,19 appellant has established a compensable work factor.
The Board further finds that appellant has not substantiated the remainder of her
allegations. Appellant attributed her emotional condition to administrative and personnel actions,
which are not compensable absent a showing of error or abuse on the part of the employing
establishment.20 These include leave and attendance issues,21 and assignment of work.22
Appellant has not submitted corroborating evidence of error or abuse in these administrative
matters, and thus, has not established a compensable employment factor in this regard.23
Appellant alleged that S.S. yelled at her. Both A.D. and S.S. agreed that she raised her
voice. Verbal altercations and difficult relationships with supervisors/managers, when sufficiently
detailed and supported by the record, may constitute compensable factors of employment.
However, this does not imply that every ostensibly abusive or threatening statement uttered in the
workplace will give rise to coverage under FECA.24 While A.D. and S.S. indicated that S.S.
18
K.J., Docket No. 17-1851 (issued September 25, 2019); P.W., Docket No. 08-0315 (issued August 22, 2008);
Jeral R. Gray, 57 ECAB 611 (2006).
19

Supra note 4.

20

A.C., supra note 6; Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple
Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
21

Elizabeth Pinero, 46 ECAB 123, 130 (1994).

22

Y.B., Docket No. 16-0194 (issued July 24, 2018); Robert W. Johns, 51 ECAB 137 (1999).

23

R.B., Docket No. 19-0343 (issued February 14, 2020); R.V., Docket No. 18-0268 (issued October 17, 2018).

24

C.R., Docket No. 19-1721 (issued June 17. 2020).

8

became frustrated with appellant and raised her voice, there is no evidence that this rose to the
level of verbal abuse.25
Appellant contended that she was harassed by her supervisors. She has not submitted any
corroborative evidence to establish a factual basis for her allegations. As noted above, for
harassment or discrimination to give rise to a compensable disability, there must be evidence which
establishes that the acts alleged or implicated by the employee did, in fact, occur. Mere perceptions
of harassment or discrimination are not compensable under FECA. Based on the evidence of
record, the Board finds that appellant has not established, with corroborating evidence, that she
was harassed by the employing establishment.26
As OWCP found that there were no compensable employment factors, it did not analyze
or develop the medical evidence. Thus, the Board will set aside OWCP’s September 5, 2018
decision and remand the case for consideration of the medical evidence with regard to whether
appellant has established an emotional condition in the performance of duty causally related to a
compensable factor of her federal employment, i.e., difficulty in fully performing her regular
assigned duties.27 After other such further development as deemed necessary, OWCP shall issue
a de novo decision on appellant’s emotional condition claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

25

Y.B., Docket No. 16-0194 (issued July 24, 2018).

26

Id.

27

K.J., supra note 18.

9

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2018 decision of Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1219
Issued: November 8, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 4, 2007 appellant filed a timely appeal from an October 2, 2006 merit decision
of the Office of Workers’ Compensation Programs, denying his request for surgery, and a
February 7, 2007 nonmerit decision, denying his request for reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for back
surgery; and (2) whether the Office properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On February 1, 2003 appellant, then a 54-year-old body and fender repairman, filed a
traumatic injury claim,1 alleging that on January 30, 2003 he experienced sharp pain in his lower
back, whiplash to the neck and chest discomfort resulting from a motor vehicle accident. He
stopped work on the date of injury and has not returned to work.2 By letter dated February 19,
2003, the Office accepted his claim for lumbosacral and cervical strains.
In a November 19, 2004 medical report, Dr. Andrew G. Cappuccino, an attending Boardcertified orthopedic surgeon, stated that appellant complained about increasing and intractable
discomfort in his back and moderate discomfort in his legs. He also complained about presacral
pain. On physical examination, Dr. Cappuccino found loss of lumbar motion and flexion on
extension, pain with straight leg raising and generalized dysfunction. Regarding loss of lumbar
motion, appellant had 30 degrees of flexion, 20 degrees of extension and 30 degrees of lateral
bending and rotation. Manual motor strength testing revealed trace weakness proximally in the
L3 and L4 dermatomal distribution. Dr. Cappuccino stated that appellant’s planters were flexor
and no chlonus was seen. He opined that appellant could no longer tolerate the pain he
experienced. Dr. Cappuccino requested authorization to perform posterior decompression at
L1-S1 with foraminotomy and anterior retroparatoneal discectomy, and inner body stabilization
using disc replacement at four levels. He concluded that appellant remained totally disabled.
During the period August to December 2003 and April to October 2004, the employing
establishment conducted surveillance of appellant and videotaped him. In a November 5, 2004
investigative memorandum, the employing establishment reported that appellant was videotaped
during the stated periods performing activities that were outside the restrictions set forth by
Dr. Cappuccino and while being deemed totally disabled for work. These activities included
mowing the lawn, trimming bushes, shoveling dirt into a wheelbarrow and pushing it, lifting and
moving a large trailer, climbing a ladder, lifting, loading and pulling cinder blocks onto a hand
truck and lifting and dumping a garbage can and pulling it onto a hand truck. The employing
establishment requested that the Office reconsider Dr. Cappuccino’s request for authorization to
perform surgery and refer appellant for a second opinion examination along with accompanying
surveillance photographs.
By letter dated August 29, 2005, the Office referred appellant, together with a statement
of accepted facts and the case record to Dr. Alan J. Zimmerman, a Board-certified orthopedic
surgeon, for an opinion as to whether appellant had any continuing residuals and disability of his
March 14, 1997 and January 30, 2003 employment-related injuries. In a September 19, 2005
report, Dr. Zimmerman opined that there was no objective evidence establishing that appellant
had any disability causally related to his accepted employment injuries. He stated that the
conditions had resolved. Dr. Zimmerman noted that appellant’s movements on the videotape
and his physical examination findings confirmed that he was capable of returning to work as a
1

Prior to the instant claim, appellant filed a claim alleging that on March 14, 1977 he hurt his left leg and back
when he fell on an icy driveway. The Office accepted his claim for right hip contusion and aggravation of
radiculopathy at L4-5. Appellant underwent a laminectomy in 1997.
2

Appellant retired from the employing establishment effective July 31, 2004.

2

body and fender repairman. He concluded that no further medical treatment including, surgery
was necessary.
In a September 12, 2005 report, Dr. Cappuccino noted appellant’s back and lower
extremity symptoms. On physical examination, he reported loss of range of motion regarding
the lumbar spine and loss of strength of the lower extremities. Dr. Cappuccino stated that,
although the surveillance videotape showed that appellant engaged in daily activities, he did so
with significant pain. He found that appellant had residuals causally related to the January 30,
2003 employment injury. Dr. Cappuccino again requested authorization to perform back surgery
and reiterated that appellant remained totally disabled.
On December 15, 2005 the Office found a conflict in the medical opinion evidence
between Dr. Cappuccino and Dr. Zimmerman as to whether appellant had any employmentrelated disability and whether the proposed surgery was warranted. By letter dated March 14,
2006, the Office referred appellant, together with a statement of accepted facts, the case record
and a list of questions to be addressed, to Dr. Roy A. Hepner, a Board-certified orthopedic
surgeon, for an impartial medical examination.
In a March 22, 2006 report, Dr. Hepner reviewed the history of appellant’s employmentrelated injuries and medical treatment. He also reviewed his medical records. Dr. Hepner stated
that he did not review the employing establishment’s surveillance videotapes, but that he
reviewed evidence which demonstrated a marked inconsistency between the activities that
appellant performed on the videotapes and his presentation for examination on March 21, 2006.
On physical examination, he reported limited range of motion of appellant’s back and left hip,
mildly diminished sensibility to light touch of the left foot and calf, low back pain on straight leg
raising on either side, tenderness over the midline upper lumbar spine and negative knee jerk on
the left and positive on the right. Dr. Hepner diagnosed chronic back and left leg pain, multilevel
lumbar degenerative disc disease, deconditioning, narcotic habituation and status post left L4-5
discectomy. In a March 21, 2006 work capacity evaluation (Form OWCP-5c), Dr. Hepner stated
that appellant could not perform his usual work duties, but could work four to six hours per day
with restrictions.
By letter dated April 21, 2006, the Office requested that Dr. Hepner clarify his review of
an accompanying surveillance videotape and a list of questions. In a May 5, 2006 report,
Dr. Hepner opined that appellant had the capacity to perform his normal work duties over
extended periods of time with a functional capacity far greater than a sedentary level based on
his review of the surveillance videotape. He noted that appellant displayed far greater trunk
motion than he did during his March 21, 2006 examination. Dr. Hepner stated that, in view of
the clear inconsistencies between the behavior and activities demonstrated by appellant in the
videotape and his presentation on March 21, 2006, it was extremely difficult to accurately assess
his work capacity. He related that these inconsistencies suggested either a level of insincerity on
appellant’s part or that he sustained an injury subsequent to surveillance on October 26, 2004.
Dr. Hepner concluded that his behavior as demonstrated on the videotape was consistent with, at
most, a mild level of disability with a medium work capacity. He further concluded that
appellant’s behavior was inconsistent with an assessment of total disability from an orthopedic
standpoint.

3

In an August 30, 2006 Form OWCP-5c, Dr. Hepner stated that he had no knowledge of
appellant’s usual work duties. He opined that appellant had reached maximum medical
improvement and that he could work eight hours per day with restrictions.
By letter dated August 30, 2006, the Office advised Dr. Hepner that an accompanying
statement of accepted facts had been amended to include a description of appellant’s body and
fender repairman position. It requested that he review this information and provide a
rationalized medical opinion as to whether appellant could perform the duties of this position and
if he could not return to full duty, provide his work restrictions.
On September 21, 2006 Dr. Hepner opined that appellant could perform limited-duty
work. He reviewed the position description and opined that he was “uncertain” as to whether
appellant could lift as much as 70 pounds. Dr. Hepner stated that he could reasonably be
expected to lift at least 40 pounds and he had no restrictions with regard to walking, climbing,
pushing, pulling, kneeling, stooping, twisting and sitting. He reiterated that, due to the
inconsistencies between appellant’s presentation on physical examination and multiple
surveillance studies, he could not, with assurance, complete the OWCP-5c form. Dr. Hepner
reiterated that appellant had reached maximum medical improvement at the time of the
surveillance studies. He did not believe that surgery had a reasonable likelihood of improving
appellant’s condition over that displayed in the surveillance studies. In fact, Dr. Hepner stated
that, such treatment would “more likely” worsen such function rather than improve it. He
concluded that he had no basis to recommend surgery.
By decision dated October 2, 2006, the Office denied authorization for back surgery. It
accorded special weight to Dr. Hepner’s medical opinion as the impartial medical specialist.
On November 24, 2006 appellant requested reconsideration. He submitted reports dated
October 31 and November 20, 2006 from Dr. Eugene J. Gosy, a neurologist, who found that
appellant sustained unspecified backache and mixed discogenic and mechanical pain syndrome
that were secondary to his March 14, 1977 and January 30, 2003 work-related injuries. On
January 30, 2007 he performed a bilateral L4-5, L5-S1 facet block under fluoroscopic guidance.
Appellant submitted laboratory test results dated October 30, 2006.
By decision dated February 27, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was of an immaterial nature and
insufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of the Federal Employees’ Compensation Act provides for the furnishing
of services, appliances and supplies prescribed or recommended by a qualified physician which
the Office, under authority delegated by the Secretary, considers likely to cure, give relief,
reduce the degree or the period of disability or aid in lessening the amount of monthly
compensation.3 In interpreting section 8103(a), the Board has recognized that the Office has
broad discretion in approving services provided under the Act to ensure that an employee
3

5 U.S.C. § 8103(a).

4

recovers from his or her injury to the fullest extent possible in the shortest amount of time.4 The
Office has administrative discretion in choosing the means to achieve this goal and the only
limitation on the Office’s authority is that of reasonableness.5
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.6 In order to be entitled to reimbursement
for medical expenses, a claimant must establish that the expenditures were incurred for treatment
of the effects of an employment-related injury. Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.7 Therefore, in order to prove that the
surgical procedure is warranted, appellant must submit evidence to show that the procedure was
for a condition causally related to the employment injury and that the surgery was medically
warranted.8 Both of these criteria must be met in order for the Office to authorize payment.9
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.10
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.11 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.12

4

Dale E. Jones, 48 ECAB 648, 649 (1997).

5

James R. Bell, 52 ECAB 414 (2001); Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of
discretion by the Office is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or administrative actions which are contrary to both logic and probable deductions from established facts).
6

Debra S. King, 44 ECAB 203, 209 (1992).

7

Id.; Bertha L. Arnold, 38 ECAB 282 (1986).

8

Joseph P. Hofmann, 57 ECAB ___ (Docket No. 05-1772 , issued March 9, 2006).

9

Dona M. Mahurin, 54 ECAB 309 (2003); Cathy B. Millin, 51 ECAB 331, 333 (2000).

10

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

11

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
12

Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB 673 (1996).

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ANALYSIS -- ISSUE 1
The Board finds that the Office abused its discretion in declining to authorize surgery.
The Board finds that the Office properly determined that a conflict arose in the medical
opinion evidence between Dr. Cappuccino, appellant’s attending physician, and Dr. Zimmerman,
an Office referral physician, as to whether appellant had any continuing disability causally
related to his March 14, 1997 and January 30, 2003 employment-related injuries and whether the
proposed back surgery was warranted. His claim for the March 14, 1997 employment injury was
accepted for right hip contusion and aggravation of radiculopathy at L4-5 and his claim for the
January 30, 2003 injury was accepted for lumbosacral and cervical strains. Dr. Cappuccino
opined that appellant had continuing disability and required posterior decompression at L1-S1
with foraminotomy and anterior retroparatoneal discectomy, and inner body stabilization using
disc replacement at four levels due to his accepted employment injuries. Dr. Zimmerman opined
that appellant no longer had any employment-related residuals or disability and that surgery was
not warranted.
To resolve the conflict, the Office referred appellant to Dr. Hepner, selected as the
impartial medical specialist. In a March 22, 2006 report, Dr. Hepner reviewed the history of the
January 30, 2003 employment injuries. He did not review the employing establishment’s
surveillance videotape. Instead, Dr. Hepner reviewed evidence which he did not specifically
identify that demonstrated a marked inconsistency between appellant’s activities on the
videotape and appellant’s presentation for his examination on March 21, 2006. On physical
examination, he reported limited range of motion of appellant’s back and left hip, mildly
diminished sensibility to light touch of the left foot and calf, low back pain on straight leg raising
on either side, tenderness over the midline upper lumbar spine and negative knee jerk on the left
and positive on the right. Dr. Hepner diagnosed chronic back and left leg pain, multilevel
lumbar degenerative disc disease, deconditioning, narcotic habituation and status post left L4-5
discectomy. In a March 21, 2006 OWCP-5c form, he opined that, appellant could not perform
his usual work duties, but he could work four to six hours per day with restrictions.
In a supplemental report dated May 5, 2006, Dr. Hepner found that appellant had the
capacity to perform his normal work duties over extended periods of time with a functional
capacity far greater than a sedentary level based on his review of the surveillance videotape. He
stated that, appellant demonstrated far greater trunk motion than he did during his March 21,
2006 examination. Dr. Hepner opined that in view of the clear inconsistencies between the
behavior demonstrated by appellant in the videotape and his presentation on March 21, 2006, it
was extremely difficult to accurately assess his work capacity. He stated that, these
inconsistencies suggested either a level of insincerity on appellant’s part or that he sustained an
injury subsequent to surveillance on October 26, 2004. Dr. Hepner concluded that his behavior
and activities as demonstrated on the videotape was consistent with at most, a mild level of
disability with a medium work capacity. He further concluded that appellant’s behavior was
certainly inconsistent with an assessment of total disability from an orthopedic standpoint.
In an August 30, 2006 OWCP-5c form, Dr. Hepner found that appellant had reached
maximum medical improvement and that he could work eight hours per day with restrictions.

6

In an addendum report dated September 21, 2006, Dr. Hepner reviewed a description of
appellant’s body and fender repairman position. He opined that appellant could perform limitedduty work, stating that he was “uncertain” as to whether appellant could lift as much as 70
pounds, but that he could reasonably be expected to lift at least 40 pounds. Dr. Hepner stated
that there were no restrictions with regard to walking, climbing, pushing, pulling, kneeling,
stooping, twisting and sitting. He reiterated that due to the inconsistencies between appellant’s
presentation on physical examination and multiple surveillance studies, he could not, with
assurance, complete an OWCP-5c form. Dr. Hepner reiterated that appellant had reached
maximum medical improvement at the time of the surveillance studies. He did not believe that
surgery had a reasonable likelihood of improving appellant’s condition over that displayed in the
surveillance studies. Dr. Hepner stated that such treatment would “more likely” worsen such
function rather than improve it. He concluded that he had no basis to recommend surgery.
The Board finds that Dr. Hepner’s opinion that appellant was able to work and that the
proposed back surgery was not warranted is speculative and equivocal in nature. The Board has
held that medical opinions that are speculative or equivocal in character are of diminished
probative value.13 Dr. Hepner did not unequivocally find that appellant could work or that he did
not require back surgery due to his accepted employment-related injuries. He found that,
appellant could perform part-time work with restrictions while stating that he was unable to
assess appellant’s disability for work due to discrepancies in the activities he performed on the
surveillance videotape and his presentation for physical examination. Further, Dr. Hepner stated
that he was “uncertain” about appellant’s ability to lift 70 pounds but failed to provide medical
rationale explaining why he could not do so. Moreover, Dr. Hepner stated that, the proposed
surgery would “more likely” worsen appellant’s condition without providing supportive medical
rationale. The Board, therefore, finds that Dr. Hepner’s opinion has little probative value and is
insufficient to resolve the conflict in the medical opinion evidence regarding the issue of whether
appellant has any continuing disability and whether the proposed back surgery are causally
related to his accepted March 14, 1977 and January 30, 2003 employment-related conditions.
The Office shall refer appellant, the case record and a statement of accepted facts to another
impartial medical examiner to resolve whether appellant’s disability for work and proposed back
surgery are related to the accepted employment-related injuries. After conducting such further
development as is deemed necessary, the Office shall issue an appropriate decision.
CONCLUSION
The Board finds that the Office improperly refused to authorize appellant’s request for
surgery because an unresolved conflict exists in the medical opinion evidence as to whether he
has any continuing residuals or disability causally related to the accepted employment-related
conditions and whether the requested back surgery was warranted.14

13

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); Cecelia M. Corley, 56 ECAB ___
(Docket No. 05-324, issued August 16, 2005).
14

In light of the Board’s disposition of this issue, the issue of whether the Office properly denied appellant’s
request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a) is moot.

7

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further consideration
consistent with this decision of the Board.
Issued: November 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8