United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woonsocket, RI, Employer
__________________________________________

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Appearances:
David A. Salzillo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-116
Issued: December 14, 2010

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 October 16, 2009 appellant, through her representative, filed a timely appeal of the
November 12, 2008 forfeiture decision and April 22, 2009 overpayment decision of the Office of
Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.1
ISSUES
The issues are: (1) whether the Office properly found that appellant forfeited her right to
compensation for the period April 11, 2005 through July 10, 2006; (2) whether an overpayment
1

For final Office decisions issued prior to November 19, 2008, a claimant had up to one year from issuance to
file an appeal to the Board. See 20 C.F.R. § 501.3(d)(2) (2008). For final Office decisions issued on and after
November 19, 2008, a claimant has 180 days from issuance to file an appeal to the Board. 20 C.F.R. § 501.3(e)
(2009). For computation of time purposes, the 180-day period for determining jurisdiction begins on the day
following the date of the Office’s decision. 20 C.F.R. § 501.3(f)(2). As the Office’s decision was issued April 22,
2009, the 180-day computation began on April 23, 2009. Using October 21, 2009, the date the appeal was received
by the Clerk of the Board, would result in the loss of appeal rights; therefore, the date of the October 16, 2010
postmark is considered the date of filing from the April 22, 2009 decision. 20 C.F.R. § 501.3(f)(1).

was created in the amount of $43,444.28 based on the forfeiture; (3) whether the Office properly
found that appellant was at fault in creating the overpayment, thereby precluding waiver; and
(4) whether the Office properly directed recovery of $150.00 from appellant’s continuing
compensation payments.
On appeal, appellant, through counsel, contends that she reported her employment and
earnings as a teaching assistant to the Office and that it failed to establish forfeiture.
FACTUAL HISTORY
On May 6, 2003 appellant, then a 37-year-old letter carrier, sustained injury when she
was shot in the face by a BB gun while making a delivery. The Office accepted her claim for a
left cheekbone contusion and acute stress reaction. Appellant was placed on the period rolls in
receipt of compensation for wage-loss and medical benefits.
As appellant was unable to return to work full time at the employing establishment, the
Office referred her for vocational rehabilitation in April 2004. After a transferable skills
analysis, paraprofessional training to prepare her to become a teacher’s assistant was identified.
Karen Davis, the rehabilitation counselor, noted that there would be a decrease in wages earned
when compared to appellant’s salary when injured. On April 20, 2005 she noted that appellant
would begin classes at Northern Rhode Island Collaborative as of April 28, 2005.2 Fred Price,
an Office rehabilitation specialist, approved the training program. Appellant completed training
and a paraprofessional assessment test and job placement efforts were undertaken as of
January 9, 2006. On March 4, 2006 Ms. Davis noted that appellant had been called to substitute
three to four times in a three-week period and was speaking to several employers about full-time
work, six hours a day. She noted that appellant wanted to report her income to the Office claims
examiner and Ms. Davis provided her information with instruction to mail copies of her pay slips
to the claims examiner.
On June 6, 2006 Ms. Davis reported that appellant worked for several weeks as a
temporary full-time substitute teacher. Appellant had recently been called back by the North
Smithfield Schools and would continue to work until the end of the school year. Ms. Davis
advised that appellant would pursue full-time permanent employment in the fall. The record
reflects that appellant submitted copies of her pay slips dated February 17 through May 26, 2006
to the Office. She earned a total of $1,064.23 in May 2006. They reflect that appellant had
received a total income of $3,079.42 through May 26, 2006. Mr. Price authorized continuing job
placement services through June 28, 2006, noting that appellant would have an estimated yearly
salary of $15,000.00 to $18,000.00. Ms. Davis reported that appellant had submitted all her pay
stubs to the Office.
On July 10, 2006 appellant completed an EN-1032 form. She noted that in the past 15
months she was not employed in any capacity but had received payment from the employing
establishment for the balance of unused vacation time. On August 22, 2006 appellant submitted
pay slips for June 2006 totaling $1,183.29. A notation on the form stated, “This is all my earning
2

Ms. Davis noted that appellant was restricted to working only six hours a day and that work as a teacher’s
assistant would fit this requirement.

2

for the month of June.” Total year-to-date earnings were listed in the amount of $4,438.80. On
July 5, 2007 appellant completed a new EN-1032 form. She reported earnings from
September 2006 through June 2007 in the amount of $4,683.25 for work as a substitute teacher’s
assistant.
In an August 10, 2007 letter, the Office notified appellant that she had received
compensation for total disability while she had earnings as a teacher’s assistant or substitute from
March 2006 to June 2007. It requested that she submit additional wage information, noting that
an overpayment had been created.
Social Security Administration records indicate that for 2005 appellant received
$1,677.13 from the employing establishment. In 2006, appellant received $5,280.33 from North
Smithfield School Department. This figure coincides with a W-2 form she submitted from the
North Smithfield School Department for 2006.
On October 22, 2007 the Office found that appellant’s actual earnings as a teacher’s
assistant with wages of $101.54 a week fairly and reasonably represented her wage-earning
capacity. It reduced her wage-loss benefits to reflect an 11 percent wage-earning capacity.3
By decision dated November 12, 2008, the Office found that appellant forfeited her
entitlement to compensation from April 11, 2005 through July 10, 2006 for failing to report her
earnings on the Form CA-1032 signed on July 10, 2006. It also made a preliminary
determination that she was at fault in the creation of an overpayment in the amount of
$43,444.28 because she did not report her earnings as a substitute teacher on the CA-1032 form.4
The Office found that her failure to report her earnings forfeited all entitlement to compensation
for 15 months prior to when she signed the CA-1032 form from April 11, 2005 through
July 10, 2006. It forwarded an overpayment recovery questionnaire and advised appellant as to
her right to request a prerecoupment hearing and submit additional evidence pertaining to the
overpayment and fault finding.
On December 10, 2008 appellant requested a telephone conference with regards to the
overpayment. She disagreed that an overpayment occurred, the amount of the overpayment and
that she was not at fault in the creation of the overpayment. Appellant submitted financial
documentation. She stated that she did not know she was being overpaid because she sent her
pay slips to the Office each month. A prerecoupment hearing was held by teleconference on
March 24, 2009.
In an April 22, 2009 decision, the Office finalized the overpayment in the amount of
$43,444.28 for which appellant was at fault and not eligible for waiver. It directed that $150.00
would be withheld from her continuing compensation payments beginning June 6, 2009.

3

In an October 29, 2008 decision, the Office found an overpayment of compensation in the amount of $1,405.20
from September 1, 2006 through August 9, 2007. There was no appeal from this decision.
4

The Office noted that appellant received compensation payments in the amount of $565.93 from April 11 to 16,
2005, $42,683.14 from April 17 to July 8, 2006, and $195.21 from July 9 to 10, 2006, for a total of $43,444.28.

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LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act provides that an employee
who fails to make an affidavit or report when required or knowingly omits or understates any
part of her earnings, forfeits her right to compensation with respect to any period for which the
affidavit or report was required.5 While earning income will not necessarily result in a reduction
of compensation, failure to report income may result in forfeiture of all benefits paid during the
reporting period.6
Pursuant to 20 C.F.R. § 10.525, an employee who is receiving compensation for partial or
total disability will periodically be required to submit a report of earnings from employment or
self-employment, either part time or full time.7 If an employee knowingly omits or understates
any earnings or work activity in making a report, she shall forfeit the right to compensation with
respect to any period for which the report was required.8 A false or evasive statement, omission,
concealment or misrepresentation with respect to employment activity or earnings in a report
may also subject an employee to criminal prosecution.9 Forfeiture results in an overpayment of
compensation for the period of the forfeiture and is subject to recovery under 5 U.S.C. § 8129.10
The Board has held that forfeiture, being a penalty provision, will be narrowly construed.11
ANALYSIS -- ISSUES 1
Appellant’s claim was accepted by the Office for a facial injury and emotional reaction to
being shot by a BB gun while on her postal route. The record reflects that she was referred for
vocational rehabilitation and received training as a teacher’s assistant pursuant to directions from
the Office’s rehabilitation specialist and her assigned vocational counselor. Upon successful
completion of appellant’s program, she received job placement services from the Office.
Appellant’s sporadic earnings as a temporary substitute teacher were noted in reports to the
Office. The record also reflects that she forwarded her pay slips to the Office claims examiner.
The Office found that appellant forfeited her right to compensation from April 11, 2005
through July 10, 2006 as she failed to report her earnings on a CA-1032 form she signed on
July 10, 2006. Based on this forfeiture, the Office found an overpayment in the amount of
$43,444.28. The Board finds that the Office erred in finding that appellant forfeited her right to
compensation for this period.
5

5 U.S.C. § 8106(b)(2).

6

20 C.F.R. § 10.525(b).

7

Id.

8

5 U.S.C. § 8106(b); 20 C.F.R. § 10.529(a). Knowingly means with knowledge, consciously, willfully or
intentionally. 20 C.F.R. § 10.5(n).
9

20 C.F.R. § 10.529(a).

10

Supra note 8; id. at § 10.529(b).

11

Karen Spurling, 56 ECAB 189 (2004); Christine P. Burgess, 43 ECAB 449, 458 (1992).

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The Board finds that the Office applied an erroneous standard of review in determining
that appellant knowingly failed to report her earnings from employment as required on the form
CA-1032 of 2006. The only mention of the fact that appellant had earnings as a substitute
teacher is stated in the November 12, 2008 decision as follows:
“Although the claimant provided the [O]ffice with copies paycheck stubs on three
occasions she did not report her earnings on CA-1032 form in July 2006. The
[O]ffice did not take the necessary actions to recompute the claimant’s
appropriate entitlement to compensation based on her outside earnings until
June 2007. [Its] error in issuing compensation checks following a claimant’s
return to work does not excuse the claimant’s acceptance of such compensation.
A claimant is at fault if he or she accepts compensation checks after returning to
work.” (Emphasis and citation omitted.)
In finding that appellant forfeited her entitlement to compensation under section 8106(b)
of the Act for omitting or understating her earnings, the Office intermingled the standard for
determining fault in an overpayment under section 8129 with the “knowingly” standard of
review applicable in this case. Appellant can only be subjected to the forfeiture penalty if she
“knowingly” failed to report employment or earnings. It is not enough to merely establish that
there were unreported earnings. Section 8106(b) of the Act is a penalty provision and as such
will be narrowly construed.12 The Board finds that the Office did not adequately support its
determination of forfeiture in this case as it relied upon an erroneous standard of review.13
Moreover, from the totality of the circumstances involved, it cannot be said that appellant
failed to document her temporary employment activities or sporadic earnings to the Office. The
contemporaneous reports of Ms. Davis and Mr. Price establish that appellant kept the Office
informed as to her work as a temporary substitute teacher beginning in Spring 2006 and of her
earnings. On March 14, 2006 Ms. Davis noted that appellant had several job leads and was
provided the address of the Office claims examiner to forward copies of pay slips so that he had
a record of her work. Similar pay information dated February through June 2006 was submitted
to the Office. On June 6, 2006 Ms. Davis advised the Office that appellant was working full
time as a substitute, but reiterated that such work was only temporary. She noted that appellant
had submitted pay slips to the claims examiner and that no adjustment had yet been made to her
monthly compensation.

12

Christine P. Burgess, supra note 11.

13

General reference to section 8106(b)(2) of the Act as contained elsewhere in the decision does not cure the
deficiency in the analysis of that section of the Act to the evidence of record.

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On June 26, 2006 Mr. Price, the Office rehabilitation specialist, noted appellant’s return
to work as a full-time, temporary teacher’s aide and her earnings. Additional pay information
was received into the case record. On July 6, 2006 Mr. Price noted that appellant had been
employed for 60 days, but was laid off for the summer with a planned return to work in the fall.14
As noted by counsel on appeal, Office personnel were fully aware and assisted in
appellant’s job search and placement within a local school district, temporary work activities and
earnings from employment. There is no evidence of any concealment or misrepresentation;
rather, the record establishes that appellant cooperated with and benefited from vocational
rehabilitation and was successfully placed in the private sector at work consistent with her
restrictions and limitations. Since the Board finds that the Office failed to meet its burden of
proof to establish forfeiture in this case, the April 22, 2009 overpayment based on the forfeiture
determination will also be reversed. As noted, forfeiture is a penalty provision which the Board
will narrowly construe.15 The disposition of the forfeiture issue renders the remaining issues in
this case moot.
CONCLUSION
The Board finds that the Office did not establish that appellant forfeited her right to
compensation. The Board further finds that Office erroneously found an overpayment of
$43,444.28 based on the forfeiture from April 11, 2005 to July 10, 2006.

14

As the work was temporary and earnings sporadic, a wage-earning capacity determination could not be made;
but the record does not explain why the Office did not deduct appellant’s earnings from employment against her
wage-loss compensation. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining
Wage-Earning Capacity, Chapter 2.814.7(d) (December 1995).
15

Karen Spurling, supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the April 22, 2009 and November 12, 2008
decisions of the Office of Workers’ Compensation Programs are reversed.
Issued: December 14, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-123
Issued: May 1, 2015

Case Submitted on the Record

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

On October 15, 2014 appellant timely filed an appeal from an April 18, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP).1 In this decision, OWCP denied her
claim on the grounds that her request for reconsideration was untimely filed and did not show
clear evidence of error in OWCP’s prior merit decision dated May 25, 2010. The Board assigned
Docket No. 15-123.
In a July 25, 2008 decision, OWCP reduced appellant’s entitlement to compensation to
zero based on its determination that her actual wages as a modified city carrier fairly and
reasonably represented her wage-earning capacity.2 In a May 25, 2010 decision, it denied her
claim for recurrence of disability beginning January 20, 2010. By decision dated January 28,
2011, OWCP reversed its July 25, 2008 wage-earning capacity determination on the grounds that
the modified city carrier position constituted odd-lot or make shift work. It advised appellant
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from April 18, 2014, the date of OWCP’s last decision, was
October 15, 2014. Since using October 22, 2014, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is October 15, 2014, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

In May 1998, OWCP had accepted that appellant, then a 32-year-old regional mail carrier, sustained bilateral
carpal tunnel syndrome due to the performance of her work duties over time.

that, consequently, claims for compensation beginning September 18, 2009 might be payable and
asked her to submit CA-7 forms for any claimed periods of compensation. In CA-7 forms filed
on August 26 and 30, 2011, appellant claimed entitlement to wage-loss compensation covering
the period February 26, 2010 to February 4, 2011.
In a March 10, 2014 letter, appellant referenced a February 10, 2014 informational letter
in which OWCP indicated that her claim for compensation beginning February 26, 2010 was
governed by its May 25, 2010 decision denying a claim for recurrence of disability beginning
January 20, 2010. In its April 18, 2014 decision, OWCP interpreted appellant’s March 10, 2014
letter as an untimely request for reconsideration of its May 25, 2010 decision. It then determined
that appellant had not shown clear evidence of error in the May 25, 2010 decision.
The Board finds that OWCP misinterpreted appellant’s March 10, 2014 letter as an
untimely request for reconsideration of its May 25, 2010 decision. Appellant’s March 10, 2014
letter constituted her attempt to have OWCP address her claim for entitlement to wage-loss
compensation for the period February 26, 2010 to February 4, 2011. She filed this claim after
OWCP reversed its July 25, 2008 wage-earning capacity determination and advised her that she
should file CA-7 forms if she wished to claim wage-loss compensation for any period beginning
September 18, 2009.
Therefore, appellant has a claim for wage-loss compensation for the period February 26,
2010 to February 4, 2011 which has not yet been properly addressed by OWCP. The case is
remanded to OWCP for consideration of this claim, to be followed by the issuance of an
appropriate merit decision on the matter.
IT IS HEREBY ORDERED THAT the April 18, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.

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Issued: May 1, 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
__________________________________________
G.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTHERN NEVADA HEALTHCARE
SYSTEM, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 19-0184
Issued: May 29, 2019

Case Submitted on the Record

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

JURISDICTION
On November 5, 2018 appellant filed a timely appeal from a September 19, 2018 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted July 30, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 30, 2018 appellant, then a 33-year-old health technician, filed a traumatic injury
claim (Form CA-1) alleging that, on July 30, 2018, he sustained neck and right wrist injuries from
being choked and grabbed by a patient while in the performance of duty. He did not stop work.
In a July 30, 2018 medical report, Dr. Tien Wang, a Board-certified emergency medicine
specialist, indicated that appellant presented to the hospital Emergency Department complaining
of left lateral neck pain. Appellant reported that an unruly patient choked his neck for one to two
minutes. Dr. Wang diagnosed asphyxia and noted that he denied shortness of breath, presented
with no signs of airway or vascular injury, and was medically cleared for discharge.
An Emergency Department discharge note dated July 30, 2018 from Maria Eavey, a
registered nurse, showed appellant reported neck pain at a level 4 on a 10-point scale, with 10
representing the worst pain. Appellant was discharged home with no restrictions.
In an August 5, 2018 medical report, it was noted that an x-ray examination of appellant’s
right hand, read by Dr. Sean Gupton, a family practitioner, was performed on that date and revealed
a fracture of his fifth metacarpal.
In a development letter dated August 14, 2018, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim. It advised him of the type of medical
and factual evidence needed, including a detailed description of the claimed July 30, 2018
employment incident, and a narrative report from his physician explaining how and why that event
would cause the claimed neck and right wrist injury. OWCP afforded appellant 30 days to submit
the necessary evidence. No response was received.
By decision dated September 19, 2018, OWCP accepted that the July 30, 2018
employment incident occurred as alleged, but denied appellant’s traumatic injury claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted July 30, 2018 employment incident.
In support of his claim, appellant submitted an Emergency Department discharge note
dated July 30, 2018 from Maria Eavey, a nurse. This note, however, is of no probative value
because nurses and nurse practitioners are not considered physicians as defined under FECA.9
Appellant also submitted a report dated July 30, 2018 from Dr. Wang in which he noted
appellant’s chief complaint as neck pain and diagnosed asphyxia. The Board has consistently held

3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5
R.E., Docket No. 17-0547 (issued November 13, 2018); David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover,
51 ECAB 146 (1999).
6

R.E., id.

7

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (physician
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law); R.C., Docket No. 17-1314 (issued
November 3, 2017).

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that pain is a symptom, rather than a compensable medical diagnosis.10 Further, while Dr. Wang
diagnosed asphyxia, he offered no opinion regarding a causal relationship between the incident
and the diagnosed condition. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.11
Similarly, the August 5, 2018 diagnostic test read by Dr. Gupton addressed appellant’s
metacarpal fracture, but failed to offer a medical opinion addressing whether the condition was
caused or aggravated by the July 30, 2018 employment incident. The Board has held that reports
of diagnostic tests lack probative value as they do not provide an opinion on causal relationship
between the accepted employment incident and a diagnosed condition.12 Moreover, reports that
are unsigned or that bear illegible signatures cannot be considered probative medical evidence
because they lack proper identification.13 This report, therefore, is insufficient to establish
appellant’s claim.
Because the medical reports of record do not adequately address how appellant’s diagnosed
conditions were caused by the accepted July 30, 2018 employment incident, the Board finds that
they are insufficient to establish entitlement under FECA. Accordingly, appellant has not met his
burden of proof to establish a traumatic injury claim.
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 his burden of proof to establish an injury
causally related to the accepted July 30, 2018 employment incident.

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

See D.H., Docket No. 17-1146 (issued October 20, 2017); S.G., Docket No. 17-1054 (issued September 14,
2017); E.V., Docket No. 17-0417 (issued September 13, 2017).
13
D.R., Docket No. 18-1408 (issued March 1, 2019); Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams,
55 ECAB 343 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the September 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 29, 2019
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
D.G., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Washington, DC, Employer
__________________________________________

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

Docket No. 06-1673
Issued: September 11, 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 17, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 27, 2006 denying his emotional condition
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 sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On December 17, 2003 appellant, a 52-year-old hearing representative, filed an
occupational disease claim for compensation (Form CA-2), alleging that he sustained an
emotional condition as a result of his federal employment. He experienced anxiety, high blood
pressure and major depression as a result of attempting to meet the demands of his supervisors.

In an undated statement, appellant indicated that on August 22, 2003 he went to a local
hospital with symptoms of depression, severe headaches, sleep difficulty, irritability and
difficulty concentrating with severe short-term memory loss. His blood pressure was 40 points
above normal. Appellant stated:
1. That he was not welcome or wanted when he began working as a claims
examiner on December 12, 2002;
2. That he was incorrectly placed on probation for one year, as a condition of his
new employment;
3. That he was not provided with complete equipment, training or support, or
included in the same manner as other employees;
4. That he was denied overtime (in order to keep up to date with work) in
February of 2003, when he was scheduled to be away at training for two weeks;
5. That the tone in the office was aggressive, demeaning and generally hostile;
6. That his performance standards were unclear, unrealistic, constantly changing,
and inconsistent;
7. That the environment was “harassing” due to a need to meet increased
standards; and
8. That he was continually advised that he was not performing at expected levels.
Michael Johnson, appellant’s supervisor, controverted the claim, indicating that appellant
had been accorded a professional and courteous atmosphere since being promoted to the position
of hearing representative. He contested that the office atmosphere was aggressive, demeaning or
generally hostile and indicated that appellant’s allegations of disparate treatment were without
basis. Mr. Johnson stated that he never denied appellant’s overtime requests. He indicated that
he did not encourage appellant to take work home and that he would not have allowed him to do
so, had he been aware of the practice. Mr. Johnson stated that appellant regularly met his
numbers and timeliness standards, but had increasing difficulty related to the quality component
of his job as he dealt with more complex decisions.
In an undated statement, Jean M. Ayers, a licensed clinical social worker, indicated that
appellant was hospitalized in August 2006 in the Behavioral Health Unit at Potomac Hospital,
due to stress in the work environment. She stated that appellant’s managerial staff set unrealistic
expectations of accuracy and success, while at the same time failing to give him tools that he
needed to perform his job. Ms. Ayers characterized appellant’s work environment as hostile and
that returning to it could cause a relapse of his symptoms.
Appellant submitted a Potomac Hospital discharge summary from Dr. Peter L. Campbell,
a Board-certified psychiatrist, reflecting that he was admitted on August 27, 2003 and discharged
on September 4, 2003. Dr. Campbell diagnosed major depressive disorder, moderate, recurrent,

2

nonpsychotic. He noted that, when appellant discovered that management was trying to fire him,
he felt crushed, distressed and hopeless.
On January 14, 2004 the Office informed appellant that the information submitted was
insufficient to establish his claim. It requested details of employment-related incidents that he
believed contributed to his illness, including names, dates, locations and witnesses, as well as a
medical report providing a diagnosis and a reasoned medical opinion as to the cause of the
diagnosed condition.
Appellant submitted numerous interoffice e-mails and memoranda to claims examiners,
for the period January 23 to August 19, 2003. E-mails and memoranda from Luanne Kressley
addressed: changes in the DOE website address; language to be used in cover letters; procedures
to be used on “Portsmouth GDP” decisions; the treatment of evidence following the issuance of
decisions; information on “Niosh dose reconstruction cases;” the format to be used for hearing
reversals and undeliverable decisions; drafting congressional correspondence; quality control;
notification of all reversals; changes in decisional format; and procedures for cases and hearings.
E-mails and memorandums from Mr. Johnson addressed: use of tape recorders at hearings;
“filing versus received dates;” and the address of the new director. Other e-mails and
memoranda addressed: recommended decisions returned undelivered; representatives’ fees; and
citations to the Office procedure manual.
Appellant submitted a performance evaluation for the period July 10, 2001 to April 30,
2002 reflecting a rating of “highly effective.” He also submitted numerous undated and
unsigned partial performance reviews describing appellant’s excellent job performance.
Appellant also submitted a job description for a claims examiner. Duties included independently
planning and carrying out claims case reviews, presiding as the hearing official during hearing
proceedings and issuing final decisions.
In a January 19, 2004 attending physician’s report, Dr. Campbell diagnosed adjustment
disorder with depression. He opined that appellant’s condition was caused or aggravated by
employment activities, stating that he experienced “severe stress in harassing, pressuring
workplace.”
In a February 10, 2004 letter, appellant identified the incidents and conditions he believed
contributed to his emotional illness. He stated:
1. He was made to feel unwanted in November and December 2002; that
management was cold; and he was forced to quickly accept or reject an
employment offer;
2. The employing establishment set him up to fail from the first day, as evidenced
by the fact that he was provided with a computer monitor that was too small and
was not given speakers;
3. He was demeaned by being asked if his work was up-to-date before being
granted leave;

3

4. He felt belittled by his supervisors’ responses to questions asked to clarify
procedures;
5. He observed coworkers being chastised for poor work performance;
6. His requests for overtime were unreasonably denied and his leave requests
were “lost” on the supervisor’s desk;
7. He was not allotted enough time to travel to, attend and return home from outof-town hearings, was required to fly rather than drive and was expected to return
to work the day following his return;
8. When he complained of the hectic pace, he was dismissed by his supervisor,
who said, “That’s what hearing reps do.”;
9. The FAB Chief shouted from her desk at the supervisors and staff;
10. Most days something went wrong, someone was shouted at and a change in
procedure would follow. Appellant found this situation unsettling;
11. When coworker, Linda Parker, suggested training in teamwork, the FAB
Chief stated that it was of no value and a waste of time;
12. FAB’s overall effort lacked adequate planning, resulting in crisis after crisis
and an atmosphere of continuous change;
13. Management perceived and treated staff as incompetent, stating they “should
have known better as GS-13s, which some of [us] might not be much longer;”
14. During the first quarter of 2005, Carmelita Thompson Smith was counseled
for a late release of a decision, implying that the standard of 100 percent had not
been met;
15. A union representative told him that FAB wanted to fire him, even though he
had been incorrectly placed on probation; and
16. Lack of training caused stress.
Appellant provided: a “partial listing of on-going changes made in 2003,” including:
“January 15 [h]earing representatives to take tape recorders to all hearings; January 23 EN20
language; January 30 Citations to PM; March 7 All PGDP contractors’ decisions using unclear
new EE-2 procedures; March 26 All NIOSH decisions require FAB chief review; March 31, All
reversals to FAB chief; April 1 FAB Chief and supervisor argue over congressional
requirements; April 1-2 Returned undelivered; April 2 Notify FAB Chief of NIOSH case receipt;
April 25 Do not forward congressional on letterhead; May 6 Correction to decision format;
May 6 Filing and received dates redefined; May 7 telephone call objections; May 8 Director
address change/stationary incorrect; May 8 More precise decision format; May 8 Filing and
receipt dates; May 14 New medical conditions; May 28 Cover letter change; June 2 Supervisors

4

to review everything; June 4 Change covered employee to employee; July 15 New evidence not
review of written record; July 30 Voice & e-mail requirements when out of office; August 5
(est.) Language in submissions was deleted prior to approval that I was required to add in
January; August 19 Fee schedule notification requirement; March 14 Staff informed of coding
limitations for appeals, timeliness required manual tracking as system in use for some time does
not work; May 8 Office informed of change in address for the program director, we were
advised that use of the old address resulted in a $10.00 charge per item forwarded from the old
address. My supervisor informed staff by e-mail that this change had no effect on our office
(true except our pre-addressed envelopes contained the old director’s office address, this
stationary should have been replaced.”
On February 14, 2004 Mr. Johnson, assistant branch chief, controverted appellant’s claim
and denied his allegations on behalf of the employing establishment. He stated that appellant’s
job involved duties with deadlines and travel and required overtime on rare occasions.
Mr. Johnson indicated that appellant had traveled to Jacksonville, Florida for a week-long
training session. He reported that there had been no extra demands or staff shortages affecting
appellant’s workload. Mr. Johnson was unaware of any conflict that appellant had with his
coworkers or of any duties that were “unofficially changed,” as alleged by appellant. He stated
that appellant was not notified prior to August 2003 that he was going to be fired.
Mr. Johnson indicated that appellant had some difficulties with his job as a claims
examiner. He had trouble issuing decisions in a timely manner. With regard to the writing
component of the job, Mr. Johnson stated that appellant handled routine and simple cases well,
but had difficulty with more complex cases and issues. Case quality was also a problem. His
supervisor worked with appellant addressing areas of difficulty, including attention to detail,
grammar and identification of issues. Mr. Johnson acknowledged that in April 2003 appellant
received a “proposal to suspend,” which may have resulted in stressful feelings. In response to
appellant’s allegations, he stated that equipment deficiencies did not play any role in appellant’s
work performance or responsibilities; that some of appellant’s equipment may have been
defective, but that the situation was not unique to him; that appellant never informed
management that he was unable to perform his duties due to defective equipment; and that lack
of speakers in no way prevented appellant from receiving messages, which were obtained by
telephone. Mr. Johnson also denied appellant’s allegations that FAB chief counsel shouted at
him over a discussion of his “draft congressional.” He denied that appellant was improperly
refused overtime, indicating that overtime was routinely assigned to veteran examiners.
Mr. Johnson stated that he was unaware that appellant was taking work home and working
through lunch and breaks and after hours, and that had he known, he would have advised him of
the employing establishment’s policy against taking work home. He indicated that appellant
never informed management of his need for overtime to keep up with his work.
The record contains performance standards for a hearing representative – GS-13, signed
by appellant on January 28, 2003. The standards reflect that performance is successfully
completed when no substantive changes are required in 94 to 97 percent of final, and 90 to 92
percent of initial, reviews of decisions.
In a report dated February 17, 2004, Ms. Ayers stated that she had been seeing appellant
since September 10, 2003, upon his discharge from Potomac Hospital. She opined that he could

5

return to part-time work, but should distance himself from his former work environment and
supervisors.
In a report dated February 14, 2004, Dr. Campbell opined that appellant’s adjustment
disorder with depression was “specifically caused by severe stress in a harassing pressuring
workplace.” He stated that appellant’s condition was not self-generated due to job dissatisfaction
or disappointment. Dr. Campbell recommended that appellant be restricted from working under
Mr. Johnson or Ms. Kressley.
By decision dated April 29, 2004, the Office denied appellant’s claim on the grounds that
the medical evidence failed to establish that the claimed condition was causally related to
compensable incidents of employment.
On May 17, 2004 appellant requested an oral hearing. At the October 20, 2004 hearing,
he reiterated his claims of discriminatory and harassing treatment by the employing
establishment.
Appellant alleged that he worked as a hearing representative from
December 2002 to August 2003; that he struggled with his work assignments; that his training
did not address areas in which he needed help; that he felt very pressured to complete his work in
a given period of time; and that he was never comfortable or confident with the process of
writing decisions. He claimed that he had difficulty understanding the revisions of his drafts,
and that the lack of clarity delayed release of the decisions and caused him stress about meeting
his deadlines as he struggled to keep up. Appellant stated that he “didn’t fall behind. [He] got
everything done but it took extra work, extra effort and an extreme amount of anxiety to make
sure [he] was getting things through and getting an O.K. to release them by the deadlines.” He
testified that he worked until 8:00 p.m. because that “met his needs.” Appellant also worked
through lunch and took work home.
Appellant testified that there were ongoing changes in policies and procedures, although
he was provided no procedure manual and no training. David Benedict, a coworker, testified that
Mr. Johnson had a history of yelling at employees and that he seemed to edit appellant’s
decisions with more scrutiny than those of other employees. He indicated that the policies and
rules were confusing and that the tracking system used was faulty. Mr. Benedict noted that
changes in procedure were not always in writing. Linda Copening, a union representative,
testified that the agency was trying to terminate appellant’s employment. She was told by
personnel employees that appellant was hired because he was a “veteran,” but that they did not
really want him there. Ms. Copening stated that appellant was treated “far more poorly and in a
far more hostile nature than his coworkers.” Avery Brown, a coworker, testified that templates
provided to appellant were returned with incomprehensible comments, which were inconsistent
with those received by his coworkers. As a result, appellant was required to spend inordinate
amounts of time on his cases and struggled to meet his standards. He reported that, at that time,
they “were being told to run at 100 percent level.” Mr. Brown testified that in the summer of
2003, appellant was required to hold 12 or 13 hearings in Buffalo, New York on one day, and to
return to work in Washington, DC the next. Appellant’s trip was complicated by a blackout, but
his restrictions were not modified to accommodate the emergency situation. Mr. Brown was
aware of another such training session that occurred in Florida. Other employees were not given
such strict restrictions. Mr. Brown also stated that appellant worked until 8:00 p.m.

6

In response to questions from the hearing representative, appellant testified that he never
confronted his supervisor as to why he received a “marked-up” decision when it had been
“preapproved;” that he had never had a confrontation with his supervisor; that his supervisor
never yelled at him, but that she yelled at others on a daily basis; and that he never filed a
grievance. He stated that, when he was required to run a significant number of hearings in a
single day, he found himself unprepared, because he was unable “to review the files in between,
and there were just too many people and too many issues.” In addition to the Buffalo, New York
trip, during which he was required to hold 12 to 13 hearings in one day, appellant reported that
he also drove round trip on consecutive days to conduct a number of hearings in North Carolina.
Appellant submitted numerous performance ratings from January 15, 1994 to April 30,
2002, evaluating his performance as a rehabilitation specialist. In all cases, appellant received
ratings of “outstanding” or “highly effective.”
In an undated response, Ms. Kressley stated that she had informed appellant at the time of
his interview that hearing representatives were expected to “hit the ground running.” She
indicated that appellant never requested a 21-inch computer monitor; that a large monitor is not
critical to appellant’s job performance; and that he never arrived late or missed a meeting.
Ms. Kressley stated that appellant received basic claims examiner training, which did not address
how to write decisions, but that he did receive such instruction in February 2003. She indicated
that prototype decisions were developed, used and circulated among the staff, but that they were
not intended to be fill-in-the-blank documents. Appellant was expected to use his skills as a
writer and claims examiner to craft decisions appropriate to the case at hand. Ms. Kressley
stated that appellant’s work received the same scrutiny as every other employee. Appellant was
not expected, asked or required to work longer than the 40-hour week. Ms. Kressley noted that
appellant was permitted to work between the hours of 6:00 a.m. and 8:00 p.m. and had every
right to do so. She contended that his assertion that he was expected to issue decisions in a
timely manner 100 percent of the time was belied by his January 28, 2003 performance
standards, whereby he was held to a 74 to 77 percent standard. Ms. Kressley stated that
appellant was using the reports effectively and meeting his percent performance standard. She
reported that Mr. Johnson’s demeanor did not create stress in the workplace; that appellant had a
positive experience with Mr. Johnson; and that he was relieved to find that he had been assigned
to Mr. Johnson’s unit. Ms. Kressley contended that Mr. Benedict’s testimony was not probative
because he did not witness Mr. Johnson yelling at an employee. She stated that at no time during
appellant’s employment as a hearing examiner was there any intention of firing him.
Ms. Kressley further stated that claims examiners have found the tracking system used to be
effective in managing their caseloads. She acknowledged that the practice of the agency was to
schedule hearings in such a way as to maximize the number of hearings on a given trip.
However, Ms. Kressley denied appellant’s allegations that he was required to schedule and hold
an oppressive number of hearings within a short period of time during a blackout. In fact, she
stated that she knew of no contact between appellant and management during the referenced
blackout. Ms. Kressley denied yelling at or using obscenities in any conversation with appellant.
Rather, she “treated him with kid gloves.”
By decision dated May 3, 2005, an Office hearing representative affirmed the April 29,
2004 decision, finding that appellant had failed to establish any compensable factors of
employment.

7

On July 28, 2005 appellant requested review by the Board. By decision dated March 27,
2006, the Board granted the motion of the Director of the Office, remanding the case on the
grounds that appellant’s representative was not served with a copy of the May 3, 2005 decision.1
By decision dated April 27, 2006, an Office hearing representative reaffirmed the prior
decision, finding that appellant failed to establish any compensable factors of employment.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.4
To establish his occupational disease claim that he has sustained an emotional condition
in the performance of duty, a claimant must submit the following: (1) factual evidence
identifying and supporting employment factors or incidents alleged to have caused or contributed
to his condition; (2) rationalized medical evidence establishing that he has an emotional or
psychiatric disorder; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to his emotional condition.5
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. Such an opinion must be based on
a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by appellant.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties, or to a requirement imposed by the employing establishment, the disability comes within
1

Docket No. 05-1653 (issued March 27, 2006).

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
5

Claudio Vazquez, 52 ECAB 496, 498 (2001).

6

Id.

8

coverage of the Act. The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to the nature of his work or his fear and anxiety regarding his
ability to carry out his duties.7 By contrast, there are disabilities having some kind of causal
connection with the employment that are not covered under workers’ compensation law because
they are not found to have arisen out of employment, such as when disability results from 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.8 Moreover, although administrative and
personnel matters are generally related to employment, they are functions of the employer and
not duties of the employee. The Board has held that reactions to actions taken in an
administrative capacity are not compensable unless it is shown that the employing establishment
erred or acted abusively in its administrative capacity.9
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment which may be considered by a physician when
providing an opinion on causal relationship and which are not deemed factors of employment
and may not be considered. When a claimant fails to implicate a compensable factor of
employment, the Office should make a specific finding in that regard. If a claimant does
implicate a factor of employment, the Office should then determine whether the evidence of
record substantiates that factor.10 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, then the
Office must base its decision on an analysis of the medical evidence.11 As a rule, allegations
alone by a claimant are insufficient to establish a factual basis for an emotional condition claim
but rather must be corroborated by the evidence.12 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.13

7

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

8

Id. See also Peter D. Butt, Jr., 56 ECAB ___ (Docket No. 04-1255, issued October 13, 2004).

9

See Charles D. Edwards, 55 ECAB 258 (2004); see also Ernest J. Malagrida, 51 ECAB 287, 288 (2000).

10

Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

11

See Charles D. Edwards, supra note 9.

12

Charles E. McAndrews, supra note 4; see also Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41
ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether or not the
evidence corroborated such allegations).
13

See Thelma Rogers, 42 ECAB 866 (1991).

9

ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of his employment
conditions. The Board finds that appellant has not submitted rationalized medical evidence
establishing that his claimed condition is causally related to compensable employment factors.
Appellant alleged: the employing establishment improperly denied him overtime; lost his
leave requests; provided insufficient training and support; incorrectly placed him on probation;
improperly criticized his performance; provided performance standards that were unclear,
unrealistic, constantly changing and inconsistent; and provided him inadequate travel time. The
Board finds that these allegations relate to administrative or personnel matters, unrelated to his
regular or specially assigned work duties and do not fall within the coverage of the Act.14
Although the handling of disciplinary actions and leave requests, the assignment of work duties
and the monitoring of work activities are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.15 However, the Board
has also found that an administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.16 In this case, appellant has
not submitted sufficient evidence to show that the employing establishment committed error or
abuse with respect to these matters. The record reflects that appellant received basic claims
examiners’ training, as well as instruction regarding decision writing. His supervisor also
assisted him with areas of difficulty. The employing establishment controverted appellant’s
claim that he was unreasonably denied overtime, indicating that veteran examiners were
routinely granted overtime. Mr. Johnson stated that he was not made aware of appellant’s need
for overtime to complete his work, or that appellant was taking work home and working through
lunch. Appellant did not provide documentation that his requests for overtime was denied. He
provided e-mails and memorandums in support of his contention that performance standards
were constantly changing and inconsistent. However, the correspondence from the employing
establishment to the supervisors shows a continuing communication and an effort to inform the
claims examiners, and thus does not support appellant’s claim. His allegation that he was
provided with inadequate travel time is not supported by the record. The Board finds that the
practice of the establishment to schedule hearings in such a way as to maximize the number of
hearings in a given trip was reasonable. Appellant failed to prove his claim, which was
controverted by the employing establishment, that he was required to conduct an oppressive
number of hearings within a short period of time.

14

See Lori A. Facey, 55 ECAB 217 (2004). See also 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, 126667 (1988).
15

Id.

16

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

10

Appellant alleged that, at the time of his promotion to claims examiner, he was
incorrectly assigned to a probationary status. This situation was ultimately corrected, with no
alleged or proven negative consequence to appellant. The mere fact that personnel actions are
later modified or rescinded does not, in and of itself, establish error or abuse on the part of the
employing establishment.17 The Board finds that he has not established a compensable
employment factor.
Appellant alleged that the agency’s overall effort lacked adequate planning, resulting in
crisis after crisis and an atmosphere of continuous change. However, an employee’s
dissatisfaction with perceived poor management is not compensable under the Act.18 Appellant
also complained that his computer lacked speakers and was equipped with a monitor that was too
small. An employee’s frustration from not being permitted to work in a particular environment
or to hold a particular position is not compensable.19 Moreover, the record does not establish
that the equipment provided negatively impacted appellant’s performance.
Appellant has not demonstrated that the employing establishment committed error or
abuse with regard to these managerial functions and his dislike of or disagreement with the
actions is not a compensable factor of employment. For these reasons, the Board finds that
appellant has not established a compensable employment factor under the Act with respect to
administrative matters.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors are established as occurring and arising from appellant’s
performance of his regular duties, these could constitute employment factors.20 However, for
harassment or discrimination to give rise to a compensable disability under the Act, there must
be evidence that harassment or discrimination did in fact occur. Mere perceptions of harassment
or discrimination are not compensable under the Act.21 In the present case, the employing
establishment has denied the allegations, and appellant has not submitted sufficient evidence to
establish his claim.22 He alleged: that he was not welcome or wanted when he began working as
a claims examiner; that the tone in the office was aggressive, demeaning and generally hostile;
that the environment was “harassing” due to a need to increase standards; that the employing
establishment set him up to fail; that he was demeaned by being asked if his work was up-to-date
before being granted leave; that he was belittled by supervisors when he asked for clarification of
17

Paul L. Stewart, 54 ECAB 824 (2003).

18

Barbara J. Latham, 53 ECAB 316 (2002).

19

Id.

20

See Lori A. Facey, supra note 14. See also David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D.
Walker, 42 ECAB 603, 608 (1991).
21

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

22

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

11

procedures; and that he had been told the agency planned to fire him. Appellant’s allegations
alone are insufficient to establish a factual basis for his claim.23 General allegations that
appellant was treated unfairly and disrespectfully by management are insufficient to establish
that harassment or discrimination did, in fact, occur. Davis Benedict and Mr. Brown, coworkers,
testified at appellant’s hearing. Mr. Benedict stated generally that Mr. Johnson had a history of
yelling at employees; that he “seemed” to edit appellant’s decisions with more scrutiny than
those of other employees; that the policies and rules were confusing; and that the tracking system
was faulty. Mr. Brown testified that templates provided to appellant were returned with
incomprehensible comments, which were inconsistent with those received by his coworkers. He
stated that appellant was required to hold 12 to 13 hearings in one day in Buffalo, New York, and
to return to work in Washington, DC the next day, and that, although the Buffalo trip was
complicated by a black-out, appellant’s restrictions were not modified to accommodate the
emergency situation.
The Board finds the testimony of appellant’s coworkers insufficient to substantiate
appellant’s claims. Mr. Benedict cited no specific incidents of harassment or discrimination.
Neither Mr. Brown nor Mr. Benedict provided documentation to support their claim that
appellant’s decisions received more scrutiny than those of his coworkers. The Board notes that
appellant testified that he never questioned his supervisor as to why he received a “marked-up”
decision when it had been “pre-approved.” Moreover, as Mr. Brown did not accompany
appellant on the trip to Buffalo, his testimony regarding appellant’s restrictions on that trip has
diminished probative value. Ms. Copening stated that she was told by unidentified personnel
employees that the employing establishment was trying to terminate appellant, and indicated that
he was treated more poorly and in more hostile manner than his coworkers. However, she
provided no first-hand knowledge of any harassing or discriminatory treatment. The Board finds
that appellant has not established a compensable employment factor under the Act with respect
to these above-described allegations.
Appellant alleged several instances of verbal abuse. He claimed that coworkers were
chastised for poor work performance; that the FAB Chief shouted from her desk at the supervisor
and staff; and that, when he complained of the hectic pace, his supervisor said, “That’s what
hearing reps do.” The Board has recognized the compensability of verbal abuse in certain
circumstances. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under the Act.24 Appellant did not provide sufficient evidence to
corroborate that the alleged statements were actually made. However, assuming arguendo that
the statements were made, the Board finds that they do not constitute verbal abuse or harassment.
While the statements may have engendered offensive feelings, they did not sufficiently affect the
conditions of employment to constitute a compensable factor.25
Appellant reported that he felt belittled by his supervisors’ responses to questions asked
to clarify procedures, and was demeaned by being asked if his work was up-to-date before being
23

Charles E. McAndrews, supra note 4.

24

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, supra note 20.

25

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

12

granted leave. However, under the circumstances of this case, the Board finds that appellant’s
emotional reaction must be considered self-generated, in that it resulted from his perceptions
regarding his supervisors’ actions.26
Appellant alleged that he experienced emotional stress in carrying out his regular
employment duties, which included conducting hearings and processing cases at a hectic pace.
He was often required to travel out of state, conduct numerous hearings in a single day, and
return to the employing establishment on the following day. Appellant claimed that he struggled
with his work assignments; that he felt very pressured to complete his work in a given period of
time; and that he was never comfortable or confident with the process of writing decisions. He
stated that, although he did not “fall behind” in his work, he worked through lunch and took
work home, and that “it took extra work, extra effort and an extreme amount of anxiety to make
sure [he] was getting things through and getting an O.K. to release [the decisions] by the
deadlines.” The position description for workers’ compensation claims examiner supports
appellant’s depiction of his duties, which included independently planning and carrying out
claims case reviews; presiding as the hearing official during hearing proceedings; and issuing
final decisions. The employing establishment confirmed that appellant’s job involved duties
with deadlines and required travel and occasional overtime. Mr. Johnson acknowledged that
appellant had difficulty issuing decisions in a timely manner and handling complex cases and
issues, and stated that appellant’s supervisor worked with him to improve case quality, including
attention to detail, grammar and identification of issues.
Where a disability results from a claimant’s emotional reaction to his regular or specially
assigned work duties, or to a requirement imposed by the employment, the disability comes
within coverage of the Act.27 The Board has held that conditions related to stress from situations
in which an employee is trying to meet his or her position requirements are compensable.28 In
the instant case, the Board finds that appellant has established a compensable employment factor
under Cutler. However, appellant’s burden of proof is not discharged by the fact that he has
identified an employment factor which may give rise to a compensable disability under the Act.
To establish his occupational disease claim for an emotional condition, appellant must also
submit rationalized medical opinion evidence establishing that he has an emotional condition or
psychiatric disorder, and that such disorder is causally related to an accepted compensable
employment factor.29 Appellant has not submitted medical evidence explaining how or why the
employment factor caused or contributed to the alleged emotional condition.
26

See David S. Lee, 56 ECAB ___ (Docket No. 04-2133, issued June 20, 2005).

27

See Lillian Cutler, supra note 7. See also Tina D. Francis, 56 ECAB ___ (Docket No. 04-965, issued
December 16, 2004) (where claimant alleged that stress related to her regular supervisory duties and to specially
assigned duties associated with complaint investigations caused her emotional condition, the Board found that she
had established compensable employment factors).
28

Trudy A. Scott, 52 ECAB 309 (2001); see Richard H. Ruth, 49 ECAB 503 (1998) (claimant’s stress, as related
to his regularly assigned duties, constituted a compensable factor of employment); see also Lillian Cutler, supra
note 7.
29

See Roger W. Robinson, 54 ECAB 846 (2003).

13

Appellant submitted reports from Ms. Ayers, a licensed clinical social worker. As
Ms. Ayers is not a physician, as defined by the Act, her reports do not constitute probative
medical evidence.30
Dr. Campbell diagnosed major depressive disorder, moderate, recurrent, nonpsychotic.
He opined that appellant’s condition was caused or aggravated by employment activities, stating
that he experienced “severe stress in harassing, pressuring workplace,” Dr. Campbell indicated
that his condition was not self-generated due to job dissatisfaction or disappointment.
Dr. Campbell noted that, when appellant discovered that management was trying to fire him, he
felt crushed, distressed and hopeless. He did not express an opinion that appellant’s regular
work activities caused his alleged emotional condition, or explain how those activities
contributed to the condition. Rather, Dr. Campbell attributed appellant’s condition generally to
harassment and erroneous actions on the part of management. Therefore, his reports are
insufficient to discharge appellant’s burden of proof. The Board finds that appellant has not
submitted rationalized medical evidence establishing that his claimed condition is causally
related to compensable employment factors.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty.

30

5 U.S.C. § 8101(2) of the Act provides as follows: “(2)’physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law.” A report may not be considered as probative medical evidence if there is no indication that
the person completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2); Phillip L. Barnes, 55
ECAB 426 (2004).

14

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 27, 2006 is affirmed, as modified.
Issued: September 11, 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

15


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTIC AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 12-1582
Issued: March 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 18, 2012 appellant filed an appeal from a June 26, 2012 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.
ISSUE
The issue is whether appellant establishes an emotional condition causally related to
compensable employment factors.
FACTUAL HISTORY
This case has previously been before the Board. Under claim File No. xxxxxx590,
appellant filed an emotional condition claim on June 19, 1993. In a May 13, 1994 decision,
1

5 U.S.C. § 8101 et seq.

OWCP denied the claim on the grounds that there was insufficient medical evidence to establish
that she sustained an emotional condition due to an accepted work factor.2 Claim File No.
xxxxxx105 was created when appellant filed a claim on July 20, 2005 for an emotional
condition. By decision dated January 8, 2009, OWCP determined that claim File No. xxxxxx105
was a duplicate of claim File No. xxxxxx590. It rescinded its decision of January 11, 2006 and
all subsequent decisions issued in claim File No. xxxxxx105.3 OWCP subsequently combined
claim File Nos. xxxxxx105 and xxxxxx590, with claim File No. xxxxxx590 as the master file.
By order remanding case dated December 13, 2010, the Board set aside a July 31, 2009 OWCP
decision which found appellant’s reconsideration request was not timely filed. The Board found
that appellant’s May 19, 2009 reconsideration request was within one year of the January 8, 2009
merit decision and remanded the case for OWCP to issue an appropriate decision.4 In a March 9,
2011 merit decision, OWCP considered the relevant evidence under each claim action and
denied modification of the May 13, 1994 and January 8, 2009 decisions. In a May 9, 2012 order
remanding case, the Board set aside the March 9, 2011 decision and directed OWCP to
reconstruct the case record, as the record was incomplete and to issue an appropriate merit
decision.5 Thereafter, in a June 26, 2012 decision, OWCP denied modification of the May 13,
1994 and January 8, 2009 merit decisions.
The evidence germane to the case on appeal includes a May 26, 1994 letter from Bruce
Jarvis, supervisor, to appellant. Mr. Jarvis noted OWCP’s denial of appellant’s claim and
evaluated her employment options in terms of returning to work, disability retirement and
voluntary resignation as they pertained to forced reductions in staffing at the employing
establishment. Appellant was provided 30 days to respond in writing or she would be removed
from federal service. Mr. Jarvis indicated that he could not approve appellant continuing
absence from work unless she was actively pursuing a claim for disability retirement benefits and
her continuing absence would be charged as absent without leave. He noted that they had
worked alongside each other for several years and he would never introduce the subject of
appellant’s employment options unless it was absolutely necessary.
The medical documents of record not previously considered included handwritten
counseling session notes from 1991 and 1993 from Dr. Joyce A. McCaughan, a psychiatrist,
noting appellant’s status. A June 11, 1996 report from Dr. McCaughan attested to appellant’s
disability due to major recurrent depression. A December 18, 2003 report from a provider with
an illegible signature, noted multisystem history and examination findings.
In a December 12, 2005 report, Dr. Christopher J. Connor, a psychiatrist, stated that he
had treated appellant for recurrent depression and that she remained unable to work. He opined

2

This decision is not actually in the case record before the Board but it is referenced in a prior appeal to the
Board. See infra note 4.
3

On November 16, 2006 the Board affirmed the January 11, 2006 decision that appellant’s claim was not timely
filed under 5 U.S.C. § 8122. Docket No. 06-1083 (issued November 16, 2006).
4

Docket No. 10-426 (issued December 13, 2010).

5

Docket No. 11-1933 (issued May 9, 2012).

2

that she could not return to her job as a computer specialist and that her past traumas on the job
were too severe to make any employment there possible.
In a January 18, 2009 letter, appellant provided a brief history of her injury and noted that
extenuating psychiatric and medical circumstances caused some confusion in regards to the
claim filed in 1994 and subsequent issues with the appeals process. In other letters, she noted
that her two claims had been combined and requested reconsideration based on Mr. Jarvis’ letter.
In a May 20, 2009 affidavit, appellant argued that Mr. Jarvis’ letter established awareness by
management of her depression and its relationship to her employment.
In a November 28, 2009 letter, appellant discussed the factual and medical evidence she
deemed relevant and argued that the file reflected a medical relationship between her depression
and her work exposure. She also addressed the issue of timely filing under claim File No.
xxxxxx105. Appellant referenced her diminished mental capacity and reported memory lapses
as the reasons for the duplicative filing. She noted that she had provided supporting evidence of
discrimination and claimed that she had not been made whole through Equal Employment
Opportunity Commission.
In an August 19, 2011 letter, appellant argued that she had not been made whole and
compensated for the loss of earning potential she would have had. She argued that causal
relationship has already been proven.
By decision dated June 26, 2012, OWCP denied modification of its May 13, 1994 and
January 8, 2009 merit decisions.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.6 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.7
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of FECA.8 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position, or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
6

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

7

See Ruth C. Borden, 43 ECAB 146 (1991).

8

Lillian Cutler, 28 ECAB 125 (1976).

3

do not constitute a personal injury sustained while in the performance of duty within the meaning
of FECA.9
A claimant’s burden of proof is not discharged by the fact that she has identified an
employment factor which may give rise to a compensable disability under FECA. She also has
the burden of submitting sufficient medical evidence to support her claim that the employing
establishment’s harassment resulted in an employment-related emotional condition.10 The Board
notes that any contribution of employment factors is sufficient to establish the element of causal
relation.11
ANALYSIS
OWCP denied appellant’s request for modification of the May 13, 1994 decision. In the
May 13, 1994 decision, it denied her emotional condition claim on the grounds that there was
insufficient medical evidence to establish that she sustained an emotional condition due to a
compensable factor of employment.
Although appellant submitted medical evidence subsequent to May 13, 1994, it is
insufficient to establish that her emotional condition was causally related to an employment
factor.12 Several counseling session notes and a June 11, 1996 narrative report were received
from Dr. McCaughan. While she reported on appellant’s disability due to depression,
Dr. McCaughan failed to offer any opinion on causation between appellant’s depression and a
compensable work factor. In a December 12, 2005 report, Dr. Connor opined that appellant
remained disabled and would never be able to return to her former employment due to severe
past traumas experienced on the job. Similarly, he failed to adequately address causal relation.
The chart notes from the provider with the illegible signature are of no probative value as reports
lacking proper identification do not constitute probative medical evidence.13
There is insufficient medical evidence addressing how a compensable employment factor
caused or aggravated appellant’s claimed emotional condition. Her statements addressing the
issue of causal relationship are not germane as causality is a medical issue. Mr. Jarvis’ May 26,
1994 letter addressing appellant’s employment options is not relevant to the medical issue of
causality.14
9

Id.

10

Chester R. Henderson, 42 ECAB 352 (1991).

11

See L.R. (E.R.), 58 ECAB 369 (2007).

12

See Mary J. Ruddy, 49 ECAB 545 (1998).

13

The Board has held that a medical report may not be considered as probative medical evidence if there is no
indication that the person completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). C.B.,
Docket No. 09-2027 (issued May 12, 2010).
14

Appellant appears to have submitted this statement in support of her assertion that her claim was timely filed.
However, the current reason the claim is denied is because of a lack of medical evidence addressing causal
relationship.

4

Accordingly, OWCP properly denied modification of its May 13, 1994 decision.
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
OWCP properly found that appellant submitted insufficient medical evidence to establish
her emotional condition claim.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 15-1208
Issued: October 23, 2015

Case Submitted on the Record

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

JURISDICTION
On May 5, 2015 appellant, through counsel, filed a timely appeal from a March 9, 2015
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.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
lumbar and right knee injury in the performance of duty on March 16, 2010.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 1, 2013, the
Board affirmed a July 31, 2012 OWCP merit decision, as modified, finding that the medical
evidence of record failed to establish that appellant’s diagnosed conditions were causally related
1

5 U.S.C. § 8101 et seq.

to the accepted March 16, 2010 employment incident.2 The findings and facts as set forth in the
prior decision are hereby incorporated by reference. The relevant facts are set forth.
On March 18, 2010 appellant, then a 58-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on March 16, 2010 he sustained a back strain and meniscus
sprain moving equipment on a scale. He stopped work on March 17, 2010. The employing
establishment controverted the claim.
In support of his claim, appellant submitted medical reports dated March 16 to
April 15, 2010.
By decision dated April 29, 2010, OWCP denied appellant’s claim finding that the
evidence did not establish that the incident occurred as alleged.
On May 4, 2010 appellant requested review of the written record before the Branch of
Hearings and Review.
In narrative statements dated May 4 to August 30, 2010, appellant stated that he was at
work on March 16, 2010 and after performing the job of moving racks which caused some back
discomfort, he had to weigh a hamper which appeared to be overweight. He attempted to move
the hamper on to the scale but one of the wheels was flat. Appellant continued to push the
hamper until he finally got it on the scale, causing his back to hurt. Once he got the hamper onto
the scale, he felt a burning sensation in his knee.
In support of his claim, appellant submitted medical reports dated April 3 to
July 13, 2010. In a June 2, 2010 operative report, Dr. Arthur J. Bowman, a Board-certified
orthopedic surgeon, reported that appellant had internal derangement of the right knee and that a
magnetic resonance imaging (MRI) scan suggested a torn medial meniscus. Apparently,
appellant injured his knee at work and the knee felt unstable. He underwent arthroscopy and
debridement of the medial femoral condyle without complication.
By decision dated December 16, 2010, an OWCP hearing representative affirmed the
April 29, 2010 OWCP decision finding that the evidence failed to establish that the incident
occurred as alleged or to provide sufficient medical evidence of a diagnosed condition causally
related to his employment.
By letter dated November 21, 2011, appellant, through counsel, requested reconsideration
of the December 16, 2010 OWCP decision. In support of his claim, he resubmitted medical
evidence previously of record along with two new medical reports from Dr. Bowman.
In a January 7, 2011 report, Dr. Bowman noted that appellant was under his care and had
no reported problem with his knee prior to the March 2010 injury.
In an October 6, 2011 medical report, Dr. Bowman noted that appellant had arthroscopic
surgery of the right knee several months ago. Appellant informed Dr. Bowman that he had no
2

Docket No.12-1844 (issued April 1, 2013).

2

problems with his knee until he sustained a fall in March 2010. Dr. Bowman noted that the
“assumption has been made that is when his knee problem occurred.” He noted that appellant
was referred to him after he sought emergency room and physical therapy treatment.
By decision dated July 31, 2012, OWCP affirmed the December 16, 2010 decision
finding that the evidence of record failed to establish that the incident occurred as alleged.
On August 29, 2012 appellant sought review before the Board.
As previously noted, in a decision dated April 1, 2013, the Board affirmed the July 31,
2012 OWCP decision, as modified, finding that appellant failed to establish that his diagnosed
conditions were causally related to the accepted March 16, 2010 employment incident.3 The
Board found that the evidence of record was sufficient to establish that the March 16, 2010
incident occurred as alleged and the medical evidence established a firm medical diagnosis of
back sprain, right knee torn meniscus, aggravation of lumbar disc disease, and right knee sprain.
The Board found that the medical evidence of record failed to establish that the diagnosed
conditions were causally related to the accepted March 16, 2010 employment incident.
By letter dated July 30, 2013 appellant, through counsel, requested reconsideration. In
support of his claim, he resubmitted medical evidence previously of record together with two
new medical reports from Dr. Bowman.
In a May 25, 2010 medical report, Dr. Bowman reported that appellant was referred to
him after he hurt his right knee at work when he was pushing or pulling an object and almost
slipped and fell. He provided findings on physical examination and noted review of an MRI
scan suggested a torn medial meniscus. Dr. Bowman noted that appellant had a history of left
shoulder surgery for rotator cuff tear and multilevel degenerative lumbar disc disease for which
he had been treated.
In a June 10, 2010 report, Dr. Bowman noted that appellant’s arthroscopic debridement
of the right knee one week prior revealed chondromalacia of the medial femoral condyle. He
opined that appellant’s right knee injury was work related. Appellant informed Dr. Bowman that
he twisted his knee at work and had no prior symptoms or injury to the knee. Dr. Bowman noted
that the physical findings at the time of the trauma were consistent with trauma. However, the
findings did not suggest the type of trauma or the date that the trauma occurred. Dr. Bowman
concluded that the findings were consistent with appellant’s statements.
By decision dated March 9, 2015, OWCP affirmed the April 1, 2013 decision finding that
the evidence of record failed to establish that appellant’s diagnosed conditions were causally
related to the accepted March 16, 2010 employment incident.
LEGAL PRECEDENT
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
3

Supra note 2.

3

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 or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.5
To establish a causal relationship between the condition, as well as any attendant
disability claimed, and the employment event or incident the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background supporting such
a causal relationship.6 The opinion of the physician must be based on reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
Appellant established that the March 16, 2010 employment incident occurred as alleged.
The issue is whether the accepted incident caused his diagnosed lumbar and right knee
conditions. The Board finds that appellant did not submit sufficient medical evidence to
establish that his lumbar and right knee conditions are causally related to the March 16, 2010
employment incident.8
In its April 1, 2013 decision, the Board held that appellant failed to establish causal
relationship between the diagnosed conditions and the March 16, 2010 employment incident.
With respect to the findings made in the Board’s April 1, 2013 decision, those matters are res
judicata absent any further review by OWCP under section 8128 of FECA.9
Following OWCP’s July 31, 2012 decision, the only new medical reports submitted in
support of appellant’s reconsideration request were Dr. Bowman’s May 25 and June 10, 2010
reports. In his May 25, 2010 report, Dr. Bowman reported that appellant hurt his right knee at
work when he was pushing or pulling an object and almost slipped and fell. He noted that
appellant’s MRI scan suggested torn medial meniscus. In the June 10, 2010 report, Dr. Bowman
noted that appellant underwent an arthroscopic debridement of the right knee which revealed
chondromalacia. Appellant informed Dr. Bowman that he twisted his knee at work and had
4

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

5

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

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

9

See Robert G. Burns, 57 ECAB 657 (2006).

4

experienced no prior symptoms or injury. Dr. Bowman opined that appellant’s right knee injury
was work related.
The Board finds that the medical reports of Dr. Bowman failed to provide an accurate
history of the March 16, 2010 employment incident. Dr. Bowman’s May 25, 2010 report stated
that appellant hurt his right knee at work when he was pushing or pulling an object and almost
slipped and fell. The reports fail to identify the object appellant was trying to move or suggest
how much the object weighed. Moreover, appellant has stated that his lumbar and right knee
injury occurred when he was pushing a hamper filled with mail onto a scale. At no time did he
indicate that he almost slipped and fell as recorded in Dr. Bowman’s report. Dr. Bowman’s
June 10, 2010 report failed to explain these discrepancies because he provided no detail
pertaining to how appellant twisted his knee at work.
In an October 6, 2011 medical report, Dr. Bowman found that appellant had experienced
no problems with his knee until he fell in March 2010. He has provided inconsistent accounts of
the employment incident which differ from the statements made by appellant. The Board has
held that a physician must provide a narrative description of the identified employment incident
and a reasoned opinion on whether the employment incident described caused or contributed to
the diagnosed medical condition.10
The Board further notes that Dr. Bowman’s opinion on causal relationship is highly
speculative and does not establish causal relationship. In his June 10, 2010 postoperative report,
Dr. Bowman diagnosed right knee chondromalacia. He opined that appellant’s right knee injury
was work related, noting that appellant had no prior symptoms or injury. The Board has held
that an opinion that a condition is causally related because the employee was asymptomatic
before the injury is insufficient, without adequate rationale, to establish causal relationship.11
Dr. Bowman went on to state that physical findings at the time of the incident were consistent
with trauma but also noted in the same report that the findings did not suggest the type or the
date of that trauma.12 His May 25, 2010 report is also insufficient to establish appellant’s claim
as he provides no opinion on causal relationship.13
Medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.14 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record,
and provide medical rationale explaining the relationship between the diagnosed condition and
10

John W. Montoya, 54 ECAB 306 (2003).

11

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
13

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
14

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

5

the established incident or factor of employment.15 As Dr. Bowman failed to provide a
rationalized and detailed discussion of appellant’s medical history, the employment incident, and
cause of injury, his reports are insufficient to meet appellant’s burden of proof.16
On appeal counsel argues that OWCP’s March 9, 2015 decision is contrary to fact and
law. However, the Board finds that the weight of the medical evidence does not establish that
appellant sustained a lumbar and right knee injury causally related to the accepted March 16,
2010 employment incident.17
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
lumbar and right knee injury is causally related to the accepted March 16, 2010 employment
incident.

15

See Lee R. Haywood, 48 ECAB 145 (1996).

16

Supra note 12.

17

J.M., Docket No. 15-1174 (issued August 18, 2015).

6

ORDER
IT IS HEREBY ORDERED THAT the March 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2015
Washington, DC

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

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

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

7