United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER NAVY REGION
MID-ATLANTIC, San Diego, CA, Employer
__________________________________________

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

Docket No. 17-1438
Issued: August 14, 2018

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 June 19, 2017 appellant filed a timely appeal from a May 25, 2017 merit decision of
the Office of Workers’ Compensation Programs. 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 emotional
condition in the performance of duty.
FACTUAL HISTORY
On November 13, 2015 appellant, then a 58-year-old police captain supervisor, filed an
occupational disease claim (Form CA-2) alleging that he developed depression and severe anxiety
1

5 U.S.C. § 8101 et seq.

attacks while in the performance of duty. He claimed that his conditions were due to his position
being undermined and continuous pressure, stress, and unfair and malicious treatment at work, as
well as fear of retaliation. Appellant first became aware of his claimed conditions and their
relationship to his federal employment on June 18, 2015.
By development letter dated November 16, 2015, OWCP informed appellant of the
deficiencies in his claim and requested that he submit additional factual and medical evidence. It
also requested that the employing establishment respond to appellant’s allegations.
In an undated statement, appellant noted that, during the evening shift roll call on
December 11, 2014, he spoke briefly to officers about a suicide attempt that took place on the
employing establishment’s east campus on the previous evening. He asked an officer who was
present at the scene to provide more details about this incident. At that time, Officer M.
commented that had the watch commander had been present on the scene, followed procedures,
and knew what he was doing, then the incident would not have turned out the way it did. Appellant
ended roll call and requested Officer M. to stand by because he wanted to speak to him further.
Officer M. refused to stay and left the room. The lead watch commander, Major J., instructed
appellant to have Officer M. see him. Appellant then instructed MA1 C. to pick up Officer M.
from his post at gate 3. Approximately 40 minutes later, Major J. asked appellant about Officer
M.’s whereabouts. Appellant contacted MA1 C., who informed him that Officer M. was not going
to return to the precinct. Appellant requested that Officer M. be “red tagged” and that an
investigation be conducted on charges of gross insubordination and not following a direct order
from his immediate supervisor.
In an undated letter, appellant also attributed his emotional condition to several other
incidents at work. He alleged that he unjustifiably received low performance ratings on
October 17, 2012, December 11, 2013, and September 30, 2014, as witnessed by Captain L.P.
Appellant maintained that his performance was equal to or better than all of his peers. He related
that he had never been put on a performance improvement plan (PIP) and had always accomplished
his tasks. Appellant was the only supervisor who had been transferred to all three shifts twice,
which continuously disrupted his quality of life. He asserted that, since 2013, his requests to wear
the rank of Captain, GS-8, the pay grade at which he was already being paid, were denied. A lead
watch commander informed appellant that he could wear the GS-8 captain rank only if
Captain L.P. was awarded the same privilege. The lead watch commander noted, however, that
the commandant did not want Captain L.P. to wear the rank. Subsequently, appellant was allowed
to wear the rank of captain after two employees were hired at the GS-8 captain level. He contended
that, although he had been a GS-8 since 2009, not being allowed to wear the rank belittled and
degraded him in the work environment. Appellant asserted that a hostile work environment was
created as he collected the same pay while working along with other GS-8 employees who were
allowed to wear the captain rank.
During an investigation conducted by appellant, Officer M., who was serving as a union
representative, threatened to have appellant fired because an investigative interview was invalid.
Appellant claimed that when he reported Officer M.’s statements to Major J., Major J. dismissed
his complaint by responding that Officer M.’s statements were just words.

2

Major J. became upset with appellant and called him derogatory names in front of his peers
and subordinates. Appellant asserted that this incident occurred while he was a United States
Army “Fort Story liaison and after he was unable to provide the status of Fort Story.” He also
asserted that Major J. demanded to be called major or sir. Appellant wished to discuss the incident
with Major J., but he feared retaliation. He listed coworkers who witnessed these incidents.
Appellant went on to contend that Major J. created a hostile work environment by
negatively speaking to civilians about military members and telling the civilian watch commanders
not to give them supervisory tasks. He promoted segregation between military members and
civilians in an environment where they were forced to work together. Appellant claimed that while
he was following Major J.’s recommendation to segregate the staff and to run a strict shift, military
members complained about him to the chain of command and commanding officer. He asked
Major J. for documentation supporting these complaints, but none was provided. Appellant
maintained that Major J. allowed the perception to exist that he (appellant) was acting on his own
accord and that Major J. did not support his actions. He asked Major J. about being loyal to him
and Major J. responded that he had no loyalty.
On April 20, 2015 the employing establishment issued a letter of reprimand to appellant
for failing to timely notify Major J. about a February 8, 2015 incident. Appellant maintained that
he followed protocol and notified everyone in his chain of command as he telephoned a command
duty officer, Major J., and Precinct Commander Lieutenant Colonel D. about the incident. He
asserted that a desk journal indicated that the incident occurred at 22:44 (10:44 p.m.). Appellant
claimed that he provided notification at 22:50 while the letter of reprimand indicated that he did
not provide notification until two hours and seven minutes after the incident. He related that he
spoke to Lieutenant Colonel D. several times on the night of the incident and sent pictures to him
from his personal cell phone shortly after the incident occurred. Appellant noted that a military
member who was standing watch at the incident abandoned her post, but was never reprimanded
for her action.
On June 30, 2015 appellant informed Lieutenant F. about his concerns, including being
highly stressed and depressed. Lieutenant F. told him to go home because he was in no condition
to work. On the next day, Major J. sent an e-mail to all of appellant’s peers and personnel, who
were not in his chain of command, stating that appellant was red-tagged for a “medical reason.”
When appellant returned to work to enter his time into the Standard Labor Data Collection and
Distribution Application he noticed that Major J. had changed his sick leave to annual leave. He
informed Major J. that he was on sick leave and that he would be on sick leave on future dates.
Appellant claimed that Major J. responded that he was unaware of his leave usage. However, he
noted that on July 1, 2015 Major J. sent an e-mail to his peers clearly indicating an awareness of
his medical condition. Appellant alleged that his work environment had become so stressful that
he was forced into early retirement by Major J.
Appellant submitted e-mails between himself and the employing establishment dated
July 13 and August 3 and 4, 2015, which addressed the changing of his sick leave on June 30,
2015, the use of leave from July 12 to 16, 2015, and his request to have a meeting concerning the
February 8, 2015 incident. He also submitted a copy of the April 20, 2015 letter of reprimand.
The letter indicated that appellant refused to sign and acknowledge receipt of the letter. A
Consolidated Law Enforcement Operations Center (CLEOC) journal document dated February 9,

3

2015 indicated that on February 8, 2015 appellant and several other employees responded to
unauthorized entry by two male suspects. The document indicated that notification was provided
on February 8, 2015 at 22:50 to Major J., 22:55 to Precinct Commander Lieutenant Colonel D.,
and 23:00 to “JEBLCFS CDO BM1” G.
Medical reports dated June 18 and July 13 and 28, 2015 from certified physician assistants
indicated that appellant had adjustment disorder with depression and addressed his work capacity
and mental health treatment.
Major J., in a December 11, 2015 statement, indicated that performance ratings were only
acceptable or unacceptable and an award was separate. He further indicated that an employee
could not challenge performance awards, reward recommendation scores, career stage
determinations, or the substance of their job objectives. Major J. noted that appellant’s request to
transfer to the night shift was granted. He further noted that appellant was subsequently moved to
the day shift after repeatedly having issues on night shift duty. Appellant was then placed as a
liaison officer and towing officer and performed well while working with a limited number of
assigned personnel. Major J. maintained that he never asked nor demanded to be called major or
sir. He related that this was simply a matter of professionalism and admired respect, but not
required. Major J. expected his staff to be professional, respectful, and polite to others while
performing their daily assigned duties. He noted that appellant held the position of watch
commander for some time and was later reassigned as an assistant to have a layer between him
and his subordinates to buffer or squash the many complaints employees had after interacting with
him. Major J. further noted that wearing a collar device (rank insignia) was a management decision
for an employee who transferred from the United States Army, Fort Story. He maintained that
appellant failed as a supervisor as appellant did not put union officials on notice during interviews
and allowed them to control meetings and intimidate management. Major J. related that no
accommodations were made for appellant based on his submission of leave and that simultaneous
extended leave was provided until his retirement date. He alleged that there were stressors with
most jobs and the leader of troops (civilian/military police officers) bore the weight of his or her
subordinates’ actions. Major J. further alleged that appellant’s personal stressors and financial
problems added to his work stress. He refused help from the employing establishment’s employee
assistance program. Major J. noted that appellant’s request to report to the night shift for additional
pay was authorized. He also noted that appellant was generally able to perform his duties with
supervisory oversight at times. Appellant received verbal and written counseling during his tenure.
Major J. explained that the April 20, 2015 reprimand letter was issued because appellant had
delayed immediate action following a serious incident at work. He related that his action remained
very disturbing. Major J. indicated that appellant was afforded an opportunity to address the letter
as part of his rights under the administrative grievance procedure.
Major J. submitted copies of several letters of counseling issued to appellant. An April 5,
2011 letter indicated that on April 2, 2011 appellant failed to notify the chain of command or an
agency about mail that was sent to a housing area without being processed through the U.S. Postal
Service system. A May 24, 2011 letter noted that during roll call on May 23, 2011 appellant failed
to properly respond to an officer’s question regarding his work assignment. A May 26, 2011 letter
stated that on May 24, 2011 appellant failed to inform an officer about a make-up date for a training
class, causing the officer to miss the class. A January 24, 2013 letter maintained that appellant, on
December 28, 2012, failed to listen to a sentry. He also demonstrated a lack of knowledge of his

4

supervisory duties as he was not aware of policies related to a search of a vehicle that attempted
to enter an installation without a state inspection sticker. A June 10, 2015 letter maintained that
on June 10, 2010 appellant failed to provide notification about the spill of an unknown substance
from a Canadian ship at sea.
A position description submitted to OWCP discussed the duties of a supervisory police
officer.
By decision dated December 17, 2015, OWCP denied appellant’s claim for an emotional
condition. It found that he had not established any compensable employment factors. OWCP also
found that the evidence of record did not contain a medical diagnosis in connection with the
claimed incidents. It noted that a physician assistant was not considered a physician under FECA.
Thus, OWCP concluded, that appellant had not sustained an injury as defined under FECA.
On September 7, 2016 appellant requested reconsideration. In an undated statement, he
reiterated his prior contentions regarding changes to his shift and leave usage, being called
derogatory names by Major J., the February 8, 2015 incident, the April 20, 2015 reprimand letter,
his June 30, 2015 conversation with Lieutenant F., and denial of his request to wear the captain
rank. He asserted that his coworkers, Captain M.F., Captain N.F., Lieutenant B.F., and
Officer E.T. could verify his claims. Appellant attributed his emotional condition to an additional
action of Major J., the denial of his request to use leave in February 2012. He noted that his request
was made two months prior to February 2012 and that Major J. denied the request one day before
the desired leave date. In October 2015, Captain H. informed appellant that his allegations would
be investigated. Captain S. informed appellant in March 2016 that a command investigation was
conducted and that appropriate actions had been taken.
Appellant submitted medical reports dated July 13, 2015 to August 18, 2016 which
diagnosed, among other things, adjustment disorder with depressed mood, stress and adjustment
reaction, persistent depressive disorder, dysthymic, and a mild single episode of major depressive
disorder.
In an undated statement, Patrolman M.B. related that he did not hear Major J. call appellant
out of his name. He felt, however, that Major J. disrespected appellant professionally on many
levels and in front of junior patrol officers. Patrolman M.B. noted that appellant had complained
to him and other watch commanders about Major J.’s actions. He felt that Major J. singled out
appellant when there was a watch commander rotation at the east campus. Patrolman M.B.
maintained that Major J. always made appellant stay on the west campus to run the watch section.
Major J. never called back other watch commanders who were on rotation at the east campus.
Patrolman M.B. indicated that another watch commander would be recognized for the work
appellant performed. He witnessed the statements made by Officer M. regarding appellant’s
failure to follow employing establishment procedures during the December 2014 incident.
Patrolman M.B. noted that Officer M. told him that Major J. came to his post to discuss what
happened during roll call. Officer M. also told him that he had refused to leave his post to talk to
appellant.
MA1 C., in a January 12, 2016 statement, noted that on or about December 10, 2014 he
and appellant served as assistant watch commander and evening shift watch commander,

5

respectively, during a call for service at base housing regarding suicidal ideations. He indicated
that the situation was resolved without mishap. MA1 C. related that during the evening shift on
or about December 11, 2014 appellant briefed the shift about the outcome of the December 10,
2014 incident. Officer M. expressed his concerns about the unparalleled actions taken by appellant
during the incident and reported to his assigned post at the end of roll call. MA1 C. stated that he
was instructed by appellant to bring Officer M. to him and that Officer M. refused to come along.
In an October 27, 2016 statement, appellant claimed that Major J.’s statements were not
true. He contended that no PIP had been created to address employees’ complaints against him.
Appellant asserted that being called derogatory names in front of his peers and employees by
Major J. seriously undermined his position as a supervisor. He restated his allegations that
Major J. demanded to be called major or sir and that Major J. refused to be loyal to him during the
interview in which Patrolman M.B. served as a steward.
By decision dated December 2, 2016, OWCP modified the December 17, 2015 decision
from a denial based on one of the five basic elements for FECA to a denial based on another
element. It found that he had established fact of injury, but he had not established that he sustained
a compensable factor of employment. OWCP concluded its finding that the claim remained denied
because performance of duty had not been established.
On February 27, 2017 appellant requested reconsideration.
In a January 9, 2016 statement, Patrolman M.B. reiterated the same information he
provided in his undated statement regarding Major J.’s actions directed toward appellant.
Appellant submitted an undated list of employees, including Patrolman M.B. and MA1 C.,
who had telephone conversations regarding his claim of a hostile work environment.
In a May 25, 2017 decision, OWCP denied modification of its December 2, 2016 decision.
It reviewed the additional evidence submitted and found that appellant had not established that he
sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.2 To establish an emotional
condition in the performance of duty, a claimant must submit: (1) factual evidence identifying
employment factors or incidents alleged to have caused or contributed to his or her condition;
(2) medical evidence establishing that he or she has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to the emotional condition.3

2

Pamela R. Rice, 38 ECAB 838 (1987).

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

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 an illness
has some connection with the employment but, nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned duties or to a requirement imposed by the employment,
the disability comes within the coverage of FECA.4 On the other hand, the disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force or his frustration
from not being permitted to work in a particular environment or to hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.6 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.7 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.8
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.9
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.10 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a

4

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

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

7
Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42 ECAB
566 (1991).
8

Roger Williams, 52 ECAB 468 (2001).

9

Alice M. Washington, 46 ECAB 382 (1994); E.C., Docket No. 15-1743 (issued September 8, 2016).

10

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

7

compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.11
ANALYSIS
The Board finds that appellant has not established an emotional condition in the
performance of duty.
Appellant alleged that he sustained an emotional condition as a result of several
employment incidents and factors. OWCP denied the emotional condition claim finding that he
had not established any compensable employment factors. The Board must initially review
whether these alleged incidents and conditions of employment are compensable employment
factors under the terms of FECA. The Board notes that appellant’s allegations do not pertain to
his regular or specially assigned duties under Cutler.12 Rather, appellant has alleged error and
abuse in administrative matters and harassment on the part of his subordinate and supervisor.
In Thomas D. McEuen,13 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employing
establishment and do not bear a direct relationship to the work required of the employee. The
Board noted, however, that coverage under FECA would attach if the facts surrounding the
administrative or personnel action established error or abuse by employing establishment superiors
in dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated, and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.14
Appellant has attributed his emotional condition to actions of the employing establishment,
including low performance appraisal ratings, changes to his work shift and leave usage, denial of
his requests for leave and to wear the Captain rank, issuance of the April 20, 2015 letter of
reprimand, and an inadequate investigation of his complaints against Major J. The Board has long
held that disputes regarding assessment of work performance,15 leave,16 the assignment of work,17

11

Id.

12

See supra note 4.

13

Supra note 7.

14

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

15

F.A., Docket No. 17-0315 (issued July 11, 2017); Elizabeth W. Esnil, 46 ECAB 606 (1995).

16

E.M., Docket No. 16-1695 (issued July 27, 2017); Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

17

J.M., Docket No. 17-0284 (issued February 7, 2018); Beverly R. Jones, 55 ECAB 411, 416 (2004).

8

disciplinary matters,18 and investigations19 are administrative or personnel matters and can only be
considered compensable work factors if there is probative evidence of error or abuse.20
Appellant claimed that Captain L.P., Captain N.F., Lieutenant B.F., and Officer E.T. could
verify his claims that the employing establishment improperly gave him low performance ratings,
issued the April 20, 2015 reprimand letter, and denied his request to wear the rank of captain.
However, he did not provide any statements from those witnesses. In a statement dated
December 11, 2015, Major J., appellant’s supervisor, provided several responses to appellant’s
allegations. Regarding appellant’s work shift and job position changes, Major J. noted that
employees could not challenge performance awards, reward recommendation scores, career stage
determinations, or the substance of their job objectives. He explained that appellant was
reassigned from the night shift to the day shift due to repeatedly having issues on the night shift.
Major J. further explained that he was reassigned from a watch commander position to an assistant
position due to complaints from his subordinates. Regarding appellant’s request to wear the
captain rank, he related that wearing a rank insignia was a management decision for an employee
who transferred from United States Army, Fort Story. The record does not indicate that he was a
Fort Story employee who transferred to the employing establishment. Rather, he merely worked
as the employing establishment’s liaison at Fort Story. Regarding disciplinary actions taken
against appellant, Major J. explained that appellant received verbal and written counseling due to
his poor performance as a supervisor. He noted that appellant failed to provide notice to union
officials during interviews and allowed them to control meetings and intimidate management.
Major J. submitted letters of reprimand dated April 5, 2011 to June 10, 2015. The April 5, 2011
letter of reprimand was issued after appellant failed to notify the chain of command or an agency
about mail that was sent to a housing area without being processed in the U.S. Postal Service
system on April 2, 2011. The May 24, 2011 reprimand letter was issued because he failed to
properly respond to an officer’s question regarding his work assignment during roll call on
May 23, 2011. A letter of reprimand was issued on May 26, 2011 after appellant failed to inform
an officer on May 24, 2011 about a make-up date for a training class, causing the officer to miss
the class. Another letter of reprimand was issued on January 24, 2013 after he failed to listen to a
sentry and to be aware of policies related to a search of a vehicle attempting to enter the installation
without a state inspection sticker on December 28, 2012. Major J. explained that the April 20,
2015 reprimand letter was issued because appellant failed to timely act following a serious
incident. He maintained that his behavior remained disturbing. Major J. noted that appellant was
afforded an opportunity to exercise his rights to address the April 20, 2015 reprimand letter
through the employing establishment’s administrative grievance process. A letter of reprimand
was issued on June 10, 2015 after appellant failed to provide notification regarding the spill of an
unknown substance from a Canadian ship at sea on June 10, 2010. In light of Major J.’s statements
and the evidence he submitted, the Board finds that management did not commit error or abuse in
the handling of the above-noted administrative matters. Therefore, appellant has failed to establish
a compensable employment factor.

18

C.T., Docket No. 08-2160 (issued May 7, 2009).

19

F.M., Docket No. 16-1504 (issued June 26, 2017); G.S., Docket No. 09-0764 (issued December 18, 2009).

20

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

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Appellant has also attributed his emotional condition to the actions of Officer M. He
alleged that Officer M. was grossly insubordinate during roll call on December 11, 2014 as he
accused him of not being on the scene, failing to follow procedures, and not knowing what to do
in response to a suicide attempt that took place at work on December 10, 2014. Officer M. also
failed to leave his post and return to the precinct to discuss his comment with Major J. as directed
by appellant. The witness statements of Patrolman M.B. and MA1 C. substantiated appellant’s
allegations that Officer M. had stated that appellant failed to properly follow procedures related to
the December 10, 2014 incident and that Officer M. refused to leave his post to discuss this
incident with Major J. These statements, however, do not provide any evidentiary support that
Officer M.’s comments regarding appellant’s response to the December 10, 2014 incident and his
refusal to leave his post constituted gross insubordination.21 The Board notes that, it apparently
was not necessary that Officer M. leave his post as Patrolman M.B. reported that Officer M. told
him that Major J. came to his post to discuss what occurred during roll call. In addition, while
appellant requested that disciplinary action be taken against Officer M., the record does not
indicate that such action took place. The Board finds, therefore, that there is insufficient evidence
corroborating appellant’s charges that Officer M. was grossly insubordinate. Appellant has not
established a compensable work factor with respect to his claims against Officer M.
Appellant further attributed his emotional condition to a hostile work environment through
the actions of Major J. He claimed that Major J. requested that employees address him major or
sir. Appellant alleged that Major J. instructed him to segregate civilian employees from military
members and to tell civilian watch commanders not to give military members supervisory tasks,
but did not support him and refused to be loyal to him when he implemented these
recommendations as Major J. made it appear that he was acting on his own behalf rather than
following his recommendations. He asserted that Major J.’s actions resulted in military members
complaining about him to the chain of command and commanding officer. Appellant contended
that Major J. failed to adequately address his concern about Officer M., who as a union
representative, threatened to have him fired due to conducting an invalid investigative interview
of Officer E., and failing to provide Officer E. with a Kalkine warning. He maintained that
Major J. responded that Officer M.’s statements were just words.
In his December 11, 2015 statement, Major J. denied appellant’s allegation that he
requested or demanded to be called major or sir. He noted that these titles were simply a matter
of professionalism and admired respect. Major J. expected his staff to be professional, respectful,
and polite to one another while performing their daily assigned duties. He contended that
appellant’s personal stressors and financial problems contributed to his work stress. Based on
Major J.’s statements, the Board finds that appellant has not established a compensable
employment factor due to a hostile work environment through the actions of Major J.
Regarding appellant’s allegations of following Major J.’s instructions and his lack of
support for doing so, the Board finds that although the assignment of work duties22 and the

21

See generally R.K., Docket No. 08-0144 (issued June 3, 2008).

22

Supra note 17.

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provision of support for supervisors and the handling of concerns raised by supervisors23 are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee. The Board recognizes that a supervisor or manager must be allowed to
perform his or her duties and that, in performing such duties, employees will at times dislike
actions taken.24 Appellant provided no probative evidence to support that his supervisor
committed error or acted unreasonably in exercising his supervisory authority with respect to these
administrative matters. Thus, he has not established a compensable factor of employment.
Appellant asserted that Major J. became upset with appellant and called him derogatory
names in front of his peers and subordinates. He maintained that Major J.’s actions seriously
undermined his position as a supervisor. Appellant claimed that he was unable to discuss this
matter with Major J. due to fear of retaliation. To the extent that these incidents are alleged as
constituting harassment or a hostile environment by a manager are established as occurring and
arising from appellant’s performance of his regular duties, these could constitute employment
factors.25 However, for harassment to give rise to a compensable disability under FECA, there
must be evidence that harassment did in fact occur. A claimant must establish a factual basis for
his or her allegations that discrimination occurred with probative and reliable evidence.26 Mere
perceptions of harassment are not compensable under FECA.27 In an undated statement, Patrolman
M.B. related that although he did not hear Major J. call appellant out of his name, Major J.
disrespected appellant on many levels and in front of junior patrol officers and singled appellant
out by not allowing him to rotate from the west campus to the east campus. He contended that
Major J. never recalled other watch commanders from the east campus to the west campus. The
Board finds, however, that Patrolman M.B.’s statement is insufficient to establish harassment as it
is vague and general. He did not specifically identify incidents wherein Major J. disrespected
appellant. Moreover, Patrolman M.B.’s statement with respect to appellant being singled out and
not allowed to rotate from the west campus to the east campus does not indicate that this action
was taken for a negative reason.28 The Board finds, therefore, that appellant has not established a
compensable employment factor with regard to his allegation of harassment.
As appellant failed to establish a compensable employment factor, the Board need not
address the medical evidence of record.29
On appeal appellant contends that he was in the performance of duty when his immediate
supervisor always challenged his decisions. As previously explained, appellant did not submit
23

J.M., supra note 17.

24

See M.M., Docket No. 06-0998 (issued August 28, 2006); Michael A. Deas, 53 ECAB 208 (2001).

25

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

26

G.S., supra note 17.

27

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). 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).
28

Christine Moore, Docket No. 00-0784 (issued March 12, 2001).

29

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

11

evidence to establish his allegation of harassment as factual. For the foregoing reasons, appellant
has not established any compensable employment factors under FECA and, therefore, has not met
his burden of proof to establish that he sustained an emotional condition in the performance of
duty.
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 emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 14, 2018
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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 17-0032
Issued: April 21, 2017

Case Submitted on the Record

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

JURISDICTION
On October 10, 2016 appellant, through counsel, filed a timely appeal from an August 17,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that an injury
occurred on January 5, 2015, as alleged.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 5, 2015 appellant, then a 56-year-old custodian, filed a traumatic injury
claim (Form CA-1) alleging that on January 5, 2015 at 12:30 p.m. he injured his right hip while
lifting and relocating heavy, wet, and molded rubber mats. He noted that the mats were
awkward and that his coworkers did not lift together. This report was received by OWCP on
April 29, 2015. On the reverse side of the claim form, appellant’s supervisor indicated that he
did not receive notice of the injury until April 23, 2015. He advised that appellant stopped work
on January 7, 2015. The employing establishment challenged payment of continuation of pay as
the injury was not reported within 30 days.
Appellant provided an October 7, 2002 rating decision from the Department of Veterans
Affairs (VA) for degenerative arthritis in the left hip following a total left hip arthroplasty. This
VA decision also noted that appellant had sustained a fracture of his pelvis while in military
service. Appellant received a rating of 50 percent from the VA for a total right hip arthroplasty
due to pain and limitation of motion.
Appellant sought medical treatment on January 7, 2015 and Dr. Vijay Ragayan, a
physician specializing in geriatrics, found that appellant was totally disabled through
January 10, 2015. In a note dated January 30, 2015, Craig Brown, a physician assistant,
indicated that appellant was planning to undergo additional right hip surgery. Appellant
requested annual leave on February 2, 2015.
In a letter dated May 6, 2015, OWCP requested that appellant provide additional factual
and medical evidence in support of his traumatic injury claim. This request included a
questionnaire which requested an explanation as to the delay in notifying his employing
establishment of the claimed injury. OWCP also requested that appellant provide a detailed
description as to how his injury occurred. It afforded appellant 30 days to respond.
On May 7, 2015 appellant notified the employing establishment that he was scheduled for
right hip replacement surgery on May 12, 2015.
By decision dated June 10, 2015, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted factual evidence sufficient to establish that the employment
incident occurred as alleged.
On June 13, 2015 appellant submitted additional medical evidence regarding his right hip
condition. He had undergone a right total hip replacement in 1999. In a note dated January 7,
2016, Dr. Ragayan explained that appellant’s right hip pain had increased over the last two to
three days. Appellant sought treatment at the VA for right hip and lower extremity pain on
January 23, 2016 with Dr. Sharada Shekar, an internist. She diagnosed right hip pain. On
January 29, 2015 a physician assistant, Craig Brown, who diagnosed loosening of his right hip
replacement. On February 18, 2015 Dr. Steven Epstein, a radiologist, performed a right hip
aspiration at the VA. On April 29, 2015 he sought treatment at the VA with Ada Manfredi, a
nurse practitioner, for significantly worsening right hip pain since January 2015. The note
indicated that there was no precipitant trauma or event that caused his worsening right hip pain.

2

Counsel requested reconsideration on May 26, 2016 and submitted a May 7, 2016 report
from Dr. Melyssa Paulson, a Board-certified orthopedic surgeon. Dr. Paulson first examined
appellant on January 29, 2015 due to right hip and leg pain. She noted that he underwent a right
hip total arthroplasty in May 1999. Dr. Paulson explained that x-rays demonstrated that
appellant’s right femoral head was eccentrically located in the acetabulum, a change since 2012
x-rays. Appellant underwent a second right hip total arthroplasty on May 12, 2015. Dr. Paulson
opined that there was no indication that the wear on appellant’s 1999 replacement hip was
affected by his employment.
By decision dated August 17, 2016, OWCP denied modification of its June 10, 2015
decision. It found that appellant failed to submit factual evidence substantiating that the
employment incident occurred as alleged.
LEGAL PRECEDENT
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”3 In order to
determine whether an employee actually sustained an injury in the performance of duty, the
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.4 The second component is whether the employment
incident caused a personal injury.
With respect to the first component of fact of injury, the employee has the burden of
proof to establish the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative, and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action. An employee has not met his
burden of proof to establish the occurrence of an injury when the evidence casts serious doubt
upon the validity of the claim. Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast serious doubt
on an employee’s statements in determining whether a prima facie case has been established.
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.5
3

20 C.F.R. § 10.5(ee).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

D.B., 58 ECAB 464, 466-67 (2007). Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury,
Chapter 2.803.3 (August 2012).

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury occurred on January 5, 2015, as alleged.
The Board finds that appellant has not provided detailed factual information regarding his
alleged employment incident, as requested. The only description of the January 5, 2015 incident
provided by appellant is contained on the Form CA-1. Appellant alleged that his developed right
hip pain while lifting and moving heavy, wet, and molded rubber mats at 12:30 p.m. He did not
provide any witness statements, nor did he respond to OWCP’s requests for further description
of the employment incident. While appellant indicated on the Form CA-1 that he informed the
employing establishment on February 5, 2015, the employing establishment indicated that it did
not receive the form until April 23, 2015. Furthermore, the contemporaneous medical treatment
notes do not include a description of a January 5, 2012 employment incident. The January 7,
2015 note from Dr. Ragayan indicated that appellant’s right hip pain had increased over the last
two to three days, but did not include a description of injury on or about January 5, 2012.
Nursing notes from the VA indicated that appellant developed right hip pain with no precipitant
trauma or event.
The Board finds that the circumstances of the case including late notification of injury,
lack of confirmation of injury, and failure to obtain medical treatment are unexplained, and cast
serious doubt on an appellant’s statements such that he has not established prima facie case of a
traumatic injury on January 5, 2012. As appellant has not established that the incident occurred
as alleged, it is not necessary for the Board to address the medical evidence.6
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 that a
traumatic injury occurred on January 5, 2015, as alleged.

6

D.B., 58 ECAB 464 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESSEE VALLEY HEALTH CARE
SERVICE, Nashville, TN, Employer
__________________________________________

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

Docket No. 14-870
Issued: August 18, 2014

Case Submitted on the Record

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

JURISDICTION
On February 26, 2014 appellant filed an appeal of a September 6, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying a claimed period of disability.1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. 20 C.F.R. § 501.3(e)-(f).
One hundred and eighty days from September 6, 2013, the date of OWCP’s decision, was March 5, 2014. Since
using March 7, 2014, the date the appeal was received by the Clerk of the Board, 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
February 26, 2014, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established total disability from January 24 to
September 30, 2011 due to her accepted conditions of closed dislocations of cervical and lumbar
discs.
On appeal, appellant asserts that the totality of the medical and factual evidence
substantiates the claimed period of disability. She also contends that the employing
establishment discouraged her from filing a compensation claim, deliberately misinformed her of
her rights in the compensation process, concealed critical information and terminated her
employment without just cause.
FACTUAL HISTORY
OWCP accepted that on December 6, 2010 appellant, then a 52-year-old social worker,
sustained a closed dislocation of a cervical disc and closed dislocation of a lumbar disc when the
government vehicle she was driving to an official visit was struck by another vehicle on the rear
passenger door, causing her car to spin off the road into a ditch.3 Appellant sought emergency
room treatment that day but worked on December 7, 2010 at the direction of her supervisor.4
She stopped work on December 8, 2010 and returned to light duty on January 11, 2011.
Appellant again stopped work in January 2011 and did not return. The employing establishment
terminated appellant in 2011 for alleged careless use of a government vehicle.
Dr. Henderson, a chiropractor, followed appellant beginning on December 13, 2010. He
obtained December 13, 2010 x-rays which he opined showed spinal subluxations at C3-4 and
from L2 to L5. Dr. Henderson found appellant totally disabled for work through February 25,
2011 due to cervical and lumbar pain. He provided manual manipulation on January 24, 25, 27
and 31, February 1, 3, 7, 8, 11 and 15, 2011. Appellant also submitted physical therapy notes
dated February 17 and 21, 2011.5

3

OWCP initially denied the claim in a February 4, 2011 decision on the grounds that the medical evidence did
not establish causal relationship. After a hearing request, OWCP issued an April 25, 2011 decision setting aside the
February 4, 2011 decision and remanding the case for additional development regarding the x-rays of Dr. Donald T.
Henderson, a chiropractor, and the presence of spinal subluxations. After additional development, OWCP issued a
June 8, 2011 decision denying the claim, finding that Dr. Henderson did not qualify as a physician under FECA as
there was insufficient evidence that he diagnosed spinal subluxations by x-ray. Following a hearing, OWCP issued
a January 12, 2012 decision setting aside the June 8, 2011 decision and remanding the case for additional
development regarding the probative quality of Dr. Henderson’s x-rays and interpretation. Dr. Henderson qualified
as a physician under section 8101(2) of FECA for the purposes of this case. Section 8101(2) of FECA provides that
the term “physician” includes chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.
5 U.S.C. § 8101(2). Thereafter, OWCP accepted “closed dislocation cervical vertebra” and “closed dislocation
lumbar vertebra,” based on Dr. Henderson’s opinion.
4

In December 6, 2010 reports, Dr. Eduardo C. Cabigao, an attending physician Board-certified in emergency
medicine, diagnosed cervical, thoracic and lumbar muscle strains due to the car accident that day. He obtained
lumbar x-rays showing normal disc height, alignment and intervertebral disc spaces.
5

November 2011 imaging studies showed degenerative changes throughout the spine with disc bulges at L4-5
and L5-S1.

2

Appellant provided physical therapy notes dated from March to June 2012 and reports
from May 10 to July 11, 2012 from Dr. Niles Roberts, an attending Board-certified physiatrist,
who diagnosed chronic neck pain.
On June 19 and December 21, 2012, appellant filed claims for compensation (Form CA7) for the period January 24 to September 30, 2011. In a December 31, 2012 letter, OWCP
advised appellant of the additional evidence needed to establish her claim, including a report
from her attending physician explaining how and why the accepted dislocated cervical and
lumbar discs would disable her for work during the claimed period. Appellant was afforded 30
days to submit such evidence.
Appellant submitted pain clinic notes dated December 2011 to February 2012, reports of
December 2011 and January 2012 epidural steroid injections, May 2012 notes from a
chiropractor who did not obtain x-rays, physical therapy notes dated from November 2012 to
August 2013 and July 8, 2013 imaging studies. She also provided a February 6, 2012 report
from a nurse practitioner noting appellant’s condition on August 9, 2011.
Dr. Eric S. Smith, an attending physician Board-certified in occupational medicine,
submitted reports from November 6, 2012 to January 23, 2013 discussing pain management. In
a January 24, 2013 report, he stated that, although he came to the claim “relatively late,” he felt
that appellant had a “compelling and logical” argument regarding the employing establishment’s
handling of her claim and blaming her for an automobile accident she did not cause.
In a September 6, 2013 decision, OWCP denied appellant’s claims for total disability for
the period January 24 to September 30, 2011 as the medical evidence was insufficient to
establish an injury-related disability for that period.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden to establish the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence.6
To establish a causal relationship between a claimed period of disability and the accepted
employment injury, an employee must submit rationalized medical evidence based on a complete
medical and factual background, supporting such a causal relationship.7 Causal relationship is a
medical issue and the medical evidence required to establish a causal relationship is rationalized
medical evidence.8 Rationalized medical evidence is evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the

6

Donna L. Miller, 40 ECAB 492, 494 (1989); Nathaniel Milton, 37 ECAB 712, 722 (1986).

7

Manuel Gill, 52 ECAB 282 (2001).

8

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

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
OWCP accepted that appellant sustained a closed dislocation of a cervical disc and closed
dislocation of a lumbar disc. Following a brief return to work in January 2011, she was
terminated from the employing establishment. Appellant claimed compensation for total
disability from January 24 to September 30, 2011. OWCP denied the claim, by decision dated
September 6, 2013, finding that the medical evidence submitted was insufficient to establish total
disability for the claimed period.
Appellant provided reports from Dr. Henderson, an attending chiropractor, who found her
totally disabled for work from December 13, 2010 to February 25, 2011 due to cervical and
lumbar pain. However, Dr. Henderson did not explain his medical reasons for finding that
appellant was totally disabled for work beginning January 24, 2011 or why treatment on the
specified dates was necessitated by the accepted closed cervical and lumbar disc dislocations.
Dr. Henderson’s opinion is of insufficient probative value to establish total disability for work
from January 24 to February 25, 2011.10
Appellant also provided a February 6, 2012 report from a nurse practitioner discussing
her condition on August 9, 2011, within the claimed period of disability. As nurse practitioners
and physical therapists are not considered physicians under FECA, their reports are of no
probative medical value.11
Appellant also submitted reports that address her condition on and after December 2011,
beyond the claimed period of disability. These include reports from Dr. Roberts, an attending
Board-certified physiatrist who treated appellant beginning May 10, 2012, reports from
Dr. Smith, an attending physician Board-certified in occupational medicine who followed
appellant beginning on November 6, 2012, physical therapy and chiropractic notes from
March 2012 to August 2013 and July 2013 imaging studies. As these documents do not address
the claimed period of disability, they are irrelevant to the issue before the Board.12
OWCP advised appellant by December 31, 2012 letter of the additional evidence needed
to establish her claim, including a medical report from her attending physician explaining how
and why the accepted injuries would disable her for work for the claimed period. As appellant
did not submit such evidence, OWCP’s September 6, 2013 decision denying the claim was
proper. The medical evidence did not establish a work-related disability for the claimed period.13
9

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

10

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

11

Roy L. Humphrey, 57 ECAB 238 (2005); James Robinson, Jr., 53 ECAB 417 (2002). See 5 U.S.C. § 8101(2).

12

In a January 24, 2013 report, Dr. Smith generally indicated that appellant had an employment-related condition
but he did not specifically address whether the work injury caused disability during the claimed period.
13

J.F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see
also Terry R. Hedman, 38 ECAB 222 (1986).

4

On appeal, appellant asserts that the totality of the medical and factual evidence
substantiates the claimed period of disability. As explained above, appellant submitted
numerous medical reports but these documents did not explain how and why the accepted
injuries would disable her for work for the claimed period. Appellant also contends that the
employing establishment discouraged her from filing a compensation claim, deliberately
misinformed her of her rights in the compensation claim process, concealed critical information
and terminated her employment without just cause. The Board notes that Dr. Smith remarked in
his January 24, 2013 report that appellant had a “compelling and logical” legal argument
regarding the employing establishment’s alleged misconduct. However, these issues are not
within the Board’s jurisdiction on the present appeal and are not relevant to the medical issue of
causal connection.
CONCLUSION
The Board finds that appellant has not established total disability from January 24 to
September 30, 2011 due to accepted condition of closed dislocations of a cervical and lumbar
disc.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2013 is affirmed.
Issued: August 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 10-2040
Issued: June 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 5, 2010 appellant filed a timely appeal from the May 24, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his request for modification of a
wage-earning capacity determination and his claim for recurrence of total disability. Pursuant to
the Federal Employees’ Compensation Act 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 modify the Office’s March 3,
2009 wage-earning capacity determination or to establish that he sustained a recurrence of total
disability due to his October 19, 2006 work injury.
FACTUAL HISTORY
The Office accepted that on October 19, 2006 appellant, then a 53-year-old letter carrier,
sustained a lumbar strain and herniated disc at L3-L4 when he twisted his back while trying to
avoid being struck by carpet rolls that had fallen near his letter cage. On January 31, 2007
appellant underwent Office-authorized surgery, including lumbar decompression at L2 through

L4 and a microdiscectomy at L3 and L4. He returned to light-duty work as a modified city
carrier on May 1, 2007.
In a March 3, 2009 decision, the Office reduced appellant’s compensation to zero based
on its determination that his actual earnings as a modified city carrier fairly and reasonably
represented his wage-earning capacity. It determined that appellant had no loss of wages in this
position when compared to his date-of-injury position.
On August 20, 2009 appellant filed a Form CA-7 (claim for compensation) for the period
July 3 to August 15, 2009. The employing establishment noted that appellant had returned to
light-duty work on August 18, 2009.1 In reports from August 2009, Dr. Joel D. Pickett, an
attending Board-certified neurosurgeon, noted that appellant reported having increasing radicular
pain in his left leg over the prior few months. Dr. Pickett discussed the possibility of appellant
undergoing additional low back surgery.2
In a November 5, 2009 decision, the Office denied wage-loss compensation for the
period July 3 to August 15, 2009 finding that there was no basis to modify the prior loss of wageearning capacity decision of March 3, 2009.
On November 24, 2009 appellant filed a Form CA-2a (notice of recurrence) alleging he
sustained a recurrence of total disability on November 19, 2009. He asserted that the recurrence
occurred because he was turning to park his work vehicle on that date and he bumped the curb
with the vehicle and jerked his back. This incident caused him to experience shooting pain in his
back.
In a December 2, 2009 letter, the employing establishment challenged the recurrence
claim for the reason that appellant had filed a new CA-l form to claim a new injury on
November 29, 2009. On December 10, 2009 the Office requested that he provide additional
information regarding his recurrence of disability claim.
Appellant sought treatment at an emergency room on November 20, 2009. He was
discharged with a diagnosis of back pain. In a December 18, 2009 report, Dr. Pickett stated that
appellant was being seen as he ran into a curb with his vehicle about three to four weeks prior.
Since that time, appellant experienced intensely worse lower back pain that radiated down both
his legs. Dr. Pickett stated that appellant was neurologically intact, but the right leg pain was a
new finding. He recommended new magnetic resonance imaging (MRI) scan.
In a January 20, 2010 decision, the Office denied appellant’s claim for a recurrence of
total disability beginning November 19, 2009. It found that his recurrence claim was not
established because he had claimed a new injury on November 19, 2009 when he bumped the
curb in his work vehicle.
1

In an October 29, 2009 decision, the Office denied authorization for additional back surgery consisting of a
microlaminectomy at L3 and L4.
2

The record also contains disability notes in which Dr. Pickett recommended that appellant stop work in
September and October 2009.

2

In a March 17, 2010 letter, the employing establishment challenged appellant’s
recurrence of disability claim stating that his work restrictions had not been changed. The
employing establishment noted that he was offered another modified job on April 20, 2009 based
on an attending physician’s work restrictions.
In a March 8, 2010 letter to appellant’s counsel, Dr. Pickett stated that appellant had a
filling defect on myelogram consistent with nerve root compression at L4-5 due to stenosis or a
possible disc herniation. He stated that appellant’s absent knee reflex correlated with that area of
the anatomy and distribution of pain. Dr. Pickett recommended a microdiscectomy, but he did
not discuss the claimed recurrence of disability of November 19, 2009.
Appellant requested a telephone hearing with an Office hearing representative. During
the April 6, 2010 hearing, counsel argued that the incident of November 19, 2009 did not cause a
new injury, but rather caused an exacerbation of the previous condition sustained on
October 19, 2006. Appellant testified that on November 19, 2009 he was turning his vehicle
around and his foot slipped on the gas pedal. The vehicle came off the curb and he experienced a
sharp pain in his lower back. Appellant testified that Dr. Pickett told him that the November 19,
2009 incident did not cause any further damage, but rather it accelerated the pain of his previous
injury. He was off work for a day or two after November 19, 2009. Appellant testified that he
went back to his previous modified-duty work, but the employer tried to add more arduous lifting
duties to his work restrictions. Counsel stated that Dr. Pickett’s December 18, 2009 report
showed that the November 19, 2009 incident aggravated appellant’s herniated disc.
The employing establishment advised by letter dated April 12, 2010 that appellant was
involved in the National Assessment Reemployment/Reassignment interview and was offered a
job based on an attending physician’s work restrictions. The employing establishment stated that
appellant declined the job offer, but noted that he had bid on this job and was now working
within the same restrictions.
Appellant submitted medical records dated October 19, 2006 to April 9, 2010 from the
Spine & Neurological Center along with the reports for a June 15, 2009 lumbar MRI scan,
August 12, 2009 lumbar computerized tomography (CT) scan and myelogram and January 9,
2010 lumbar MRI scan.
In a May 24, 2010 decision, the Office hearing representative affirmed the January 20,
2010 decision. She determined that appellant had not met his burden of proof to modify the
Office’s March 3, 2009 wage-earning capacity determination or to establish that he sustained a
recurrence of total disability beginning November 19, 2009.
LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was in fact erroneous.3 The burden of proof is on the
3

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

3

party attempting to show the award should be modified.4 The Board has held that a new injury
does not constitute a material change in the nature and extent of the original injury-related
condition such that a wage-earning capacity determination should be modified.5
Section 8115(a) of the Act provides that the “wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.”6 The Board has stated, “Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.”7 However, wage-earning capacity may not be based on an odd-lot or makeshift position designed for an employee’s particular needs.8 Office procedures direct that a
wage-earning capacity determination based on actual wages be made following 60 days of
employment.9
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish by
the weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he cannot perform such light duty. As part of this burden the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and extent
of the light-duty job requirements.10

4

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

5

M.E., Docket No. 07-2306 (issued March 24, 2008).

6

5 U.S.C. § 8115(a).

7

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is
determined that the actual wages of a given position represent a employee’s wage-earning capacity, the Office
applies the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in
the employee’s compensation.
8

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997).
9

See Federal (FECA) Procedure Manual, id. at Chapter 2.814.7c (December 1993).

10

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986). 20 C.F.R. § 10.5(x)
provides, “Recurrence of disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition which had resulted from a previous injury or illness without an
intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”

4

ANALYSIS
The Office accepted that on October 19, 2006 appellant sustained a lumbar strain and
herniated disc at L3-L4 when he twisted his back while trying to avoid being struck by carpet
rolls that had fallen near his letter cage. Appellant returned to light-duty work as a modified city
carrier on May 1, 2007. In a March 3, 2009 decision, the Office reduced his compensation to
zero based on its determination that his actual earnings as a modified city carrier fairly and
reasonably represented his wage-earning capacity. On August 20, 2009 appellant filed a Form
CA-7 for the period July 3 to August 15, 2009. On November 24, 2009 he filed a Form CA-2A
for a recurrence of total disability on November 19, 2009.
The Board finds that appellant did not meet his burden of proof to modify the Office’s
March 3, 2009 wage-earning capacity determination. Appellant has not alleged or otherwise
shown that the original wage-earning capacity determination was in fact erroneous. He worked
in the modified city carrier position for almost two years before the Office made its wageearning capacity determination. There is no evidence that the position was an odd-lot or makeshift position designed for appellant’s particular needs.11
Appellant also did not establish a material change in the nature and extent of his
employment-related condition. The record contains several reports, including those dated
between August and October 2009, in which Dr. Pickett, an attending neurosurgeon, noted
appellant’s report of increased symptoms and suggested that he had disability due to his low
back condition. However, Dr. Pickett did not provide any opinion that appellant sustained a
material change in his accepted work-related condition sustained on October 19, 2006.
Appellant claimed that his injury-related condition changed for the worse after a
November 19, 2009 incident that occurred when his work vehicle bumped into a curb; but the
November 19, 2009 incident involves a possible new injury rather than a material change in the
work-related injury condition that was sustained prior to the issuance of the March 3, 2009 wageearning capacity determination. As noted, the Board has held that a new injury does not
constitute a material change in the nature and extent of the original injury-related condition such
that a wage-earning capacity determination should be modified.12
Appellant also has not met his burden of proof to show that he sustained a work-related
recurrence of total disability in mid 2009. The reports of Dr. Pickett indicated disability
beginning in August 2009 but these reports do not provide any opinion that the disability was
related to the accepted low back injuries of October 19, 2006. Moreover, appellant has not
explained why he felt that the possible new injury he reported as occurring on November 19,
2009 constituted a spontaneous change in his medical condition as a result of the October 19,
2006 work injury. Appellant claimed that his modified job duties were changed such that he
sustained a recurrence of total disability. However, the employing establishment disputed
appellant’s claim in this regard and he has not submitted sufficient evidence to establish such a
change.
11

See supra notes 8 and 9. The record also does not reveal that appellant was retrained or vocationally
rehabilitated.
12

See supra note 5.

5

For these reasons, appellant has not shown that the Office’s March 3, 2009 wage-earning
capacity determination should be modified or that he has established a recurrence of total
disability due to the October 19, 2006 work injury.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to modify the Office’s
March 3, 2009 wage-earning capacity determination or to establish that he sustained a recurrence
of total disability due to the October 19, 2006 work injury.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P. (f/k/a T.S.), Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Paul, MN, Employer
__________________________________________

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

Docket No. 18-0774
Issued: November 7, 2018

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 February 28, 2018 appellant, through counsel, filed a timely appeal from a
November 24, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from the last merit decision, dated January 30, 2017,
to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3 the Board lacks jurisdiction over the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 24, 2016 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed osteoarthritis in her right thumb and index
finger due to her federal employment duties. She did not stop work. Appellant’s supervisor
reported that appellant was performing light-duty work four hours a day.
In a development letter dated November 29, 2016, OWCP requested additional factual and
medical information from appellant in support of her occupational disease claim. It also provided
a questionnaire for her to complete regarding the factual elements of her claim. OWCP afforded
appellant 30 days for a response.
Appellant provided a report dated June 21, 2015 from Dr. Edward T. Su, a Board-certified
orthopedic surgeon, noting that he first examined her on June 24, 2011 and describing her medical
treatment. She underwent left thumb arthroplasty on March 30, 2012. Appellant reported a
worsening of her right thumb condition on February 4, 2013 and on May 29, 2014 she underwent
right trigger thumb surgery. She sought treatment for her right index finger on September 24, 2015
and Dr. Su diagnosed osteoarthritis of that digit. Appellant’s right thumb pain increased and on
February 17, 2016 he performed a steroid injection. On March 30, 2016 Dr. Su diagnosed possible
right index trigger finger. He examined appellant on June 20, 2016 and diagnosed right thumb
carpometacarpal osteoarthritis, right index finger proximal interphalangeal joint osteoarthritis, and
right index finger distal interphalangeal joint osteoarthritis.
By decision dated January 30, 2017, OWCP denied appellant’s occupational disease claim
finding that she had not submitted a written statement explaining what work factors caused or
contributed to her condition. It therefore determined that the factual component of fact of injury
had not been established.
On November 2, 2017 counsel requested reconsideration on behalf of appellant and
resubmitted Dr. Su’s June 21, 2016 report.
By decision dated November 24, 2017, OWCP denied appellant’s request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
3
5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.

2

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision for which review is sought.5 If the request is
timely, but fails to meet at least one of the above standards, OWCP will deny the application for
review without reopening the case for a review on the merits.6
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.7 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.8 When reviewing an
OWCP decision denying merit review, the function of the Board is to determine whether OWCP
properly applied the standards set for at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.9
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her November 2, 2017 request for reconsideration, appellant did not make any argument
that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP. Thus, she was not entitled to a review of the merits
of her claim based on the first and second above-noted requirements under section 10.606(b)(3).11
Appellant resubmitted the June 21, 2016 report from Dr. Su. The Board has held that
evidence which repeats or duplicates evidence already of record does not constitute a basis for
reopening a case.12 Consequently, the evidence submitted by appellant on reconsideration does
not satisfy the third criterion, noted above, for reopening a claim for merit review.

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b); see also E.R., Docket No. 09-1655 (issued March 18, 2010).

7

J.F., Docket No. 17-1508 (issued March 28, 2018).

8

Id.; see also Mark H. Dever, 53 ECAB 710 (2002).

9

Supra note 7; see also Annette Louise, 54 ECAB 783 (2003).

10

M.E., 58 ECAB 694 (2007).

11

M.M., Docket No. 18-0292 (issued July 9, 2018).

12

Id.; D.K., 59 ECAB 141 (2007).

3

The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3) and thus OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2018
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

13

Supra note 11; B.R., Docket No. 17-1213 (issued January 18, 2018).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN FRANCISCO VA MEDICAL CENTER,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 20-0760
Issued: January 11, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 20, 2020 appellant, through counsel, filed a timely appeal from a January 17,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral
wrist condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 24, 2019 appellant, then a 59-year-old social worker, filed a traumatic injury claim
(Form CA-1) alleging that on March 22, 2019 she injured both of her hands and developed carpal
tunnel syndrome while in the performance of duty. She explained that during the past two months
her workload increased, which required that she perform more typing, which then caused
numbness and pain in both of her hands. Appellant related that her pain and numbness worsened
when typing or sleeping, and that she awakened with numbness in her left thumb. On the reverse
side of the claim form, the employing establishment indicated that appellant was injured in the
performance of duty, but it controverted continuation of pay (COP) because appellant had not
provided medical documentation when she filed her claim. It noted that appellant had been fitted
for bilateral hand splints to wear to work, and that she also wore them when sleeping.
In a development letter dated June 1, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and attached a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the requested evidence.
In a development letter dated June 1, 2019, OWCP informed the employing establishment
that if appellant was treated at an agency medical facility for the alleged injury it must provide
treatment notes. It additionally stated that, although the evidence of record was insufficient to
make a decision regarding appellant’s alleged injury, the employing establishment should provide
appellant with COP for up to 45 days.
May 2, 2019 progress notes by Dr. Tarini Anand, Board-certified in internal medicine,
indicated that appellant complained of bilateral wrist pain along the thumb side of her wrists and
numbness in both thumbs, which had increased gradually for the past two to three months and
which had begun in her left hand. Appellant had related that her symptoms were exacerbated by
repetitive movements like typing at work and noted the numbness woke her at night. Her physical
examination revealed positive Phalen’s test with reproducible symptoms in the medial nerve
distribution in both hands. Dr. Anand opined that appellant likely had a ganglion cyst in her right
wrist and possibly superimposed de Quervain’s tenosynovitis on her right side, and he diagnosed
bilateral carpal tunnel syndrome.
Appellant submitted occupational therapy notes from May 15 to July 22, 2019, and a
July 12, 2019 report by a physical therapist.
By decision dated August 12, 2019, OWCP denied appellant’ claim, finding that the
evidence of record was insufficient to establish fact of injury.
On August 26, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.

2

A May 23, 2019 employee health report containing an illegible signature indicated that
appellant presented with bilateral hand pain and pain and numbness in her thumbs, with the left
worse than the right. It listed her date of injury as March 22, 2019 and indicated that her symptoms
worsened with typing, driving, gripping, and were relieved upon using splints. Appellant denied
experiencing a specific traumatic incident or work exposure and indicated that she did not engage
in repetitive hand motions or strenuous hand activity at home. She stated that she began to
experience her symptoms when her work load and the amount of typing she had to do increased.
The report indicated that appellant also experienced neck stiffness, finger weakness, and chronic
fatigue for the past three to four months which had worsened in the past two weeks. Appellant’s
past medical history included sciatica and narrowing at L4 and L5 in the lumbar spine and lower
back and bilateral knee arthritis. A physical examination revealed normal results and the report
related that this was a possible occupational injury and less likely to be cervical radiculopathy or
hand osteoarthritis.
A hearing was held on December 2, 2019. Appellant testified that at work she handwrote
notes while she was with patients and then typed them up and placed them in charts. She noted
that she spent half of her day typing and that she had worked in the same job since 2007. Appellant
indicated that her condition did not happen over just one shift and related that she started to notice
her symptoms in March 2019. She noted that while she believed that her carpel tunnel was work
related, no doctor had related that to her. Appellant confirmed that she would like her claim to be
processed as an occupational disease claim.
A January 6, 2020 letter from Dr. Norman Banks, Board-certified in physical medicine and
rehabilitation, indicated that appellant had a complex medical history with various conditions that
caused pain and impacted daily functions. He opined that regarding appellant’s carpel tunnel
syndrome, it was probable that her symptoms were directly related to her job, which required
repetitive keyboarding and various other desk-related responsibilities. Dr. Banks indicated that he
had counseled appellant on various pain management strategies and that she did not have any
surgeries or injections.
By decision dated January 17, 2020, OWCP’s hearing representative converted appellant’s
claim to a claim for occupational disease and found that appellant had established fact of injury,
however, she affirmed the denial of appellant’s claim finding that the evidence of record was
insufficient to establish that her diagnosed bilateral wrist conditions were causally related to the
accepted factors of federal employment.
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,3 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

3
R.M., Docket No. 20-0342 (issued July 30, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

related to the employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion 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 claimant.8
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a bilateral wrist
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted May 2, 2019 progress notes by Dr. Anand who
noted that appellant complained of bilateral wrist pain along the thumb side of the wrist and
numbness in both thumbs, which she indicated had been worsening gradually for the past two to
three months. Dr. Anand opined that appellant likely had a ganglion cyst in her right wrist and
possibly superimposed de Quervain’s tenosynovitis on her right side and diagnosed bilateral carpal
4

V.P., Docket No. 20-0415 (issued July 30, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
5
S.A., Docket No. 20-0458 (issued July 23, 2020); 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).
6

See B.H., Docket No. 18-1693 (issued July 20, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
7

L.S., Docket No. 19-1769 (issued July 10, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59
ECAB 388 (2008).
8

B.C., Docket No. 20-0221 (issued July 10, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59
ECAB 408 (2008).
9
R.C., Docket No. 19-0376 (issued July 15, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013)

4

tunnel syndrome. Dr. Anand did not offer an opinion regarding the cause of appellant’s diagnosed
bilateral carpal tunnel syndrome. 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.10 This report, therefore, is insufficient to establish appellant’s claim.
The May 23, 2019 employee health report contained an illegible signature and indicated
that appellant presented with bilateral hand pain and pain and numbness in her thumbs, with the
left worse than the right, noting it was a possible occupational injury. The Board has held,
however, that reports that are unsigned or bear an illegible signature lack proper identification and
cannot be considered probative medical evidence as the author cannot be identified as a
physician.11 Therefore, this report is also insufficient to establish the claim.
Dr. Banks’ January 26, 2020 letter indicated that appellant had a complex medical history
with various conditions that caused pain and impacted daily functions. He opined that regarding
appellant’s carpel tunnel syndrome, it was probable that her symptoms were directly related to her
job, which required repetitive keyboarding and various other desk-related responsibilities. While
Dr. Banks opined that there was a direct causal relationship between her employment and her
various conditions, he failed to provide medical rationale explaining how or why they were related.
The Board has held that a report is of limited probative value regarding causal relationship if it
does not contain medical rationale explaining how a given medical condition was related to
employment factors.12 Additionally, the Board has held that medical opinions that suggest that a
condition was likely or possibly caused by work activities are speculative or equivocal in character
and have limited probative value.13 Thus, Dr. Banks’ letter is insufficient to establish appellant’s
claim.
Appellant additionally submitted occupational and physical therapy notes. The Board has
held that treatment notes signed by physical therapists and occupational therapists are not
considered probative medical evidence as those providers are not considered physicians under
FECA.14

10

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

11

M.A., Docket No. 19-1551 (issued April 30, 2020).

12
D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017);
C.M., Docket No. 14-0088 (issued April 18, 2014).
13

J.W., Docket No. 18-0678 (issued March 3, 2020).

14

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2). 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); see C.D., Docket No.
20-0858 (issued November 30, 2020); R.L., Docket No. 19-0440 (issued July 8, 2019) (physical therapists are not
considered physicians under FECA; R.S., Docket No. 16-1303 (issued December 2, 2016) (occupational therapists are
not considered physicians under FECA).

5

As appellant has not submitted rationalized medical evidence establishing a bilateral wrist
condition causally related to the accepted factors of her federal employment, the Board finds that
she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a bilateral wrist
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6