United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUNTER/HOLMES/McGUIRE VETERANS
ADMINISTRATION MEDICAL CENTER,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Charles W. Jackson, for the appellant
Office of the Solicitor, for the Director

Docket No. 10-505
Issued: November 22, 2010

Case Submitted on the Record

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

JURISDICTION
On December 14, 2009 appellant filed a timely appeal from a November 18, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition causally related to factors of her federal employment.
FACTUAL HISTORY
On December 30, 2008 appellant, then a 52-year-old nursing assistant, filed an
occupational disease claim (Form CA-2) for an emotional injury following an alleged sexual
assault on October 10, 2008. She alleged that a coworker started grinding himself against her

while kissing her against her will. Appellant tried to get away, but he would not let her go. She
reported the incident to the employing establishment police but contended that no action was
taken to protect her from the individual who assaulted her. Appellant also alleged that her
employer failed to inform her of her right to file a workers’ compensation claim for an
exacerbation of her preexisting anxiety and depression. She stopped work on December 9, 2008
and sought medical treatment on December 10, 2008. The employing establishment noted that
appellant was last exposed to the alleged work conditions on October 23, 2008 and reported the
condition to her supervisor on December 30, 2008.
In a December 30, 2008 statement, appellant reiterated that she reported the assault to
management officials on October 22, 2008 and filed a harassment report to a police officer on
October 23, 2008. She submitted medical reports from Linda E. Scott, Ph.D., a licensed clinical
psychologist, a January 14, 2009 attending physician’s report from Dr. Banerje Koduru, a Boardcertified psychiatrist, and a January 20, 2009 attending physician’s report from Dr. Phillip Y.
Shou, an internist. The reports noted a history of the sexual assault on October 10, 2008 and
diagnosed post-traumatic stress disorder, depression and anxiety related to the incident.
In a January 28, 2009 statement, the employing establishment controverted the claim.
On February 10, 2009 the Office advised appellant of the deficiencies in her claim.
Appellant was requested to provide additional documentation to support that the claimed sexual
assault occurred as alleged or that her employer treated her improperly following the incident.
On February 25, 2009 appellant stated that she was assigned to work the 3:30 p.m. to 12
midnight shift on October 10, 2008. She took her break around 11:15 p.m. and at approximately
11:30 p.m., Don Gardner, a coworker, assaulted her by grinding into her and holding her against
her will. Appellant stated that he kissed her all over and down her neck. She was shaken and
embarrassed and did not know how to handle the situation. Appellant reported the incident to
management on October 22, 2008 and filed a report with the employing establishment police on
October 23, 2008, but no action was taken. She was told that it would be her word against his.
Appellant tried to work but was in constant fear of Mr. Gardner as there were few people
available, including police, on the second shift. She provided a copy of an Equal Employment
Opportunity (EEO) complaint she filed on January 27, 2009 against the employing establishment
and the police chief for sexual harassment and failure to provide a harassment-free work
environment. The complaint noted that appellant had been harassed by the accused since 2004
and management failed to provide a harassment-free work environment.
A May 4, 2009 statement cosigned by Sylvia B. Johns, associate chief nurse, and
Stephanie Ferguson, nurse manager, advised that appellant was not on duty October 10, 2008 as
it was her scheduled day off. When appellant reported the assault to Ms. Ferguson on
October 23, 2008, she stated that she had not spoken to Mr. Gardner for almost three years, when
he offered to buy her dinner for her birthday. She reported that she was handed a card at
approximately 11:30 p.m. asking her to meet in a workout room to receive the second part of her
birthday present. Ms. Johns and Ms. Ferguson noted that the area referenced by appellant as a
workout room was actually a locked research area which was not open after 5 p.m. Neither
appellant nor Mr. Gardner were authorized to access the room, located some 500 feet from
appellant’s assigned work area. Appellant called Ms. Johns on October 21, 2008 and stated that

2

she would not be in for the rest of the week. When Ms. Johns inquired, appellant stated that she
was upset and would tell her later. Ms. Ferguson granted appellant leave for the rest of the week.
Appellant subsequently contacted Ms. Ferguson on October 22, 2008 and reported that she had
been sexually assaulted. Mr. Ferguson asked appellant to come to work to file a police report
and informed Ms. Johns of appellant’s complaint. Ms. Johns contacted Mr. Gardner’s supervisor
and he was reassigned to work in another area pending investigation. When appellant came in
Ms. Ferguson escorted her to the police unit to register her complaint. On December 3, 2008
appellant inquired as to the result of the police investigation. Ms. Johns spoke to an officer, who
advised that the investigation did not gather enough evidence to charge Mr. Gardner. Appellant
was advised that she could file a formal complaint through the EEO Commissionand the
employing establishment police, the employee assistance program and to contact the workers’
compensation office regarding lost time.
In a May 12, 2009 statement, Toney R. Hill, chief of the police service, summarized the
offense report and investigation. On October 23, 2008 appellant reported an alleged assault that
took place 13 days prior on October 10, 2008. The agency officer assigned to the case conducted
an investigation and interviewed appellant, the suspect and work peers but found no evidence to
support appellant’s allegations. He reported his findings to the United States Attorneys office,
which deferred prosecution for insufficient evidence. The officer was instructed to advise
appellant that she was free to pursue charges with the local city magistrate. Appellant
subsequently sought an arrest warrant for the incident, but the city magistrate declined the
warrant based on the lack of evidence. A local city police detective was then contacted, who
conducted an independent investigation and further prosecution was declined due to insufficient
evidence.
By decision dated July 22, 2009, the Office denied appellant’s claim. It found that there
was insufficient evidence to establish the October 10, 2008 sexual assault, as alleged, or that
appellant was otherwise sexually harassed in the workplace. The Office further found that
appellant did not establish any failure on the part of her employer in advising her as to workers’
compensation benefits or in any actions taken.
On August 12, 2009 appellant requested a review of the written record. In an August 18,
2009 statement, she stated that Mr. Gardner pretended to be her friend and was aware of her
stress issues and how she felt ostracized by her coworkers. Appellant stated that he was a wellrespected 70-year-old man who knew she was not interested in him and took advantage of her.
She alleged four years prior, Mr. Gardner asked her about what she did when she was not at
work and would make comments such as, “Hey foxy you are the baddest women in the hospital.
If you weren’t married, you could have any man in this hospital. All the guys want you.”
Appellant thought he was just being nosey but, since the assault, she felt he was trying to get
with her. She alleged Mr. Gardner had not spoken to her for almost two years and did not give
any reason for the silent treatment. Appellant found this bothersome and told one of her
coworkers about his changed behavior. One day, Mr. Gardner apologized to her, told her he was
not trying to avoid her and indicated that he would not revert to past behavior. Appellant stated
that he hugged her and stated she was alright. Two weeks later, Mr. Gardner offered to buy her
lunch and then sexually assaulted her. Appellant alleged that the coworker, to whom she had
confided, told her that Mr. Gardner talked about her every evening. After the October 10, 2008
incident, she was unable to concentrate or follow through on things. Appellant noted that, while

3

management had moved her assailant to another area, he continued to park in the same parking
lot and she was afraid that she would run into him, which made it difficult to work. The
employing establishment responded that her allegations were not supported by the evidence.
In a November 18, 2009 decision, an Office hearing representative affirmed the denial of
appellant’s emotional condition claim.
LEGAL PRECEDENT
Workers’ compensation 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 her regular or specially-assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 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 (RIF) or her frustration from not being permitted to work
in a particular environment or to hold a particular position.2
It is well established that administrative or personnel matters, although generally related
to employment, are primarily administrative functions of the employer and not duties of the
employee.3 Investigations are considered to be an administrative function of the employer
unrelated to the employee’s day-to-day duties or specially-assigned job requirements.4
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that the incidents alleged or implicated by the employee did, in fact,
occur.5 Grievances or EEO complaints by themselves are not determinative of whether
harassment or discrimination took place.6 Where a claimant alleges harassment, the issue is
whether he or she has submitted sufficient evidence to establish a factual basis for the claim by
the submission of probative and reliable evidence to support such allegations.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
1

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

2

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

3

See Pamela D. Casey, 57 ECAB 260 (2005); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 566 (1991).
4

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

5

T.G., 58 ECAB 189 (2006).

6

C.S., 58 ECAB 137 (2006).

7

Id. See Robert Breeden, 57 ECAB 622 (2006).

4

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.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that an emotional condition was caused or adversely affected by her
employment.10 Neither the fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.11
ANALYSIS
Appellant initially alleged a sexual assault by a coworker on October 10, 2008. She
subsequently alleged sexual harassment by this same individual since 2004 and alleged error on
the part of her employer in investigating the matter and in failing to properly advise her as to
pursuing her claim. The Board notes that appellant did not attribute her emotional condition to
her regular or specially-assigned job duties as a nursing assistant under Cutler.
Appellant alleged that on October 10, 2008 she was sexually assaulted by a coworker.
Physical contact by a coworker or supervisor may give rise to a compensable work factor, if the
incident occurred as alleged.12 Appellant did not report the claimed assault to her employer or
police for almost two weeks. Ms. Johns and Ms. Ferguson, her up line supervisors, noted that
she was not on duty on October 10, 2008, as it was her scheduled day off. Ms. Ferguson noted
that she was first contacted about a sexual assault on October 22, 2008 and appellant was asked
to come to work to make a report. The record reflects that appellant reported the assault to the
agency police service on October 23, 2008, which investigated the matter and found insufficient
evidence to support her allegations. The Board finds that appellant has not submitted sufficient
evidence to the record to establish that she was sexually assaulted by a male coworker at the
time, place or in the manner alleged. She failed to submit corroborating evidence, such as
witness statements, to establish that the incident occurred, as alleged.13 As appellant presented
no evidence to substantiate her claim of a sexual assault occurring on October 10, 2008, she
failed to establish a compensable employment factor.
8

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

9

Id.

10

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

11

See Ronald K. Jablanski, 56 ECAB 616 (2005); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

Denise Y. McCollum, 53 ECAB 647 (2002).

13

See Larry J. Thomas, 44 ECAB 291, 300 (1992).

5

To the extent that incidents alleged as constituting harassment are established as factual,
these could constitute employment factors.14 However, for harassment to give rise to a
compensable disability under the Act there must be evidence that the harassment did in fact
occur. Mere perceptions of harassment are not compensable under the Act.15 Appellant failed to
submit sufficient evidence to establish that she was harassed by her coworker at any time prior to
the alleged sexual assault. She described the harassment since 2004 as her coworker pretending
to be a friend, making statements to her of a sexual nature, and of not speaking to her for an
extended period of several years. As noted, appellant provided no evidence from any coworkers
who witnessed any of the incidents alleged.16 While she stated that she confided with another
coworker, there is no statement of record from that individual to support any of appellant’s
allegations. The factual evidence fails to support harassment of appellant by Mr. Gardner, as
alleged.17 Appellant has not established a compensable employment factor with respect to these
allegations.
Appellant alleged that the employing establishment provided no assistance or protection
following her complaint of a sexual assault. As noted, investigations are administrative
functions of the employer and not related to an employee’s day-to-day or specially-assigned
duties.18 The evidence reflects and appellant acknowledged that, following her complaint, the
employing establishment removed Mr. Gardner from her work area pending the outcome of the
investigation. The evidence reflects that, upon notice of the October 10, 2008 assault, her
supervisors requested that she come to the worksite to make a report. On October 23, 2008
appellant made a report to the agency police unit, which investigated the matter and concluded
that there was insufficient evidence to support her allegations. Her employer advised her of her
right to pursue her complaints at the local city level, which were also unsuccessful. Further, the
record documents that appellant filed a grievance and EEO complaint for sexual harassment.
The administrative actions by the employing establishment appear reasonable under the
circumstances. Appellant failed to establish that her employer failed to provide proper assistance
or take protective action following her complaint. The record does not support that the
employing establishment erred or acted abusively in the investigation of this matter or in the
manner by which her supervisors responded to her complaints or offered assistance.19 The Board
finds that the employer acted reasonably and appellant failed to establish a compensable factor of

14

Kathleen D. Walker, 42 ECAB 603 (1991).

15

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

16

A statement from appellant’s husband noted only that the coworker came into the same convenience store as
him on one occasion.
17

See Michael A. Deas, 53 ECAB 208 (2001).

18

G.S., 61 ECAB ___ (Docket No. 09-764, issued December 18, 2009). Administrative or personnel matters are
generally unrelated to an employee’s regular or specially assigned work duties and do not fall within coverage of the
Act absent evidence showing error or abuse on the part of the employing establishment. C.T., 60 ECAB ___
(Docket No. 08-2160, issued May 7, 2009).
19

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

6

employment with respect to these allegations. For these reasons, appellant did not establish that
her emotional condition arose in the performance of duty.20
On appeal, appellant noted that the alleged assault took place on October 9, 2008, not
October 10, 2008, and that her coworker acknowledged being with her and of kissing her. The
Board notes that its review of the record is limited to the evidence before the Office at the time
of its final decision.21 Based on the evidence of record, appellant did not establish that the
October 10, 2008 incident occurred as alleged.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2010
Washington, DC

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

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

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

20

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).
21

20 C.F.R. § 501.2(c).

7


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

)
)
)
)
)
)
)
)

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

Docket No. 09-2355
Issued: July 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 16, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs merit decision dated October 16, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUE
The issue is whether the Office properly denied modification of an August 22, 2008
wage-earning capacity determination.

1

The Board notes that the record contains a March 17, 2009 Office decision denying merit review of the claim.
For decisions issued on and after November 19, 2008, a claimant has 180 days to file an appeal. 20 C.F.R.
§ 501.3(e). The 180-day period expired on September 14, 2009 and therefore appellant’s September 16, 2009
appeal was untimely with respect to the March 17, 2009 Office decision.

FACTUAL HISTORY
On December 5, 2005 appellant, then a 45-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging she sustained injuries in a motor vehicle accident on December 3,
2005 while in the performance of duty. The Office accepted the claim for neck, lumbar, left
shoulder and upper arm sprains. Appellant returned to a part-time light-duty job in January 2006
and stopped working in April 2007.
In a form report2 dated September 5, 2007, Dr. Kushwaha advised appellant could work 8
hours with a 20-pound lifting restriction and limitation on the duration of certain activities. The
Office referred her for vocational rehabilitation services. As part of the rehabilitation plan, the
rehabilitation counselor completed a CA-66 job classification form for the position of dispatcher
(Dictionary of Occupational Titles, No. 249.167-014) on February 1, 2008. The position was
described as sedentary with maximum 10-pound lifting. The physical demands of the position
included “frequent” reaching. The counselor reported the position was reasonably available in
appellant’s area with weekly wages of $650.00. A January 29, 2008 labor market survey by the
rehabilitation counselor reported wages for a dispatcher of $12.00 to $16.00 per hour.
On April 23, 2008 Dr. Kushwaha reported that appellant was limited to working four
hours per day with a 20-pound lifting restriction. By form report dated June 11, 2008, he
indicated that appellant could work eight hours per day with a 15-pound lifting restriction.
Dr. Kushwaha noted that appellant was limited to four hours of reaching and overhead reaching.
In a brief June 11, 2008 narrative report, he stated that appellant could work as a postal clerk.
By letter dated July 21, 2008, the Office advised appellant that it proposed to reduce her
compensation to zero because she had the capacity to earn wages of $650.00 per week as a
dispatcher. It found that appellant’s current pay rate for the date-of- injury position was $575.36
per week and, therefore, she had no loss in wage-earning capacity. As to the medical evidence,
the Office found Dr. Kushwaha’s June 11, 2008 work restrictions were accepted as the best
representation of appellant’s work capability.
In a form report dated August 14, 2008, Dr. Kushwaha indicated that appellant was
scheduled for a functional capacity evaluation (FCE).
In an August 22, 2008 decision, the Office determined that appellant was capable of
earning $650.00 per week in the selected position of dispatcher. It reduced her wage-loss
compensation to zero effective August 31, 2008.
By letter dated September 3, 2008, appellant requested reconsideration, advising that due
to the pain and discomfort from her work injuries, her physician recommended a work-hardening
program. She submitted an August 26, 2008 functional capacity evaluation from a physical
therapist. In a report dated September 3, 2008, Dr. Kushwaha stated that the FCE showed
appellant could not work medium to heavy physical demand, but was functioning at light to
sedentary capacity.
2

The form reports submitted by Dr. Vivek Kushwaha, the attending orthopedic surgeon, are state workers
compensation forms.

2

In a decision dated October 16, 2008, the Office denied modification of the wage-earning
capacity determination.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-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 party attempting to show a modification of the wage-earning capacity determination.4
ANALYSIS
The Office issued an August 22, 2008 decision finding that, pursuant to 5 U.S.C. § 8115,
appellant’s wage-earning capacity was represented by the selected position of dispatcher.
Appellant has argued on appeal that she continues to have an employment-related condition and
the Office did not follow her physician’s decisions.
As noted, a modification of a wage-earning capacity determination is warranted if the
original determination was erroneous. It is well established that the selected position must be
medically suitable. The Office acknowledged that Dr. Kushwaha’ June 11, 2008 report was the
best representation of appellant’s work restrictions; but it failed to properly assess the work
restrictions and the requirements of the selected position. Dr. Kushwasha clearly indicated that
“reaching” was limited to four hours per day. The selected position, as described in the Form
CA-66, required “frequent” reaching. The CA-66 form states that “frequent” means an activity
existing from 1/3 to 2/3 of the time. Therefore the reaching requirement in the selected position,
as described in the form presented to the Office, exceeded the limitation provided by
Dr. Kushwaha. Under Office procedures, if the medical evidence is not “clear and unequivocal”
on the issue of medical suitability, the claims examiner “will seek medical advice from the DMA
[district medical adviser], treating physician, or second opinion specialist as appropriate.”5 The
Office failed to follow its procedures in this case. The Board finds the August 22, 2008 wageearning capacity determination was erroneous as the position is not established as conforming to
appellant’s restrictions.
The Board further notes that the wage-earning capacity calculations were based on
earnings in the selected position of $650.00 per week, or $16.25 per hour for a 40-hour week, as
reported in a February 1, 2008 CA-66. In the July 21, 2008 preliminary determination, the
Office described the wages as “entry pay level” for the selected position, but the rehabilitation
3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (December 1995). See also Francisco Bermudez, 51 ECAB 506 (2000).

3

counselor’s January 29, 2008 labor market survey stated that the wages for a dispatcher position
in appellant’s area ranged from $12.00 to $16.00 per hour. The rehabilitation counselor did not
provide sufficient explanation for the reported wages of $650.00 per week, given the information
provided in the labor market survey. The evidence of record does not support a finding that the
$650.00 weekly wages represented an entry level pay for a dispatcher. The Office should have
requested clarification from the rehabilitation counselor regarding appellant’s wages in the
position.
For the above reasons, the Board finds the August 22, 2008 wage-earning capacity was
erroneous.
CONCLUSION
The Board finds that appellant established the August 22, 2008 wage-earning capacity
determination was erroneous and should be modified.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2008 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: July 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Portland, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-529
Issued: May 24, 2013

Case Submitted on the Record

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

JURISDICTION
On January 4, 2013 appellant filed a timely appeal from a November 14, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for a
hearing by the Branch of Hearings and Review. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the nonmerit decision by OWCP. The last merit decision of record was OWCP’s
March 15, 2012 decision. Because more than 180 days has elapsed between the last merit
decision and the filing of this appeal on January 4, 2013, the Board lacks jurisdiction to review
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for a hearing under
5 U.S.C. § 8124.
FACTUAL HISTORY
On October 12, 2011 appellant, then a 46-year-old social worker, filed an occupational
disease claim (Form CA-2) alleging that she developed emotional distress and trauma as a result
of her federal employment duties. She stated that she first became aware of her condition on
January 1, 2000 and of its relationship to her employment on January 2, 2000. Appellant
notified her supervisor on October 12, 2011.
By letter dated October 19, 2011, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and asked that she respond to the provided questions within 30 days. In another
October 19, 2011 letter, OWCP requested that the employing establishment provide information
pertaining to appellant’s emotional condition claim.
In support of her claim, appellant submitted numerous documents including a position
description, copies of e-mails and medical reports documenting her treatment.
By decision dated March 15, 2012, OWCP denied appellant’s emotional claim finding
that the evidence of record failed to establish that her injury was causally related to the accepted
employment factor. It found that the evidence of record only established one compensable factor
of employment having occurred in 2008 when appellant found a deceased veteran in T51 room
200 and watched the attempt to resuscitate the patient. The patient did not survive.
By letter dated September 29, 2012, appellant stated that she filed her claim on
October 12, 2011 and sent in additional information on April 17, 2012. She stated that the
information was received by the Department of Labor (DOL) on April 19, 2012 and that she had
not gotten a response, asking about the status of her claim.3 Appellant further provided
additional details regarding her emotional condition claim.
By letter dated October 4, 2012, OWCP responded to appellant’s September 29, 2012
letter and informed her that her claim was denied by decision dated March 15, 2012. It provided
her with an additional copy of the decision accompanied with her appeal rights.
On October 6, 2012 appellant submitted an appeal request form requesting both review of
the written record and reconsideration of the March 15, 2012 decision. On the appeal request
form, she noted that she had previously sent the request in on April 17, 2012.
In an October 11, 2012 OWCP telephone memorandum, it contacted appellant notifying
her that it had received her appeal request form dated October 6, 2012. It informed her that she
3

The Board notes that a medical report was received by OWCP on April 16, 2012. Witness statements, e-mails
and medical reports were also submitted and received by OWCP on April 27, 2012.

2

had checked both review of the written record and reconsideration of the March 15, 2012
decision when asked what avenue she would like to pursue. Appellant requested review of the
written record over reconsideration. The file was documented as review of the written record.
A narrative statement was received by OWCP on October 11, 2012 dated April 17, 2012.
Appellant stated that she was attempting to gather information since having found out her claim
was denied and provided additional factual information surrounding the circumstances of her
claim. In support of her claim, she submitted additional factual and medical evidence.
By decision dated November 14, 2012, Branch of Hearings and Review denied
appellant’s request for a review of the written record finding that her request was not made
within 30 days of the March 15, 2012 OWCP decision. The Branch of Hearings and Review
further determined that the issue in the case could equally well be addressed by requesting
reconsideration from OWCP and submitting evidence not previously considered which
established that appellant had sustained an injury in the performance of duty.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.4 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.5 OWCP’s regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.6
Additionally, the Board has held that OWCP, in its broad discretionary authority in the
administration of FECA,7 has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that OWCP must exercise this discretionary authority
in deciding whether to grant a hearing.8 OWCP procedures, which require OWCP to exercise its
discretion to grant or deny a hearing when the request is untimely or made after reconsideration,
are a proper interpretation of FECA and Board precedent.9

4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

5 U.S.C. §§ 8101-8193.

8

Marilyn F. Wilson, 52 ECAB 347 (2001).

9

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

3

ANALYSIS
In the present case, appellant requested a review of the written record on October 6, 2012
and OWCP found that the reconsideration request was postmarked on that same date.10 Her
request was made more than 30 days after the date of issuance of OWCP’s prior decision dated
March 15, 2012. Therefore, OWCP properly found in its November 14, 2012 decision that
appellant was not entitled to an examination of the written record as a matter of right because her
request for an examination of the written record was not made within 30 days of its March 15,
2012 decision.11
The Board notes that on the October 6, 2012 appeal request form, appellant stated that
she had previously sent her request in on April 17, 2012. Review of the record shows that
OWCP never received an April 17, 2012 appeal request form and appellant has not provided any
evidence to establish that these documents were submitted.12 Moreover, even if she had
submitted an appeal requesting review of the written record on April 17, 2012, her request would
have still been untimely as it was past 30 calendar days from OWCP’s March 15, 2012 decision.
The Board has held that OWCP has the discretion to hold hearings where no specific
legal provision was made for such hearings and that OWCP must exercise this discretionary
authority in deciding whether to grant a hearing.13 OWCP’s authority to grant or deny a written
review of the record is analogous to its authority to grant or deny a hearing. Its procedures
require that it exercise its discretion and explain, as appropriate, its decision to grant or deny an
examination of the written record when a claimant’s request is not granted as a matter of right.
Those procedures are a proper interpretation of FECA and Board precedent.14
In its November 14, 2012 decision, OWCP properly exercised its discretion by stating
that it had considered the matter and had denied appellant’s request for an examination of the
written record because the issue of causal relationship could be addressed through a
reconsideration application. The Board has held that the only limitation on OWCP’s authority is
reasonableness and an abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deduction from established facts.15
In this case, the evidence of record does not indicate that OWCP abused its discretion in
its denial of appellant’s request for an examination of the written record.

10

The Board notes that appellant’s October 6, 2012 appeal request form requested both review of the written
record and reconsideration of OWCP’s March 15, 2012 decision.
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602 (May 1991).

12

G.D., Docket No. 07-1101 (issued September 11, 2007).

13

Henry Moreno, 39 ECAB 475, 482 (1988).

14

Michael J. Welsh, 40 ECAB 994 (1989).

15

Daniel J. Perea, 42 ECAB 214, 221 (1990).

4

CONCLUSION
The November 14, 2012 decision of OWCP denying appellant’s request for an
examination of the written record is affirmed.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 14, 2012 is affirmed.
Issued: May 24, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakewood, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kenneth Palmer, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0041
Issued: May 24, 2019

Case Submitted on the Record

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

JURISDICTION
On October 5, 2017 appellant, through counsel, filed a timely appeal from an April 11,
2017 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

Together with her appeal, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b).
By order dated February 16, 2018, the Board exercised its discretion and denied the request as appellant’s arguments
on appeal could be adequately addressed in a decision based on a review of the case as submitted on the record. Order
Denying Request for Oral Argument, Docket No. 18-1528 (issued December 6, 2018).

ISSUE
The issue is whether appellant has met her burden of proof to establish a right ankle
condition causally related to the accepted October 15, 2015 employment incident.
FACTUAL HISTORY
On October 15, 2015 appellant, then a 38-year-old city mail carrier, filed a traumatic injury
claim4 alleging that, on that date, she injured her right ankle when it gave way when she was
walking along a sidewalk while in the performance of duty. In a statement dated October 15, 2015,
she explained that her ankle gave way on a sidewalk and she fell to the ground. It took appellant
approximately two minutes to get back up. She further explained that she heard her ankle pop
once and felt a shooting pain up her leg, before she walked back to her truck.
In a development letter dated October 22, 2015, OWCP informed appellant that she had
not submitted sufficient factual or medical evidence to establish her claim, as she had not provided
any documentation apart from her claim form. It requested that she submit additional evidence
and respond to an attached questionnaire. On the same date OWCP requested that the employing
establishment respond to a development letter regarding whether appellant was in the performance
of duty at the time of the claimed incident. It afforded 30 days for responses.
A duty status report (Form CA-17) with an illegible signature from a medical care provider
noted the diagnosis of an ankle sprain and released appellant to return to work on October 19, 2015
if provided desk duty. A walking boot was also prescribed for a foot and ankle injury.
On October 27, 2015 OWCP received a properly executed authorization for examination
and/or treatment (Form CA-16) completed by the employing establishment on October 15, 2015.
In a diagnostic report dated October 15, 2015, Dr. Alex Langman, a Board-certified
diagnostic radiologist, interpreted the results of x-rays of appellant’s right ankle. He noted no
acute fracture or dislocation.
In an emergency department report dated October 15, 2015, Dr. John Minetti, an
emergency medical specialist, noted appellant’s history of injury and reported swelling of the right
ankle with tenderness of the lateral malleolus and limited range of motion secondary to pain. He
diagnosed an ankle sprain.
In a report dated October 19, 2015, Dr. Tanisha Taylor, Board-certified in occupational
medicine, noted the history of an employment injury and diagnosed an ankle sprain. She noted a
normal x-ray study and referred appellant to an orthopedist.
On October 27, 2015 Dr. Roshni Gandhi, a podiatric surgeon, diagnosed a stress fracture
of the right ankle, nondisplaced fracture of the anterior process of the calcaneus, right foot and leg
pain, right Achilles bursitis, right peroneal tendinosis, synovitis and tenosynovitis of the right
lower leg, synovitis of the right ankle, a right Achilles rupture, a sprain of the calcaneofibular
4

The Board notes that appellant filed her claim on a continuation of pay/compensation form (Form CA-7).

2

ligament of the right ankle, and a sprain of the anterior talofibular ligament of the right ankle. On
examination of x-rays, she noted a chip fracture along the anterior process of the calcaneus and
soft tissue edema of the lateral right foot and ankle. On physical examination, Dr. Gandhi noted
pain with palpation along the anterior talofibular ligament, the calcaneofibular ligament, and the
posterior talofibular ligament, along with pain along the lateral foot along the calcaneocuboid joint
and extensor digitorum brevis muscle belly. She further noted pain with palpation and
compression of the distal fibula and peroneal tendons, with inversion and plantarflexion of the
ankle as well as dorsiflexion and eversion, and along the insertion of the Achilles tendon.
Dr. Gandhi noted that appellant reported that she had injured her right ankle in the past.
In a note dated October 28, 2015, Dr. Gandhi excused appellant from work until
November 10, 2015. In a report dated November 10, 2015, she reiterated her findings from her
initial report and explained that appellant should be placed in a fiberglass cast and she ordered a
magnetic resonance imaging (MRI) scan of the right ankle. In an undated attending physician’s
report (Form CA-20), Dr. Gandhi noted that appellant was totally disabled from work commencing
October 27, 2015.
In an undated statement received on November 10, 2015, appellant responded to OWCP’s
inquiries. She explained that, on October 15, 2015 at approximately 2:10 p.m., she was delivering
mail to an address on her regularly assigned route. Appellant took two steps on the sidewalk after
coming off a stoop when she heard and felt a “pop” in her right ankle. Her right ankle rolled
outwards causing immediate pain to shoot up her shin and calf. Appellant fell on the ground
landing on her hands and knees. She explained that as a result of the fall she had two abrasions on
her left knee and she was unable to get up off the ground for a few minutes due to the pain in her
ankle. Appellant slowly got off the ground and hobbled to her last two stops, then to her mail
truck. She recalled that the sidewalk was clear and it was a warm, sunny day.
By letter dated November 10, 2015, the employing establishment controverted appellant’s
claim. A supervisor, D.C., stated that she had been working with a personal trainer for several
months, and that he believed that this caused her ankle to weaken. He noted that appellant suffered
nearly the same injury at the same time the previous year and that she had been offered a modified
position which she refused, that there were no obstacles on-site that would have caused her injury,
and that she exhibited an undesirable attitude towards her work and coworkers.
By decision dated November 30, 2015, OWCP denied appellant’s claim, finding that she
had not submitted sufficient medical evidence to establish causal relationship between her
diagnosed conditions and the accepted employment incident of October 15, 2015. It noted in its
decision that Dr. Gandhi had reported prior injuries to appellant’s right ankle in her report of
October 27, 2015, but that appellant had not differentiated the claimed injury from symptoms of
her preexisting right ankle injuries.
In a reports dated November 30 and December 14, 2015 Dr. Megan Lubin, Board-certified
in foot surgery and reconstructive rear foot and ankle surgery, examined the MRI scan of
appellant’s right ankle and noted a calcaneofibular ligament tear. She diagnosed right peroneal
tendinosis; sprain of the calcaneofibular ligament of the right ankle, sprain of other ligament of the
right ankle; a calcaneonavicular bar; localized edema; spontaneous rupture of the flexor tendons;

3

and a muscle/tendon strain of the peroneal muscle group at the lower level of the right leg.
Dr. Lubin noted that appellant reported that she fell at work on October 15, 2015 rolling her ankle.
On December 29, 2015 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a duty status report (Form CA-17), completed by a foot and ankle surgeon with an
illegible signature, appellant was provided work restrictions and kept off work.
In a report dated January 4, 2016, Dr. Lubin reiterated her prior diagnoses and noted that
appellant continued to be symptomatic in her right ankle due to the injury she had sustained at
work. Appellant informed Dr. Lubin that while wearing a therapeutic boot her pain was fairly well
controlled, but that she still had limited motion and difficulty with movement.
In a letter dated January 29, 2016, Dr. Lubin noted the history of appellant’s employment
incident involving her right ankle as well as her medical treatment provided up to that date. She
noted that appellant had been referred to her for surgical consultation by Dr. Gandhi following a
right ankle MRI scan. Dr. Lubin noted that appellant had a prior right ankle injury which had
resolved and that she had returned to full-duty employment. She opined that her right foot and
ankle conditions were causally related to the October 15, 2015 accident that occurred during her
work-related job duties as a mail carrier. Dr. Lubin noted that at appellant’s first medical
appointment following her injury she exhibited new bruising and swelling which tends to occur
with a new injury and that those symptoms subsided with treatment. She noted that appellant’s
treatment plan was directly related to the October 15, 2015 incident.
In reports dated February 4 and March 6, 2016, Dr. Lubin noted that, while appellant
reported mild improvement with range of motion, her pain level was unchanged. Appellant
continued to wear the therapeutic boot when leaving the house, and an ankle stabilizer brace at
home. Dr. Lubin reiterated her prior diagnoses and noted that appellant reported right ankle pain
following trauma that occurred while at work.
During the hearing held on April 6, 2016, counsel explained that appellant had twisted her
ankle after completing the delivery of mail to a customer’s home and that this injury was a distinct
and new injury as the injury to her ankle that occurred a year prior had resolved. Appellant testified
that as of October 15, 2015 she was not undergoing treatment for the prior injury.
In a report dated April 15, 2016, Dr. Lubin noted that overall, appellant’s ankle conditions
were relatively unchanged with mild improvement in range of motion and strength. She
recommended that appellant refrain from work. Dr. Lubin noted that appellant reported that her
pain had been present subsequent to rolling her ankle during a work injury.
In a letter dated April 20, 2016, Dr. Lubin provided additional statements regarding the
cause of appellant’s diagnosed right foot and ankle conditions. She explained, “When a patient
described rolling or twisting of the ankle, the most common associated diagnosis is ankle sprain.
An ankle sprain is defined as torn or ruptured ligaments, whether partially or completely.”
Dr. Lubin noted that appellant had symptoms and diagnoses that were consistent with an inversion
injury, or rolling of the ankle, which was what had occurred at work on October 15, 2015. She
opined to a reasonable degree of medical certainty that the findings on examination correlate
4

directly with the patient’s reported injury. Dr. Lubin explained that appellant heard and felt a pop
when she rolled her ankle, which was one common finding with lateral ankle ligament tears and
peroneal tendon ruptures. She noted that the twisting and rolling motion with an associated
popping sound is commonly described by patients sustaining her diagnoses. Dr. Lubin further
noted that the MRI scan confirmed swelling about the peroneal tendons, as well as a complete tear
of the calcaneofibular ligament and a peroneal tendon retinacular injury. She noted that appellant’s
immediate presentation of swelling, exquisite pain, and guarding with range of motion on the
initial office examination supported a new, acute injury that likely occurred at work. Dr. Lubin
indicated that appellant had been seen three months prior to this new injury, and that on
examination on July 6, 2015 there was no reported pain with range of motion and she exhibited
normal strength in the right ankle. She attached a journal review article regarding lateral and
syndesmotic ankle sprain injuries. Dr. Lubin concluded, “The history, clinical examination,
radiographs, and MRI [scans] all support a lateral ankle inversion injury with tearing of the
calcaneofibular ligament attenuation and peroneal retinaculum tear. It is undeniable that an acute
inversion injury did occur, which directly correlates with [appellant’s] report of twisting or rolling
the ankle while delivering the mail on October 15, 2015.”
By decision dated May 18, 2016, OWCP’s hearing representative affirmed OWCP’s
November 30, 2015 decision. In reports dated May 23, June 27, and August 12, 2016, Dr. Lubin
reported that appellant’s pain was unchanged, but that she reported improvement with movement
of the right ankle and with ambulation.
In a report dated July 14, 2016, Dr. Cary Skolnick, a Board-certified orthopedic surgeon,
noted his examination of appellant and that she had injured her right ankle at work when it rolled
after stepping off a stool on October 15, 2015. He examined her, finding symptoms of swelling,
tenderness, and pain with eversion against resistance. Dr. Skolnick diagnosed a right lateral
ligamentous complex tear, right ankle instability, and right chronic peroneal tendinitis. He
concluded, “With a reasonable degree of medical probability, it is my professional opinion that the
injuries noted and treatment received and reasonable and necessary and directly and causally
related to the accident noted above. [. . .] These injuries have produced demonstrable medical
evidence, of an objective nature, of restriction in the function, and in the material lessening, of
[appellant’s] working ability. These injuries have also produced an interference with [appellant’s]
ability to fully perform activities of daily life.”
On October 27, 2016 appellant, through counsel, requested reconsideration. Counsel
submitted a brief in support of the claim.
By decision dated April 11, 2017, OWCP denied modification of the May 18, 2016
decision. It found that appellant had not submitted medical evidence sufficient to establish that
the accepted employment incident was “so superbly competent as to cause a tear in [appellant’s]
ankle.”
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

5

time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
injury. An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.9
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.10 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.11
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.12 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
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).
8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10
J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
11

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

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

13

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

6

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a series of medical reports and opinion letters
from Dr. Lubin, her attending foot surgeon, including an April 20, 2016 letter. In this opinion
letter, Dr. Lubin accurately described the accepted mechanism of the accepted October 15, 2015
employment injury. She concluded that appellant’s diagnosed conditions resulted from a rolling
motion of her right ankle while on duty working as a mail carrier. Dr. Lubin explained that a
rolling or twisting of the ankle was the most common mechanism noted for an ankle sprain, which
is defined as torn or ruptured ligaments, whether partially or completely. She noted that appellant
had symptoms and diagnoses consistent with “an inversion injury,” or rolling of the ankle.
Dr. Lubin explained that appellant heard and felt a pop when she rolled her ankle, which was one
common finding with lateral ankle ligament tears and peroneal tendon ruptures. She noted that
the twisting and rolling motion with an associated popping sound is also consistent with the
diagnosed conditions. Dr. Lubin explained that the MRI scan confirmed swelling about the
peroneal tendons, as well as a complete tear of the calcaneofibular ligament, and a peroneal tendon
retinacular injury. She noted that appellant’s immediate presentation of swelling, bruising,
exquisite pain, and guarding with range of motion on the initial office examination supported a
new, acute injury that had occurred at work.
In her opinion letter, Dr. Lubin acknowledged that appellant had a prior injury to her right
ankle, but that she had been seen three months prior to this new injury, and that on examination
on July 6, 2015 there was no pain with range of motion and normal strength in the right ankle. She
attached a journal review article regarding lateral and syndesmotic ankle sprain injuries. Dr. Lubin
concluded, “The history, clinical examination, radiographs, and MRI [scans] all support a lateral
ankle inversion injury with tearing of the calcaneofibular ligament attenuation and peroneal
retinaculum tear. It is undeniable that an acute inversion injury did occur, which directly correlates
with [appellant’s] report of twisting or rolling the ankle while delivering the mail on
October 15, 2015.”
The Board finds that, although Dr. Lubin’s report does not contain rationale sufficient to
completely discharge appellant’s burden of proof, her report constitutes substantial, uncontradicted
evidence in support of appellant’s claim and provides sufficient rationale to require further
development of the case record by OWCP.15 Dr. Lubin provided a detailed history of injury,
explained and differentiated the diagnosed conditions’ possible relationship to a prior right ankle
injury, referenced objective medical reports demonstrating injury, expressed her opinion on causal
relationship within a reasonable degree of medical certainty, provided a detailed pathophysiologic
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

15

G.C., Docket No. 16-0666 (issued March 17, 2017); M.K., Docket No. 17-1140 (issued October 18, 2017);
John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978); see also E.J., Docket No. 09-1481
(issued February 19, 2010).

7

explanation as to the mechanism by which a rolled ankle would result in appellant’s diagnosed
conditions, and provided an article from a medical journal to support her biomechanical
explanation. While OWCP found that her report did not contain an explanation specifically
explaining how appellant’s walking on a sidewalk could result in a rolled ankle, and thus
appellant’s diagnosed conditions, the Board finds such rationale is unnecessary as OWCP has
accepted that she had sustained the employment incident as alleged.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.16
On remand OWCP should refer appellant, the case record, and a statement of facts to an
appropriate specialist for an evaluation and a rationalized medical opinion on whether the accepted
employment incident of rolling her ankle on a sidewalk while walking caused, contributed to, or
aggravated her diagnosed right ankle medical conditions. After such further development of the
case record as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.17

16

D.G., Docket No. 15-0702 (issued August 27, 2015); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

The Board notes that when the employing establishment properly executes a Form CA-16, which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c);
Tracy P. Spillane, 54 ECAB 608, 610 (2003).

8

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision of the Board.
Issued: May 24, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Aurora, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1725
Issued: May 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 13, 2018 appellant, through counsel, filed a timely appeal from a May 31,
2018 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 an injury in the
performance of duty.
FACTUAL HISTORY
On July 7, 2017 appellant, then a 37-year-old carrier field representative/modified rural
carrier associate, filed an occupational disease claim (Form CA-2) alleging that she developed left
shoulder, arm, elbow, and back conditions when driving to training while in the performance of
duty. She first became aware of her condition and of its relationship to her federal employment
on June 19, 2017. Appellant sought medical treatment on that same date and stopped work on
June 20, 2017.
In a July 7, 2017 narrative statement, appellant reported that on June 9, 2017 her original
modified job located in Akron, Ohio ended. She was told to report to a station located in
Cleveland, Ohio on June 12, 2017 at 7:30 a.m. for training for her new modified job offer, which
assigned her to work at various offices in Northern Ohio from 7:30 a.m. to 4:00 p.m. Tuesday
through Friday. Appellant reported that she was paid mileage differential by the employing
establishment for the difference in travel from her home to her original duty station in Aurora, Ohio
and the location for training in Cleveland, Ohio. She advised that her injury occurred on June 19,
2017 at approximately 4:05 p.m. to 5:15 p.m. while she was driving home from the
Cleveland, Ohio facility in heavy traffic. Appellant reported that she was driving in five lanes of
stop and go traffic with cars crossing in all directions. She reported twisting, turning, and pulling
towards the steering wheel to check her blind spots when she began to feel a great amount of
discomfort in her left shoulder and arm. Appellant stated that she was in excruciating pain by the
time she arrived home and did not drive again until July 7, 2017.
In support of her claim, appellant submitted an offer of modified assignment form from the
employing establishment for a rural carrier associate position which was signed on June 12, 2017.
The position was for 30 hours per week from 7:30 a.m. to 4:00 p.m. Tuesday through Friday. The
location of the position was documented as “various offices in Northern Ohio.” Appellant also
submitted a June 23, 2017 postal service claim for reimbursement for expenditures on official
business form (PS Form 1164). The form noted her official duty station located in Aurora, Ohio
and documented the difference in mileage for travel to the Cleveland, Ohio station from her home.
The mileage differential amounted to 28 miles and a reimbursement of $14.98 for each trip.
Appellant claimed mileage reimbursement for the difference in travel to and from work for four
days of training on June 12, 13, 14, and 19, 2017.
In a development letter dated July 18, 2017, OWCP informed appellant that the evidence
of record was insufficient to support her claim, noting that the evidence failed to establish that she
was injured in the performance of duty. It advised her of the medical and factual evidence needed.
OWCP provided appellant a questionnaire for completion and requested further information to
determine if she was in the performance of duty at the time of her injury. It noted that it appeared
that she was claiming her injury occurred as a result of her commute to and from work for training.
OWCP requested that appellant indicate if she was on the clock while she was driving for her
training, when her workday began once she arrived at the training site, and if she was in a paid

2

travel status for the entire period of the training. It afforded her 30 days to submit the necessary
evidence.
In an August 3, 2017 narrative statement, appellant responded to OWCP’s questionnaire
and provided further information pertaining to her June 19, 2017 left shoulder injury. She reported
that she originally injured her left shoulder on May 18, 2013 and returned to limited duty on
September 1, 2014, but still remained under the care of her physician.3 Appellant reported that on
June 19, 2017 she had been working on her newly assigned limited-duty training requirement for
four of the eight training days when she had to seek emergency medical treatment for her left
shoulder. She reported that she was required to drive an additional 28 miles per day in heavy
traffic to attend the training which was located in Cleveland, Ohio. Appellant further reported that
the employing establishment paid for her mileage. She explained that, on June 19, 2017 at
approximately 4:10 p.m., she was driving in extremely heavy traffic on her way home from the
Cleveland, Ohio station. Appellant reported that her left arm was injured because she had to use
her arm for defensive driving techniques. She also reported that her training duties required her to
use her left arm to shuffle papers which she also believed contributed to her driving injury.
In support of her claim, appellant submitted a number of medical reports dated June 20
through September 11, 2017 documenting diagnostic testing, physical restrictions, and appellant’s
progress.
By decision dated October 13, 2017, OWCP denied the claim finding that the evidence
submitted was insufficient to establish that appellant was injured in the performance of duty. It
explained that off-premises injuries sustained by employees having fixed hours and places of work,
while going to or coming from work, are not compensable as they do not arise out of and in the
course of employment.
On October 26, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
A hearing was held on March 16, 2018. At the hearing, appellant testified that her official
duty station was located in Aurora, Ohio. Her previous modified-duty assignment was eliminated
and she was temporarily transferred to Cleveland, Ohio for training of her new modified
assignment which was going to be located in Chagrin Falls. Appellant noted that she had a history
of left shoulder injury from her prior claim which she continued to have problems with, OWCP
File No. xxxxxx015. She reported that her shoulder flare-up occurred after clocking out at training
in Cleveland, Ohio. Appellant was no more than five minutes into her trip home when she entered
a ramp to get on a five-lane highway which was congested with traffic. This caused her to tense
up and grip the steering wheel as she tried to maneuver through the lanes, resulting in her left
shoulder injury. Appellant testified that she was not provided wages for travel to and from her
home and the training located in Cleveland, Ohio. Counsel argued that she was in the performance

The record reflects that, under OWCP File No. xxxxxx015, OWCP accepted appellant’s May 18, 2013 traumatic
injury claim for left rotator cuff sprain of shoulder and upper arm, complete left rotator cuff rupture, left bicipital
tenosynovitis, and adhesive capsulitis of the left shoulder. Appellant underwent OWCP-approved surgery on
December 23, 2013 and April 10, 2014. On September 20, 2014 she returned to work with restrictions.
3

3

of duty because she was traveling for training and had not been assigned a new work location as
her official duty station. The record was held open for 30 days.
In a letter dated March 23, 2018, counsel argued that appellant was in the performance of
duty at the time of her injury. He maintained that she was on a special mission to obtain training
in another designated city, the duty was assigned, she was in a travel status and last performed her
duties in Cleveland, Ohio and the training and travel were required. Counsel referenced Chapter
2.800.4 of OWCP’s procedures in support of his arguments.4
By decision dated May 31, 2018, OWCP’s hearing representative affirmed the October 13,
2017 decision finding that the evidence of record was insufficient to establish that appellant was
injured in the performance of duty.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness, or mishap that might befall
an employee contemporaneous or coincidental with his or her employment. Liability does not
attach merely upon the existence of an employee-employer relation. Instead, Congress provided
for the payment of compensation for disability or death of an employee resulting from personal
injury sustained while in the performance of duty.5
The Board has interpreted the phrase while in the performance of duty to be the equivalent
of the commonly found requisite in workers’ compensation law of arising out of and in the course
of employment. In the course of employment deals with the work setting, the locale and time of
injury whereas, arising out of the employment, encompasses not only the work setting, but also a
causal concept, the requirement being that an employment factor caused the injury. In addressing
this issue, the Board has held that in the compensation field, to occur in the course of employment,
in general, an injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in his or her master’s business; (2) at a place where he or she may reasonably be expected
to be in connection with the employment; and (3) while he or she was reasonably fulfilling the
duties of his or her employment or engaged in doing something incidental thereto.6 In deciding
whether an injury is covered by FECA, the test is whether, under all the circumstances, a causal
relationship exists between the employment itself, or the conditions under which it is required to
be performed and the resultant injury.7
The Board has recognized, as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment. Such injuries are merely
the ordinary, nonemployment hazards of the journey itself which are shared by all travelers. There
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804 (August 1994).

5

See 5 U.S.C. § 8102(a).

6

Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

7

Mark Love, 52 ECAB 490 (2001).

4

are recognized exceptions which are dependent upon the particular facts relative to each claim:
(1) where the employment requires the employee to travel on the highways; (2) where the
employing establishment contracts to and does furnish transportation to and from work; (3) where
the employee is subject to emergency calls, as in the case of firefighters; and (4) where the
employee uses the highway to do something incidental to his employment with the knowledge and
approval of the employing establishment.8
The Board has also held that an exception to the general going and coming rule is made for
travel from home when the employee is to perform a special errand. In such a situation the
employing establishment is deemed to have agreed, expressly or impliedly, that the employment
service should begin when the employee leaves home to perform the special errand. Ordinarily,
cases falling within this exception involve travel which differs in time, or route, or because of an
intermediate stop, from the trip which is normally taken between home and work. In such a case,
the hazard encountered during the trip may differ from that involved in normally going to and
returning from work. The essence of the exception, however, is not found in the fact that a greater
or different hazard is encountered, but in the agreement to undertake a special task. For this reason,
coverage is afforded from the time the employee leaves home, even though in time and route the
journey may be, in part, identical to that normally followed in going to work.9
In addressing the going and coming rule, Larson relates, “when the employee is paid an
identifiable amount as compensation for time spent in a going or coming trip, the trip is within the
course of employment”10 Regarding payment for expense of travel, Larson states that in the
majority of cases involving a deliberate and substantial payment for the expense of travel, or the
provision of an automobile under the employee’s control, the journey is held to be in the course of
employment.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty.12
The record reflects that appellant’s regularly assigned duty station was located in
Aurora, Ohio with fixed work hours from 7:30 a.m. to 4:00 p.m., a location 19 miles from her
home. On June 12, 2017 she accepted an offer for a modified rural carrier associate and began her
two week training assignment in Cleveland, Ohio on that date. Appellant’s fixed work hours
remained the same during her training, her commute did not occur during her work hours. She
received reimbursement in the amount of $14.98 from the employing establishment for the mileage
differential from Aurora, Ohio to Cleveland, Ohio due to the additional 28 miles of travel for each
8

Connie J. Higgins (Charles H. Higgins), 53 ECAB 451 (2002); Melvin Silver, 45 ECAB 677 (1994).

9

Elmer L. Cook, 11 ECAB 163 (1964).

10

A. Larson, The Law of Workers’ Compensation § 14.06(1) (2008).

11

A. Larson, id.

12

Jon Louis Van Alstine, Docket No. 03-1600 (issued November 1, 2004).

5

commute to and from work. At the March 16, 2018 hearing, appellant testified that she was not
provided wages for travel to and from her home to attend the training.
As a general rule, off-premises injuries sustained by employees having fixed hours and
places of work while going to or coming from work, are not compensable as they do not arise out
of and in the course of employment. Such injuries are merely the ordinary, nonemployment
hazards of the journey itself which are shared by all travelers.13 Regarding the exceptions to the
going and coming rule, appellant’s employment did not require that she travel on the highways
and she was not engaged in a special errand or mission incidental to her employment at the time
of the injury. As the Board held in the case of Joyce Hodge,14 the fact that appellant was reporting
to an alternate worksite or that she was attending training did not exclude her from the going and
coming rule. The Board concluded that appellant’s injury was the result of an ordinary,
nonemployment hazard of the journey itself, which was shared by all travelers. Similarly, in the
case at bar, no evidence of record supports that appellant’s injury falls within any of the exceptions
to the general going and coming rule.15
In considering application of the “special errand” exception to the going and coming rule,
Larson provides:
“The rule excluding off-premises injuries during the journey to and from work does
not apply if the making of that journey or the special degree of inconvenience or
urgency under which it is made, whether or not separately compensated for, is in
itself a substantial part of the service for which the work is employed.”16
Counsel argues that appellant was in the performance of duty because the nature of the trip
represents a special mission to obtain training in another designated city. The Board is not
persuaded by this argument as the evidence does not establish that the trip made on June 19, 2017
was in any way other than her ordinary commute to and from a work location.17 Appellant has not
established any special degree of inconvenience or urgency or shown that the trip, in and of itself,
constituted a substantial part of any service for which she was employed.18 The record reflects
that she was proceeding from the Cleveland, Ohio station to her home after her work shift had
ended at the customary time. This was a trip that appellant made every day to and from work,
similar to her commute to and from work at the Aurora, Ohio station.19 As such, there is no
evidence that she was performing an important service for her employing establishment on

13

Id.

14

Docket No. 96-1958 (issued December 8, 1998).

15

J.N., Docket No. 14-1764 (issued December 2, 2015).

16

Larson, supra note 10 at Chapter 14. See Connie J. Higgins (Charles H. Higgins), supra note 8.

17

Supra note 13.

18

Supra note 9 at § 14.05(3).

19

See Mary Margaret Grant, 48 ECAB 696 (1997).

6

June 19, 2017 other than driving her car from work to home such that her commute would be
characterized as a special mission.20
Turning to consideration of travel reimbursement, Larson indicates that a majority of cases
involve the determination of whether a “deliberate and substantial payment” was made for the
expense of the travel.21 Factors to consider include whether an automobile is provided for the
travel, whether transportation involves a considerable distance, or payment is made as a special
inducement to hire.22 Larson notes, however, that a travel allowance must be distinguished from
mere extra pay,23 i.e., added compensation with no evidence that the travel is sufficiently important
in itself to be regarded as part of the service performed. The treatise discusses several court cases
which have noted that, to apply an exception to the going and coming rule, the employing
establishment must defray “all or substantially all” of the cost of travel.24
In this case, the employing establishment’s PS Form 1164 indicates that appellant was
reimbursed $14.98 for the 28-mile difference between the worksites in Aurora and
Cleveland, Ohio totaling $29.96 daily. The form reflects that appellant had three days of training
in the first week and was injured in the second week following her fourth day of training on her
commute home. Similar to the case of Jon Louis Van Alstine,25 it is readily apparent that her
monetary reimbursement from her employing establishment was not for “all or substantially all”
of the cost of her travel to work. The record reflects that appellant was to be reimbursed only the
difference in mileage between her home and the Aurora, Ohio station (19 miles) and the
Cleveland, Ohio station (47 miles). The Board finds that the payment solely for the difference in
mileage in this case does not constitute a “deliberate and substantial payment” of the expenses of
travel, such as to constitute an exception to the going and coming rule.
The Board further finds that appellant was not compensated for the time spent traveling to
and from work for the training in Cleveland, Ohio.26 Nor was appellant in a travel status at the
time of the injury. She did not establish a special degree of inconvenience or urgency or show that
20

See Asia Lynn Doster, 50 ECAB 351 (1999).

21

Larson, supra note 10 at § 14.04(1).

22

Id. at § 14.07(2).

23

Id. at § 14.07(3).

24

See Ricciardi v. Aniero Concrete Co., 64 N.J. 60, 312 A.2d 139 (1973). The employing establishment paid 40
percent of the commuting expenses which was found an inadequate percentage to bring the accident under the
exception to the going and coming rule.
25

Supra note 12. In this case, the Board found that appellant was not in the performance of duty when he was
working a detail at an alternative worksite and was injured during his commute to work. The Board noted that
appellant was reimbursed at 31 cents a mile for the 13-mile difference between his regular and alternate worksites.
However, it found that this monetary reimbursement for payment of mileage differential from his employing
establishment did not constitute a “deliberate and substantial payment” of the expenses of travel, such as to constitute
an exception to the going and coming rule.
26
For cases involving travel to a training seminar; see Sondra J. Mills, 33 ECAB 1092 (1982); see also Janet R.
Landesberg, 50 ECAB 538 (1999).

7

her commute for training, in and of itself, was a substantial part of a service for which she was
employed.27 Appellant’s travel to attend training was no more for the benefit of the employing
establishment than any other worker’s commute.28 She, therefore, has failed to establish an injury
in the performance of duty.29
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 15, 2019
Washington, DC

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

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

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

27

Supra note 16. See generally M.H., Docket No. 10-1337 (issued April 19, 2011).

28

L.P., Docket No. 07-959 (issued August 2, 2007).

29

The Board notes the medical evidence of record submitted in support of appellant’s claim related her left shoulder
conditions to the long hours spent driving to Cleveland, Ohio for her work training. Given that appellant has failed to
establish that her injury occurred in the performance of duty, further consideration of the medical evidence is
unnecessary. See Bonnie A. Contreas, 57 ECAB 364, 368 n.10 (2006).

8