United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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L.C., Appellant
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Baltimore, MD, Employer
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___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-667
Issued: August 22, 2007

Case Submitted on the Record

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

JURISDICTION
On January 12, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ hearing representative decision dated February 14, 2006, which
affirmed a January 13, 2005 decision, denying her emotional condition claim on the grounds that
it was not sustained in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over these issues.
ISSUE
The issue on appeal is whether appellant has met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
FACTUAL HISTORY
On December 2, 2004 appellant, then a 45-year-old letter carrier, filed an occupational
disease claim alleging an emotional condition due to harassment at work. He alleged that this
aggravated his preexisting conditions related to his esophagus, stomach, chest, anxiety and panic

attacks. Appellant first realized that the disease or illness was caused or aggravated by his
employment on September 20, 2001. He stopped work on September 22, 2004.
In an August 31, 2004 disability certificate, Dr. Robert T. Liberto, a Board-certified
internist, advised that appellant was seen for anxiety, esophageal spasm and chest discomfort,
which was aggravated by stress at work. The Office also received an August 31, 2004 note from
a nurse advising that appellant was seen for anxiety due to work situations.
By letter dated December 14, 2004, the Office advised appellant that the evidence
submitted was insufficient to establish his claim and requested that he submit additional
supportive factual and medical evidence. On December 14, 2004 the Office also requested that
the employing establishment submit additional evidence. In a December 27, 2004 memorandum,
Gwendolyn Senior, an injury compensation specialist with the employing establishment,
controverted appellant’s claim.
By decision dated January 13, 2005, the Office denied the claim for compensation as the
evidence was insufficient to establish that appellant sustained an injury as alleged. The Office
found that appellant did not establish a factual or medical basis for his claim.
On January 18, 2005 the Office received additional information from appellant, including
copies of letters dated August 21 and September 18, 2004 to appellant’s manager, Ms. Bey, and
his supervisor, Ms. Y. Haynes, requesting reimbursement for sick leave under the Family
Medical Leave Act (FMLA). In a March 14, 1995 report, Dr. James C. Murphy, a Boardcertified orthopedic surgeon, noted that appellant had back problems since 1986, when he was
bending over a mail cart and picked up a heavy metal tray and felt a “pop.” He listed permanent
restrictions which included reduced lifting of no more than 10 to 15 pounds.
Appellant requested a hearing which was held on December 6, 2005.1 In an undated
statement, he described factors that he believed contributed to his claim. Appellant stated that,
on August 19, 2004, he reported to work and found that the station had a new manager, Ms. Bey.
He advised that she immediately approached him in a harsh and aggressive manor, and loudly
intimidated and humiliated him in front of his coworkers, which caused them to laugh and
embarrassed him. Appellant alleged that Ms. Bey demanded that he tell her his duties and
shouted at him to not talk to anyone. He alleged that she stated, “[Y]ou won’t run me out of
here.” Appellant stated that Ms. Bey called him into her office and requested that he repeat his
duties again and demanded that he bring in copies of his “paperwork.” He left her office in
“extreme fear and pain” and was “full of anxiety, stomach and chest pain” and began having
nightmares and difficulty sleeping. Appellant stated that, on August 20, 2004, Ms. Bey ordered
1

During the hearing appellant described the circumstances which he believed contributed to his condition. He
noted that he had a previous claim for harassment and discrimination dating back to 1997 when he was harassed,
verbally abused, and threatened by his supervisors, which was accepted. Appellant further alleged that he had an
Equal Employment Opportunity (EEO) complaint which was settled in 2001. He alleged that his settlement
included that he work in a modified carrier position, with the promise not to harass him anymore. Appellant alleged
that, if the employing establishment harassed him, he could reinstate the EEO complaint.

2

him to her office in an intimidating and harassing manner and that, when he attempted to give
her the requested documentation, she yelled that she did not want to see anything. He noted that
he left her office with a panic attack and stated that she later apologized. On August 24, 2004
appellant returned to work after being off work since August 21, 2004 and became withdrawn.
He alleged that, after his supervisor, Mr. Wilson, asked for medical documentation, Ms. Bey and
“management officials” decided not to pay him as “punishment.” Appellant asserted that
Ms. Bey stood over him and watched him while he was eating his lunch and while on his break.
On August 26 and 27, 2004 Ms. Bey followed him around in an attempt to “agitate” him. On
August 30, 2004 appellant alleged that Supervisor Haynes yelled and screamed at him in front of
coworkers for delivering the mail, causing a panic attack. He stated that management refused to
sign his sick leave form. Appellant did not go to work on August 31, 2004 because he was afraid
of the hostile environment and his doctor found that he was incapacitated. On September 20,
2004 Ms. Bey was upset that he would not work outside of his restrictions, and punished him by
taking away his assigned duties and placed him in a chair, away from his coworkers, in which he
was not allowed to get up without asking permission. Appellant stated that management refused
to accept his doctor’s reports and he was treated different from his coworkers. He alleged that,
on September 20, 2004, Ms. Bey was “outraged” because he sent a certified letter requesting
payment for his sick leave. Appellant asserted that she yelled and told him not to send her
another certified letter. On September 28, 2004 he alleged that Ms. Bey attempted to give him a
letter of warning that was without merit.
In a January 13, 2000 routing slip, Ms. Haynes indicated that appellant came to work in
September 2004 and was not getting along with the acting manager, Ms. Bey, at the Franklin
Station. She noted that Ms. Bey was not allowing appellant to leave the building to use the
government car as he would like as he had other assignments that needed to be done at that time.
On December 8, 2005 the Office received treatment records from Dr. Liberto dated
May 5, 1997 to August 12, 2005. Dr. Liberto’s comments included that appellant related that he
was under stress, that he felt “pushed and pushed on job,” and that he felt that he was being
driven out of work. He diagnosed anxiety and stress disorder. In his treatment notes dated
August 31, 2004, Dr. Liberto advised that appellant related that on the previous day his
supervisor was “hollering and fussing” and he believed that his supervisor was trying to “break”
him. He diagnosed an anxiety episode and stress. Dr. Liberto noted that on September 22, 2004
appellant related that he was being harassed on the job.
In a September 23, 2004 statement, James Jennifer, a coworker, noted on August 19,
2004 Ms. Bey “jumped” on appellant and “started hammering him about the ‘CFS’ case and told
him she’d better not see him talking to anyone.” He alleged that she ordered appellant to go to
her office and that he was embarrassed and intimidated. Mr. Jennifer noted that on August 20,
2005 appellant was again ordered into Ms. Bey’s office and, when he came out of the office, he
was nervous and distraught. In a September 2, 2004 statement, he confirmed that, on August 30,
2004, he witnessed Supervisor Haynes yelling and screaming at appellant on several occasions in
front of coworkers. Mr. Jennifer contended that management was harassing appellant. In a
separate statement, he noted that, on or about September 22, 2004, he observed Ms. Bey
humiliate appellant by making him sit in a chair where he could not move without permission.
Mr. Jennifer alleged that each day appellant came to work she would make him sit in his chair

3

and ask permission to get up. In a September 23, 2004 statement, Anna Janic, a coworker,
alleged that, on September 20, 2004, Ms. Bey became angry with appellant when she requested
that he file mail in the P.O. Box section, and he informed her that this would violate his
restrictions. She alleged that Ms. Bey punished appellant by telling him not to go on the
workroom floor and by taking an assignment away from him and asking her to do it. Ms. Janic
stated that Ms. Bey yelled at appellant and told him to go in her office. She opined that appellant
had done nothing to provoke the intimidation and spitefulness. In a January 7, 2005 statement,
Rick Encina, a union steward, alleged that, on August 20, 2004, appellant requested that he meet
with Ms. Bey to discuss an incident that occurred on that day that involved her yelling and
intimidating him. He alleged that Ms. Bey refused to meet with him. Mr. Encina stated that on
September 30, 2004 appellant requested his assistance regarding the status of a sick leave
request. He concluded that appellant was the only employee being asked to complete that form
and that he was being singled out.
In a November 3, 1997 report, Dr. Anwar Khokhar, Board-certified in internal medicine,
diagnosed a duodenal bulb ulcer, diffuse gastritis, and an inflamed pyloric channel and noted that
appellant had a lot of pressure from his job. In a March 10, 1998 report, Dr. Carlos A. Milan, a
psychiatrist, diagnosed major depression. On September 30, 1998 Dr. Liberto noted that
appellant had gastritis and an active duodenal ulcer which may have been caused by stress. The
Office received numerous progress notes from various physicians at the primary care outpatient
clinic dating from August 30, 2004 to October 6, 2005. It also received an April 2004
psychological evaluation pertaining to a January 31, 2005 event from Dr. John A. Cooper and
Dr. Edward G. Singleton, psychologists.
In a September 20, 2001 settlement agreement, appellant accepted a permanent modified
job offer. He submitted a list of incidents dating from 1995 to June 26, 1998 and a July 28, 2001
notification of personnel action.
On December 21, 2005 the Office provided appellant and the employing establishment
with a copy of the hearing transcript and allowed 20 days for comments. By letter dated
January 16, 2006, appellant informed the Office that he had not received a response from the
employing establishment.
By decision dated February 14, 2006, the Office hearing representative affirmed the
Office’s January 13, 2005 decision, as modified to find that the several factors had occurred in
the performance of duty. The Office accepted that, on August 19, 2004, appellant came to work
after being off and found a new acting manager, Ms. Bey, who verbally attacked him before he
could put his coat down, asking him what his assignment was and telling him not to talk to
anyone. Ms. Bey also told him that the work he did was performed incorrectly, despite never
having worked for her. She yelled at him and this triggered his anxiety. On August 30, 2004
Supervisor Hanes yelled at appellant, after he returned from delivering express mail, in front of
his coworkers and continued to do this the entire day. Appellant left and went to the emergency
room. On September 20, 2004 Ms. Bey became upset with him for not working outside of his
restrictions. When appellant informed her of his restrictions, she became upset and humiliated
him by making him sit in a chair where he could not get up without seeking permission. When
appellant went to deliver the express mail, she took the mail from his hand and gave it to

4

someone else and yelled at him. The hearing representative noted that the employing
establishment was given an opportunity to comment on appellant’s allegations but did not submit
any statement refuting his allegations. The hearing representative found that other claimed
factors were either not compensable or were not established as having occurred as alleged. The
hearing representative found that the medical evidence was insufficient to establish a causal
relationship between the emotional condition and the established work factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Federal Employees’ Compensation Act.2 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.3
An employee has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.5
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
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.6 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 the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Id.

5

ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an emotional condition as a result of several incidents
involving his supervisors. The Board must initially review whether these alleged incidents and
conditions of employment are covered employment factors under the terms of the Act.
Regarding appellant’s allegations that the employing establishment retaliated against him
by giving him a letter of warning on September 28, 2004, the Board finds that these allegations
relate to administrative or personnel matters, unrelated to the employee’s regular or specially
assigned work duties and do not fall within the coverage of the Act.8 Although the handling of
disciplinary actions, are generally related to the employment, they are administrative functions of
the employer, and not duties of the employee.9 However, the Board has also found that an
administrative or personnel matter will be considered to be an employment factor where the
evidence discloses error or abuse on the part of the employing establishment. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.10 In this instance, appellant’s allegations are not
supported by the record as he has not submitted sufficient evidence to show that the employing
establishment retaliated or acted improperly in this manner. Thus, appellant has not established a
compensable employment factor under the Act with respect to administrative matters.
Appellant also alleged that the employing establishment was noncompliant in processing
his medical claim forms and refusing to pay for his leave. He alleged that he brought in his
medical documentation on August 24 and September 8, 2004, but the employing establishment
refused to pay him. However, there is nothing in the evidence to support that these events
occurred, as alleged. The processing of medical leave forms would be an administrative
matter.11 Appellant has not submitted evidence showing how the employing establishment acted
improperly toward him in this matter. Thus, he did not establish any compensable factors of
employment with regard to these matters.
Appellant also alleged that he was harassed by his supervisors. However, for harassment
or discrimination to give rise to a compensable disability under the Act, there must be evidence
that harassment or discrimination did in fact occur. Mere perceptions of harassment or
discrimination are not compensable under the Act.12 In the present case, appellant has not
submitted sufficient evidence to establish that he was harassed or discriminated against by his
8

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
9

Id.

10

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

11

See for example, Linda J. Edwards-Delgado, 55 ECAB 401 (2004). See David C. Lindsey, Jr., 56 ECAB ___
(Docket No. 04-1828, issued January 19, 2005) (generally, actions of the employing establishment in matters
involving the use of leave are not considered compensable factors of employment as they are administrative
functions of the employer and not duties of the employee).
12

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

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supervisors or coworkers with regard to certain claimed incidents.13 Appellant alleged that his
supervisors engaged in actions which he believed constituted harassment and discrimination.
For example, he alleged that he was harassed, watched and followed14 by Ms. Bey, on August 18
and 24, 2004, screamed at by Ms. Bey on September 24, 2004 and placed in a chair. Appellant
also alleged that his supervisors laughed at him and were pressuring him. However, he provided
no corroborating evidence, such as witness statements, to establish that these actions actually
occurred.15 Thus, appellant has not established a compensable employment factor under the Act
with respect to the claimed harassment and discrimination on these occasions.
However, appellant has established the following compensable factors of employment
where he claimed that he was harassed or verbally abused.16 They include that on August 19,
2004 he came to work after being off and found a new acting manager, Ms. Bey, who verbally
attacked him before he put his coat down. Additionally, while Ms. Bey verbally attacked
appellant, she asked him what his assignment was and told him she did not want him talking to
anyone. She also informed appellant that his work was performed incorrectly, despite his never
having worked for her. On that same date, Ms. Bey screamed and yelled at appellant. Appellant
has also established that on August 30, 2004 he was delivering express mail in accordance with
his settlement agreement and when he came back to the employing establishment, Supervisor
Hanes was yelling and screaming at him in front of his coworkers and continued to do this the
entire day. Additionally, on September 20, 2004, Ms. Bey became upset with him for not
working outside of his restrictions, and when appellant informed her of his restrictions, she
became upset and humiliated him by making him sit in a chair and ordered that he could not get
up without permission. Appellant also established that, when he went to deliver the express
mail, she took the mail from his hand, gave it to someone else and yelled at him. The Board
finds that these incidents are established as they are sufficiently supported by statements of
appellant and coworkers who witnessed the incidents and because the employing establishment
did not submit evidence to refute that they occurred as alleged.
Appellant’s burden of proof is not discharged by the fact that he has established an
employment factor which may give rise to a compensable disability under the Act. To establish his
occupational disease claim for an emotional condition, appellant must also submit rationalized
medical evidence establishing that he has an emotional or psychiatric disorder and that such
disorder is causally related to the accepted compensable employment factor.17
13

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).
14

Allegations that the employing establishment attempted to place an employee in unacceptable positions and
improperly monitored work activities fall into the category of administrative or personnel actions. Sandra Davis, 50
ECAB 450 (1999).
15

See William P. George, 43 ECAB 1159, 1167 (1992).

16

Verbal altercations and difficult relationships with supervisors, when sufficiently detailed by the claimant and
supported by the record, may constitute compensable factors of employment. David C. Lindsey, Jr., 56 ECAB ___
(Docket No. 04-1828, issued January 19, 2005).
17

See William P. George, supra note 15.

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The medical evidence submitted in support of his claim included several reports from his
treating physician, Dr. Liberto. In his August 31, 2004 disability certificate, Dr. Liberto indicated
that appellant was seen for anxiety, esophageal spasm and chest discomfort, which was
aggravated by stress at work. However, he did not identify any of the accepted work factors as
causing appellant’s stress. Dr. Liberto also provided treatment notes and disability certificates
dating from May 5, 1997 to August 12, 2005. He diagnosed anxiety and stress disorder and
indicated that appellant related that he was under stress, and felt “pushed and pushed on job,”
and felt he was being driven out of work. In treatment notes dated August 31, 2004, Dr. Liberto
advised that appellant related that yesterday, his supervisor was “hollering and fussing” and
believed that his supervisor was trying to “break” him. He diagnosed an anxiety episode and
stress. However, while Dr. Liberto noted that appellant related and provided a diagnosis, he did
not provide an opinion as to the cause of appellant’s stress. In his September 22, 2004 report, he
again noted that appellant related that he was being harassed on the job, but he did not offer an
opinion on causal relationship in which he identified the accepted employment factors and
provide findings as to how he arrived at his conclusion. To establish causal relationship, a
claimant must submit a physician’s report in which the physician reviews the employment
factors identified as causing the claimed condition and, taking these factors into consideration as
well as findings upon examination, states whether the employment injury caused or aggravated
the diagnosed conditions and presents medical rationale in support of his or her opinion.18
Additionally, the Office received reports dating back to March 14, 1995, numerous
progress notes from various physicians at the primary care outpatient clinic dating from
August 30, 2004 to October 6, 2005 and an April 28, 2005 report from Drs. Cooper and
Singleton. However, these reports did not specifically reference the accepted employment
factors or explain how such factors caused or contributed to appellant’s claimed condition. The
Board has long held that medical evidence which does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.19
The Office also received an August 31, 2004 note from a nurse advising that appellant
was seen for anxiety due to work situations. Health care providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not physicians under the Act.
Thus, their opinions do not constitute medical evidence and have no weight or probative value.20
The Board finds that appellant has not submitted rationalized medical evidence
establishing that his claimed conditions are causally related to the accepted compensable
employment factors.

18

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007).

19

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

20

See Jan A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
“physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).

8

CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated February 14, 2006 is affirmed.
Issued: August 22, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
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)
)

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

Docket No. 14-50
Issued: May 1, 2014

Case Submitted on the Record

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

JURISDICTION
On October 15, 2013 appellant filed a timely appeal of the August 5, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her request for
reconsideration. Because more than 180 days elapsed from the most recent merit decision dated
March 5, 2013 to the filing of this appeal on October 15, 2013, the Board lacks jurisdiction to
review the merits of the claim pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 29, 2012 appellant, then a 58-year-old legal assistant, filed an occupational
disease claim, alleging that she developed tenderness and swelling of the right knee after being
1

5 U.S.C. §§ 8101-8193.

relocated to an office with a low desk and her knee was forced into an extended position. She
became aware of her condition and realized it was causally related to her employment on
August 16, 2012. Appellant did not stop work.
Appellant was treated by Dr. Tedman Vance, a Board-certified orthopedist, on
August 24, 2012 for right knee pain. Dr. Vance noted an onset of pain one and a half weeks
prior. Appellant reported no injury but noted that her pain was aggravated by bending, climbing
stairs and walking. She also submitted a position description for a legal assistant.
On October 17, 2012 OWCP advised appellant of the evidence needed to establish her
claim. It requested that she submit a physician’s reasoned opinion addressing the relationship of
her right knee condition to specific work factors.
In an November 20, 2012 statement, appellant requested to withdraw her claim. She
noted that, after speaking with her physician, she was informed that the desk she occupied
aggravated her condition and that her desk was an ergonomic misfit. In a November 12, 2012
report, Dr. Vance treated appellant for right hand pain. Appellant reported a trauma at work and
noted that the pain worsened because she could not avoid the demands of her job. Dr. Vance
diagnosed benign essential tremor, osteoarthrosis of the hand, tenosynovitis of the hand and wrist
and pain of the hand and forearm.
On December 11, 2012 OWCP denied appellant’s claim finding that the medical
evidence did not establish that her right knee condition was causally related to the accepted
work-related events.
On December 31, 2012 appellant requested reconsideration. She submitted reports from
Dr. Vance dated December 6 to 26, 2012. Dr. Vance treated her for right knee pain beginning
six days prior. Appellant reported no trauma. Dr. Vance diagnosed effusion and pain of the
lower leg joint with possible early arthritis. Appellant submitted a December 12, 2012 magnetic
resonance imaging (MRI) scan of the right knee which revealed a radial tear of the medial
meniscus, edema representing a partial tear or sprain of the medial patellar of the medial patellar
retinaculum and edema involving the medial articular cartilage of the patella.
In a March 5, 2013 decision, OWCP denied modification of the December 11, 2012
decision.
In a June 26, 2013 appeal request form, appellant requested reconsideration. She stated
that her initial report of right knee pain included complaints of sitting at a low desk. Appellant
noted that Dr. Vance’s diagnosis was arthritis and she attempted to stop the processing of her
claim because she thought the diagnosis was not consistent with her injury. The pain in her right
leg did not start until she occupied a desk that was ergonomically unsuitable for her. Appellant
advised that, after Dr. Vance received further medical information on the cause of her elevated
pain level, she had right knee surgery. She noted that a medical report was attached; however,
no additional medical evidence was received into the record. Appellant submitted five “desk
injury photos” but the image quality is poor and essentially not viewable.
In an August 5, 2013 decision, OWCP denied appellant’s request for reconsideration. It
found that the evidence submitted was insufficient to warrant further merit review.

2

LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations which provide that a claimant may
obtain review of the merits of his or his written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by the OWCP;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
OWCP denied appellant’s claim on the grounds that she failed to provide sufficient
medical evidence to establish that her right knee condition was causally related to her work
duties. It denied her reconsideration request without a merit review.
The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2),
requiring OWCP to reopen the case for review of the merits of the claim. In her request for
reconsideration, she did not contend that OWCP erroneously applied or interpreted a specific
point of law. Appellant did not identify a specific point of law or show that it was erroneously
applied or interpreted. She did not advance a new and relevant legal argument. In her June 26,
2013 request, appellant noted that her right knee pain pertained to sitting at a low desk. She
stated that the pain in her right leg did not start until she occupied a desk that was ergonomically
unsuitable for her. Appellant also reported that Dr. Vance performed right knee surgery. These
assertions do not show a legal error by OWCP or constitute a new and relevant legal argument.
The underlying issue in this case is whether appellant’s diagnosed condition is causally related to
her workplace exposures. That is a medical issue which must be addressed by relevant new
medical evidence.5 Appellant did not submit any new or relevant medical evidence in support of
her claim. She indicated that a medical report was submitted with her request but no additional
medical evidence was received.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

5

See Bobbie F. Cowart, 55 ECAB 746 (2004).

3

Appellant submitted five “desk injury photos” which contained images of poor quality of
her desk area. As noted, the underlying issue in this claim is whether the medical evidence
establishes that her claimed condition was caused or aggravated by workplace exposures. The
photographs are not relevant to the underlying medical issue. Therefore, this evidence is
insufficient to warrant reopening the case for a merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2014
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H, Appellant
and
U.S. POSTAL SERVICE, QUEENS
PERFORMANCE & DISTRIBUTION CENTER,
Flushing, N.Y, Employer
__________________________________________

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

Docket No. 17-0286
Issued: April 12, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 21, 2016 appellant, through counsel, filed a timely appeal from a
September 20, 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 the claim.

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 established more than six percent permanent impairment
of her left upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On September 19, 2008 appellant, then a 38-year-old mail handler, filed an occupational
disease claim (Form CA-2), alleging that a partial thickness rotator cuff tear in her left shoulder
was caused or aggravated by factors of her federal employment. OWCP accepted her occupational
disease claim for partial thickness left rotator cuff tear. Appellant did not initially stop work.
OWCP subsequently paid her intermittent wage-loss compensation benefits on the supplemental
rolls for temporary total disability.
On January 9, 2015 appellant filed a claim for a schedule award (Form CA-7). As no
medical evidence was submitted with her claim, by letters dated January 20 and March 10, 2015
OWCP requested that she submit an impairment evaluation from her attending physician in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).3
In support of her claim, appellant submitted a July 7, 2015 impairment rating from
Dr. Pran N. Sood, a Board-certified orthopedic surgeon. Dr. Sood found that appellant reached
maximum medical improvement (MMI) on October 22, 2013.4 He noted that she had limited
abduction and forward flexion to 110 degrees of her left shoulder. Rotation was relatively free
and her neurological assessment was normal. For the left upper extremity, Dr. Sood found that
appellant had 12 percent permanent impairment of her left upper extremity under the A.M.A.,
Guides. He indicated that his calculation was based on Table 15-1, page 385 and Table 15-5,
shoulder regional grid, page 401 for partial tear of the shoulder.
OWCP’s district medical adviser (DMA) reviewed the claim on September 11, 2015, and
found that appellant had six percent permanent impairment of the left upper extremity.5 The DMA
found that MMI occurred on May 24, 2011, when a physical therapist noted her condition was
stable. His six percent impairment rating was based on appellant’s loss of range of motion (ROM)
in her left shoulder under Table 34, page 475 of the A.M.A., Guides.
By decision dated October 22, 2015, OWCP granted appellant a schedule award for six
percent permanent impairment of her left upper extremity. The award covered 18.72 weeks, from
May 24 to October 2, 2011 and was based on her weekly pay rate on the date disability began,

3

A.M.A., Guides (6th ed. 2009).

4

The record does not contain treatment notes dated October 22, 2013, nor does Dr. Sood provide rationale for
choosing this date for MMI.
5

The DMA’s signature is illegible.

2

July 19, 2007.6 OWCP based the award on the DMA’s September 11, 2015 impairment rating,
noting that the DMA correctly applied the [A.M.A., Guides] to the examination findings.
On November 4, 2015 counsel requested a telephonic hearing before an OWCP hearing
representative. A telephonic hearing was held July 12, 2016. Counsel argued that the DMA’s
impairment rating was based on the ROM, but the diagnosis-based impairment (DBI) used by
Dr. Sood was more realistic.
By decision dated September 20, 2016, OWCP’s hearing representative affirmed its prior
schedule award decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with OWCP.7 Section 8107 of FECA sets forth
the number of weeks of compensation to be paid for the permanent loss of use of specified
members, functions, and organs of the body.8 FECA, however, does not specify the manner by
which the percentage loss of a member, function, or organ shall be determined. To ensure
consistent results and equal justice under the law, good administrative practice requires the use of
uniform standards applicable to all claimants. Through its implementing regulations, OWCP
adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., issued a 52-page document entitled “Clarifications and Corrections,
[s]ixth [e]dition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides.10 The Board has approved the use by OWCP of the A.M.A., Guides for

6
On a December 18, 2009 Form CA-7, the employing establishment indicated that appellant stopped work on
July 19, 2007 and her pay rate effective that date was $44,495.00 per year with night differential of $35.92 per week
and Sunday premium of $43.44 per week.
7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

9

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).

3

the purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.11
ANALYSIS
The issue on appeal is whether appellant has met her burden of proof to establish that she
has more than six percent permanent impairment of the left upper extremity, for which she
previously received a schedule award. The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation has been followed regarding the proper use of the DBI or the ROM methodology
when assessing the extent of permanent impairment for schedule award purposes.12 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under the
law to all claimants.13 In T.H., the Board concluded that OWCP physicians are at odds over the
proper methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and DMA’s use
both DBI and ROM methodologies interchangeably without any consistent basis. Furthermore,
the Board has observed that physicians interchangeably cite to language in the first printing or the
second printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that OWCP
can no longer ensure consistent results and equal justice under the law for all claimants.14
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the September 20, 2016 decision. Utilizing
a consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision with regard to appellant’s claim for an upper extremity schedule award.15
CONCLUSION
The Board finds that the case is not in posture for decision.

11

Isidoro Rivera, 12 ECAB 348 (1961).

12

T.H., Docket No. 14-0943 (issued November 25, 2016).

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

Supra note 12.

15

See FECA Bulletin No. 17-0006 (issued May 8, 2017).

4

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 12, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 08-446
Issued: September 2, 2008

Case Submitted on the Record

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

JURISDICTION
On December 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 8, 2007 merit decision, denying his emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On February 11, 2006 appellant, then a 49-year-old unassigned supervisor of distribution
operations, filed a claim alleging that he sustained a stress-related condition in the performance
of duty.1 He asserted that the employing establishment retaliated against him for attempting to
1

Appellant asserted that work-related stress caused hypertension and sleep apnea. He later claimed that he
sustained stress-related mental problems as well as “visual auras” and seizures due to work factors.

obtain reasonable accommodations for his medical condition.2
February 1, 2006.

Appellant stopped work on

In several statements, appellant alleged that management retaliated against him for
reporting waste, fraud and abuse. He claimed that Robin Banks, a supervisor, constantly
harassed him, including an occasion when she stated, in the presence of coworkers, that his
thought process and reasoning skills were defective. In June 2005, Ms. Banks unfairly chastised
appellant for not disciplining a newly assigned employee. Appellant claimed that in
January 2006, Ms. Banks improperly assigned him to three separate work units in three different
buildings and that after he placed an employee with medical problems on three days of
continuation of pay Ms. Banks stated that the safety of employees did not matter. He claimed
that Arlene Link, a manager, insulted him after he questioned actions by senior management and
that Kelvin Williams, the senior plant manager, threatened to fire him. Appellant alleged that
Thomas Graham, a manager, retaliated against him for reporting payroll fraud carried out by
another supervisor, Dale Liddle. He asserted that he was assigned too many work tasks given his
health problems and that he was assigned more operational responsibilities than his peers. An
acting labor relations manager allegedly informed appellant that he had been profiled by the area
threat assessment team and that he was determined to be “most likely to go postal.”3 Appellant
asserted that Mr. Graham improperly informed him that he could no longer attend therapy
sessions. He alleged that Carol Bagwell, a supervisor, required him to work beyond his medical
restrictions and mischaracterized his use of leave. Appellant asserted that management
prevented him from reporting abusive or alcohol-impaired employees and that coworkers
ridiculed him because he did not have direct access to e-mail.4
Appellant submitted several medical reports dated in January 2006, including reports of
Dr. Stanley N. Furman, an attending Board-certified internist. The record contains several letters
in which management officials, including Ms. Banks and Mr. Graham, denied that appellant was
subjected to retaliation or other improper actions at the employing establishment.
In a September 26, 2006 decision, the Office denied appellant’s emotional condition
claim on the grounds that he did not establish any compensable employment factors. It found
that appellant did not submit evidence showing that the employing establishment subjected him
to harassment or discrimination or committed acts that constituted error or abuse with respect to
administrative matters.
In July 2007, appellant requested reconsideration of his claim and submitted a statement
in which he further implicated his claimed employment factors. He claimed that management
punished him for acting as a union representative and for raising the issue of posting religious
flyers in the workplace. Appellant asserted that Ms. Banks unfairly chastised him for not
2

Appellant noted that he worked the night shift for a period in the late 1990s. By 2000, he had prevailed in his
request for reasonable accommodation and was working the day shift.
3

In a July 29, 2002 letter, an employing establishment official stated that an informal investigation was made of
appellant in response to a supervisor complaint but that he was not investigated by a threat assessment team.
4

Appellant indicated that he filed an Equal Employment Opportunity (EEO) claim regarding some of these
matters.

2

disciplining a newly assigned employee, falsely accused him of not completing a work project
and wrongly questioned his actions when he placed his name in the supervisor’s leave book. He
claimed that Ms. Banks improperly denied his request to attend a mediation meeting scheduled
for January 12, 2005 and otherwise interfered with his participation in union matters. Ms. Banks
wrongly threatened to issue him a disciplinary letter for sustaining an injury while inspecting and
counting mail and instructed him to perform functions that were outside his craft classification.
Appellant claimed that Mr. Williams insulted him after he filed reports of hazardous and unsafe
working conditions and that he was “set up” such that it was difficult to locate mail for delivery.
He asserted that a coworker, Kenneth Carter, physically threatened him by “inviting me outside.”
Appellant further alleged that his attempt to arrange an automatic shipment with a
supplier was thwarted by management and that he was denied access to a new computer until
April 26, 2004. He claimed that he had to carry his briefcase to and from work because he was
not provided with a locker at work. Appellant alleged that he was “bounced from unit to unit,”
including an occasion that he had to work in six units in one day and that he had to perform tasks
that no other supervisors were willing to perform. In June 2003, he was improperly ordered to
return to work at the main plant in July 2003 and in August 2005 he received an unwarranted
letter of proposed removal from the employing establishment. Appellant asserted that written
comments made on routing slips by other supervisors caused his work unit to be less productive
and that he did not receive appropriate wages for his position. He claimed that Ms. Bagwell
purported to give him her personal telephone number but that it turned out to be a number for a
sex chat line.
Appellant submitted numerous documents, including memoranda and e-mails to superiors
in which he discussed his belief that management had mishandled various matters. In some of
these documents, he took issue with disciplinary actions that were taken against him.5 Appellant
submitted additional medical reports describing his emotional and physical conditions.
In a September 2, 2003 statement, Betty Closely, a coworker, indicated that Ms. Bagwell
angrily told her that appellant should not be performing a certain work task. She stated that
appellant was “treated badly by Ms. Bagwell from the start” and asserted that she wanted him
out of the building because he followed postal rules. A September 16, 2005 letter indicates that
on September 7, 2005 the employing establishment rescinded a November 28, 2004 proposed
letter of warning. In an October 10, 2006 letter, Harold Moss, a union representative, contended
that appellant was harassed by management at the employing establishment. In a September 28,
2007 letter, a subordinate, Gregory Crute, stated that the fact that appellant did not stand over
employees “like a warden” caused him to have problems with management.6

5

A document from the Department of Veterans Affairs shows that beginning September 27, 2006 appellant
received compensation for service-related emotional problems.
6

Appellant also submitted statements in which several subordinates stated that he was a good supervisor and that
he never caused delays in the mail.

3

In a September 14, 2007 letter, Ms. Banks disputed appellant’s claims of wrongdoing. In
a September 13, 2007 e-mail, Mr. Carter denied appellant’s claim that he had invited him
outside. In a September 9, 2007 letter, Mr. Graham stated that he appropriately responded to all
of appellant’s concerns about management.
In a November 8, 2007 decision, the Office affirmed its September 26, 2006 decision.
LEGAL PRECEDENT
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 the Federal Employees’ Compensation
Act.7 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.8
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.10
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
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.11 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.12

7

5 U.S.C. §§ 8101-8193.

8

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
9

Pamela R. Rice, 38 ECAB 838, 841 (1987).

10

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12

Id.

4

ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. The Board must
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant alleged that harassment and discrimination on the part of his supervisors and
coworkers contributed to his claimed stress-related condition, including instances when
management retaliated against him for reporting “waste, fraud and abuse.” He claimed that a
supervisor, Ms. Banks, constantly harassed him by criticizing his actions and questioning his
abilities, including an occasion when she called his reasoning “defective.”13 Appellant claimed
that a manager, Ms. Link, insulted him after he questioned actions by senior management and
that the senior plant manager, Mr. Williams, threatened to fire him. He asserted that
Mr. Williams insulted him after he filed reports of hazardous and unsafe working conditions and
that a coworker, Mr. Carter, physically threatened him by “inviting me outside.” Appellant
alleged that a manager, Mr. Graham, retaliated against him for reporting payroll fraud carried out
by another supervisor and that coworkers ridiculed him because he did not have direct access to
e-mail. He claimed that management punished him for acting as a union representative and for
raising the issue of posting religious flyers in the workplace.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his regular duties, these could constitute employment factors.14
However, for harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under the Act.15
In the present case, the employing establishment denied that appellant was subjected to
harassment or discrimination.16 Appellant has not submitted sufficient evidence to establish that
he was harassed or discriminated against by his supervisors or coworkers.17 He alleged that
supervisors and coworkers made statements and engaged in actions which he believed
constituted harassment and discrimination, but he provided insufficient corroborating evidence,
such as witness statements, to establish that the statements actually were made or that the actions
13

Appellant also claimed that Ms. Bagwell purported to give him her personal telephone number but that it turned
out to be a number for a sex chat line.
14

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

15

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

16

For example, Ms. Banks, Mr. Graham and Mr. Carter submitted statements in which they denied appellant’s
claims.
17

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).

5

actually occurred.18 Appellant submitted several statements in which coworkers generally
indicated that he was “harassed” or “treated badly” by management officials, but these vague
statements did not identify particular acts that would constitute harassment or discrimination. It
appears that appellant filed an EEO claim but the record does not contain the results of any such
a claim. Thus, appellant has not established a compensable employment factor under the Act
with respect to the claimed harassment and discrimination.
Appellant claimed that he was assigned too many work tasks given his health problems
and that he was assigned more operational responsibilities than his peers. He asserted that
Mr. Graham improperly informed him that he could no longer attend therapy sessions and
claimed that a supervisor, Ms. Bagwell, required him to work beyond his medical restrictions
and mischaracterized his use of leave. Appellant indicated that an acting labor relations manager
informed him that he had been profiled by the area threat assessment team and that he was
determined to be “most likely to go postal.” He asserted that Ms. Banks wrongly denied leave
requests and improperly disciplined him. Appellant alleged that supervisors interfered with his
ability to perform his work duties by preventing him from disciplining certain employees and by
denying him access to a computer and a locker. He claimed that in June 2003 he was improperly
ordered to return to work at the main plant and that in August 2005 he received an unwarranted
letter of proposed removal from the employing establishment.
Regarding appellant’s allegations that the employing establishment improperly assigned
work duties, engaged in improper disciplinary actions, failed to provide supervisory support,
wrongly denied leave and mishandled investigative matters, the Board finds that these
allegations relate to administrative or personnel matters, unrelated to the employee’s regular or
specially assigned work duties and do not fall within the coverage of the Act.19 Although the
handling of disciplinary and investigative actions, the consideration of leave requests, the
assignment of work duties and other personnel decisions made by supervisors are generally
related to the employment, they are administrative functions of the employer and not duties of
the employee.20 However, the Board has also found that an administrative or personnel matter
will be considered to be an employment factor where the evidence discloses error or abuse on the
part of the employing establishment. In determining whether the employing establishment erred
or acted abusively, the Board has examined whether the employing establishment acted
reasonably.21
Appellant did not submit sufficient evidence to establish that the employing
establishment committed error or abuse with respect to these matters. Management officials
denied that they committed wrongdoing in carrying out these personnel functions and appellant
has not submitted evidence, such as the finding of a grievance, to show that the employing
establishment committed error or abuse. A September 16, 2005 letter indicates that on
18

See William P. George, 43 ECAB 1159, 1167 (1992).

19

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
20

Id.

21

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

6

September 7, 2005 the employing establishment rescinded a November 28, 2004 proposed letter
of warning. However, the mere fact that personnel actions are later modified or rescinded, does
not in and of itself, establish error or abuse22 and there is no indication that the rescission of this
disciplinary action constitutes an admission of wrongdoing. Appellant expressed disagreement
with managers’ actions but the Board has held that an employee’s dissatisfaction with perceived
poor management constitutes frustration from not being permitted to work in a particular
environment or to hold a particular position and is not compensable under the Act.23 Thus, he
has not established a compensable employment factor under the Act with respect to
administrative matters.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.24
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.

22

Michael Thomas Plante, 44 ECAB 510, 516 (1993).

23

Id.

24

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 8, 2007 decision is affirmed.
Issued: September 2, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE NATIONAL
OFFICE, Richmond, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0165
Issued: May 2, 2018

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On October 30, 2017 appellant filed a timely appeal from a May 5, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No.
18-0165.
On April 30, 2012 appellant, then a 55-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that, on that same date, she sustained multiple injuries when she fell into a flower
bed while walking into her office building. By decision dated November 8, 2012, OWCP accepted
the claim for neck strain, strain of back lumbar region, lumbosacral radiculitis, cervical radiculitis,
and concussion without loss of consciousness. On January 9, 2013 OWCP accepted the additional
condition of left shoulder rotator cuff sprain.
On February 11, 2016 OWCP notified appellant of a proposed termination of her wageloss compensation benefits as the weight of the medical evidence established that she no longer
had continuing residuals or disability as a result of her work-related injury and that she could return
to her preinjury job as a clerk. It found that the weight of the medical evidence rested with
Dr. Alice Martinson, a Board-certified orthopedic surgeon, serving as the impartial medical
examiner. Appellant was afforded 30 days to submit additional evidence.

By decision dated March 15, 2016, OWCP terminated appellant’s wage-loss compensation
benefits, effective that same date, finding that the weight of the medical evidence rested with
Dr. Martinson who found that appellant no longer had continuing disability as a result of her workrelated injury. It noted that appellant failed to submit medical evidence contesting the preliminary
termination decision.
On April 15, 2016 appellant contested the March 15, 2016 termination decision and
requested an oral hearing before an OWCP hearing representative.
A hearing was held on November 7, 2016 wherein appellant testified in support of her
claim, consequential injuries, and continued disability.
By decision dated December 14, 2016, an OWCP hearing representative affirmed the
March 15, 2016 decision terminating appellant’s wage-loss compensation benefits. She noted that
OWCP erroneously characterized Dr. Martinson as a referee physician because he belonged to the
same practice as the treating physician who formed the conflict with the second opinion physician.
The hearing representative found that Dr. Martinson would instead be characterized as a second
opinion physician and that his report was sufficient to establish that the weight of the medical
evidence rested with Dr. Martinson, finding that appellant was no longer disabled as a result of the
April 30, 2012 work injury.
By appeal request form and narrative statement received by OWCP on February 14, 2017,
appellant requested reconsideration.
By decision dated May 5, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
Having reviewed the case record submitted by OWCP, the Board finds that this case is not
in posture for a decision. In its May 5, 2017 denial, OWCP improperly found that appellant’s
February 14, 2017 request for reconsideration was untimely. It noted that the merit decision was
issued on February 11, 2016 and it received appellant’s request for reconsideration on
February 14, 2017. However the last merit decision in this case regarding the termination of
appellant’s compensation benefits was the December 14, 2016 decision by OWCP’s hearing
representative. The Code of Federal Regulations provides that a claimant has one year to timely
file an application for reconsideration following a decision on the merits of the claim.1 As
appellant’s request for reconsideration was received by OWCP within the one-year time limitation,
pursuant to 20 C.F.R. § 10.607(a), her request for reconsideration was timely filed.
The Board will, therefore, set aside OWCP’s May 5, 2017 decision and remand the case
for issuance of an appropriate final decision based upon appellant’s timely request for
reconsideration.

1

20 C.F.R. § 10.607(a).

2

IT IS HEREBY ORDERED THAT the May 5, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order.
Issued: May 2, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, MARTECH CARRIER
ANNEX, Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-187
Issued: June 9, 2008

Case Submitted on the Record

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

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from an August 23, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs that denied his request for
reconsideration without conducting a merit review. He also requested review of March 16 and
June 25, 2007 merit decisions of the Office that denied his traumatic injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty; and (2) whether the Office properly
denied appellant’s request for reconsideration without conducting a merit review.
FACTUAL HISTORY
On January 29, 2007 appellant, then a 31-year-old city letter carrier, filed a traumatic
injury claim alleging that he noticed an orange discoloration on his hands while delivering mail
on January 24, 2007. He stated that he washed his hands approximately seven times with no

results and concluded that something he had touched while working his route had caused a
reaction. Appellant stopped work on January 25, 2007 but returned later the same day. The
employing establishment controverted his claim.
On February 12, 2007 the Office requested additional information concerning appellant’s
claim.
By decision dated March 16, 2007, the Office denied appellant’s claim on the grounds
that the record did not establish that an incident occurred as alleged.
In an undated statement received into the record on March 22, 2007, appellant explained
that he was delivering mail when he realized that his hands had an orange look and felt warm.
He stated that he washed his hands several times, but this did not solve the problem. Appellant
noted that, in fact, after washing his hands several times he noticed that the orange color had in
fact gotten brighter. He stated that after discussing his condition with his supervisors he
“clocked out” and sought medical attention. Appellant explained that, while delivering his route,
he was exposed to mail, packages, his postal vehicle, and mailboxes on the street. He noted that
his hands were fine before he left the station and that he was delivering mail on his route when
he noticed the discoloration.
In a March 12, 2007 attending physician’s report, Ashley Cleveland, a nurse practitioner,
noted appellant’s complaints of discoloration in the palms of his hands, but explained that the
soles of his feet and the rest of his body were unaffected. She indicated that appellant’s
discoloration only affected exposed skin. Ms. Cleveland diagnosed headache and “contact or
exposure to substance vs. allergic reaction.” Appellant also provided two laboratory testing
reports, dated January 26 and March 8, 2007, which did not note a diagnosis or discuss
appellant’s claimed injury.
On March 29, 2007 appellant requested reconsideration. He stated that the Office had
incorrectly noted his name and that his supporting medical evidence was not received because of
the mistake.
By decision dated June 25, 2007, the Office denied modification of its previous denial of
appellant’s claim on the grounds that, while appellant had established that the claimed events
occurred as alleged in the performance of duty, the medical evidence provided did not establish
that a specific diagnosed condition was causally related to the accepted incident.
Subsequent to the Office’s June 25, 2007 decision, appellant submitted a March 14, 2007
report from Dr. Kimball Johnson, a Board-certified internist, who diagnosed discoloration of the
palms bilaterally, headache and cough. Dr. Johnson explained that appellant initially presented
in his office on January 24, 2007, complaining of an orange discoloration of his hands, at which
time “labs were drawn out to rule out any etiology other than contact with an abrasive or
poisonous substance.” He noted that appellant had been at work and felt fine until he noticed his
symptoms between noon and 2:00 p.m. Dr. Johnson concluded that appellant’s symptoms
indicated contact dermatitis causing a localized and systemic reaction. He noted that appellant’s
orange discoloration continued until March 12, 2007, and that appellant also reported new
symptoms, including a burning sensation and scaling, during that time. Appellant also provided

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laboratory reports from January 24, 2007, indicating that he had noticed a brown tint on his
hands on that day and denied eating any beta carotene-rich products that day. The report
diagnosed unspecified allergy, among other conditions.
On August 14, 2007 appellant requested reconsideration of the Office’s previous
decisions. With his reconsideration request, he provided an August 8, 2007 report from
Dr. Johnson, who opined that appellant “had a local and systemic allergic reaction to an
unknown substance while delivering mail at work.” Dr. Johnson noted that appellant’s
symptoms included a distinct orange or brown discoloration, headache and cough, and diagnosed
allergic contact dermatitis. He stated that laboratory results were consistent with an early
allergic reaction.
By decision dated August 23, 2007, the Office denied appellant’s request for
reconsideration, on the grounds that the evidence submitted was insufficient to warrant review of
the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Id.

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between the claimant’s diagnosed condition and the implicated employment factors.6 The
opinion of the physician must be based on a complete factual and medical background of the
claimant7 and must be one of reasonable medical certainty8 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has established that he noticed an orange discoloration in
the palms of his hands while performing his normal work duties on January 24, 2007. However,
appellant has not established that his duties or substances to which he was exposed while
performing his duties caused or aggravated a specific diagnosed condition.10
In support of his claim, appellant submitted a March 12, 2007 attending physician’s
report from Ms. Cleveland. However, the Board notes that Ms. Cleveland is a nurse practitioner,
not a physician. Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence provided by a qualified physician.11 Because a nurse
practitioner is not a physician pursuant to the Act, Ms. Cleveland’s reports are of no probative
value in establishing that appellant’s orange discoloration caused or aggravated a personal
injury.12 Accordingly, Ms. Cleveland’s report is insufficient to establish that appellant’s orange
discoloration caused or aggravated a specific diagnosed condition. Appellant also provided
January 26 and March 8, 2007 laboratory printouts noting diagnostic testing results. However,
these reports are insufficient to establish the claim as they do not offer a physician’s opinion on
the cause of a specific diagnosed condition.13
Consequently, appellant did not meet his burden of proof as he did not provide reasoned
medical evidence explaining why a diagnosed condition was caused or aggravated by workplace
duties or exposures on January 24, 2007.
6

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

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

9

Judy C. Rogers, 54 ECAB 693 (2003).

10

The Board notes that in support of his appeal, appellant submitted additional medical evidence. The Board,
however, cannot consider this evidence for the first time on appeal because the Office did not consider this evidence
in reaching its final merit decision. The Board’s review is limited to the evidence in the case record at the time the
Office made its final merit decision. 20 C.F.R. § 501.2(c).
11

See Paul E. Thams, 56 ECAB 503, 509 (2005).

12

See 5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004); Thomas R. Horsfall, 48 ECAB 180 (1996).

13

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship). Moreover, it is unclear whether the laboratory printouts were authored by a physician. See supra notes
11 and 12.

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LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Act, the Office has discretion to grant a claimant’s request for
reconsideration and reopen a case for merit review. Section 10.606(b)(2) of the implementing
federal regulations provides guidance for the Office in using this discretion.14 The regulations
provide that the Office should grant a claimant merit review when the claimant’s request for
reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”15
Section 10.608(b) provides that, when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.16 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.17
ANALYSIS -- ISSUE 2
The Board finds that the Office improperly denied appellant’s request for reconsideration
without conducting a merit review. Appellant did not show that the Office erroneously applied
or interpreted a specific point of law, nor did he advance a new and relevant legal argument.
However, he did provide new and relevant evidence.
In support of his request for reconsideration, appellant submitted March 14 and August 8,
2007 reports from Dr. Johnson which had not been previously submitted. While the March 14,
2007 report does not provide support that appellant sustained an employment injury or condition,
the August 8, 2007 report addressed causal relationship, stating that appellant “had a local and
systemic allergic reaction to an unknown substance while delivering mail at work.” The Board
finds that because Dr. Johnson addressed causal relationship in a report that was not previously
of record, his reports constitutes new and relevant evidence. Therefore, the Office improperly
denied appellant’s claim for recurrence of disability without conducting a merit review, as
14

20 C.F.R. § 10.606(b)(2).

15

Id.

16

20 C.F.R. § 10.608(b) (1999).

17

Annette Louise, 54 ECAB 783 (2003).

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appellant met the third regulatory criterion by submitting new and relevant medical evidence.
The requirements for reopening a claim for merit review do not include the requirement that a
claimant submit all evidence which may be necessary to discharge her burden of proof.18 The
requirements pertaining to the submission of evidence in support of reconsideration only
specifies that there be relevant and pertinent new evidence not previously considered by the
Office.19
On remand, the Office should conduct a merit review of appellant’s claim and examine
the newly submitted evidence. After such further development as is deemed necessary, the
Office shall issue an appropriate merit decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty. However, the Board also finds that the
Office improperly denied appellant’s request for reconsideration without conducting a merit
review.
ORDER
IT IS HEREBY ORDERED THAT the June 25 and March 16, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed, and the August 23, 2007 decision of
the Office is set aside and the case remanded for further action consistent with this decision.
Issued: June 9, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

19

20 C.F.R. § 10.606(b)(2)(iii).

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