United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cincinnati, OH, Employer
_________________________________________

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

Docket Nos. 06-1525 & 06-1526
Issued: January 31, 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 June 14, 2006 appellant filed a timely appeal from a May 23, 2006 merit decision of
an Office of Workers’ Compensation Programs’ hearing representative and a June 12, 2006 merit
decision finding that she did not sustain an emotional condition while in the performance of duty.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
while in the performance of duty.
FACTUAL HISTORY
On October 11, 2005 appellant, then a 48-year-old social worker, filed a traumatic injury
claim assigned number 09-2068658 alleging that on October 5, 2005 Michael Toner, a

supervisor, verbally attacked her in an abusive manner. She stated that he inappropriately
reprimanded her, used derogatory language, shook a finger in her face and yelled at her.
On October 20, 2005 appellant filed a claim for an occupational disease assigned claim
number 09-2065276. She alleged that on October 5, 2005 she first realized that her mitral valve
prolapse via heart catheterization and cardiac arrest in February 1986 were exacerbated by workrelated stress. Appellant stated that, as a result of the verbal altercation of October 5, 2005, she
experienced escalated anxiety, chest pain, shortness of breath, light-headedness and a skin rash.
By letter dated November 1, 2005, the Office advised appellant to submit additional
factual and medical evidence to establish her claim. In a letter of the same date, the Office
requested that the employing establishment provide, among other things, a response to
appellant’s allegations.
Appellant submitted medical evidence covering the period March 17, 1987 through
October 6, 2005 regarding her heart, emotional and back conditions. She requested leave from
August 15, 2005 to August 14, 2006 under the Family Medical Leave Act. Appellant also
submitted correspondence from Mr. Toner concerning her ability to work and an injury report
regarding the October 5, 2005 incident.
In a November 4, 2005 letter, appellant contended that her heart attack in 1986 was
caused by work-related stress. She stated that the staff continually filed grievances regarding
labor problems at the employing establishment. Every day someone experienced a toxic and
negative situation. Appellant noted that in 2004 and 2005 outside investigative teams
interviewed a minimum of 50 employees which resulted in the termination of the head person of
the employing establishment and fiscal head. There was a subsequent middle management shift
and transition of employees including herself. Appellant stated that she consequently had
anxiety, chest pains, shortness of breath, fearfulness and depression. She reiterated that on
October 5, 2005 her supervisor lost control, verbally exploded and pointed his finger in her face.
He had previously lost control and harassed her over a period of two to three months despite her
requests to stop.
Appellant also alleged that she had employment-related post-traumatic stress disorder.
She stated that her supervisor’s administrative assistant was instructed to call her every morning
to assure that she was at her desk, to probe her health status and to inquire about her attendance
before a meeting. Appellant contended that she was reprimanded for whistle blowing and that
she was removed from the position of director and banished to a broom closet that was renovated
into an office. She was given the oldest computer as punishment and was unable to access to
some programs. Appellant contended that the union president told her that her supervisor stated,
“you’re a pain in the ass.”
Appellant alleged that, prior to the October 5, 2005 incident, Mr. Toner scolded her for
not being in her chair at exactly 9:00 a.m. She addressed her physical limitations and need for
medical accommodations. Appellant was reprimanded for taking a lunch break without
assigning someone to cover even though an announcement was made to the staff. She stated
that, on October 7, 2005, Mr. Toner called her to apologize for his outburst on October 5, 2005.

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Jonena Jones, an employing establishment social worker, stated that on October 5, 2005,
Mr. Toner used a tone of voice with appropriate concern when he advised appellant about the
importance of informing him about a threatening telephone call she received from a veteran. She
stated that, after Mr. Toner left work for the day, appellant voiced discontent about the
conversation.
Demetria Wilburn, an employing establishment social worker, related that, on October 5,
2005, she observed Mr. Toner and appellant having a normal conversation. She did not hear
what was being said as she walked by to enter her office.
In a November 4, 2005 narrative statement, Mr. Toner related that, on October 5, 2005,
he reprimanded appellant in a normal tone of voice for failing to immediately notify him about a
telephone call she received from a psychiatric patient who threatened to come to the employing
establishment and kill several staff members. Instead of acknowledging her failure to timely
inform him, appellant became argumentative and defended her actions. Mr. Toner related that
on her second day off from work following the reprimand, he telephoned her at home to see how
she was doing. He denied appellant’s allegation that he yelled and screamed at her. Mr. Toner
later learned that she incorrectly believed that his denial was an apology for the reprimand, as
this conversation with her was an appropriate action for the situation. He also denied any finger
pointing.
In an undated narrative statement, appellant alleged that Mr. Toner was still harassing her
and wanted her to serve as his secretary despite her position as a social worker/therapist. She
stated that she filed an unfair labor practice grievance. Appellant noted that no other social
worker had been asked to serve as the supervisor’s secretary. She submitted email messages
dated November 18, 2005 regarding Mr. Toner’s request that she serve as secretary due to a staff
shortage during the holiday season. Mr. Toner’s November 22, 2005 email message requested
that appellant coordinate social work interventions as a patient was confused as to who had been
assigned as his social worker. He noted that the patient had spoken to appellant who contended
that this request constituted harassment because it did not apply to her.
By decision dated January 6, 2006, the Office denied appellant’s claim, finding that she
did not sustain an emotional condition while in the performance of duty. It found that her
reprimand by Mr. Toner on October 5, 2005, disciplined for failing to be in her seat at 9:00 a.m.
and assigned work duties by him did not constitute compensable factors of employment as she
failed to establish error or abuse by Mr. Toner in handling these administrative matters. In
addition, the evidence of record failed to establish that the employing establishment retaliated
against appellant for whistle blowing, it demoted and reassigned her and gave her a smaller
office and defective computer, that Mr. Toner’s administrative assistant checked on her or that he
harassed her over her medical restrictions or employment-related conditions.
On January 14, 2006 appellant requested a review of the written record by an Office
hearing representative.
By letter dated February 21, 2006, the Office notified appellant that the evidence
submitted in support of her traumatic injury claim was insufficient. It advised her to submit
factual and medical evidence to establish her claim.

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The Office received duplicate copies of Ms. Jones’, Ms. Wilburn’s and Mr. Toner’s
statements. In a February 14, 2006 narrative statement, Mr. Toner again denied that appellant
was scolded on October 5, 2005. He stated that neither he nor anyone else used loud language,
finger pointed, name called or used threatening behavior. Mr. Toner related that appellant was
treated with respect even when she was given a verbal reprimand for problematic or
unprofessional behavior. He reiterated that the verbal reprimand on October 5, 2005 was
appropriate due to her bad judgment and the risk of danger to staff members.
In an October 5, 2005 report of contact, Larry L. Reeves, a police officer, stated that at no
time on that date did Mr. Toner raise his voice or point his finger while talking to appellant.
An October 6, 2005 note from Dr. Peter Kotcher, an employing establishment physician,
stated that on October 5, 2005 she received appellant’s note indicating that a patient made
homicidal threats while on the telephone with her. Dr. Kotcher noted that he had contact with
the patient on October 4, 2005 and telephoned him again on October 5, 2005. He requested that
the patient be taken into custody for a psychiatric evaluation. The patient telephoned
Dr. Kotcher, vehemently denying that he made any threatening statements to appellant and that
he had no intent of committing a violent act. He said that he was taken to the hospital by eight
policemen and released at 2:30 a.m. Dr. Kotcher stated that, during his years of knowing the
patient, he did not think or know him to be a violent man.
By decision dated March 27, 2006, the Office denied appellant’s traumatic injury claim,
finding that she did not sustain a physical condition while in the performance of duty. The
factual evidence of record was insufficient to establish a verbal altercation on October 5, 2005 as
alleged. The medical evidence of record failed to establish that appellant sustained a medical
condition causally related to the October 5, 2005 incident.
On March 31, 2006 appellant requested reconsideration of the Office’s March 27, 2006
decision.
In a March 8, 2006 letter, Mr. Toner admonished appellant for failing to follow leave
procedures. She left the employing establishment prior to the end of her tour of duty without
requesting leave on March 7, 2006. In a March 13, 2006 letter, Joseph L. Jones, union president,
stated that on that date he witnessed appellant being interviewed by Mr. Toner. Mr. Jones
questioned him about whether appellant left the employing establishment or just went to her car.
Mr. Toner stated that she was observed going to her vehicle but not departing the property. On
March 13, 2006 appellant filed an administrative grievance regarding the letter of admonishment.
She stated that, due to her physical disability, it was standard procedure for her to take her
personal belongings to her car, which was parked in the handicapped parking lot and drive it to
the security parking lot for accessibility and safety reasons. Appellant alleged that she was
bullied and interrogated as to whether she transported government documents, such as patient
records to her car. The employing establishment denied her request for a list of coworkers who
allegedly reported her.
In an April 21, 2006 statement, appellant alleged that John Scheper, a coworker, stated
that he had observed Mr. Toner lose it, freak out, jump at everybody for no reason, make
assumptions and administer punishment before facts were established. Appellant alleged that

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she was instructed by Judy Pflaumer, an employing establishment nurse, and Dr. Karen Barnes,
an employing establishment physician, to turn Mr. Toner in to the social work board
immediately.
On June 6, 2006 the Office doubled appellant’s claims into a master case file assigned
number 09-20652676 since they involved the October 5, 2005 incident.
In a May 25, 2006 email message, Mr. Toner reiterated that appellant had always been
treated with patience and respect and that management had tried to accommodate her. A
May 25, 2006 email message from Helene Dreibelibis, an employing establishment employee,
stated that the atmosphere during the March 13, 2006 meeting was professional in nature and
appellant was not bullied or mistreated in any manner. In a May 25, 2006 email message,
Mr. Gilligan related that he had worked with Mr. Toner from 1981 to 1990. He stated that,
during his entire association with Mr. Toner, he was impressed with his professional skills and
demeanor. Mr. Gilligan considered Mr. Toner to be a model of a consummate professional
social worker. He was an honest and hardworking individual who performed his duties without
bias or prejudice. Mr. Gilligan had not heard any type of complaint from anyone, patient or staff
member about Mr. Toner’s behavior. He stated that he never discussed Mr. Toner with appellant
at any time. They only discussed expanding union coverage to professional and/or supervisory
personnel.
By decision dated May 23, 2006, an Office hearing representative affirmed the denial of
appellant’s claims. The hearing representative found that the evidence of record failed to
establish: that the employing establishment committed error or abuse in reprimanding appellant
on October 5, 2005; that Mr. Toner had verbally abused appellant during this meeting; or that she
was subjected to years of harassment at the employing establishment.
By decision dated June 12, 2006, the Office modified the March 27, 2006 decision to
reflect that appellant was reprimanded by Mr. Toner on October 5, 2005. It found, however, that
the incident did not constitute a compensable factor of employment as appellant failed to
establish that Mr. Toner committed error or abuse in this administrative matter. The Office also
found that the evidence of record failed to establish that appellant was verbally abused by
Mr. Toner.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.1 To establish that she sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that she has an emotional or psychiatric disorder;

1

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

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and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
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 under the Act.5 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.6
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 under the Act.
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.7 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.8
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. 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 her frustration from not being
permitted to work in a particular environment or to hold a particular position.9 Generally,
2

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

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

6

Lillian Cutler, supra note 3.

7

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

8

Id.

9

Lillian Cutler, supra note 3.

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actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.10
However, 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.11
ANALYSIS
Appellant attributes her emotional condition to verbal abuse by Mr. Toner on October 5,
2005 when she was reprimanded for failing to report a telephone call she had received from a
psychiatric patient who allegedly threatened to kill staff members. She contends that he used
derogatory language, shook a finger in her face and yelled at her. Appellant also attributed her
emotional condition to receiving a letter of admonishment from Mr. Toner for failing to follow
leave procedures on March 7, 2006 before the end of her tour of duty. She alleged that she was
bullied and interrogated during the meeting on March 13, 2006 regarding this disciplinary action
and filed a grievance. The Board notes that the disciplinary actions involve an administrative
function of appellant’s supervisor and not the employee’s regular or specially assigned work
duties.12 The filing of a grievance related to the issuance of the admonishment letter and meeting
also involves an administrative matter.13 Dr. Kotcher stated that although he did not know the
patient to be a violent person, he requested that the patient be taken into custody for a psychiatric
evaluation based on appellant’s report of homicidal threats. The patient was subsequently
released. Mr. Toner denied verbally abusing appellant on October 5, 2005 when he discussed the
matter with her. He stated that he reprimanded her in a normal tone of voice and believed that
the reprimand was appropriate as she failed to immediately inform him about a threat to harm
staff members. Mr. Toner noted that appellant was treated with respect when she was given
prior verbal reprimands for problematic or unprofessional behavior. Ms. Jones stated that she
observed Mr. Toner and appellant on that day. She noted that Mr. Toner used an appropriate
tone of voice in reprimanding appellant. Officer Reeves, also present that day, stated that at no
time did Mr. Toner raise his voice or point his finger while talking to appellant. Mr. Gilligan
stated that he never discussed Mr. Toner with appellant. He only asked her about signing a
petition to extend union representation to professional employees. Ms. Wilburn stated that on
October 5, 2005 Mr. Toner and appellant were having a normal conversation even though she
did not hear what they were saying. Although appellant alleged that Mr. Scheper had observed
Mr. Toner on many occasions, she did not submit a statement from Mr. Scheper to support her
allegations. Her allegations as to what he stated are not substantiated in the record.
Regarding the March 13, 2006 meeting, Ms. Dreibelibis stated that the atmosphere of the
meeting was professional and appellant was not bullied or mistreated in any manner. Mr. Jones
was present at the meeting but did not report any abusive behavior by Mr. Toner in interviewing
appellant. Mr. Toner clarified that appellant was observed on March 7, 2006, going to her car
10

Michael L. Malone, 46 ECAB 957 (1995).

11

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

12

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).
13

Diane C. Bernard, 45 ECAB 223 (1993).

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and not leaving the employing establishment’s premises. Appellant explained that she did not
leave the employing establishment but was following standard procedure in putting her
belongings in her car. The record does not contain any evidence that Mr. Toner erred or acted
abusively in issuing the admonishment letter.
Based on the statements of Mr. Toner, Dr. Kotcher, Ms. Jones, Officer Reeves,
Mr. Gilligan and Ms. Dreibelibis, the Board finds that appellant has not established error or
abuse on the part of the employing establishment in disciplining her for failing to report a threat
or request leave.
Appellant further alleged years of harassment at the employing establishment. She stated
that grievances were constantly filed by employees regarding labor problems. Appellant noted
that outside investigations took place in 2004 and 2005 which resulted in the removal of certain
personnel. However, there is no evidence to substantiate harassment in any such action. She
stated that Mr. Toner harassed her for two to three months despite her request asking him to stop.
Appellant contends that Mr. Toner instructed his administrative assistant to harass her by calling
her every morning to make sure she was at her desk, probe her health status and inquire about
her attendance before a meeting. She alleged that she was reprimanded for whistle blowing,
removed from the position of director and her office was relocated and she was given a defective
computer. Appellant related that Mr. Toner scolded her for not being in her chair at 9:00 a.m.,
for her physical limitations and need for medical accommodation and for taking a lunch break
without assigning someone to cover for her. The Board notes that harassment and verbal abuse
when shown to have occurred is considered a compensable factor of employment. However,
there must be some evidence that such implicated acts of harassment did, in fact, occur. Mere
perceptions of harassment or discrimination are not compensable under the Act. A claimant
must establish a factual basis for allegations that the claimed emotional condition was caused by
factors of employment.14
Appellant did not provide evidence to substantiate her allegations that she was harassed
by Mr. Toner’s administrative assistant, improperly reprimanded for whistle blowing, for her
physical limitations, failing to be at her desk at an appointed time or to provide coverage during
her absence. Although appellant alleged that a union representative told her about a derogatory
comment, she did not provide a statement from the representative to corroborate the statement.
Similarly, appellant alleged that Ms. Pflaumer and Dr. Barnes advised her to turn Mr. Toner in to
the social work board for harassment. Again, she did not provide statements from these
individuals to substantiate her allegation of harassment. The Board finds that appellant has not
established a factual basis for her perceptions of harassment by Mr. Toner as she did not provide
any probative evidence that harassment occurred.15 Therefore, she did not establish a
compensable employment factor with respect to harassment.16
14

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
15

James E. Norris, 52 ECAB 93 (2000).

16

See Jamel A. White, 54 ECAB 224 (2002).

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Appellant alleged that she was asked to serve as Mr. Toner’s secretary despite being a
social worker and that no other social worker was asked to work in this position. An employee’s
complaints concerning the manner in which a supervisor performs his or her duties as a
supervisor or the manner in which a supervisor exercises his or her supervisory discretion fall, as
a rule, outside the scope of coverage of the Act. This principle recognizes that a supervisor or
manager, in general, must be allowed to perform their duties and that employees will at times
dislike the actions taken.17 Furthermore, mere disagreement or dislike of a supervisory or
management action will not be compensable without a showing through supporting evidence that
the incidents or actions complained of were unreasonable.18 The evidence substantiates that
Mr. Toner asked appellant to work as his secretary due to a staff shortage during the holiday
season. He further asked her to coordinate social work interventions because a patient was
confused as to who had been assigned as his social worker. As there is no evidence of record to
substantiate appellant’s allegations that Mr. Toner acted unreasonably in making these requests.
The Board finds that she failed to establish a compensable factor of employment under the Act.
CONCLUSION
As appellant has not identified any compensable factors of her employment, the Board
finds that she has failed to establish that she sustained an emotional condition while in the
performance of duty.19

17

Judy L. Kahn, 53 ECAB 321 (2002).

18

Id.

19

As appellant has not submitted the necessary evidence to substantiate a compensable factor of employment as
the cause of her emotional condition, the medical evidence relating appellant’s emotional condition need not be
addressed. Karen K. Levene, 54 ECAB 671 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the June 12 and May 23, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 31, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 09-1538
Issued: February 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 29, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated January 8, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional or physical condition causally
related to compensable work factors.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By order dated March 18, 2008, the
Board remanded the case for further development. The Board noted that the Office had failed to
properly address and make findings with respect to the evidence of record.1 The history of the
case as provided by the Board is incorporated herein by reference.
1

Docket No. 08-34 (issued March 18, 2008).

By decision dated April 7, 2008, the Office denied the claim for compensation. With
respect to compensable work factors, it did accept that certain disciplinary actions, including a
May 1, 2005 emergency suspension, a seven-day suspension in March 2005, and disciplinary
actions resulting in appellant’s removal from employment in January 2006, were compensable
work factors. The Office determined the medical evidence was insufficient to establish an injury
in the performance of duty.
Appellant requested reconsideration on October 10, 2008. He submitted a July 21, 2008
report from Dr. Barry Fisher, a psychiatrist, who indicated that appellant had been treated for
anxiety and depression since 1999. Dr. Fisher stated that on reviewing his records there seemed
to be “a clear correlation between increasing work[-]related stress and worsening glucose
metabolism and increasing blood pressure.” He concluded that given appellant’s anxiety and
irritability, appellant should be considered fully disabled on the basis of his psychiatric
condition. In a September 25, 2008 report, Dr. Fisher reiterated that appellant was disabled for
work.
By decision dated January 8, 2009, the Office denied modification. It found that
appellant had not established a condition causally related to compensable work factors.
LEGAL PRECEDENT
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 factors of his federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.3 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.5
2

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

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

4

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

5

Lillian Cutler, 28 ECAB 125 (1976).

2

A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.6 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.7
ANALYSIS
In this case appellant’s statements regarding the factors of employment he believed
contributed to a diagnosed injury have not been particularly detailed. He stated, for example,
“On June 9, 1998 due to constant harassment of Postal Management, stressors aggravated my
gout and began a stressful workplace environment.” The record contains little evidence
regarding actions of the employing establishment in 1998. Appellant also refers to a
November 1999 incident where he was falsely accused of violating a zero tolerance policy, but
notes a prior claim for compensation. It may be that these incidents were considered in the prior
claim. In any case, no probative evidence regarding a compensable work factor in 1998 or 1999
was presented in this case.
Appellant further alleged, “From November 2004 through May 2005 stressors such as an
acting supervisor and certain employees caused my mental condition to be further complicated
with such actions as threats, finger pointing, swearing, removals and suspensions all of which
were eventually resolved in my favor. This tremendously worsened my mental condition.”
Appellant also noted that he was removed from employment in January 2006 and then reinstated.
With respect to certain incidents in 2005 and 2006, the Board notes that evidence does establish,
and the Office accepted, certain compensable work factors. As noted above, error or abuse in an
administrative matter is a compensable work factor. An emergency suspension given on May 1,
2005 was found to be improper by an arbitrator in a February 21, 2006 decision. In addition, an
arbitrator in a June 21, 2006 decision found that actions of the employing establishment
regarding appellant’s removal from employment in January 2006 were improper. Since
appellant was purportedly subject to an emergency suspension, he could not be held to have
violated attendance requirements. Therefore disciplinary actions regarding the removal, such as
an October 28, 2005 letter of warning, notices of removal dated December 5 and 7, 2005, a
January 9, 2006 removal decision, and the removal from employment itself, were erroneous and
are compensable work factors.
The Board notes that the Office found two other disciplinary actions as compensable. A
seven-day suspension was issued on March 14, 2005 for a March 3, 2005 incident. A brief
“prearbitration settlement agreement” dated January 27, 2006 stated the suspension was
rescinded. In another January 27, 2006 settlement agreement, a suspension issued for actions on
April 29, 2005 was reduced to a letter of warning. It is well established that the mere reduction

6

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

7

Margreate Lublin, 44 ECAB 945, 956 (1993).

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or rescission of a disciplinary action does not itself establish error or abuse.8 In the absence of
additional evidence, the record does not establish a compensable work factor regarding these
disciplinary actions.
The record contains a number of additional disciplinary actions taken against appellant,
with no probative evidence of error or abuse presented. There is a July 13, 2007 settlement
agreement addressing an October 20, 2006 letter of warning, a November 29, 2006 notice of
proposed removal and a December 21, 2006 letter of decision. According to the settlement
agreement, these actions were rescinded. The agreement explicitly stated that it did not
constitute an admission of error by any party. As noted, the rescission of a disciplinary action
does not necessarily make it erroneous.
As to appellant’s general allegations of threats and finger pointing, he did not provide any
detail or evidence to establish compensable work factors in this regard. The Board accordingly
finds the compensable work factors are limited to the May 1, 2005 emergency suspension and
the actions of the employing establishment regarding the removal from employment for failure to
meet attendance requirements, culminating in appellant’s removal in January 2006.
Since there are compensable work factors, the medical evidence must be considered on
the issue of causal relationship. In this case appellant has not submitted any probative medical
evidence establishing an injury causally related to the compensable work factors. In a report
dated May 25, 2005, Dr. Joseph Fetchko, a psychiatrist, noted that appellant found it very
stressful at work, but the only incident noted is a supervisor calling appellant into his office
regarding work performance. He does not provide a rationalized medical opinion regarding a
diagnosed condition and the accepted work factors.
In a July 20, 2005 report, Dr. Fetchko
noted that appellant was under stress due to being “involuntarily unemployed” without providing
further detail. Dr. Fisher referred generally to “work[-]related stress” but did not discuss the
specific compensable factors or provide a rationalized medical opinion on causal relationship
between a diagnosed condition and the compensable work factors.
The Board accordingly finds that appellant did not meet his burden of proof in this case.
Appellant did not submit probative medical evidence establishing a diagnosed emotional or
physical condition causally related to the compensable work factors.
CONCLUSION
The Board finds appellant did not establish an injury causally related to compensable
factors of his federal employment.

8

See Michael Thomas Plante, 44 ECAB 510 (1993); Richard J. Dube, 42 ECAB 916 (1991) (reduction of a
disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing
establishment).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2009 is affirmed.
Issued: February 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison, AL, Employer
__________________________________________

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Appearances:
Lauren Shine, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0100
Issued: June 20, 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 17, 2017 appellant, through counsel, filed a timely appeal from a
September 26, 2017 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.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

5 U.S.C. § 8101 et seq.

3
Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated March 14, 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. 18-0100 (issued March 14, 2018).

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On January 4, 2016 appellant, then a 52-year-old sales services distribution associate, filed
a traumatic injury claim (Form CA-1) alleging that on December 7, 2015 she suffered a stroke
while in the performance of duty due to stress caused by Postmaster R.G. She stated that on the
date of injury she worked for 6 hours, took a 10-minute break, and then worked for an additional
5½ hours prior to developing the blood clot on the left side of her brain which caused her stroke.
Appellant has not returned to work.
On January 14, 2016 the employing establishment controverted appellant’s claim. It
disagreed with the factual allegations, noting that the events “do not seem to be work related.” An
employing establishment representative, R.L., noted that no medical documentation had been
submitted which supported appellant’s claim.
In a development letter dated January 22, 2016, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. It afforded her 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a hospital report dated December 7, 2015 indicating that
she had been diagnosed with acute left frontal lobe cerebrovascular accident and expressive
aphasia.
A December 8, 2015 magnetic resonance imaging (MRI) scan of the brain revealed a small
area of evolving left front lobe infarct.
In reports dated January 12 and 14, 2016, Dr. Amit Arora, a Board-certified neurologist,
diagnosed left middle cerebral artery stroke and released appellant to part-time, limited-duty work.
In a series of narrative statements appellant made general allegations relating to her
treatment by the employing establishment and more specifically R.G. She claimed that she had a
stroke on December 7, 2015 due to stress caused by the actions of R.G.4 Appellant noted several
4

Appellant claimed that several facts and items supported her claim including: (1) that appellant was placed on
light duty by the employing establishment; (2) documents regarding the employing establishment’s guidance on
harassment issues; (3) appellant cut her lunch break short because she was so busy; (4) no one went to the hospital
with appellant to tell them what happened; (5) R.G. tried to get another employee to do appellant’s bid job; (6) R.G.
was trying to make jobs for people without following the bidding process; (7) a coworker received a lot of favoritism
and was pressuring R.G. to get appellant to do her job; (8) appellant asked to take a refresher course for the window;
(9) appellant could not get any help from the employing establishment regarding workers’ compensation paperwork;
(10) R.G. did not complete an accident report; (11) appellant was not shown any acknowledgement for her
contribution in a Thanksgiving event; (12) R.G. stood and watched the group throw parcels; (13) R.G. asked appellant
questions about Family and Medical Leave Act (FMLA); (14) appellant told R.G. that someone was smoking on the
back dock; (15) R.G. told staff about him being drunk and walking up “next to a fat girl” and saying that he had to get
out of there; (16) R.G. introduced a new staff member and stated that appellant was reassigned because she did not
have FMLA, had a good work record, and did not file grievances; and (17) R.G. called appellant into his office for 40
minutes before letting her leave the office.

2

events on the date of her work shift during which she had her stroke, as causative factors. She
noted that: on that date she was provided only 1 break limited to 10 minutes; appellant had arrived
at work at midnight and had a break at 6:00 a.m.; and that R.G. denied appellant a lunch, a break,
or even time to get something to eat or drink. Appellant noted that, after being taken to the break
room when falling ill, the paramedics were called, and she was in disbelief that nobody was sent
to ride in the ambulance with her.
Appellant also made several allegations regarding the treatment she had received as an
employee under R.G. in the period of time leading up to the date of her stroke which coincided
with the busy holiday season. She generally noted that her schedule was constantly changing,
breaks were denied, she had been singled out in having her breaks denied, she was bullied, that he
put his arm on her, and that her blood pressure rose when she was bullied.5
Appellant submitted additional medical evidence dated September 9, 2013 through
August 12, 2015 in support of her claim.
By decision dated April 12, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish an emotional condition arising from a compensable
factor of employment.
Appellant subsequently submitted medical evidence dated January 5, 2010 through
March 28, 2016.
On April 28, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
On June 7, 2016 appellant submitted copies of largely illegible text messages to support
her claims against R.G.
By decision dated September 2, 2016, the hearing representative found that the case was
not in posture for review and remanded the case for OWCP to make findings of fact as to whether

5

Appellant made numerous allegations specifically against R.G. in a subsequent statement, including that:
(1) several mornings before her stroke R.G. would play with her hours, (2) R.G. never told anyone to take another
break or go to lunch, (3) R.G. knew what he was doing by changing her work hours almost every day; (4) she was the
only one whose start hours were changed; (5) on the day of her stroke, R.G. did not allow the employees to get anything
to eat or drink; (6) R.G. admitted to appellant and her female coworker that his fault was women; (7) R.G. was back
to his bullying self; (8) D.W. stated that he would not allow R.G. to bully him; (9) J.K. claimed that he would not take
R.G.’s mouth; (10) appellant was seeking monetary settlement to stop R.G. from bullying because he tried to pick
fights with her and he enjoyed making her feel as if she did something wrong; (11) appellant arrived to work at
midnight and did not get a break until 6:00 a.m.; (12) R.G. would change her hours from midnight to 4:00 a.m.;
(13) appellant was the only clerk whose hours were changed; (14) appellant’s blood pressure went up after R.G. started
harassing her; (15) everywhere R.G. went he had trouble; (16) the Alabama District knew R.G. was trouble;
(17) appellant considered R.G. to be the biggest bully she had ever known and he used his position to account for his
actions of bullying, he kept calling her out in front of people, fussed at her on the floor, talked to her like trash, she
claimed to be his “Cinderella,” and was fed up with his bullying and the longer he was there the more afraid of him
she got; (18) appellant knew R.G. was the reason for her stroke; (19) R.G. was a sexual harassment big bully; (20) R.G.
walked up behind appellant and put his arm around her neck and asked her, “How are you today?”; (21) R.G. stated
that appellant was pretty in uniform; (22) R.G. stated that, “Isn’t it about time for you to leave?”; (23) R.G. told carriers
how stupid they were; and (24) R.G. had been on appellant’s case ever since he met a person named M.B.

3

the evidence submitted established the alleged incidents had occurred and whether the incidents
were compensable factors of employment.
Appellant submitted an August 25, 2016 progress report from Dr. Arora who indicated that
appellant denied new stroke-like symptoms since her last office visit.
Appellant submitted additional narrative statements dated January 9, 2015 reiterating her
allegations and documentation dated January 7 and 9, September 25, and October 16, 2015 related
to her two Equal Employment Opportunity (EEO) complaints that she had filed.
In a witness statement dated September 29, 2016, K.T. indicated that appellant came in at
midnight the day of her stroke, December 7, 2015, when her usual time was 4:00 a.m. The
coworker stated that R.G. was having appellant come in “at all crazy hours” and that he did not
give breaks or lunches on the day of her stroke. K.T. claimed that R.G. not only denied lunches
or breaks, but he told employees that they would “have to earn them.” He noted that at 6:00 a.m.
a coworker, D.W., stated that he was going to go get breakfast and he returned from “Jack’s” and
had gotten everyone something to eat. K.T. stated that he saw appellant standing over the trash
can for maybe 10 minutes trying to eat a biscuit, but the supervisor kept “hurrying [appellant] up
to get back to work.” He also noted that he had previously been involved in appellant’s second
EEO complaint and he had testified that she or R.G. had to be removed or something bad was
going to happen and a few weeks thereafter she had her stroke.
In a statement dated October 4, 2016, R.G. indicated that the allegations made against him
by appellant were totally false. He stated that she was not mandated by him to work 12 hours, no
one was denied a break at any time, and no one was mandated to work without having a break.
R.G. indicated that he had not called appellant “stupid,” nor had he called her any other names.
He stated that no hours had been changed, both EEO complaints had no findings of wrong-doing
by him, and the information she had provided was not factual as breaks and lunches were allowed.
In an October 13, 2016 e-mail message, R.L., a subsequent Postmaster at the employing
establishment, stated that she heard nothing that would make her think R.G. had done anything
other than try to make a difference in his employing establishment and that his efforts were met
with severe opposition from the employees.
In an e-mail message dated October 20, 2016, D.M. stated that she “was involved with”
the employing establishment from March 2015 until February 2016 and was aware that several
employees did not like R.G. She indicated that during that time she never witnessed R.G.
“targeting” or “bullying” an employee. D.M. noted that many employees had excessive attendance
issues and, to her knowledge, R.G. had chosen to attempt to “coach” employees concerning
performance/attendance issues.
By decision dated January 5, 2017, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish an emotional condition arising from a compensable factor of
employment. It found that none of the alleged incidents were compensable factors of her federal
employment.
On February 7, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.

4

The hearing was held on July 12, 2017. Appellant provided testimony and the hearing
representative held the case record open for 30 days for the submission of additional evidence.
OWCP did not receive additional evidence.
By decision dated September 26, 2017, OWCP’s hearing representative affirmed the
January 5, 2017 decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
(1) medical evidence establishing that he or she has an emotional or stress-related disorder;
(2) factual evidence identifying employment factors or incidents alleged to have caused or
contributed to her condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to her stress-related condition.6 If
a claimant does implicate a factor of employment, OWCP should then determine whether the
evidence of record substantiates that factor.7 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, OWCP must
base its decision on an analysis of the medical evidence.8
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 or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.9 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 or her frustration from not being permitted to work in a particular environment or to hold a
particular position.10
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from a claimant’s performance of his or her regular duties,
these could constitute employment factors.11 However, for harassment to give rise to a
compensable disability under FECA there must be evidence that harassment did, in fact, occur.
Mere perceptions of harassment are not compensable under FECA.12

6

M.C., Docket No. 18-1354 (issued April 2, 2019); Leslie C. Moore, 52 ECAB 132 (2000).

7

B.G., Docket No. 18-1080 (issued March 26, 2019); Dennis J. Balogh, 52 ECAB 232 (2001).

8

Id.

9

Supra note 2; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

10

See D.B., Docket No. 18-1025 (issued January 23, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

11

See M.R., Docket No. 18-0304 (issued November 13, 2018); David W. Shirey, 42 ECAB 783, 795-96 (1991);
Kathleen D. Walker, 42 ECAB 603, 608 (1991).
12

A.E., Docket No. 18-1587 (issued March 13, 2019); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

5

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.13 However,
the Board has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.14
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.15
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.16 This burden includes the submission of a detailed
description of the employment factors or conditions, which he or she believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion relating
the claimed condition to compensable employment factors.17
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.18 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.19
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she suffered a stroke as a result of a number of employment incidents
and conditions. OWCP denied her claim finding that she had failed to establish a compensable
employment factor. The Board must, thus, initially review whether these alleged incidents and
conditions of employment are covered employment factors under the terms of FECA.

13

See C.A., Docket No. 18-0824 (issued November 15, 2018); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D.
McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
14

I.P., Docket No. 17-1178 (issued June 12, 2018); William H. Fortner, 49 ECAB 324 (1998).

15

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

16

M.R., Docket No. 16-0125 (issued October 2, 2017); Pamela R. Rice, 38 ECAB 838, 841 (1987).

17

A.C., Docket No. 18-0484 (issued September 7, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

18

L.Y., Docket No. 18-1619 (issued April 12, 2019); F.K., Docket No. 17-0179 (issued July 11, 2017); S.W., Docket
No. 15-1260 (issued November 4, 2015).
19

Id.

6

The Board notes that appellant’s allegations do not pertain to her regular or specially
assigned duties under Cutler.20 Rather, appellant has alleged that she was stressed due to a hostile
work environment and harassment by R.G., in addition to instances of overwork and changes in
her work hours and break times resulting in her suffering a stroke while at work. The Board has
found that administrative or personnel matters are considered to be compensable employment
factors where the evidence shows 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
Regarding appellant’s general contention that she was subjected to harassment at work,
particularly by the R.G., the Board has held that mere perceptions of harassment or discrimination
are not compensable under FECA,22 and unsubstantiated allegations of harassment or
discrimination are not determinative of whether such harassment or discrimination occurred. A
claimant must establish a factual basis for his or her allegations with probative and reliable
evidence.23 Although appellant indicated that she had filed two EEO complaints, the record does
not contain documentation in support of such a complaint being successful in establishing
harassment or other misconduct by R.G. The Board has long held that grievances and EEO
complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred.24 The Board finds that the employing establishment’s report of its investigation of R.G.,
is not a finding of harassment. It is not for OWCP or the Board to prejudge matters which appear
to still be pending such as EEO matters.25 In the absence of such a decision, the evidence as it
currently stands is insufficient to discharge appellant’s burden of proof to substantiate her
allegations of harassment in the workplace. Appellant submitted nothing other than her own
statements which might show a persistent disturbance, torment, or persecution, i.e., mistreatment
by employing establishment management.26 As such the Board finds that she has not met her
burden of proof to establish a factual basis for her general claims of harassment by probative and
reliable evidence.27

20

See Lillian Cutler supra note 9.

21

L.D., Docket No. 15-0706 (issued May 9, 2016).

22

D.F., Docket No. 17-1324 (issued April 24, 2018); James E. Norris, 52 ECAB 93 (2000).

23

Id.

24

G.R., Docket No. 15-0052 (issued September 22, 2017); Parley A. Clement, 48 ECAB 302 (1997).

25

See C.O., Docket No. 12-1435 (issued January 15, 2013) (where the record did not contain any supportive witness
statements, any evidence regarding the findings of an EEO investigation or a final EEO decision that would establish
harassment); T.F., Docket No. 12-0439 (issued August 20, 2012) (where the Board found that without a formal final
decision that a coworker’s actions did, in fact, violate the employing establishment’s zero tolerance policy on threats,
assault and violence, an investigative report was not sufficient to discharge the claimant’s burden of proof to
substantiate his allegations of harassment by the coworker and error by management).
26

Z.S., Docket No. 16-1783 (issued August 16, 2018); Beverly R. Jones, 55 ECAB 411 (2004).

27

R.V., Docket No. 18-0268 (issued October 17, 2018); Robert Breeden, 57 ECAB 622 (2006).

7

Appellant has also alleged that she was overworked and denied breaks on the day of her
stroke and that these acts, along with R.G. “messing around” with her hours, occurred in the time
immediately prior to December 7, 2015 when she suffered her stroke.
The Board has held that overwork, when substantiated by sufficient factual information to
corroborate appellant’s account of events, may be a compensable factor of employment.28 In this
case, appellant made specific statements relating to being overworked during the holiday period
and having her hours changed and generally extended by R.G. Her statements are substantiated
by the statement of her coworker, K.T. who confirmed that R.G. was having her come in “at all
crazy hours” and that R.G. had not provided breaks or lunches on the day of her stroke. K.T. stated
that while he did notice appellant attempting to eat a biscuit over a trashcan, he also indicated that
her supervisor kept “hurrying her up to get back to work.” Moreover, in R.G.’s October 4, 2016
statement he acknowledged that she worked 12-hour shifts, but stated that these hours were not
mandatory. The record substantiates appellant’s contentions that she was overworked, especially
on December 7, 2015 when she was instructed to arrive at work 4 hours early, was then required
to work 6 hours prior to a 10-minute break, and she was denied a break or even sufficient time to
eat or drink. The Board therefore finds that she has established a compensable employment factor
relating to overwork.
On appeal counsel contends that OWCP has improperly developed the claim as an
occupational disease claim. Rather, she contends that OWCP should have developed the claim as
a traumatic injury claim in which appellant sustained a stroke because, on the night of the stroke,
appellant was not allowed to take appropriate breaks, including meal breaks after enduring
incredibly long overtime hours on the days leading up to her stroke at work. The Board has found
that appellant has established a compensable employment factor for an occupational disease claim,
leaving the issue of causal relationship between the accepted factor of overwork and the stroke.
The Board does find, however, that counsel’s contention has merit and thus, on remand to OWCP,
it should also consider whether appellant has, in the alternative, met her burden of proof to establish
a stroke causally related to a traumatic incident on December 7, 2015.
By denying appellant’s claim, OWCP has not reviewed the medical opinion evidence
submitted on the issue of causal relationship. The Board will therefore set aside OWCP’s
September 26, 2017 decision and remand the case for review of the medical evidence as it relates
to the accepted compensable factor of employment and in relation to a traumatic employment
incident.29 After such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

28

See supra note 14.

29

See E.M., Docket No. 16-1695 (issued June 27, 2017); Tina E. Francis, 56 ECAB 180 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the September 26, 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: June 20, 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
__________________________________________
C.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION, OFOCHICAGO, McAllen, TX, Employer
__________________________________________

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

Docket No. 10-2275
Issued: July 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 10, 2010 appellant, through his attorney, filed a timely appeal from an
August 12, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied his claim for wage-loss compensation. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant is entitled to compensation for the period commencing
April 25, 2007.
On appeal appellant’s attorney contends that OWCP’s August 12, 2010 decision was
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 10, 2009 appellant, then a 30-year-old former customs and border protection
officer, filed an occupational disease claim (Form CA-2) alleging that he injured his back after
falling from a chair in the performance of duty on November 9, 2006. He also indicated that his
job required sitting which caused back and leg pain. Appellant filed a traumatic injury claim
(Form CA-1) for the same November 9, 2006 fall. OWCP accepted a lumbar sprain and
aggravation of degenerative disc disease (OWCP File No. xxxxxx968).2
By letter dated September 12, 2007, appellant was terminated from his employment on
the grounds that he was absent from duty for considerable periods of time during his two-year
internship and was unable to perform his full range of duties. The employing establishment
noted that appellant sustained an injury on November 9, 2006.
By letters dated May 4, 2009, OWCP requested additional information from appellant
and the employer regarding appellant’s claim which allegedly occurred prior to his termination.
In an August 27, 2007 medical report, Dr. Bryon W. Thomas, a Board-certified family
practitioner, diagnosed low back pain with right lower extremity radiculopathy and
hyperlipidemia. He wrote appellant a work excuse letter for April 25, 2007.
In a narrative statement received by OWCP on May 22, 2009, appellant reported that he
sustained an injury while working for a nonfederal employer in July 1996, was diagnosed with a
herniated disc and returned to work after a year and a half of physical therapy and epidural
blocks. On April 2, 2004 he injured the same disc when working for the Transportation Security
Administration (TSA). In a narrative statement dated May 16, 2009, appellant noted that he
sustained another back injury while working for TSA on October 26, 2005. He alleged that his
current back condition was caused by sitting for a minimum of eight hours a day.
In a series of medical reports, Dr. Thomas provided appellant work excuse letters for the
period April 25 to October 12, 2007 due to low back pain.
In a May 14, 2007 medical report, Dr. Jamie E. Gottlieb, a Board-certified orthopedic
surgeon, diagnosed degenerative disc disease at L4-5, herniated nucleus pulposus and stenosis.
Dr. Gottlieb opined that appellant’s back condition was an exacerbation of a preexisting
condition and advised appellant to return to light-duty work with the following restrictions: no
bending or twisting, mostly sedentary work, being allowed to change positions every 30 to 45
minutes and no lifting more than 15 pounds.
By decision dated July 13, 2009, OWCP accepted appellant’s claim for intervertebral disc
disorder with myelopathy of the right lumbar region.

2

By decision dated December 4, 2008, the Board found that appellant failed to establish a recurrence of total
disability during the period April 29 through June 18, 2007 causally related to his accepted November 9, 2006
employment-related injuries. (Docket No. 08-1557).

2

On August 14, 2009 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period commencing April 25, 2007.
By letter dated August 31, 2009, OWCP notified appellant that his claim for
compensation was incomplete and requested additional evidence.3 It allotted 30 days for him to
respond to its inquiries.
In an October 6, 2009 medical report, Dr. Thomas advised that appellant attempted to
return to work on May 7, 2007 but was unable to work due to his utility belt.
By decision dated March 3, 2010, OWCP denied appellant’s claim for compensation
benefits beginning April 25, 2007. It noted that the evidence submitted failed to establish how
sitting at work caused or aggravated his disability for the period claimed. OWCP found that
appellant failed to afford the employing establishment with an opportunity to provide him with
limited-duty work as it was his responsibility to provide a copy of his restrictions once appellant
was released to light-duty work by Dr. Gottlieb on May 14, 2007.
Appellant requested an oral hearing which was held on June 15, 2010. He testified that
he faxed his medical restrictions from Dr. Gottlieb to the employing establishment. The
employing establishment offered appellant two positions: his previous position without the
requirement of wearing the approximately 15-pound utility belt or collecting customs declaration
forms which would require standing and leaning over a platform. Appellant testified that he was
able to perform his work duties while standing or allowed to move from a seated position every
45 minutes. He acknowledged that Dr. Gottlieb effectively released him to his regular job.
Appellant submitted a November 21, 2007 medical report by Dr. Thomas who indicated
that appellant was unable to perform his required duties from April 29 to June 18, 2007 until he
was able to receive physical therapy and epidural injections.
By decision dated August 12, 2010, OWCP’s hearing representative denied appellant’s
claim for wage-loss compensation finding that he did not submit sufficient medical evidence to
establish that he was disabled for work on and after April 25, 2007 due to an employment-related
low back condition.
LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was

3

OWCP noted that appellant previously submitted claims for compensation for the same time period which it
reviewed, developed and denied by decisions dated August 27, 2007 and March 26, 2008.
4

5 U.S.C. § 8102(a).

3

receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability for work.6
Appellant, for each period of disability claimed, has the burden of proving by a preponderance of
the reliable, probative and substantial evidence that she is disabled for work as a result of her
employment injury. Whether a particular injury caused an employee to be disabled for
employment and the duration of that disability are medical issues which must be proved by the
preponderance of the reliable probative and substantial medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. When, however, the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, the employee
is entitled to compensation for any loss of wage-earning capacity resulting from the employment
injury.8 The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the particular period of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.9
ANALYSIS
The Board finds appellant is not entitled to wage-loss compensation on or after
April 25, 2007. The Board finds that he did not submit sufficient rationalized medical evidence
explaining how his work activities materially worsened or aggravated his low back condition and
caused him to be totally disabled for work as of April 25, 2007.
In a May 14, 2007 medical report, Dr. Gottlieb advised appellant to return to light-duty
work with medical restrictions. At the June 15, 2010 oral hearing, appellant testified that he was
able to perform his work duties in compliance with Dr. Gottlieb’s medical restrictions by
standing and moving from his seated position every 45 minutes. Dr. Thomas provided appellant
work excuse letters for the period April 25 to October 12, 2007. In a November 21, 2007
medical report, he reiterated that appellant was unable to perform his required duties from
April 29 to June 18, 2007 pending physical therapy and epidural injections. In an October 6,
2009 medical report, Dr. Thomas indicated that appellant attempted to return to work on May 7,
2007 but was unable to work due to his utility belt. The medical reports of Drs. Gottlieb and
Thomas do not provide any rationalized medical explanation as to how the residuals of
5

William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 (1993); John W. Normand, 39
ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984); 20 C.F.R. § 10.5(f).
6

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

8

Merle J. Marceau, 53 ECAB 197 (2001).

9

Fereidoon Kharabi, supra note 7.

4

appellant’s November 9, 2006 employment injury caused disability or otherwise prevented
appellant from continuing in his employment. Appellant has not met his burden of proof to
establish that he is entitled to compensation for any loss of wage-earning capacity.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he is
entitled to compensation benefits for the period April 29 to June 18, 2007.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Z., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Newark, DE, Employer
__________________________________________

)
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)
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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-153
Issued: April 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 25, 2012 appellant, through her representative, filed a timely appeal from an
April 24, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability beginning
June 25, 2009 causally related to her accepted February 7, 2008 employment injury.
On appeal, appellant’s counsel contends that the April 24, 2012 decision was based on
incorrect findings of fact and conclusions of law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 7, 2008 appellant, then a 51-year-old lease sales and service clerk, filed a
traumatic injury claim alleging that on that day she injured her back and right leg due to picking
up a box of copier paper. OWCP accepted the claim for left side L2-3 herniation and L3-4
internal disc derangement and paid wage-loss compensation. Appellant stopped work on
February 7, 2008 and returned to full-duty work on December 31, 2008.
Appellant filed claims for wage-loss compensation for the period June 25 to
August 28, 2009.
By letter dated August 26, 2009, OWCP informed appellant that it appeared she was
claiming a new period of disability and informed her that the evidence was insufficient to
support her claim. Appellant was advised as to the type of medical evidence to submit if she was
claiming a recurrence of disability. OWCP also advised her to file a recurrence claim form if she
was claiming a recurrence of disability due to her accepted February 7, 2008 employment injury.
On September 4, 2009 OWCP received an August 20, 2009 office note from Dr. James
Berlin, a treating physician, which provided physical findings and diagnosed right L3
radiculopathy. Appellant reported that she had returned to light duty and was doing better.
OWCP also received a September 1, 2009 office note and clinical update form from
Dr. Bruce E. Katz, a treating Board-certified orthopedic surgeon, who reviewed an August 23,
2009 magnetic resonance imaging (MRI) scan which revealed mild L3-4 disc desiccation.
Dr. Katz noted that appellant complained of pain radiating down her right leg as well as pain in
her back, right groin and right hip. In the September 1, 2009 clinical update form, he indicated
that she was not to work that day.
On September 8, 2009 appellant filed various claims for recurrence of disability
beginning June 25, 2009 causally related to her accepted February 7, 2008 employment injury.
On January 19, 2010 Dr. Katz reported that appellant reiterated that her back pain was
from her February 7, 2008 employment injury.
By decision dated February 23, 2010, OWCP denied appellant’s recurrence claims. It
found she failed to submit any rationalized medical evidence explaining how her recurrence of
disability was due to her accepted February 7, 2008 employment injury.
A functional capacity evaluation was conducted on February 17, 2010 to determine
appellant’s physical abilities. The report determined that she was capable of performing lightduty work of lifting up to 15 pounds occasionally for up to four hours.
In a March 4, 2010 office note, Dr. Ann Kim, a treating Board-certified physiatrist,
diagnosed right-sided lumbar discogenic pain. A physical examination revealed tenderness on
mild palpation in right mid and low lumbar region, pain with extension and forward flexion and
good motor strength. Dr. Kim reviewed a July 23, 2009 MRI scan which showed L2-3 and L3-4
mild disc bulge and desiccation. Appellant stated that she had minimal pain while resting, but
the pain could increase significantly with increased activity. A review of the February 17, 2010
2

functional capacity evaluation examination revealed that appellant was capable of performing
light-duty work for four hours a day.
In office notes dated April 8, May 20, June 3 and July 20, 2010, Dr. Kim diagnosed
lumbar discogenic pain and provided physical findings. On April 8, 2010 she updated
appellant’s work status to reflect that she was capable of working five hours a day. In her a
May 20, 2010 office note, Dr. Kim diagnosed a flare-up of discogenic lumbar pain and noted that
appellant was currently unable to work, but would return to work on Tuesday. On June 3, 2010
she stated that she was updating appellant’s work restrictions to reflect that she was capable of
working six hours a day.
In a letter dated July 29, 2010, counsel requested reconsideration. In support of her
request, appellant submitted an April 16, 2010 report from Dr. Katz, who noted that he had
treated her since June 2003 and that she sustained a back injury at work on February 7, 2008 due
to picking up a heavy box of computer paper. She informed him during a November 20, 2008
office visit that she had returned to light-duty work. Dr. Katz stated that appellant was next seen
on July 16, 2009 due to a flare up of her symptoms and pain radiating down the right leg. A
review of an MRI scan revealed L3-4 mild disc desiccation with no evidence of any disc
herniations. Appellant was next seen on January 19, 2010 for her back which was not getting
better and he recommended that a functional capacity evaluation be performed. Dr. Katz noted
that she attributed her back pain to her February 7, 2008 injury. In concluding, he opined that
appellant’s symptoms were due to her February 7, 2008 employment injury.
In a September 10, 2010 report, Dr. Kim diagnosed lumbar discogenic pain and noted
that appellant had been working seven hours a day. She related that, as a result of a flare-up of
appellant’s back pain, that she missed three days of work approximately three weeks ago.
On October 26, 2010 Dr. Kim reported seeing appellant for low back pain. She
diagnosed a flare-up of lumbar discogenic pain and provided physical findings. Dr. Kim
recommended that appellant continue with working light-duty work for seven hours a day.
In a February 2, 2011 decision, OWCP denied modification.
On January 23, 2012 counsel requested reconsideration and submitted a January 23, 2012
report from Dr. Kim in support of her request. In her January 23, 2012 report, Dr. Kim noted the
history of the employment injury and the medical treatment given. She noted that appellant has
had persistent low back pain since the February 7, 2008 employment injury. Dr. Kim related that
appellant will have episodic flare-ups and that she has not been pain-free since the February 7,
2008 employment injury. In concluding, she opined that appellant’s low back pain treatment
was causally related to the accepted February 7, 2008 employment injury.
By decision dated April 24, 2012, OWCP denied modification.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
3

new exposure to the work environment that caused the illness.2 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken and an
appropriate new claim should be filed.3
ANALYSIS
OWCP accepted that appellant sustained left-sided L2-3 herniation and L3-4 internal disc
derangement as a result of her accepted February 7, 2008 employment injury. Appellant
received medical treatment and compensation and returned to full duty on December 31, 2008.
She alleged recurrence of disability beginning June 25, 2009. The issue is whether the medical
evidence of record established that appellant sustained a recurrence of disability causally related
to her accepted February 7, 2008 employment injury.
In support of her claim, appellant submitted medical evidence from Drs. Katz and Kim
indicating periods of partial and total disability. On September 1, 2009 Dr. Katz diagnosed a
mild L3-4 disc desiccation based on review of an August 23, 2009 MRI scan and noted
appellant’s pain complaints. In a January 19, 2010 report, he noted that she attributed her back
pain to her February 7, 2008 employment injury. Dr. Katz, in an April 16, 2010 report, noted the
history of appellant’s injury and his treatment and opined that her back pain and symptoms were
due to her February 7, 2008 employment injury. In reports covering the period March 4, 2010
through January 23, 2012, Dr. Kim diagnosed discogenic right-sided lumbar discogenic pain
which resulted in periods of disability. On March 4, 2010 she found that appellant was only
capable of working light duty four hours a day, which was subsequently raised to seven hours a
day. In her January 23, 2012 report, Dr. Kim attributed appellant’s low back pain to her
February 7, 2008 employment injury based on the fact that appellant has had persistent low back
pain since the date of her injury.
The histories given by Drs. Kim and Katz do not adequately address how appellant’s
disability beginning June 25, 2009 was causally related to her back condition especially as she
was returned to full-duty work on December 31, 2008. Both physicians attributed appellant’s
inability to work to either her low back pain or discogenic pain. The Board has consistently held
that pain is a symptom, not a compensable medical diagnosis.4 Further, neither Dr. Kim nor
Dr. Katz provided sufficient rationale explaining how appellant’s diagnosed condition and
disability commencing June 25, 2009 was causally related to the accepted condition.5 They
provided no rationale or explanation as to how appellant’s disability was due to the accepted
February 7, 2008 employment injury and, thus their opinions are of little probative value for

2

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
3

Id. at Chapter 2.1500.3 (May 1997); Donald T. Pippin, 54 ECAB 631 (2003).

4

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

5

See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

4

these reasons.6 The Board finds that the reports from Drs. Katz and Kim are insufficient to
establish appellant’s claim.
Appellant also submitted an August 20, 2009 office note from Dr. Berlin diagnosing L3
radiculopathy and noted that appellant had returned to light-duty work. As Dr. Berlin did not
offer any opinion regarding her recurrence of disability on June 25, 2009, this report too is of
diminished probative value and insufficient to establish her recurrence claim.7
The record also contains a February 17, 2010 functional capacity evaluation. This
evidence does not address the issue of whether appellant was disabled beginning June 25, 2009
due to her accepted employment injury.8 Thus, this report is insufficient to establish her claim
for a recurrence of disability.
Appellant did not submit sufficient medical evidence to establish that she sustained a
recurrence of disability beginning June 25, 2009 causally related to her February 7, 2008 work
injury. Therefore, she did not meet her burden of proof.
On appeal, counsel contended that OWCP’s decision is contrary to fact and law. For
reasons stated above, the Board finds that the weight of the medical evidence does not establish
that appellant’s recurrence claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability beginning
June 25, 2009 causally related to her accepted February 7, 2008 employment injury.

6

Albert C. Brown, 52 ECAB 152 (2000).

7

See Sandra D. Pruitt, 57 ECAB 126 (2005).

8

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship). See also
Desiderio Martinez, 55 ECAB 245 (2004) (lay persons are not competent to render a medical opinion).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 24, 2012 is affirmed.
Issued: April 24, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6