United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Cleveland, OH, Employer
__________________________________________

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

Docket No. 14-863
Issued: August 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 6, 2014 appellant, through counsel, filed a timely appeal of a February 12,
2014 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 OWCP properly reduced appellant’s compensation effective
June 14, 2013 based on her capacity to earn wages in the constructed position of receptionist.
On appeal, appellant, through counsel, contends that OWCP relied upon an outdated
version of the Department of Labor, Dictionary of Occupational Titles (DOT) and that the
position identified cannot be shown to exist in the current economy.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 11, 1990 appellant, then a 41-year-old flat sorter machine clerk, filed an
occupational disease claim alleging that on July 10, 1990 she first became aware that her
bilateral carpal tunnel syndrome was due to her employment duties. OWCP accepted the claim
for resolving right wrist de Quervain’s disease, which was expanded to include right thumb
basilar arthritis.2 Appellant accepted a limited-duty position as modified distribution clerk on
October 12, 1998 and stopped work on September 2, 2010 as no work was available within her
restrictions. On September 20, 2010 OWCP accepted her claim for a recurrence of disability
beginning September 2, 2010. By letter dated October 20, 2010, it placed appellant on the
periodic rolls for temporary total disability.3
In an August 3, 2010 report, Dr. Deborah Venesy, a treating Board-certified physiatrist,
diagnosed radial styloid tenosynovitis and arthropathy. She determined that appellant was
capable of working with restrictions. The restrictions included no lifting or carrying more than
10 pounds intermittently or 5 pounds continuously and 15- to 30-minute intervals of alternate
pulling/pushing, fine manipulation and reaching above the shoulder.
On October 27, 2010 OWCP referred appellant for vocational rehabilitation services
based upon Dr. Venesy’s work restrictions.
In an April 30, 2011 report, a vocational rehabilitation counselor discussed appellant’s
education, work history and results of vocational testing. The vocational rehabilitation counselor
recommended computer training classes in order to improve her computer skills.
In a June 2, 2011 report, the vocational rehabilitation counselor noted that OWCP had
approved a one-year computer training program with New Horizons Learning Center. Based on
his report and a May 26, 2011 labor market survey, the vocational rehabilitation counselor
identified two positions for appellant, listed in the Department of Labor, Dictionary of
Occupational Titles as receptionist,4 DOT #237.367.038, and administrative clerk, DOT
#219.362.010. The positions were noted to be sedentary and found to be within appellant’s
restrictions, her vocational and work history, education, skills and training so as to reflect her
2

By decision dated May 31, 1995, OWCP granted appellant a schedule award for a 20 percent right upper
extremity permanent impairment.
3

Appellant retired effective February 10, 2013.

4

The job description of receptionist stated: “Receives callers at establishment, determines nature of business and
directs callers to destination: Obtains caller’s name and arranges for appointment with person called upon. Directs
caller to destination and records name, time of call, nature and business and person called upon. May operate PBX
telephone console to receive incoming messages. May type memos, correspondence, reports and other documents.
May work in office of medical practitioner or in other health care facility and be designated Outpatient Receptionist
(medical ser.) or Receptionist, Doctor’s office (medical ser.). May issue visitors pass when required. May make
future appointments and answer inquiries.” The physical demands for the job according to the Department of Labor,
Dictionary of Occupational Titles entailed a strength level of sedentary (occasionally lifting up to 10 pounds), with
no climbing, balancing, stooping, kneeling, crouching, crawling, feeling, taste/smelling, far acuity, depth perception,
color vision and field of vision; occasionally fingering; frequently reaching, handling, talking, hearing, near acuity
and accommodation.

2

capacity to earn wages. The vocational counselor confirmed that the jobs for receptionist and
administrative clerk were being performed in sufficient numbers so as to make them reasonably
available within that commuting area. The weekly wages were $495.00 for a receptionist and
$536.00 for an administrative clerk.
On September 17, 2012 OWCP referred appellant to Dr. Robert J. Nickodem, Jr., a
Board-certified orthopedic surgeon, to address her current medical condition and work
capability. In an October 9, 2012 report, Dr. Nickodem, based upon a physical examination,
review of the medical record and statement of accepted facts, concluded that appellant continued
to have residuals from her accepted de Quervain’s disease and right thumb basilar arthritis
conditions. A physical examination revealed a positive Phalen’s test, a positive Tinel’s sign over
the volar wrist palmar ligament and mildly positive Finkelstein maneuver at the first right dorsal
compartment. Dr. Nickodem stated that he found decreased right thumb sensation and provided
range of motion findings. He opined that appellant was disabled from performing her date-ofinjury position as she was unable to perform repetitive right wrist and thumb motions. Although
she was disabled from her date-of-injury job, Dr. Nickodem concluded that she was capable of
working with restrictions. The restrictions included no right wrist or elbow repetitive motion, up
to one hour of pushing, pulling and lifting and no lifting more than 15 pounds on an intermittent
basis. Dr. Nickodem reviewed the job descriptions for the proposed positions of administrative
clerk and receptionist. He opined that the positions were within her work restrictions. However,
he indicated that she would be unable to perform prolonged data entry or computer work, but
would be able to perform those duties on an intermittent basis.
On January 26, 2013 appellant elected to receive retirement benefits from the Office of
Personnel Management effective February 10, 2013.
On April 16, 2013 an OWCP claims examiner requested the vocational rehabilitation
counselor to provide updated job classification (CA-66) forms for the positions of administrative
clerk and receptionist along with updated pay rate information from the Bureau of Labor
Statistics. The position of receptionist was classified as sedentary which included occasional
force of 10 pounds or negligible amount used to frequently lift, carry, push, pull or move objects.
Physical demands included frequent reaching and handling and occasional fingering.
On April 30, 2013 OWCP received labor market surveys dated February 20 and 26, 2013
from the vocational rehabilitation counselor updating information for the receptionist and
administrative clerk job titles. The weekly wages were noted as $495.00 for a receptionist and
$536.00 for an administrative clerk.
On May 14, 2013 OWCP issued a notice proposing to reduce appellant’s compensation
as it determined that the position of receptionist was medically and vocationally suitable for her
and represented her wage-earning capacity. It advised her that she had the capacity to earn
wages as a receptionist, DOT #237.367.038 at a rate of $495.00 per week, in accordance with the
factors outlined in 5 U.S.C. § 8115.5 OWCP calculated that appellant’s compensation should be
adjusted to $479.66 using the Albert C. Shadrick6 formula. It indicated that her current weekly
5

5 U.S.C. § 8113.

6

5 ECAB 376 (1953).

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salary for her job when injured was $1,060.83, that her salary as of September 9, 2010, the date
disability recurred, was $1,021.92 and that she was currently capable of earning $495.00 per
week, as a receptionist. OWCP therefore determined that appellant had a 47 percent wageearning capacity. It found that her current adjusted compensation rate per four-week period was
$1,704.00. OWCP stated that the case had been referred to a vocational rehabilitation counselor
who had determined that the receptionist position was suitable for appellant, given her work
restrictions, and was reasonably available in her commuting area. It allowed appellant 30 days in
which to submit any contrary evidence. No evidence was forthcoming.
By decision dated June 14, 2013, OWCP finalized its notice of proposed reduction and
reduced appellant’s benefits effective that date to reflect that she was capable of performing the
duties of a receptionist earning $495.00 per week.
On June 17, 2013 appellant’s counsel requested a telephone hearing before an OWCP
hearing representative, which was held on November 26, 2013. At the telephonic hearing
counsel argued that the hourly rate of $12.00 was unrealistic.
By decision dated February 12, 2014, OWCP’s hearing representative affirmed the
June 14, 2013 loss of wage-earning capacity determination.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.7 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.8
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or
7

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
8

20 C.F.R. §§ 10.402, 10.403.

9

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).

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otherwise available in the open market, that fit the employee’s capabilities with regard to his
physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
principles set forth in Shadrick10 and codified by regulations at 20 C.F.R. § 10.40311 should be
applied. Subsection(d) of the regulations provide that the employee’s wage-earning capacity in
terms of percentage is obtained by dividing the employee’s actual earnings or the pay rate of the
position selected by OWCP, by the current pay rate for the job held at the time of the injury.12
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently acquired conditions.13 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation. Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.14
ANALYSIS
OWCP accepted appellant’s claim for right wrist de Quervain’s disease, which was
expanded to include right thumb basilar arthritis. It determined that the selected position of
receptionist represented her wage-earning capacity based upon the reports of Dr. Venesy,
appellant’s treating Board-certified physiatrist, and Dr. Nickodem, a second opinion Boardcertified orthopedic surgeon. The Board finds that OWCP properly reduced appellant’s
compensation effective June 14, 2013 based on her ability to perform the duties of a receptionist.
Based on Dr. Venesy’s work restrictions, OWCP properly referred appellant for
vocational rehabilitation.15 Dr. Venesy identified appellant’s work restrictions as lifting or
carrying more than 10 pounds intermittently or 5 pounds continuously and 15- to 30-minute
intervals of alternate pulling/pushing, fine manipulation and reaching above the shoulder. The
rehabilitation counselor assigned to assist appellant in placement efforts identified a position as a
receptionist list in the Department of Labor, Dictionary of Occupational Titles as appropriate for
appellant based on Dr. Venesy’s work restrictions.

10

Supra note 6.

11

20 C.F.R. § 10.403.

12

Id. at § 10.403(d).

13

James Henderson, Jr., 51 ECAB 268 (2000).

14

Id.

15

See N.J., 59 ECAB 171 (2007); John D. Jackson, 55 ECAB 465 (2004); Mary E. Marshall, 56 ECAB
420 (2005).

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OWCP subsequently referred appellant to Dr. Nickodem to address her current medical
condition and work capability and whether she could perform the positions identified by the
vocational rehabilitation counselor. Dr. Nickodem provided an accurate history of injury and
conducted a thorough examination. He opined that appellant was disabled from performing her
date-of-injury job, but was capable of working with restrictions including no right wrist or elbow
repetitive motion, up to one hour of pushing, pulling and lifting and no lifting more than 15
pounds on an intermittent basis. Dr. Nickodem reviewed the job descriptions for the proposed
positions of administrative clerk and receptionist and stated that they were within her work
restrictions. He related that appellant would be unable to perform prolonged data entry or
computer work, but was able to perform those duties on an intermittent basis.
The Board finds that the position of receptionist was vocationally suitable for appellant.
The vocational rehabilitation counselor determined that the duties of the receptionist position
were reflective of appellant’s previous work experience and educational history and qualified her
for the position. OWCP also advised that the position was available in sufficient numbers so as
to make it reasonably available within appellant’s commuting area.
As OWCP considered the proper factors such as appellant’s physical condition,
availability of employment, usual employment, age and employment qualifications, the Board
finds that it properly determined that the selected position of receptionist represented her wageearning capacity.16
Finally, OWCP properly applied the principles set forth in the Shadrick17 decision to
determine appellant’s employment-related loss of wage-earning capacity. It calculated that her
compensation should be adjusted to $426.00 per week or $1,704.00 every four weeks using the
Shadrick formula. OWCP indicated that appellant’s weekly rate for the job when she held when
injured was $1,060.83 and that the weekly pay rate when disability recurred was $1,021.19. It
noted that, as she was capable of earning $495.00 per week, she had a 47 percent wage-earning
capacity with an adjusted compensation rate of $226.00, resulting in a compensation rate every
four weeks of $1,704.00.
OWCP properly found that appellant was no longer totally disabled as a result of her
accepted conditions and it followed established procedures for determining her employmentrelated loss of wage-earning capacity decision. The Board, therefore, finds that OWCP met its
burden of justifying a reduction in her compensation for total decision effective June 14, 2013.
On appeal counsel argued that OWCP used an antiquated system and defunct publication
and there is no evidence that the position of receptionist exists in the current economy. The
Board notes that the rehabilitation counselor found that the selected position was available in
sufficient numbers. The counselor is an expert in the field of vocational rehabilitation. OWCP
may rely on his or her opinion as to whether the job is reasonably available and vocationally

16

See S.J., Docket No. 09-1794 (issued September 20, 2010); John D. Jackson, id.; Loni L. Cleveland, 52 ECAB
171 (2000).
17

Supra note 6.

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suitable.18 Appellant has submitted no evidence supporting the allegations that the receptionist
position does not exist nor that the position was not reasonably available to her in the open labor
market.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation based on its
finding that she had the capacity to earn wages in the selected position of receptionist.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 12, 2014 is affirmed.
Issued: August 25, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.816.6 (June 2013). See also B.H., Docket No. 13-583 (issued September 10, 2013).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shreveport, LA, Employer
__________________________________________

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

Docket No. 06-1502
Issued: February 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 25, 2006 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated January 30, 2006 finding that he had not established an
emotional condition causally related to factors of his federal employment. 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 met his burden of proof in establishing that he
developed an emotional condition due to factors of his federal employment.
FACTUAL HISTORY
On January 28, 2005 appellant, then a 41-year-old modified letter carrier, filed an
occupational disease claim alleging that he developed extreme stress due to harassment,
intimidation, retaliation, threats, bullying, lying and fraud by management. In an accompanying
narrative statement, he alleged that he had developed traumatic stress disorder due to the actions

of management. Appellant alleged that Patsy A. Pigue, the postmaster, would not pay him back
pay as awarded by an arbitrator on January 26, 2004.
In a letter dated February 14, 2005, the Office requested additional factual and medical
evidence in support of appellant’s claim. In a statement dated January 28, 2005, appellant
alleged that he was falsely accused of an assault and that the employing establishment fabricated
a case against him. Following the arbitrator’s January 26, 2004 decision, he requested to be
removed from a hostile work environment with the back pay he felt awarded by arbitrator.
Appellant stated that his badge did not open the door and that his accuser was stationed directly
across from him.
Dr. Shahidul Islam, a Board-certified psychiatrist, diagnosed reaction to stress and found
appellant totally disabled.
Dr. Thomas E. Staats, a clinical neuropsychologist, examined appellant on November 23
and December 9, 2004 and diagnosed occupational problem, anxiety disorder and depressive
disorder.
Ronnie Vercher, appellant’s supervisor, completed a statement on March 21, 2005. He
noted that appellant was awarded back pay as the result of a grievance regarding a notice of
proposed removal dated July 26, 2002. Appellant had filed an additional grievance alleging that
he was not allowed to complete his back pay paperwork properly causing him to receive less
money. On September 21, 2005 Mr. Vercher agreed to allow appellant to resubmit his
paperwork. Appellant did not complete the paperwork and Mr. Vercher agreed to help him do
so. However, he failed to submit the necessary documentation supporting efforts to seek outside
employment. Mr. Vercher denied appellant’s allegations of harassment, intimidation, retaliation,
threats, bullying, lying or fraud.
Ms. Pigue responded to appellant’s allegations on March 21, 2005. She stated that
appellant failed to provide documentation supporting that he sought outside employment in order
to receive back pay.
By decision dated March 25, 2005, the Office denied appellant’s claim finding that he
failed to substantiate a compensable factor of employment.
Appellant requested a hearing on April 15, 2005. He submitted a statement dated
November 15, 2004 alleging that he was harassed regarding his work schedule and that his badge
no longer worked as of November 12, 2004. Appellant also submitted an August 25, 2004
statement alleging that he attempted to properly process his back pay forms and was given
incorrect information. He requested reasonable accommodations in his work schedule on
February 11, 2004 due to his daughter’s disabilities.
The arbitrator issued a decision on January 26, 2004, sustaining appellant’s grievance
regarding a notice of proposed removal. She found that on June 25, 2002 appellant engaged in a
verbal exchange with a coworker and that there were some problems with the investigation. The
arbitrator stated that the evidence failed to support the intolerable threat of violence necessary to
support appellant’s removal. She found that the witnesses did not substantiate any contact or
threat and that there was not a fair investigation based on this lack of substantiation of violence.
2

However, the arbitrator noted that appellant did create a disturbance and behaved improperly
interfering with the business of management such that some form of discipline was appropriate.
She approved a suspension of 14 days. On October 20, 2005 appellant again attributed his
emotional condition to the investigation of an alleged threat on June 25, 2002, as well as the
denial of back pay.
In a grievance decision dated September 21, 2004, the grievance was resolved by
allowing appellant another opportunity to complete his back pay paperwork. Appellant testified
at his oral hearing before an Office hearing representative on October 19, 2005.
By decision dated January 30, 2006, the hearing representative found that appellant had
failed to establish a compensable factor of employment and denied his claim.
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.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Generally, 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 the
coverage of the Act.3 While an administrative or personnel matter will be considered an
employment factor where the evidence discloses error or abuse on the part of the employing
establishment, mere perceptions are insufficient. In determining whether the employing
establishment erred or acted abusively, the Board determines whether the employing
establishment acted reasonably.4 Although the handling of leave requests and attendance matters
are generally related to employment, they are administrative functions of the employer and not
duties of the employee. As a general rule, a claimant’s reaction to administrative or personnel
matters falls outside the scope of the Act. However, to the extent that the evidence demonstrates
that the employing establishment either erred or acted abusively in discharging its administrative
or personnel responsibilities, such action will be considered a compensable employment factor.5
1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
3

James E. Norris, 52 ECAB 93, 100 (2000).

4

Bonnie Goodman, 50 ECAB 139, 143-44 (1998).

5

James P. Guinan, 51 ECAB 604, 607 (2000).

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Reactions to disciplinary matters such as letters of warning and inquiries regarding conduct
pertain to actions taken in an administrative capacity and are not compensable until it is
established that the employing establishment erred or acted abusively in such capacity.6
Investigations are an administrative function of the employing establishment and are not
considered to be an employment factor unless there is evidence of error or abuse on the part of
the employing establishment.7
The Board has held that denials by an employing establishment of a request for a
different job, promotion or transfer are not compensable factors of employment under the Act, as
they do not involve appellant’s ability to perform his regular or specially assigned work duties,
but rather constitute appellant’s desire to work in a different position.8
The determination of an employee’s rights or remedies under other statutory authority
does not establish entitlement to benefits under the Act.
While determinations of other
administrative agencies or courts are instructive, such findings are not determinative with regard
to disability under the Act. A claimant must establish a factual basis for his or her allegations
with probative and reliable evidence. Grievances and Equal Employment Opportunity
complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred.9 The issue is whether the claimant has submitted sufficient evidence under the Act to
establish a factual basis for the claim by supporting his or her allegations with probative and
reliable evidence. The primary reason for requiring factual evidence from the claimant in
support of his or her allegations of stress in the workplace is to establish a basis in fact for the
contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by the Office and the Board.10
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.
Mere perceptions of harassment or discrimination are not compensable under the Act.11
ANALYSIS
Appellant attributed his emotional condition to the investigation of an alleged threat
which resulted in a proposed removal, the processing of his back pay request and the denial of
reasonable accommodations in his work schedule. The Board finds that these are administrative
matters and that appellant must establish error or abuse on the part of the employing
establishment to establish these events as compensable employment factors.
6

Sherry L. McFall, 51 ECAB 436, 440 (2000).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Donald W. Bottles, 40 ECAB 349, 353 (1988).

9

Beverly R. Jones, 55 ECAB 411, 417 (2004).

10

C.S., 58 ECAB ___ (Docket No. 06-1583, issued November 6, 2006).

11

Reco Roncoglione, 52 ECAB 454, 456 (2001).

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Appellant has submitted no evidence that the employing establishment acted
unreasonably in denying his request for a schedule change. He has also failed to establish that
the employing establishment improperly denied his back pay. Further, appellant has submitted
no evidence substantiating harassment or discrimination on the part of the employing
establishment through these actions.
Appellant has submitted an arbitrator’s January 26, 2004 decision that the employing
establishment did not properly investigate the allegation of a threat by appellant and that it
exceeded its reasonable disciplinary authority by proposing to remove appellant due to the
allegations. However, he did not submit the evidence upon which the arbitrator relied in
reaching these findings of error on the part of the employing establishment. The decision, while
setting aside the proposed removal, did note that appellant had created a disturbance and upheld
a 14-day suspension. The arbitrator’s decision alone is not sufficient to establish compensable
factors of employment in regard to the alleged errors and abuse in disciplinary actions and
investigations. The arbitrator’s decision does not contain a detailed factual explanation of the
factual basis for the findings which the Board can review to make its own determination of
whether the employing establishment’s actions were erroneous or abusive. Due to this defect,
appellant has not submitted sufficient evidence to substantiate a compensable factor of
employment.
CONCLUSION
The Board finds that appellant has not established a compensable factor of employment
as he failed to submit sufficient evidence to substantiate the findings of the arbitrator or to submit
any other evidence substantiating error or abuse on the part of the employing establishment. The
Office’s decision must be affirmed.

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ORDER
IT IS HEREBY ORDERED THAT the January 30, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., (Estate of M.F.), Appellant
and
DEPARTMENT OF THE NAVY,
Subic Bay, Philippines, Employer
__________________________________________

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

Docket No. 06-2169
Issued: February 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 21, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated July 17, 2006 which denied compensation on the
grounds that the evidence failed to show that appellant’s husband’s death was causally related to
his employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(1), the Board has jurisdiction
over this matter.
ISSUE
The issue is whether appellant filed a timely claim for death benefits under section
5 U.S.C. § 8122 of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On August 22, 2005 appellant filed a Form CA-5 claim seeking compensation for the
death of her husband, a painter. She indicated that the employee died in 1998, at the age of 74.
Appellant claimed that the injury that caused the employee’s death was cardiovascular accident
due to exposure to noxious gases and the date of injury was January 11, 1980. Dr. Justin

Agpoon completed the back of the form and stated that the employee’s direct cause of death was
cerebral hemorrhage and the contributory cause was a cardiovascular accident. He opined that
the employee’s exposure to noxious gases during his employment caused his brain injury. No
additional information was submitted by Dr. Agpoon.
By letter dated October 13, 2005, the Department of the Navy submitted appellant’s
document request letter and decedent’s personnel history including two employee’s notice of
injury or occupational disease. The January 18, 1969 notice of injury or occupational disease
was for an injury that occurred when the decedent was struck in the head with a ladder. The
January 22, 1968 notice of injury or occupational disease was for mild irritative conjunctivitis.
In a December 6, 2005 letter, the Office requested further information from appellant.
She did not respond.
By decision dated July 17, 2006, the Office denied appellant’s claim based on insufficient
evidence to show that the employee’s death was causally related to his federal employment.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.1 The Board may raise the issue on appeal
even if the Office did not base its decision on the time limitation provisions of the Act.2
Under the Act,3 an original claim for compensation for injury or death must be filed
within three years after the injury or death of an employee.4 In the case of death due to latent
condition, the time for filing a death claim does not begin to run until the employee has died and
his survivors are aware of or by the exercise of reasonable diligence should have been aware of,
the causal relationship of the employee’s death to factors of his employment.5
The three-year limit on filing a claim for compensation does not apply in the following
limited circumstances: (1) the employee’s direct supervisor had actual knowledge that created
reasonable notice of an on-the-job injury or death within 30 days;6 (2) an employee or survivor
gave formal written notice within 30 days of becoming aware that the injury or death was
causally related to the federal employment;7 (3) the employee filed a timely disability claim for a
work-related injury or disability and the employee’s death is based on the same injury;8 and
1

See Charles W. Bishop, 6 ECAB 571 (1954).

2

Id; Charles Walker, 55 ECAB 238 (2004).

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8122(a).

5

5 U.S.C. § 8122(b); Lucile B. Shores, 49 ECAB 219 (1997).

6

5 U.S.C. § 8122(a).

7

5 U.S.C. § 8122(a) and (b).

8

5 U.S.C. § 8112(c).

2

(4) the claimant is under 21 years old, the claimant is incompetent and has no legal
representative, or the claimant is prevented from giving notice by exceptional circumstances.9
Lack of awareness of possible entitlement, lack of information or ignorance of the law or one’s
rights and obligations under it do not constitute exceptional circumstances that excuse a failure to
file a timely claim.10
In a case involving a claim for an occupational illness, the time does not begin to run
until the claimant is aware, or reasonably should have been aware of the causal relationship
between his condition and federal employment.11 In situations where the exposure to an
injurious employment factor continues after the employee gains such awareness, the time for
filing a claim begins to run on the date of the employee’s last exposure to those factors.12
ANALYSIS
The Board finds that appellant’s claim for benefits are barred by the applicable time
limitation provisions of the Act. The three-year time limit began to run when the employee died
on December 22, 1998. Appellant did not file a claim until August 22, 2005.
Though appellant has not met the burden of proving that she filed within the three-year
limitation, her claim could be considered timely if she met any of the statutory exceptions. The
Board finds that these exceptions do not apply to her claim. There is no medical evidence that
the employee had a latent condition. There is no evidence that the employee’s supervisor had
notice of an on-the-job-injury. There is no evidence that the employee gave formal written
notice of an injury causally related to his employment that eventually contributed to his death.
There is no evidence that the employee filed a disability claim for a brain injury due to
employment factors. There is no evidence that appellant fits into any other exception which
would toll the time limitation.
In this case, no disability claim was filed. The claim form states the date of injury as
January 11, 1980 however there is no evidence in the record of any incident or claim filed in that
year or in the three years after his employment ceased. The only medical evidence in the record
is the note from Dr. Agpoon on the back of the claim form which opines that the noxious gases
caused employee’s brain injury. However there is no evidence that employee had a brain injury
except for the cerebral hemorrhage which caused his death.
The latent disease exception which could toll the three-year time limitation for filing a
claim does not apply to this case as there is no medical evidence that the employee had a latent
disease. If the employee had had a latent disease then the time limit would begin when appellant
9

5 U.S.C. § 8112(d).

10

Roger W. Robinson, 54 ECAB 846 (2003) (government’s failure to recognize for several years that Gulf War
personnel were exposed to potentially dangerous chemicals not exceptional circumstances did not constitute
exceptional circumstances).
11

William L. Gillard, 33 ECAB 265 (1981).

12

Jaried M. Bailey, 26 ECAB 9 (1974).

3

should have reasonably discovered that the disease was related to the employee’s federal
employment. However as there is no evidence of any such disease the time limit is not tolled
and the time limit began on the date of the employee’s death. The claim was not filed within
three years of the employee’s death therefore the claim was not timely filed.
CONCLUSION
The Board finds that appellant did not file a timely claim for death benefits in accordance
with 5 U.S.C. § 8122.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
G.M., Appellant
)
)
and
)
)
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, Atlanta, GA, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-604
Issued: December 15, 2010

Case Submitted on the Record

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

JURISDICTION
On January 4, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated November 2, 2009 which terminated his compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.1
ISSUE
The issue on appeal is whether the Office properly terminated appellant’s compensation
and medical benefits effective November 22, 2009.
FACTUAL HISTORY
On December 17, 1987 appellant, then a 29-year-old correctional officer, filed a
traumatic injury claim alleging that he sustained an emotional condition on November 23, 1987.
1

The Board notes that, following issuance of the November 2, 2009 decision, the Office issued a January 13,
2010 decision denying appellant’s request for a hearing as untimely. However, as appellant filed his appeal with the
Board on December 21, 2009, the Office’s January 13, 2010 decision is null and void as it pertains to the same issue
over which the Board has jurisdiction. See Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB
770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

He was held hostage from November 23 to December 3, 1987 by rioting Cuban detainees at the
employing establishment while in the performance of duty. Appellant stopped work on
December 14, 1987. The Office accepted his claim for stress reaction, post-traumatic stress
disorder and dermatitis. Appellant returned to work on March 28, 1992. However, he stopped
work again in June 1998 and did not return. The Office paid wage-loss compensation for injuryrelated disability.
On April 14, 2009 the Office referred appellant to Dr. Gregory A. Haley, a Boardcertified psychiatrist, for a second opinion regarding his current status and work ability.2 In a
May 4, 2009 report, Dr. Haley noted appellant’s history and examined him. Appellant reported
that he preferred to avoid people other than his family although he noted that he had coached a
boy’s basketball team for two to three nights a week for 10 years. On examination, his thought
processes were logical and sequential. Appellant liked to “point out the actions of others in
regard to his stressors and spend relatively little attention on his own actions.” He showed a
“great deal of agitation if this point is pursued.” Dr. Haley noted that, while appellant had a
general distrust of others; it was not severe enough to prevent him from dealing with excitable
kids and parents for the last 10 years as a coach. Appellant reported his reasons for not working
included, “being lied to,” an angry incident with another coemployee, accruing enough time in
the government for retirement and “paranoia seeping up sometimes.” He was calm and
appropriate throughout until he was challenged. Dr. Haley noted that appellant flipped his
papers, became agitated and shouted “if you don’t value what I did for this country.” He noted
that appellant turned off abruptly and while appearing “a little tearful” advised him that “you
may be right doc, I may need to get some treatment for this” on his way out. Dr. Haley
explained that he was merely pointing out recommendations from 2006 and 2007 evaluations.
He observed that appellant was well oriented, aware of current events and had a good fund of
common knowledge and average intellect. Dr. Haley noted that appellant had applied to various
federal agencies including a sheriff’s office. He noted that he was not offered any position or
told that his pay requirements could not be met.
Dr. Haley observed that appellant did not avoid the position for fear that he could not
manage it. Appellant indicated that he was not changing careers because he did not wish to start
over and he was not going to do manual labor. Dr. Haley found that appellant did not have
residuals from the employment injury. He attributed appellant’s distrust of others, poor sleep
and occasional violent dreams to his personality composition/perspective and not to the
employment trauma. Dr. Haley noted that appellant was able to tolerate parents of a children’s
basketball league for 10 years, twice a week. If he thought that appellant had significant
residuals, he would recommend the same treatment that was recommended in 2006 and 2007
which appellant chose not to pursue. Dr. Haley opined that “choice on his part is the best
indication of the level of distress/limitation his reported symptoms cause him on an ongoing
basis” and noted appellant’s pursuit of other law enforcement positions since the trauma. He
2

An earlier 2009 appointment with another physician was cancelled when the physician refused to see appellant
after threatening telephone calls were made to the physician’s office. Prior to this, the record reflects that the Office
referred appellant to Dr. David B. Rush, a clinical psychologist, who, on March 15, 2006, diagnosed chronic workrelated post-traumatic stress disorder. Dr. Rush noted that appellant did not actively seek treatment and might be
presenting himself less favorably than his average functioning would indicate. He opined that appellant could work
in a low stress environment. In an April 30, 2007 report, Dr. Brian Teliho, a Board-certified psychiatrist and Office
referral physician, opined that appellant could not work as he had active post-traumatic stress disorder that needed to
be stabilized through therapy or medication before returning to work.

2

explained that appellant would “object vociferously to this report and to me and will resist return
to work. I think his demonstrations of threatening behavior under duress could eventually lead to
trouble and or violence with him, but I do n[o]t relate it to one incident of three traumatic days in
1987.” Dr. Haley opined that there was “nothing I can determine that would prevent him
working other than his distaste for what he believes to be a step back in type of employment and
not being properly valued for his contribution to this country by continuing his disability.” He
diagnosed resolved post-traumatic stress disorder, a personality disorder, knee trouble, early
hypertension, marital, family and financial stressors. Dr. Haley completed a work capacity
evaluation. He advised that appellant was capable of working an eight-hour day. Dr. Haley
opined that appellant “should easily be able to perform any and all office work he is educated
appropriately for with full contact with the public.” He indicated that, while appellant was
pursuing positions in allied fields, with allied populations his disposition was not suited to direct
prison inmate contact or control.
On August 21, 2009 the Office issued a notice of proposed termination of compensation.
It proposed to terminate appellant’s compensation on the basis that the weight of the medical
evidence, as represented by the report of Dr. Haley, established that the residuals of the work
injury of November 23, 1987 had ceased.
In a November 2, 2009 decision, the Office terminated appellant’s compensation benefits
effective November 22, 2009. It found that the weight of medical evidence rested with
Dr. Haley and supported that appellant no longer had residuals of the accepted work-related
conditions.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.4
ANALYSIS
In the instant case, the Office accepted that appellant sustained reaction, post-traumatic
stress disorder and dermatitis.
On April 14, 2009 the Office referred appellant for a second opinion examination with
Dr. Haley, a Board-certified psychiatrist. The Board notes that the most recent medical reports
of record before that of Dr. Haley were from the second opinion examinations in 2006 and
2007.5 The Office properly referred appellant for an updated second opinion evaluation.6

3

Curtis Hall, 45 ECAB 316 (1994).

4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

See supra note 2. There is no medical evidence supporting any ongoing work-related dermatological condition.

6

See 20 C.F.R. § 10.320.

3

In a May 4, 2009 report, Dr. Haley examined appellant and explained that he was well
oriented, aware of current events and had logical and sequential thought processes. While
appellant was generally distrustful of others, his condition was not severe enough to prevent him
from dealing with children and parents for 10 years as a coach. Dr. Haley noted that appellant
was calm and acted appropriate until he was challenged, but he was able to cease such behavior
abruptly. He noted that appellant had applied for jobs with federal agencies and a sheriff’s office
and observed that he did not avoid the positions for fear that he could not manage them. Rather,
appellant informed him that he was not changing careers because he did not wish to start over
and was averse to manual labor. Dr. Haley concluded that appellant did not have any residuals
from the employment injury, finding that his post-traumatic stress disorder had resolved. He
explained that appellant was able to tolerate parents of a children’s basketball league for 10 years
and that he had chosen not to pursue treatment. Dr. Haley attributed appellant’s distrust of others
to his personality composition and perspective which was not due to his employment. He opined
that appellant’s demonstrations of threatening behavior under duress could lead to trouble and or
violence, but it was not related to the employment-related trauma from 1987. Dr. Haley found
nothing that would prevent appellant from work “other than his distaste for what he believes to
be a step back in type of employment and not being properly valued for his contribution to this
country by continuing his disability.” He opined that appellant could work eight hours daily.
Dr. Haley advised that appellant “should easily be able to perform any and all office work he is
educated appropriately for with full contact with the public.” He noted that he did not find
appellant’s “disposition suited to direct prison inmate contact or control.” Dr. Haley did not
attribute any inability to work to the accepted employment exposure or conditions.
The Board finds that Dr. Haley’s opinion is well rationalized and represents the weight of
the medical evidence regarding appellant’s accepted conditions. The Board also notes that there
are no current reports from a treating physician to contradict these findings. Because appellant
no longer has residuals or disability related to his accepted November 23, 1987 employment
condition, the Office properly terminated entitlement to wage-loss compensation and medical
benefits effective November 22, 2009. Accordingly, the Office’s decision to terminate
appellant’s compensation and medical benefits shall be affirmed.
On appeal, appellant alleged that he was subjected to a very high level of sabotage and
fraud which was directed at him and his family. He contended that Dr. Haley’s report was
fraudulent and misrepresented the facts on six occasions but did not submit any medical evidence
to counter the findings made by Dr. Haley or other evidence to support bias or misrepresentation.
Appellant did not provide evidence, as requested on August 21, 2009 while he submitted
additional evidence with his appeal, the Board has no jurisdiction to review such evidence for the
first time on appeal.7
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s benefits
effective November 22, 2009.

7

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). This decision does not preclude appellant from
seeking to have the Office consider such evidence pursuant to a reconsideration request filed with the Office.

4

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-460
Issued: September 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 8, 2008 appellant, through counsel, filed a timely appeal from a nonmerit
decision of the Office of Workers’ Compensation Programs dated September 17, 2008 denying
her request for a merit review. Because more than one year has elapsed between the last merit
decision dated July 3, 2007 and the filing of the appeal, the Board lacks jurisdiction to review the
merits of her claim, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.
Appellant contends on appeal that the Office erred in denying her request for a merit review as
the evidence of record established her claim.

FACTUAL HISTORY
On May 18, 2005 appellant, then a 59-year-old screener, filed a traumatic injury claim
alleging that on May 14, 2005 she injured her lower back while lifting a bag.1 On her claim
form, the employing establishment manager controverted the claim stating that it had no
knowledge of the injury and that the supervisor was not told of the injury at the time it occurred.
By letter dated June 29, 2005, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested factual and medical evidence to establish her
claim.
In response to the Office’s request for information, appellant submitted medical and
factual information including: a May 18, 2005 employing establishment incident report; her
July 27, 2005 statement; a duty status report (Form CA-17) and an attending physician’s report
(Form CA-20) dated June 29, 2005, disability notes and reports dated June 13 and 20 and
October 17, 2005 from Dr. Dante Trovato, a treating Board-certified orthopedic surgeon; reports
dated June 17 and 22, November 29 and December 8 and 21, 2005 and disability notes from
Dr. Carlisle L. Saint Martin, a treating physician; a May 19, 2005 duty status report (Form
CA-17) and July 18, 2005 report by Dr. Lawrence J. Marino, a treating physician; a March 27,
2006 report by Dr. Richard W. Johnson, an examining Board-certified neurological surgeon.
In the May 18, 2005 incident report, the employing establishment noted that appellant
alleged that she injured her back on May 14, 2005 due to lifting a heavy bag at approximately
19:00 hours. The report further noted that when appellant reported to work on May 17, 2005 she
informed Kelly Turner, a supervisor, “that her back was sore but she didn’t know what she did to
it.”
On June 13, 2005 Dr. Trovato diagnosed cervical, lumbar and thoracic strains. He noted
that appellant injured herself at work on May 15, 2005 when she lifted a heavy bag.
In the June 17, 2005 report, Dr. Saint Martin diagnosed lower back pain since May 2005.
He stated that appellant related that she injured her back on May 15, 2005 while lifting heavy
luggage for inspection. Appellant stated that following the lifting of the heavy luggage she felt
increased lower back pain. Dr. Saint Martin, in the June 22, 2005 report, diagnosed a lumbar
herniated nucleus pulposus and stated that appellant could no longer do any lifting.
In a June 29, 2005 attending physician’s report (Form CA-20), Dr. Trovato diagnosed a
disc herniation which he attributed to lifting a heavy bag. He checked “yes” to the question of
whether he thought the injury was employment related.
On July 18, 2005 Dr. Marino noted that appellant sustained an injury at work on May 14,
2005 and that she was first seen for the injury on May 19, 2005. Appellant related that she
injured her back while lifting a heavy bag and she immediately felt low back pain. Dr. Marino
noted that she continued to complain of back pain at her next visit on May 26, 2005. At this
point he believed appellant might have developed a disc herniation and referred her to
1

Appellant retired on disability from the employing establishment effective June 5, 2008.

2

Dr. Trovato, who diagnosed a compressed nerve in the lumbar region and referred her to
Dr. Saint Martin.
In a July 27, 2005 response, appellant noted that she injured her lower back on May 14,
2005 while working. She noted a bag from the conveyor belt which was too heavy and felt a
sharp pain in her back. Appellant stated that she reported the injury to lead supervisor, Gaitree
Chan, and worked the rest of her shift. She noted that she was off work on May 16 and 17, 2005
and had leg and back pain hurt when she reported to work on May 18, 2005. As appellant had so
much back and leg pain, she completed an accident report on May 18, 2005 and left work before
her shift ended. On May 19, 2005 she stated that she sought medical treatment.
On March 27, 2006 Dr. Johnson reported that appellant injured her back at work in
May 2005 when she lifted a bag and immediately felt back pain. He reported that she continued
to have back pain which radiated into her left leg.
By decision dated April 10, 2006, the Office denied appellant’s claim, finding that she
did not sustain an injury while in the performance of duty. It determined that the May 14, 2005
incident had not occurred at work. The Office also found the medical evidence of record was
insufficient to establish that appellant sustained an injury causally related to factors of her
employment.
On April 5 and May 8, 2007 appellant requested reconsideration and submitted medical
and factual evidence in support of her request including an April 30, 2006 statement by
Ms. Chan and an undated statement by Tameka Mells, who stated that she had been working
with appellant on May 14, 2005 when appellant injured her back picking up a bag. In her
statement, Ms. Chan noted that she was the supervisor on duty on May 16, 2006 when appellant
informed her that her back hurt and requested to be reassigned. Appellant stated that she had
injured her back the previous day while lifting a bag and added that she was unaware of the
proper reporting procedures.
On May 15, 2007 the Office received an undated report from Dr. Marino. In the report,
Dr. Marino noted that appellant sustained a back injury at work on May 14, 2005 due to lifting a
bag. He opined that appellant sustained a significant lower back injury and was precluded from
any stretching, lifting and bending.
On April 30, 2007 the employing establishment contended that there was no evidence
that appellant was injured at work as there were no witness statements and she did not report the
injury until May 18, 2005. The employing establishment also submitted evidence that Ms. Mells
had not worked on May 14, 2005.
In a May 1, 2007 statement, Ms. Chan stated that her April 30, 2006 statement that
appellant had been accommodated on May 16, 2005 was incorrect. She noted that as the
statement was written up almost a year later she “was unaware of specific dates.” Ms. Chan
stated that she recalled that appellant worked with her at some point during the week in question
“and stated that her back was hurting from lifting a day ago.” She related that she “had no
evidence of this and did not witness this” nor could she “pinpoint the day this occurred or the day
we entered work when she stated that her back was already hurting prior to her shift.”

3

In a May 3, 2007 statement, Ms. Mells, a coworker, explained that her statement that she
had been working with appellant on May 14, 2005 was incorrect. She stated that appellant
requested that she provide a statement several times which she did more than a year after the
injury. Ms. Mells related that appellant stated that she had injured her back at work while lifting
a bag. She noted that she did not realize that her statement would be used to support appellant’s
claim and that she did not witness appellant’s alleged injury.
By decision dated July 3, 2007, the Office denied appellant’s request for modification of
the denial of her claim.
On June 23, 2008 appellant’s counsel requested reconsideration. She contended that
appellant’s statement that she was injured on May 14, 2008 constituted the weight of the
evidence as there was no strong or persuasive evidence refuting her statement. Counsel also
contended that the medical evidence of record established that her back condition was causally
related to her employment injury and was entitled to benefits.
In a September 17, 2008 decision, the Office denied appellant’s request for
reconsideration. It found that the arguments presented by appellant were without probative value
as he did not address the inconsistencies in the record and the statements from her coworkers.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Act,2
the Office’s regulation provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.3 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.4 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.5
ANALYSIS
Appellant’s June 23, 2008 request for reconsideration neither showed that the Office
erroneously applied or interpreted a specific point of law, nor advanced a relevant legal argument
not previously considered. Her representative recited the law as it relates to her burden in
establishing the fact of injury and strongly contended that appellant met her burden. However,
appellant failed to show how the Office erred, nor did she advance a relevant legal argument not
2

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(1)-(2). See C.N., 60 ECAB ___ (Docket No. 08-1569, issued December 9, 2008).

4

20 C.F.R. § 10.607(a). See A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

5

R.M., 59 ECAB ___ (Docket No. 08-734, issued September 5, 2008).

4

previously considered. In this regard, counsel merely disagreed with the Office’s conclusion that
appellant failed to establish the fact of injury. She contended that appellant’s statement that she
injured herself on May 14, 2005 should stand as it was not refuted by strong or persuasive
evidence. However, in denying appellant’s claim, the Office found that the factual basis for the
claim contained too many inconsistencies as to when the injury occurred based on both the
medical and factual evidence. Appellant did not address the inconsistencies noted by the Office
in concluding that her statements describing the facts and the circumstances surrounding the
alleged injury should suffice. The Board finds, therefore, that appellant has failed to satisfy
either of the first two requirements under section 10.606(b)(2).
Appellant also failed to satisfy the third requirement listed in section 10.606(b). She did
not submit any relevant and pertinent new evidence not previously considered by the Office.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and thus properly denied her request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s July 23, 2008 request for
reconsideration without conducting a merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 17, 2008 be affirmed.
Issued: September 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF TRANSPORTATION,
TRANSPORTATION SECURITY
ADMINISTRATION, Belgrade, MT, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-2371
Issued: April 8, 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 September 18, 2007 appellant filed a timely appeal from an August 3, 2007 merit
decision of the Office of Workers’ Compensation Programs 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.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On June 12, 2007 appellant, then a 27-year-old transportation security screener, filed a
traumatic injury claim alleging that he strained his right wrist while loading bags that day. He
did not stop work but began a limited-duty assignment effective June 14, 2007.

By correspondence dated June 20, 2007, the Office advised appellant of the factual and
medical evidence needed to establish his claim. The Office advised appellant that it was
“crucial” that his physician submit a report explaining why the diagnosed condition was believed
to have been caused or aggravated by employment factors.
Appellant submitted a June 13, 2007 duty status report and treatment notes dated June 13
to and 25, 2007 from Heather H. Hart, a physician’s assistant.
On June 25, 2007 Dr. John B. Robbins, an internist, provided a duty status report
diagnosing right wrist tendinitis. He noted that appellant was able to resume full-duty work. In
a report dated the same day, Dr. Robbins explained that appellant initially experienced a popping
sensation while moving baggage on June 12, 2007 and reported experiencing difficulty while
throwing bags thereafter. He diagnosed right wrist tendinitis “probably secondary to overuse or
occupational issues.” Dr. Robbins noted that appellant had worn a right wrist splint and worked
limited duty for two weeks and that his condition had significantly improved in that time.
By decision dated August 3, 2007, the Office denied appellant’s traumatic injury claim.
It found that the medical evidence was insufficient to establish a causal relationship between
appellant’s diagnosed condition and the accepted employment incident.
LEGAL PRECEDENT
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.4
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.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence to
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

20 C.F.R. § 10.5(15), (16) defines a traumatic injury as a wound or other caused by a specific event or incident
within a single workday or shift, whereas an occupational injury is defined as a condition produced in the work
environment over a period longer than a single workday or shift. As appellant’s exposure occurred only during one
work shift, it is being treated as a latent or condition arising from a “traumatic” work incident within a single day.
5

John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton supra note 2.

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establish that the employment incident caused a personal injury. In this case, the Office has
accepted that the incident of exposure occurred as alleged. Therefore, examination of the
medical evidence is required.
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
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
The Board notes that appellant established that he experienced the employment incident
as alleged. However, he did not meet his burden of proof in establishing that the accepted
employment incident caused his diagnosed condition.
In support of his claim, appellant submitted reports from both Ms. Hart and Dr. Robbins.
Ms. Hart is a physician’s assistant and as such, her reports do not constitute competent medical
evidence for purposes of establishing causal relationship.10 Whether a particular injury causes an
employee disability for employment is a medical issue which must be resolved by competent
medical evidence.11 Accordingly, Ms. Hart’s reports are not probative on the question of causal
relationship.
On June 25, 2007 Dr. Robbins opined that appellant’s right wrist tendinitis was “probably
secondary to overuse or occupational issues.” He noted appellant’s history of injury on June 12,
2007 and difficulty throwing bags thereafter. However, Dr. Robbins did not present a detailed
medical opinion, with rationale, directly linking the June 12, 2007 employment incident with
appellant’s diagnosed condition. As noted, to be considered rationalized medical evidence
sufficient to establish causal relationship, a physician’s opinion must present detailed rationale
and explanation and be based on a complete factual and medical background.12 Dr. Robbins’
June 25, 2007 report lacks sufficient explanation or rationale to establish the relationship
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

See George H. Clark, 56 ECAB 162, 167 (2004) (a physician’s assistant is not a physician as defined under the
Act and any report from such individual does not constitute competent medical evidence).
11

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

12

Martinez, Watling, supra note 7; Rogers, supra note 9.

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between the June 12, 2007 employment incident and appellant’s diagnosed right wrist tendinitis.
He failed to explain how the popping sensation appellant described resulted to right wrist
tendinitis. Dr. Robbins’ statement that appellant’s condition was “probably secondary to overuse
or occupational issues” is speculative and equivocal in nature13 and does not support a traumatic
injury occurring in the course of only one shift. He also provided a June 25, 2007 duty status
report noting that appellant was capable of performing a full-duty assignment. The Board finds
that this report is not probative on the issue of causal relationship, as it offers no specific opinion
on causation.14 Accordingly, the Board concludes that the opinion of Dr. Robbins is insufficient
to establish the causal relationship between appellant’s diagnosed condition and the accepted
employment incident.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty.

13

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
14

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).

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ORDER
IT IS HEREBY ORDERED THAT the August 3, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 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

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