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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-661
Issued: July 6, 2012

Case Submitted on the Record

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

JURISDICTION
On January 24, 2011 appellant, through her attorney, filed a timely appeal from the
January 19, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation for refusing an offer of suitable work. 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 terminated appellant’s compensation effective
August 1, 2010 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On January 28, 2004 appellant, then a 51-year-old clerk, sustained injury to her neck and
right upper back due to shoveling snow at work. OWCP accepted that she sustained a cervical
1

20 C.F.R. § 8101 et seq.

strain/sprain, right trapezius muscle strain/sprain and cervical disc herniations at C5-6 and C6-7
with myelopathy.2 Appellant received compensation for periods of total disability.
On January 11, 2005 appellant underwent a posterior lateral partial vertebrectomy at C67 and a right anterior microforaminotomy and microdissection at C6-7. The procedures were
authorized by OWCP.
The findings of March 2005 magnetic resonance imaging (MRI) scan testing showed
two-level disc desiccation at C5-6 and C6-7 with leftward broad disc protrusion at C5-6 which
butted into the foramen on the left.
In a February 20, 2006 report, Dr. William Paronish, an attending Board-certified family
practitioner, indicated that appellant was totally disabled from all work due to her employment
injury. He indicated that she had clinical findings of ongoing significant pain in her neck, right
shoulder and right arm that were exacerbated by use of nearly any type. Dr. Paronish stated that
this problem was severely impairing appellant in her activities of daily living.
Dr. Laurence Primack, an attending Board-certified neurologist, indicated that
electromyogram (EMG) testing from December 2006 showed right cervical radiculopathy, right
brachial plexopathy, chronic and severe right median nerve neuropathy and left median nerve
neuropathy. On February 12, 2007 he indicated that appellant appeared in his office on that date
with extraordinary pain in her right upper extremity due to a combination of cervical
radiculopathy and brachial plexopathy. Dr. Primack indicated that she had muscle spasms and
noted that he had prescribed Flexeril for this pain.3 Both Drs. Paronish and Primack continued to
periodically examine appellant and found that her medical condition remained essentially
unchanged.
In a May 13, 2008 report, Dr. Subrata P. Barua, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, detailed appellant’s factual and medical history and
reported examination findings. He noted that, upon physical examination, appellant exhibited
residual neck and right trapezius pain and residual symptoms from her cervical discectomy and
vertebrectomy at C6-7 with some objective findings of mild tenderness and limitation of range of
motion. Dr. Barua indicated that she could not perform her regular work but was capable of
performing light work for one to three hours a day in a sedentary position. In a May 12, 2008
work restrictions form, he indicated that appellant could work for one to three hours a day with
restrictions such as lifting no more than 10 pounds for up to one hour a day.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Barua and appellant’s attending physicians regarding her ability to work and referred her and
the case record to Dr. Charles J. Harvey, a Board-certified orthopedic surgeon and osteopath, for
an impartial medical examination and opinion on the matter.

2

On August 4 and 30, 2004 appellant underwent carpal tunnel release surgery in her left and right arms.

3

Dr. Primack also indicated that appellant continued to have bilateral carpal tunnel syndrome.

2

In a December 4, 2009 report, Dr. Harvey provided a summary of the medical evidence
of record and detailed his findings on physical examination. He noted that appellant complained
of right-sided neck and trapezius pain, anterolateral right shoulder discomfort and lateral right
forearm pain with numbness into the thumb and index and long fingers. Dr. Harvey indicated
that, upon physical examination of her cervical spine, appellant had full flexion but 0 degrees
and 60 degrees of right rotation. Appellant had 5/5 strength in her arms upon various motions,
including flexion and extension of her elbow, wrists and fingers and external and internal
rotation of her shoulders. Dr. Harvey diagnosed persistent neuritic pain of the right upper
extremity and indicated that appellant remained symptomatic from her January 28, 2004 work
injury. He indicated that appellant had a partial disability and noted that Dr. Barua indicated in
2008 that a functional capacity evaluation might prove useful “to help locate this person in the
job force.” Dr. Harvey stated, “Otherwise, I would not expect any appreciable return of function
or decrease in symptoms from this patient. Prognosis for recovery is poor.” In a December 4,
2009 return to work evaluation form, he indicated that appellant should avoid repetitive activity
with her right arm but noted that she was allowed “unlimited use” of her left arm. Dr. Harvey
stated that she could frequently lift and carry up to 10 pounds, sit for eight hours a day and stand,
walk or drive for four hours.
OWCP requested that Dr. Harvey provide additional details about appellant’s work
restrictions. In a February 24, 2010 work restrictions form, Dr. Harvey indicated that she could
work eight hours a day with various restrictions. Appellant could reach, engage in repetitive
wrist or elbow motion, lift, push or pull for up to one hour a day; sit for up to eight hours; walk
or stand for up to four hours; and twist, bend, stoop, squat, kneel or climb for up to one hour.
She could not reach above her shoulder level with her right arm.
On May 11, 2010 the employing establishment offered appellant a job as a modified
clerk. The position involved sorting, distributing, forwarding and marking up mail for 3.5 hours
a day, working the retail window for 2.5 hours a day, casing mail for 0.5 hours a day and
delivering express mail for 1.5 hours a day. Appellant would be required to lift or carry for up to
1 hour a day; stand, walk or drive for up to 2.5 hours; sit for 4 hours a day; and reach, bend,
climb, squat or twist for up to 0.5 hours a day.4
On May 11, 2010 appellant refused the offered position indicating that she was medically
disabled.
In a May 14, 2010 letter, OWCP advised appellant of its determination that the modified
clerk position offered by the employing establishment was suitable. It indicated that the opinion
of Dr. Harvey, the impartial medical specialist, constituted the weight of the medical evidence
with respect to her ability to work and showed that she could perform the modified clerk
position. OWCP informed appellant that her compensation would be terminated if she did not
accept the position or provide good cause for not doing so within 30 days.

4

The employing establishment offered appellant a similar position on April 28, 2010 but this job offer was
superseded by the job offered on May 11, 2010. The first offer required that appellant engage in lifting and carrying
for 1.5 hours per day and, on May 4, 2010, OWCP wrote the employer and asserted that changing the lifting and
carrying requirement to one hour per day would make the first job offer suitable.

3

In May 23 and June 5, 2010 letters, appellant explained that she could not accept the
modified clerk position offered by the employer because she was not physically capable of
performing the duties of the job. She also asserted that her depression and anxiety prevented her
from performing the offered position. Appellant submitted additional work restriction forms,
including a May 19, 2010 form in which Dr. Paronish listed various work restrictions including
no lifting more than five pounds and no engaging in pushing or pulling.5
In a June 16, 2010 letter, OWCP advised appellant that her reasons for not accepting the
modified clerk position offered by the employing establishment were unjustified. It advised her
that her compensation would be terminated if she did not accept the position within 15 days of
the date of the letter.6
In a July 8, 2010 decision, OWCP terminated appellant’s compensation effective
August 1, 2010 on the grounds that she refused an offer of suitable work.
Appellant submitted additional treatment reports of Dr. Primack and Dr. Paronish from
mid to late 2010.7 In an October 26, 2010 report, Dr. Lynda Federoff, an attending clinical
psychologist, noted appellant’s history of sustaining an employment injury. She indicated that
appellant’s chief area of complaint was in the shoulder area, with right shoulder pain greater than
left. Dr. Federoff also reported constant pain down her right arm with pain occasionally
radiating part way down her left arm. On the Visual Analog Scale, where 0 was no pain and 10
was the worst pain ever experienced or imagined, appellant reported a 6 at the time of the
interview with her range of pain being a 3 or 4 with medication to a 7 or 8. Dr. Federoff
diagnosed major depressive disorder, moderate, recurrent and panic disorder without
agoraphobia. She stated as a result of appellant’s work injury, treatment for her injury, and her
inability to work, she appeared to be both depressed and experiencing panic attacks, which was
common for patients experiencing chronic pain. Appellant had been prescribed medication for
her depression (Lexapro) and her anxiety (Lorazepam) and she appeared to have coped well with
her pain despite its high level of interference in her life. Dr. Federoff stated that appellant might
benefit from referral to a chronic pain clinic.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the November 1, 2010 hearing, appellant’s counsel argued that the work restrictions
recommended by Dr. Harvey would not allow her to perform the duties of the modified clerk
position offered by the employing establishment.
In a January 19, 2011 decision, an OWCP hearing representative affirmed OWCP’s
July 8, 2010 decision finding that the opinion of Dr. Harvey showed that appellant could perform
the modified clerk position offered by the employing establishment.

5

Appellant also submitted work restrictions forms of attending physicians, dated in 2008 and 2009, which had
previously been submitted.
6

Prior to sending the letter, OWCP called the employing establishment and confirmed that the offered position
was still available to appellant.
7

Appellant also resubmitted a number of medical reports from the 1990s and early 2000s.

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LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”8 However, to justify such termination, OWCP must show that the work offered
was suitable.9 An employee who refuses or neglects to work after suitable work has been offered
has the burden of showing that such refusal to work was justified.10
According to OWCP procedure, a job offer must be in writing and contain a description of
the duties to be performed and the specific physical requirements of the position.11 The Board has
held that all impairments, whether work related or not, must be considered in assessing the
suitability of an offered position.12
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”13 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.14 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.15
ANALYSIS
OWCP accepted that on January 28, 2004 appellant sustained a cervical strain/sprain,
right trapezius muscle strain/sprain and cervical disc herniations at C5-6 and C6-7 with
myelopathy. On May 11, 2010 the employer offered her a job as a modified clerk and, on
May 14, 2010 OWCP determined that the offered position was suitable. Appellant refused the
position and OWCP terminated her compensation effective August 1, 2010 due to this refusal.
The modified clerk position offered by the employing establishment involved sorting,
distributing, forwarding and marking up mail for 3.5 hours a day, working the retail window for
8

5 U.S.C. § 8106(c)(2).

9

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

10

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(a) (December 1993).
12

See Mary E. Woodward, 57 ECAB 211 (2005).

13

5 U.S.C. § 8123(a).

14

William C. Bush, 40 ECAB 1064, 1075 (1989).

15

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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2.5 hours a day, casing mail for 0.5 hours a day and delivering express mail for 1.5 hours a day.
The job description for the position indicated that appellant would be required to lift or carry for
up to 1 hour a day; stand, walk or drive for up to 2.5 hours; sit for 4 hours a day; and reach, bend,
climb, squat or twist for up to 0.5 hours a day.
The Board finds that the weight of the medical evidence regarding appellant’s ability to
work around the time the modified clerk position was offered is represented by the wellrationalized report of Dr. Harvey, a Board-certified orthopedic surgeon and osteopath who
served as an impartial medical specialist.16 In December 4, 2009 and February 24, 2010 reports,
Dr. Harvey indicated that appellant could perform limited-duty work for eight hours a day. He
stated that she could reach, engage in repetitive wrist or elbow motion, lift, push or pull for up to
one hour a day; sit for up to eight hours; walk or stand for up to four hours; and twist, bend,
stoop, squat, kneel or climb for up to one hour. Appellant could only lift up to 10 pounds and
she could not reach above her shoulder level with her right arm.
The Board finds that OWCP did not meet its burden of proof to show that the modified
clerk position offered by the employing establishment was suitable and therefore its termination
of appellant’s compensation for refusing such employment was improper. The modified clerk
position involved sorting, distributing, forwarding and marking up mail for 3.5 hours a day,
working the retail window for 2.5 hours a day, casing mail for 0.5 hours a day and delivering
express mail for 1.5 hours a day. The restrictions provided by Dr. Harvey dictate that appellant
could only reach for one hour a day, lift, push or pull for one hour, engage in wrist motion for
one hour, engage in elbow motion for one hour and lift up to 10 pounds.17 However, the
description of the modified clerk position did not provide any indication of how much time per
day appellant would be required to engage in repetitive wrist or elbow motion and did not
specify how much time per day she would engage in pushing and pulling, actions which
Dr. Harvey limited to one hour per day. As noted above, a job offer must be in writing and
contain a description of the duties to be performed and the specific physical requirements of the
position.18 The description of the modified clerk position is silent with respect to these physical
actions which were restricted by Dr. Harvey. Moreover, Dr. Harvey indicated that appellant
could only lift up to 10 pounds, but the description of the modified clerk position does not
indicate how much weight appellant would be required to lift. He also indicated that appellant
could not reach above her shoulder with her right arm, but the description of the modified clerk
position does not indicate whether the position would require such activity. Because the
16

See supra notes 13 through 15. OWCP properly determined that there was a conflict in the medical opinion
evidence requiring referral to an impartial medical specialist. In reports from May 2008, Dr. Barua, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, indicated that appellant could work for one to
three hours a day with restrictions such as lifting no more than 10 pounds for up to one hour a day. In contrast,
appellant’s attending physicians, including Dr. Paronish, an attending Board-certified family practitioner, indicated
that appellant was totally disabled.
17

In his December 4, 2009 report, Dr. Harvey indicated that appellant could “occasionally” engage in reaching
and “frequently” engage in lifting. His more specific restrictions on reaching and lifting contained in his
February 24, 2010 form report supersede his earlier recommendations. Dr. Harvey’s restriction on appellant lifting
more than 10 pounds, contained in his December 4, 2009 report, was not superseded by any later work restriction
recommendation.
18

See supra note 11.

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description of the offered position does not specify the extent to which appellant could engage in
these activities, it cannot be found that the offered position is suitable when viewed in light of
appellant’s medical restrictions.
In addition, OWCP did not adequately consider whether appellant’s total medical
condition negatively affected her ability to work in the position offered by the employing
establishment. The Board has held that all impairments, whether work related or not, must be
considered in assessing the suitability of an offered position.19 For example, OWCP did not
adequately consider whether appellant’s diagnosed psychological condition affected her ability
to perform the modified clerk position. Appellant submitted medical evidence regarding her
psychiatric condition,20 but OWCP did not provide any discussion in its decisions regarding the
matter of whether she could perform the position in spite of her psychiatric condition.21
For these reasons, OWCP did not meet its burden of proof to show that the modified
clerk position was suitable around the time it was offered in May 2010. Because the modified
clerk position was not shown to be suitable, appellant’s refusal of the offered position would not
constitute a refusal of an offer of suitable work. Therefore, OWCP had no basis to terminate
appellant’s compensation effective August 1, 2010.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
August 1, 2010 on the grounds that she refused an offer of suitable work.

19

See supra note 12.

20

In an October 26, 2010 report, Dr. Federoff, an attending clinical psychologist, indicated that appellant had
depression and anxiety that were related, in part, to her work-related injuries. While these psychiatric conditions
have not been accepted by OWCP as work related, they should be considered in determining the suitability of the
modified clerk position.
21

On appeal, counsel argued that Dr. Harvey did not consider the affect of appellant’s bilateral carpal tunnel
condition on her ability to work. However, in his December 4, 2009 report, Dr. Harvey discussed this condition and
fully evaluated appellant’s arms.

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ORDER
IT IS HEREBY ORDERED THAT the January 19, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 6, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 17-0164
Issued: June 14, 2018

Case Submitted on the Record

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

JURISDICTION
On November 1, 2016 appellant filed a timely appeal from an August 8, 2016 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury causally related to the accepted October 27, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after OWCP issued the August 8, 2016
decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On November 2, 2015 appellant, a 57-year-old mail carrier, filed a notice of traumatic
injury (Form CA-1) alleging that she injured her back and left arm on October 27, 2015 while
delivering mail. Appellant stated that she stepped on a landscape timber that was hidden under
wet leaves and then slipped and fell on her back and left arm. She did not stop work.
In a November 12, 2015 development letter, OWCP advised appellant of the deficiencies
of her claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a November 2, 2015 report from an unknown provider which
diagnosed lumbar contusion, lumbar sprain/strain, right hip strain, cervical sprain, ankle arthritis,
thumb strain, and ankle sprain.
In a November 5, 2015 report, Mark Hannaford, a physician assistant, diagnosed lumbar
strain and stenosis. On November 11, 2015 Mr. Hannaford indicated that appellant was feeling
better and refused physical therapy.
By decision dated December 18, 2015, OWCP accepted that the October 27, 2015 incident
occurred as alleged, but denied appellant’s claim finding that she failed to submit evidence
containing a medical diagnosis in connection with the injury or events. Thus, it concluded that she
had not established fact of injury.
On May 16, 2016 appellant requested reconsideration and submitted a June 24, 2016 report
from an unknown provider noting that appellant was seen on November 2, 2015 as a result of a
fall suffered while delivering mail. The unidentifiable provider indicated that appellant incurred
injuries to her cervical and lumbar spine as a result and signed the report with an illegible signature.
By decision dated August 8, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury4 was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5

3

Supra note 1.

4
OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient evidence, generally
only in the form of medical evidence, to establish that the employment incident caused a personal
injury. An employee may establish that the employment incident occurred as alleged, but fail to
show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP accepted that the employment incident of October 27, 2015 occurred at the time,
place, and in the manner alleged. The issue is whether appellant sustained an injury as a result.
The Board finds that appellant has not met her burden of proof to establish that she sustained an
injury causally related to the October 27, 2015 employment incident.
Appellant submitted reports dated November 2, 2015 and June 24, 2016 providing
diagnoses and medical opinions. However, these reports are from healthcare providers whose
identities cannot be discerned from the record. Because it cannot be determined whether these
records are from a physician as defined in 5 U.S.C. § 8101(2), they do not constitute competent
medical evidence.8
Appellant also submitted a November 5, 2015 report from a physician assistant who
diagnosed lumbar strain and stenosis. This also does not constitute competent medical evidence
as a physician assistant is not considered a physician as defined under FECA.9 As noted, causal
relationship is a medical issue that must be addressed by medical evidence.10

6

Id.

7

Id.

8

R.M., 59 ECAB 690, 693 (2008). See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may
not be considered as probative medical evidence if there is no indication that the person completing the report qualifies
as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not constitute probative
medical evidence).
9

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants). See also Gloria J. McPherson,
51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can
only be resolved through the submission of probative medical evidence from a physician).
10

See supra note 5.

3

Consequently, the Board finds that appellant has not met her burden of proof to establish
her claim because she has not submitted competent medical evidence addressing how the
October 27, 2015 work incident caused or contributed to a diagnosed medical condition.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury causally related to the accepted October 27, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2018
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Fort Myers, FL, Employer
__________________________________________
Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

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Docket Nos. 10-1935 &
11-243
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 20, 2010 appellant filed an application for review of a May 4, 2010 decision of
the Office of Workers’ Compensation Programs, file number xxxxxx754, which affirmed an
October 6, 2009 decision denying appellant’s claim for a recurrence of disability.1 The appeal
was docketed as number 10-1935.
The May 4, 2010 decision referenced another back injury claim filed by appellant, file
number xxxxxx211.2 In the May 4, 2010 decision, an Office hearing representative noted
reviewing file number xxxxxx211 and advised that a second opinion physician in that claim
found that appellant continued to need medical limitations based on the lumbar condition in file
number xxxxxx754. The hearing representative referenced another second opinion in file
number xxxxxx211 noting that the physician determined that appellant was opioid dependent and
had chronic pain syndrome. The hearing representative further noted: “the claimant’s prior
claim of xxxxxx211 was also reviewed in the event that any additional medical information was
1

The Office accepted this claim for a lumbar strain and disc disorder arising from an October 19, 2003 traumatic
injury. It also accepted opioid dependence and chronic pain syndrome.
2

File number xxxxxx211, date of injury May 21, 2006, was accepted for back and hip contusions.

available … regarding disability in the present claim” file number xxxxxx754. On appeal,
appellant asked that the claims for work-related back injuries be consolidated as both cases
pertain to the same condition.
Additionally, the Board notes that after the February 11, 2010 oral hearing in file number
xxxxxx754, appellant submitted additional evidence. This included reports from Dr. Gene
Mahaney, appellant’s treating physician, dated September 23, December 15, 2009 and
January 28, 2010 which document appellant’s continued treatment. These documents were
received by the Office on April 21, 2010. In the May 4, 2010 decision, the hearing
representative stated that appellant did not submit evidence after the February 11, 2010 hearing
and the hearing representative did not consider these reports submitted by appellant.
On November 8, 2010 appellant filed an appeal of a May 7, 2010 Office decision in file
number xxxxxx211, which declined to modify a June 11, 2009 decision that terminated
compensation benefits.3 The appeal was docketed as number 11-243. The May 7, 2010 decision
referenced file number xxxxxx754 and certain conditions accepted in that claim and the status of
claim adjudication in file number xxxxxx754. The decision also denied appellant’s request to
combine the two claim files noting that it was “not uncommon” to keep the files separate or to
combine them. The Office found that, as the evidence was not sufficient to change the June 11,
2009 decision, it would not combine the files. On appeal, appellant asserts that the two claim
files should be combined to avoid piecemeal adjudication.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. In appeal number 10-1935 and Office file xxxxxx754, the hearing representative did
not consider all of the evidence submitted prior to issuance of the May 4, 2010 decision. In the
case of William A. Couch,4 the Board held that when adjudicating a claim, the Office is obligated
to consider all evidence properly submitted by a claimant and received by the Office before the
final decision is issued. The case must be remanded for the Office to consider this evidence.
Furthermore, the Board finds that the two claims in the two appeals before the Board
should be combined. File number xxxxxx754, involves appellant’s claim for a recurrence of
disability beginning May 21, 2006. In the May 4, 2010 decision in file number xxxxxx754, the
hearing representative noted reviewing evidence and findings made in file number xxxxxx211 in
reaching her decision. Likewise in the May 7, 2010 decision in file number xxxxxx211, the
Office noted reviewing file number xxxxxx754 in reaching its decision. Pursuant to Office
procedures, it has determined that cases should be combined where correct adjudication depends
on cross-referencing between files. In the instant appeal, it appears that, for a full and fair
adjudication, the Office claims pertaining to appellant’s lumbar conditions should be combined
pursuant to Office procedures.5 This will allow the Office to consider all relevant evidence in
3

The May 7, 2010 decision was issued following an April 5, 2010 order remanding case in which the Board set
aside the June 11, 2009 decision finding that the Office’s decision did not consider evidence and argument provided
by appellant on June 10, 2009. Docket No. 09-1802 (issued April 5, 2010).
4

41 ECAB 548 (1990).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

adjudicating the claim. Moreover, to consider appellant’s appeal at this stage would involve a
piecemeal adjudication of the issues in this case and raise the possibility of inconsistent results.
It is the Board’s policy to avoid such an outcome.6
The case will be remanded to the Office to combine case file numbers xxxxxx754 and
xxxxxx211. Following this and such other development as deemed necessary, the Office shall
issue an appropriate merit decision in the combined claims.
IT IS HEREBY ORDERED THAT the May 7 and 4, 2010 decisions be set aside and
the matter remanded to the Office for further proceedings consistent with this order of the Board.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6

See William T. McCracken, 33 ECAB 1197 (1982).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 13-281
Issued: March 22, 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 November 20, 2012 appellant, through his attorney, filed a timely appeal from an
October 25, 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 schedule award decision.
ISSUE
The issue is whether appellant has more than a 70 percent permanent impairment of the
right lower extremity.
FACTUAL HISTORY
On May 6, 2004 appellant, then a 57-year-old review clerk, filed a traumatic injury claim
alleging that on May 2, 2004 he fractured his heel when he fell down stairs. OWCP accepted the

1

5 U.S.C. § 8101 et seq.

claim for a right comminuted calcaneus fracture, a postoperative infection, chronic osteomyelitis
and a traumatic unilateral amputation of the leg.
Appellant underwent surgery on June 1, 2004 to repair the fracture. Following the
surgery he developed osteomyelitis. On December 11, 2004 appellant underwent an amputation
below the right knee.
In an impairment evaluation dated January 31, 2006, Dr. Perry W. Greene, Jr., an
orthopedic surgeon and OWCP referral physician, found that appellant had “an amputation of his
right leg seven inches below the knee on the right side” as a result of his employment injury. He
determined that, according to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides), appellant had a 28 percent permanent
impairment. On June 4, 2006 an OWCP medical adviser reviewed Dr. Greene’s report and
found that appellant had a 70 percent permanent impairment of the lower extremity.
By decision dated June 30, 2006, OWCP granted appellant a schedule award for a 70
percent permanent impairment of the right lower extremity. The period of the award ran for
201.60 weeks from January 31, 2006 to December 12, 2009.
In a November 16, 2010 impairment evaluation, Dr. William N. Grant, a Board-certified
internist, discussed appellant’s history of injury and noted that he had a below-knee amputation
on the right side. He diagnosed right peripheral vascular disease, klebsiella pneumonia, a right
amputation, a closed fracture of the calcaneus, right postoperative wound infection, a right open
wound on the foot, right ankle joint pain and chronic osteomyelitis of the right ankle. Citing the
sixth edition of the A.M.A., Guides, Dr. Grant identified the diagnosis as a class 4 amputation
under Table 16-16 on page 542. He applied grade modifiers of 4 for Functional History
(GMFH) and Physical Examination (GMPE) to find no net adjustment. Dr. Grant concluded that
appellant had an 80 percent impairment of the right lower extremity “based on his history,
inclusive of multiple surgeries, postop[erative] wound infection and daily severe pain.”
On April 21, 2011 an OWCP medical adviser reviewed the medical evidence and noted
that Dr. Grant applied the diagnosis set forth in Table 16-16 for an amputation three inches
below the knee, which yielded a default value of 80 percent. He questioned the measurement for
the amputation and noted that a standard amputation would be greater than three inches below
the knee, which would yield a default value of 70 percent. OWCP’s medical adviser applied
grade modifiers and found that appellant had a 70 percent permanent impairment of the right
lower extremity.
By letter dated May 31, 2011, OWCP requested that appellant’s attorney provide
additional information from Dr. Grant regarding the length of the amputation.
In a November 3, 2011 response, Dr. Grant opined that the A.M.A., Guides did not
require a specific measurement. He advised that appellant had an 80 percent impairment of the
right lower extremity.
On November 17, 2011 an OWCP medical adviser related that he was unable to provide
the extent of an impairment rating without the measurement of appellant’s stump. He then
concurred with the prior finding of a 70 percent lower extremity impairment rating.
2

By decision dated April 30, 2012, OWCP denied appellant’s claim for an increased
schedule award. It found that the evidence did not establish more than the previously awarded
70 percent impairment of the right lower extremity.
On May 4, 2012 appellant, through his attorney, requested a telephone hearing before an
OWCP hearing representative. At the telephone hearing, held on August 15, 2012, his attorney
argued that he had total loss of function due to his amputation and thus should receive a schedule
award for a 100 percent loss of use of the leg.
By decision dated October 25, 2012, OWCP’s hearing representative affirmed the
April 30, 2012 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
ANALYSIS
OWCP accepted that appellant sustained a right comminuted calcaneus fracture, a
postoperative infection, chronic osteomyelitis and a traumatic unilateral amputation of the leg
below the right knee due to a May 2, 2004 employment injury. On June 30, 2006 it granted him
a schedule award for a 70 percent permanent impairment of the right lower extremity. In
decisions dated April 30 and October 25, 2012, it denied appellant’s request for an additional
schedule award after finding that the medical evidence did not support a greater impairment
under the sixth edition of the A.M.A., Guides.
The Board finds that appellant is entitled to a schedule award for a 100 percent
permanent impairment of the right lower extremity. Section 8107(c)(16) of FECA provides that,
if an arm or leg is amputated above the wrist or ankle, compensation is the same as for loss of the
arm or leg, respectively. Appellant underwent an amputation of his right leg below the knee that
was causally related to his employment. Therefore, as the statute supersedes the A.M.A.,

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

3

Guides, he is entitled to impairment equal to that of the loss of a leg.6 OWCP’s decision,
consequently, is reversed and the case remanded for it to award appellant an additional 30
percent impairment of the right leg due to his leg amputation above the ankle.
CONCLUSION
The Board finds that appellant is entitled to a schedule award for a 100 percent
impairment of the right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2012 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 22, 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

5 U.S.C. § 8107(c)(2), (c)(16); see also Chris J. Stasinopoulos, Docket No. 05-74 (issued June 23, 2005).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Owenton, KY, Employer
__________________________________________

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Appearances:
Geoffrey P. Damon, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1210
Issued: January 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 3, 2009 appellant filed a timely appeal from a January 6, 2009 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merit issues of this case.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment in
compensation in the amount of $10,467.50 had been created for the period March 29, 2003 to
March 10, 2004 because appellant’s compensation was based on an incorrect pay rate; and
(2) whether the Office properly denied waiver of the overpayment.1

1

At the time the Office issued the January 6, 2009 decision, it did not seem aware that appellant was receiving
wage-loss compensation under Office file number xxxxxx846 for an injury that occurred on September 11, 2006.
With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where the Office
seeks recovery from continuing compensation benefits under the Act, and it did not do so in this case. D.R., 59
ECAB ___ (Docket No. 07-823, issued November 1, 2007).

FACTUAL HISTORY
On February 11, 2003 appellant, then a 61-year-old rural carrier associate, sustained an
employment-related concussion and left shoulder impingement syndrome when he fell on ice
while loading mail into his car. He stopped work that day. On July 22 and November 18, 2003
appellant underwent left shoulder arthroscopic repair. He received augmented compensation
based on a 40-hour workweek at a weekly pay rate of $729.60. Appellant returned to modified
duty on March 11, 2004. He stopped work on March 15, 2004 when he sustained a new injury to
his left shoulder.2
By letter dated April 14, 2004, the employing establishment informed the Office that
appellant received an overpayment in compensation, noting that he was entitled to only 25 hours
of weekly compensation, based on a calculation of his work the previous year. On June 4, 2004
Darla Baker, the postmaster, advised that appellant was a substitute mail carrier working five to
six days a week because a carrier had retired. On June 10, 2004 the employing establishment
provided an analysis of appellant’s employment the previous year, noting that he averaged 30.98
hours per week at an average weekly pay rate of $553.75. On June 27, 2006 Ms. Baker advised
that appellant was a noncareer employee who worked on an on-call basis. She stated that she did
not have records but estimated that appellant would have worked an average of 35 hours per
week at a weekly pay rate of $646.45. On January 25, 2008 the employing establishment
informed the Office that, based on appellant’s employment records for the 12 months prior to the
February 11, 2003 injury, he averaged working 31 hours per week with an average weekly pay,
minus overtime, of $559.02. On September 4, 2008 the employing establishment provided
appellant’s payroll records for the year prior to the February 11, 2003 injury, ascertaining that his
total pay was $23,408.00 or $450.15 a week. Computer worksheets show that appellant received
$27,259.36 in wage-loss compensation for the period March 29, 2003 to March 10, 2004 and
advised that, based on a weekly pay rate of $450.15, he should have received compensation of
$16,791.86, yielding an overpayment in compensation in the amount of $10,467.50.
On October 31, 2008 the Office issued a preliminary determination that appellant had
received an overpayment in compensation in the amount of $10,467.50 from March 29, 2003 to
March 10, 2004 because he was paid at an incorrect pay rate. It found appellant without fault.
Appellant was given 30 days to respond and was provided an overpayment questionnaire. In a
November 4, 2008 letter, the Office further explained to him that his initial claim forms had
listed him as working 40 hours a week whereas the employing establishment confirmed on
September 4, 2008 that, at the time of the February 11, 2003 injury, he worked an average 25hour workweek. It advised that it was important that appellant respond within the 30 days
allotted in the preliminary decision. On January 6, 2009 the Office finalized the determination
that appellant received an overpayment in compensation in the amount of $10,467.50, found that
he was not at fault and denied waiver because he failed to submit the requested financial
information. It set up a repayment schedule of $250.00 per month.3
2

On June 14, 2004 appellant filed a recurrence claim, stating that he reinjured his left shoulder on
March 15, 2004. The Office determined that appellant sustained a new injury and adjudicated the claim under file
number xxxxxx645.
3

See supra note 1.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.5 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.6 The Act provides that monthly pay means the monthly pay at the time of injury, or the
time disability begins, or the time compensable disability recurs, if the recurrence begins more
than six months after the injured employee resumes regular full-time employment, whichever is
greater.7
To determine a weekly pay rate, the Office must first determine the employee’s “average
annual earnings” and then divide that figure by 52.8 Section 8114(d) of the Act provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of
pay; or
(B) was not fixed, the average annual earnings are the product
obtained by multiplying his daily wage for particular employment,
or the average thereof if the daily wage has fluctuated, by 300 if
he was employed on the basis of a 6-day workweek, 280 if
employed on the basis of a 5½-day week, and 260 if employed on
the basis of a 5-day week.”9
ANALYSIS
The Board finds this case is not in posture for decision. The Office found an
overpayment in compensation on the grounds that appellant received wage-loss compensation
4

5 U.S.C. §§ 8101-8193.

5

Id. at 8102(a).

6

Id. at 8129(a).

7

Id. at § 8101(4); see Janet A. Condon, 55 ECAB 591 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of Compensation, Chapter 2.900.9
(April 2002).
9

5 U.S.C. § 8114(d).

3

based on an incorrect pay rate. The initial pay rate used by the Office, based on the date of
injury which was also the date disability began, was based on a 40-hour workweek or $729.60
per week. This was later adjusted to reflect actual earnings during the previous year for an
average weekly pay rate of $553.75. In the preliminary overpayment determination, the Office
advised appellant that the correct weekly pay rate was $450.15, stating that his actual earnings
the previous year of $23,408.00 were divided by 52 weeks to yield a correct weekly pay rate of
$450.15.
A pay rate determination must be made in accordance with the specific provisions of
section 8114 of the Act. The record indicates that, as a rural carrier associate, appellant did not
have fixed hours. The postmaster, Ms. Baker, advised that he worked as a substitute mail carrier
on an on-call basis, and had worked five to six days a week the previous year because a carrier
had retired. She estimated that he worked 35 hours per week. The record also includes two
employing establishment records that purport to show appellant’s hours worked and earnings in
the year prior to the February 11, 2003 employment injury. From these records and the
statements of the postmaster, it appears that appellant worked in the date-of-injury job during
substantially the whole year preceding the injury, that he was paid an hourly wage, and that he
worked a varying number of hours per week. Thus, since his annual earnings were not fixed, the
Office should have determined his pay rate in accordance with section 8114(d)(1)(B).10 As
noted above, this requires determining the average daily wage and multiplying by the appropriate
number. The case is therefore not in posture for decision, and the case must be remanded for the
Office to secure sufficient evidence to determine appellant’s average daily wage, and whether he
was employed on the basis of a six, five and one half or five-day workweek.
The case will therefore be remanded to the Office for a proper determination as to the
correct pay rate for compensation purposes. Once this issue is resolved, the Office may properly
determine the amount of any overpayment and issue an appropriate decision. Due to the Board’s
finding on the first issue, it will not address the issue of waiver. If the Office finds an
overpayment and establishes recovery from continuing compensation payments, the Office must
consider the relevant factors.11
CONCLUSION
The Board finds this case is not in posture for decision because the Office did not
properly determine appellant’s pay rate for compensation purposes in accordance with section
8114 of the Act.

10

Id. at § 8114(d)(1)(B).

11

See 20 C.F.R. § 10.441.

4

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2009 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: January 5, 2010
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
K.G., Appellant
and
DEPARTMENT OF THE ARMY,
MUNSON ARMY HEALTH CENTER,
Fort Leavenworth, KS, Employer
__________________________________________

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Appearances:
Janice L. Jackson, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1426
Issued: April 13, 2011

Case Submitted on the Record

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

JURISDICTION
On April 29, 2010 appellant, through his representative, filed a timely appeal of the
February 4, 2010 merit decision of the Office of Workers’ Compensation Programs affirming the
denial of his emotional condition claim. Pursuant to the Federal Employees’ Compensation
Act,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 sustained an emotional condition in the performance of
duty.
On appeal, appellant contends that his emotional condition was caused by the employing
establishment’s actions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 23, 2009 appellant, then a 45-year-old industrial hygienist, filed an
occupational disease claim (Form CA-2) alleging that on March 5, 2009 he first realized that his
stress with diarrhea, insomnia, nausea, headaches, anxiety and depression were caused by his
federal employment. In a narrative statement, he attributed his emotional conditions to being
discriminated against based on his age, race and sex and harassed by management in several
work incidents since July 1, 2006. Management gave appellant poor performance ratings in
2007 and 2008. Appellant contended that his poor appraisals were due to management’s delay in
providing him with a rating chain or performance standards and expectations in 2006 and 2007.
On March 4, 2009 a Colonel Beus advised appellant that management made errors in his 2007
performance appraisal, but refused to change the errors.
On September 18, 2006 appellant challenged the Corps of Engineers’ asbestos plan. He
alleged that Lieutenant Colonel Beverly Jefferson threatened him with harmful actions if he
discussed his concerns about the plan with anyone other than herself.
Appellant was not notified about the relocation of his office and equipment from
November through December 6, 2006. He was concerned about the electrical plan for his
equipment and possible electrical problems. Appellant received instructions from Sergeant Guy
Claudy regarding the use of surge protectors which violated the National Electrical Code.
Management retaliated against him for raising safety concerns. On December 6, 2006
appellant’s concerns were substantiated by an outside electrician. He was reprimanded by a
Colonel Degenhardt because he discussed his safety concerns with a commander and the union.
On December 7, 2006 appellant was counseled by Lt. Col. Jefferson and Second Lieutenant
Jacob J. Derivan for his actions. He was not allowed to have a witness or union representative
present at the counseling session. Col. Degenhardt and Lt. Col. Jefferson later agreed to remove
all documentation related to his December 7, 2006 counseling session.
On January 4, 2007 appellant’s noise survey results were questioned by Col. Degenhardt,
who stated that appellant required greater supervision. On July 12, 2007 his work duties were
limited by Lt. Col. Jefferson and Lt. Derivan. Appellant was excluded from meetings that took
place from July 16 through 18, 2007 regarding a program that he managed. He had limited
participation in meetings that took place from August 20 through 24, 2007. Appellant’s
memoranda and reports were changed commencing August 1, 2007. On August 1, 2007
Lt. Derivan admitted to editing appellant’s documents. On February 17, 2009 Lt. Col. Jefferson
and Lt. Derivan advised appellant that no changes had been made to his reports. On
February 18, 2009 an employing establishment commander stated that she was aware that Scott
Bentley and Dan Mitchell, employees, were making changes to appellant’s documents. On
June 6, 2008 Lt. Derivan changed appellant’s work duties.
From August 27, 2007 through March 4, 2009 appellant experienced problems accessing
programs and drives on his computer. The computer drives were changed. The computer
displayed blue screens of death.
On November 15, 2007 Lt. Derivan accused appellant of wrongdoing in his work
performance. On January 10, 2008 he advised appellant that no retraining would be made
available to him and his performance appraisal would be subjective in nature. On January 14,
2

2007 Lt. Derivan issued a letter proposing to suspend appellant for 14 days.2 On February 25,
2008 he complained about appellant’s lack of progress on a program document. On October 17,
2008 Lt. Derivan accused appellant of releasing records in violation of a new unwritten
employing establishment policy. On February 12, 2009 Lt. Col. Jefferson gave appellant a copy
of a performance improvement plan (PIP), but he took it back to provide clarification of its
contents. On February 17, 2009 she placed him on the PIP. Later on that date, Lt. Derivan
issued a letter proposing to remove appellant from his industrial hygienist position. On
February 25, 2009 Lt. Col. Jefferson wanted appellant to falsely state that no records existed in
response to a Freedom of Information Act (FOIA) request. On February 26, 2009 she wanted
appellant to send records to an e-mail address in violation of the employing establishment’s new
records release policy. Lt. Col. Jefferson threatened him if he did not perform the requested task.
Appellant noted that Lt. Derivan had accused him of violating this same policy on
October 16, 2008. On March 2, 2009 Lt. Col. Jefferson planned to assign so much work to
appellant that he could not perform all of the work. She refused to clarify her work instructions.
Lt. Col. Jefferson stated that she wanted appellant to fail or be fired. On March 4, 2009
Lt. Derivan told appellant that he acted against him on behalf of Lt. Col. Jefferson.
Management allegedly conducted several searches of appellant’s office and seized and
damaged his personal property. On January 29, 2008 appellant’s computer was accessed by an
unknown individual. On February 13, 2008 he reported to Lt. Derivan and the employing
establishment police that personal items were taken from his desk drawers. Management refused
to further investigate the incident even though some of appellant’s missing items were found to
be in Lt. Col. Jefferson’s possession.
These items were returned to appellant on
February 14, 2008. On March 3, 2008 appellant discovered microphones on his computer. After
contacting the employing establishment’s information management division, the microphones
disappeared. Management refused to explain why the microphones were placed on appellant’s
computer. On August 14, 2008 Lt. Derivan was in appellant’s office using his computer. He
refused to explain his presence. After Lt. Derivan left his office, appellant tried to log onto the
computer. It displayed blue screens of death. On October 30, 2008 Lt. Derivan replaced
appellant’s chair without permission. On December 15, 2008 appellant reported to Lt. Derivan
and the employing establishment police that his office had been vandalized. Management
entered appellant’s office and broke his personal picture frames and radio. Management and the
police refused to investigate his complaint. On February 13, 2009 management removed
documents from appellant’s office. Appellant made this discovery on February 18, 2009 and
reported the incident to management and the employing establishment police. On February 23,
2009 someone had been in appellant’s office. Appellant found magazines on his desk. He
reported the incident to Lt. Col. Jefferson who stated that she would investigate the incident. On
March 13, 2009 Lt. Col. Jefferson called appellant three times at home on his day off work
demanding to know the whereabouts of occupational health records. She threatened to search
and seize the records from his office. Appellant did not consent to the subsequent search.
From April 22 through July 28, 2008 management failed to correct changes made to
appellant’s pay and leave. On October 6 and 21, and November 8 2008 appellant requested
reimbursement for travel duty (TDY) status he was on from October 1 through 3, 2008 and three
days in November 2008. Management did not make the requested changes or reimbursement
payments.
2

Appellant was suspended from April 7 through 18, 2008.

3

On November 7, 2008 appellant filed an Equal Employment Opportunity (EEO)
complaint against Lt. Col. Jefferson, Lt. Derivan and Olga Madigan, an employee, alleging
discrimination regarding his leave, pay and travel reimbursements. On February 9, 2009 he
appealed the employing establishment’s dismissal of his complaint.
Appellant had difficulty obtaining a Form CA-2 and authorization for examination and/or
treatment (Form CA-16) from management for his emotional condition claim.
Medical reports dated March 3 and 19, 2009 stated that appellant had an emotional
condition causally related to his employment. Appellant was intermittently disabled for work.
By letter dated April 24, 2009, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It requested factual and medical evidence. The Office
requested that the employing establishment respond to appellant’s allegations and provide a copy
of his position description and physical requirements.
In a May 5, 2009 letter, appellant noted the grievances he filed against Lt. Derivan and
Lt. Col. Jefferson regarding his 2006 and 2007 performance appraisals, 14-day suspension for
misconduct and leave, pay and TDY reimbursement. He stated that the performance ratings
were in retaliation for failing to perform surveys and identifying safety and health problems and
fraud, waste and abuse regarding its flawed renovation and design plan. Appellant’s 14-day
suspension was in retaliation for alleging that his reports were changed by management and
filing a grievance regarding management’s failure to correct his pay and leave, and reimburse his
TDY expenses. Management also retaliated against him for issuing citations to the employing
establishment as a union steward assigned to OSHA inspections. Appellant indicated that a
missing notebook found in Lt. Col. Jefferson’s possession on February 13, 2008 was taken from
his office on February 12, 2008. The notebook contained detailed descriptions of meetings
between him, management and his union representatives and incidents that occurred at work.
Appellant stated that the employing establishment police refused to investigate the December 15,
2008 incident citing the February 12, 2008 incident. The police also did not investigate
employing establishment officers. Appellant was advised by the employing establishment’s
information management division that his computer hard drive had been removed six times
between June 24 and December 11, 2008. He contended that it was removed by management in
retaliation for filing grievances regarding his 14-day suspension and leave and earning issues. It
was also removed because appellant advised Lt. Derivan and Lt. Col. Jefferson about ways to
remedy his hostile work environment and requested clear evaluation standards. The computer
hard drive was removed due to appellant’s request for clarification from Lt. Derivan regarding
clarification on his PIP. Appellant also spoke to the United States office of special counsel on
his government telephone and sent e-mails to this office via his government computer. He
released records related to an employing establishment building to the office of special counsel.
On November 20, 2008 Chris Callahan, an information management employee, was instructed
by management to ask him to download his government camera to a network computer in
violation of the employing establishment’s computer use policy. Appellant stated that the office
of special counsel’s January 2009 decision found it likely that management failed to perform
adequate industrial hygiene testing in violation of laws, rules and/or regulations. The decision
also found that the actions of Lt. Derivan and Lt. Col. Jefferson constituted an abuse of authority
and created the potential for substantial and specific danger to public health and safety.
Following the issuance of this decision, management gave appellant a copy of the PIP on
4

February 12, 2009 and issued a letter proposing to remove him from employment on
February 17, 2009.
In a July 29, 2009 letter, Janice Sifford, a human resources specialist, advised that
appellant’s grievances were not upheld. Although an arbitration hearing recently concluded and
two were pending, no formal ruling had been issued in support of his allegations of impropriety
or abuse by the employing establishment. Ms. Sifford noted that a July 24, 2009 decision
dismissed appellant’s EEO complaint.
In another July 29, 2009 letter, Colonel Andrea E. Crunkhorn, a supervisor, stated that
based on appellant’s performance deficiencies, he was retrained with oversight and multiple
TDY trips. The Corps of Engineers consulted with him and the Occupational Safety and Health
Administration (OSHA) reviewed additional safety hazards. Col. Crunkhorn stated that
appellant refused expert guidance and assistance. He failed to accurately transfer raw data from
his instrumental testing to his reports. Appellant changed appendices based on an old report
which inflated the original data. He repeatedly failed to effectively and appropriately
communicate his findings. After nearly two years of training, appellant incorrectly advised
employees that pulmonary toxins existed in their workplace in October 2008. None of his
allegations of environmental hazards were substantiated in buildings surveyed by the employing
establishment or OSHA. Col. Crunkhorn stated that the special counsel had not reached a
conclusion regarding appellant’s allegations. The investigation was ongoing. Col. Crunkhorn
advised that appellant made no mention of any problems with his TDY reimbursements, leave
and pay, retaliation, workplace harassment or computer support problems. His supervisors had
worked diligently to correct his pay issues.
In a July 30, 2009 decision, the Office denied appellant’s claim, finding that he did not
sustain an emotional condition in the performance of duty as he failed to establish a compensable
factor of his employment.
By letter dated August 25, 2009, appellant requested an oral hearing before an Office
hearing representative.
Following a December 10, 2009 telephonic hearing,3 appellant submitted OSHA notices
announcing meetings to discuss unsafe or unhealthy working conditions at the employing
establishment. The police investigative report regarding the December 15, 2008 incident
indicated that a picture had fallen off the wall in appellant’s office which left items in disarray.
Further check of the office found everything in order. In letters dated April 2 and May 21, 2008,
appellant contended that he received letters addressed to him that had already been opened.
In a February 13, 2008 memorandum, Lt. Derivan advised that he locked all doors
leading to appellant’s office area before leaving work on February 11, 2008. Only individuals
with permissible access could enter the area. Lt. Derivan had requested that employees ensure
that all doors were locked before leaving the building. In a January 14, 2009 memorandum,
Lt. Derivan stated that appellant advised him about the December 15, 2008 incident. Appellant

3

Appellant requested a telephonic hearing because the scheduled oral hearing location was 600 miles one way
from his and his representative’s residences.

5

did not know what happened. Lt. Derivan reported the incident to Lt. Col. Jefferson and advised
him to report the incident to military police.
In a February 4, 2010 decision, an Office hearing representative affirmed the July 30,
2009 decision, finding that the evidence failed to establish a compensable factor of appellant’s
employment.
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 or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of the Act.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.6 This burden includes the submission of a detailed
description of the employment factors or conditions, which the employee believes caused or
adversely affected the condition or conditions, for which compensation is claimed.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9

4

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

5

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

6

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

7

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

8

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

9

Id.

6

ANALYSIS
Appellant alleged that he sustained an emotional condition due to several incidents at the
employing establishment. The Board must determine whether the alleged incidents are
compensable under the terms of the Act.
Appellant made several allegations related to administrative or personnel matters. These
allegations are unrelated to his regular or specially assigned work duties and do not generally fall
within the coverage of the Act.10 The Board has held, however, that an administrative or
personnel action may be considered an employment factor where the evidence discloses error or
abuse. In determining whether the employing establishment erred or acted abusively, the Board
has examined whether management acted reasonably.11
Appellant’s contentions regarding poor performance appraisals,12 relocation of office and
equipment,13 issuance of letters of reprimand, suspension and removal, counseling sessions,
placement on a PIP,14 termination of employment, denial of union representation,15 monitoring
of work,16 assignment of work17 and office equipment,18 failure to conduct investigations,19
handling of pay, leave and TDY issues,20 filing of grievances21 and processing of compensation
claims22 are administrative matters and not compensable absent a showing of error or abuse on
the part of the employing establishment. He contended that Col. Beus stated that management
erred in rating his 2007 performance. Appellant further contended that Lt. Derivan stated that
his future performance appraisals would be subjective and that he would not be retained. He
alleged that Lt. Derivan admitted that he edited his reports and acted against him on behalf of
Lt. Col. Jefferson. Appellant contended that a commander advised him that Mr. Bentley and
Mr. Mitchell changed his reports. He also contended that Lt. Col. Jefferson requested that he
10

An employee’s emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the Act as such matters pertain to procedures and requirements of the employer
and do not bear a direct relation to the work required of the employee. Sandra Davis, 50 ECAB 450 (1999).
11

See Richard J. Dube, 42 ECAB 916, 920 (1991). Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
12

David C. Lindsey, Jr., 56 ECAB 263, 271-72 (2005).

13

Barbara J. Nicholson, 45 ECAB 803 (1994).

14

Robert Breeden, 57 ECAB 622 (2006).

15

Janet I. Jones, 47 ECAB 345, 347 (1996); Apple Gate, 41 ECAB 581, 588 (1990).

16

Lori A. Facey, 55 ECAB 217, 224 (2004).

17

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

18

Harriet J. Landry, 47 ECAB 543 (1996).

19

Ernest St. Pierre, 51 ECAB 623 (2000).

20

Dinna M. Ramirez, 48 ECAB 308, 313 (1997).

21

Michael A. Salvato, 53 ECB 666, 668 (2002).

22

David C. Lindsey, 56 ECAB 263 (2005).

7

make a false statement regarding the existence of records in response to a FOIA request which
violated a records release policy. Appellant alleged that Lt. Derivan had previously accused him
of violating the same policy. He further alleged that the office of special counsel’s January 2009
decision found that Lt. Derivan and Lt. Col. Jefferson abused their authority and the employing
establishment’s industrial hygiene testing created potential safety and health dangers. Appellant
contended that management and the employing establishment police failed to investigate the
incidents involving management’s unauthorized entrance into his office and seizure and damage
to his personal property. He further contended that the information management division
acknowledged that his computer hard drive had been removed six times between June 24 and
December 11, 2008 by management. The Board finds that appellant did not submit any evidence
such as, witness statements from Col. Beus, the commander and the employee from the
information management division, to establish that the employing establishment erred or acted
abusively in rating his performance, relocating his office and equipment, taking disciplinary
actions against him, denying his request for union representation, monitoring his work, assigning
his work and office equipment, conducting its investigations, handling of his pay, leave and TDY
issues and processing his compensation claims. Appellant stated that documents related to his
December 7, 2006 counseling session were removed from his record. The mere fact that
personnel actions were later modified or rescinded does not, in and of itself, establish error or
abuse.23 The record does not contain a final decision finding that the employing establishment
committed error or abuse in giving appellant a poor performance ratings or a 14-day suspension
and handling his leave, pay and TDY reimbursement issues.
Regarding appellant’s work performance, Colonel Crunkhorn stated that he failed to
accurately transfer raw data from his instrumental testing to his reports. She further stated that
he changed appendices based on an old report which inflated the original data.
Colonel Crunkhorn related that appellant failed to effectively and appropriately communicate his
findings. She noted that the Corps of Engineers consulted with him and OSHA reviewed
additional safety hazards, but he refused expert guidance and assistance. Colonel Crunkhorn
stated that appellant was retrained with oversight and multiple TDY trips, yet in October 2008 he
incorrectly advised employees that pulmonary toxins existed in their workplace. She stated that
none of his allegations regarding the existence of environmental hazards in the employing
establishment’s buildings were substantiated by its surveys of the buildings. The Board finds
that notices of OSHA-sponsored meetings regarding unsafe and unhealthy working conditions
did not specifically identify such conditions at the employing establishment. Regarding the
issuance of an adverse decision by the special counsel’s office, Colonel Crunkhorn stated that a
conclusion had not been reached regarding appellant’s leave, pay and TDY issues. She stated
that the investigation was ongoing. Colonel Crunkhorn related that appellant’s supervisors had
worked diligently to correct his pay issues. Ms. Sifford stated that a July 24, 2009 decision
dismissed his EEO complaint regarding management’s poor performance ratings, 14-day
suspension and handling of his leave, pay and TDY reimbursement issues. She further stated
that, although an arbitration hearing recently concluded and two were pending, no formal ruling
had been issued in support of his allegations of impropriety or abuse by management. Both
Lt. Col. Jefferson and Lt. Derivan denied editing appellant’s reports.
In response to appellant’s complaint that management and police failed to investigate his
complaints that his office was searched and personal property was seized and damaged by
23

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

8

management, Lt. Derivan stated that appellant’s office area was secure on February 12, 2008.
He personally made sure that all doors leading to his work area were secured before he left work
on February 11, 2008. Lt. Derivan previously instructed employees to ensure all doors were
locked before leaving the building. He related that, after appellant reported the December 15,
2008 break-in and property damage to him, he advised appellant to report the incident to police.
The police investigative report described the December 15, 2008 incident stating that a picture
fell from the wall in appellant’s office which caused items to become disarrayed. The report
stated that everything was in order upon further investigation.
In light of the foregoing evidence, including the statements of Colonel Crunkhorn,
Ms. Sifford and Lt. Derivan, the Board finds that management did not act unreasonably in the
above-noted administrative and personnel matters. The Board finds that appellant did not
establish a compensable employment factor.
Appellant alleged that he was overworked as he could not perform all of the work
Lt. Col. Jefferson assigned to him. He contended that she refused to clarify her work
instructions. Appellant alleged that Lt. Col. Jefferson wanted him to fail or be fired. He stated
that she assigned him a task that violated the employing establishment’s records release policy.
The Board has held that while overwork may be a compensable factor of employment it must be
established on a factual basis to be a compensable employment factor.24 Appellant did not
submit any evidence to substantiate his allegation. The Board finds that he has not established a
compensable employment factor.
Appellant contended that he was generally harassed and discriminated against at the
employing establishment in the above-noted incidents. Actions of a claimant’s supervisor or
coworker which the claimant characterizes as harassment may constitute a compensable factor of
employment. However, for harassment to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions or
feelings of harassment do not constitute a compensable factor of employment.25 An employee’s
charges that he or she was harassed or discriminated against, is not determinative of whether or
not harassment or discrimination occurred.26 To establish entitlement to benefits, a claimant
must establish a factual basis for the claim by supporting his or her allegations with probative
and reliable evidence.27 Appellant contended that Lt. Col. Jefferson, Lt. Derivan and
Col. Degenhardt threatened and retaliated against him for identifying and raising safety and
health concerns and fraud, waste and abuse regarding its flawed renovation and design plan,
failing to perform surveys, alleging that his reports were edited, filing a grievance regarding his
pay and leave, and TDY reimbursement and issuing citations to the employing establishment
based on his OSHA inspections. He further contended that Lt. Col. Jefferson threatened to
search his office for records and take harmful action against him if he did not make a false
statement regarding the existence of documents related to a FOIA request. Appellant did not
submit any witness statements to support his allegations. Although he stated that Lt. Derivan
24

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

25

Lorraine E. Schroeder, 44 ECAB 323 (1992).

26

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

27

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

9

admitted to harassing him on behalf of Lt. Col. Jefferson, he did not submit a statement from him
in support of his contention. The Board finds that appellant has failed to establish that he was
harassed and discriminated against by the employing establishment.28
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

28

As appellant has not substantiated a compensable factor of employment as the cause of his emotional condition,
the medical evidence regarding his emotional condition need not be addressed. Karen K. Levene, 54 ECAB
671 (2003).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Paul, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-922
Issued: November 18, 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 February 18, 2010 appellant filed a timely appeal from a January 19, 2010 merit
decision of the Office of Workers’ Compensation Programs. 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 established employment-related total disability from
May 26 to 29, 2009.
FACTUAL HISTORY
On February 19, 2009 appellant, then a 25-year-old officer in charge, filed a traumatic
injury claim (Form CA-1) alleging she sustained a right shoulder injury as a result of lifting a
mail tub on February 19, 2009. The claim was accepted for right supraspinatus tendinitis.1
1

On July 15, 2009 the Office advised appellant that the claim was also accepted for other acquired deformities of
other parts of limbs, right. On October 30, 2009 it accepted nontraumatic rupture of other tendon, right.

Appellant stopped work on February 21, 2009 and returned on March 6, 2009. The record
contains a March 10, 2009 job offer for a modified position that was accepted by appellant.2 In a
report dated May 21, 2009, Dr. Brad Meister, an orthopedic surgeon, reported that examination
showed no change and appellant still had scapular winging on the right side. He stated that this
was potentially related to either carrying a mailbag or the lifting incident at work.
Appellant filed a claim for compensation (Form CA-7) for the period May 26
to 29, 2009. With respect to medical evidence, she submitted a May 26, 2009 form report from a
local emergency department. Appellant was seen for right shoulder pain since the injury at work
on February 19, 2009. She was provided medication and advised to follow up with Dr. Meister.
The form noted she should be excused from work May 26 to 28, 2009. The signatures on the
form are illegible.
In a note dated May 28, 2009, Dr. Meister stated “no use” of right arm until appointment
with another specialist.
On June 19, 2009 Dr. Erich Lingenfelter, an orthopedic surgeon, obtained a history that
appellant was injured in February when she lifted some heavy boxes. He provided results on
examination and diagnosed “persistent scapular winging failing nonoperative measures.” In a
June 26, 2009 report, Dr. Lingenfelter stated the diagnosis was “scapular winging secondary to
serratus anterior dysfunction/long thoracic nerve dysfunction. The secondary manifestation of
that is that if there is scapular dyskinesis this typically does cause rotator cuff tend[i]nitis.”
In a report dated July 9, 2009, Dr. Bradley Davis, a physiatrist, obtained a history of a
heavy lifting incident on February 19, 2009. He provided results on examination and diagnosed
medial scapular winging, possible back packer’s palsy “secondary to occupation” and possible
occipital neuralgia. He stated that if the scapular winging was secondary to a back packer’s
palsy due to appellant’s history of carrying a 75-pound satchel for two hours a day, she would
benefit from discontinuing this activity.
By decision dated July 28, 2009, the Office denied appellant’s claim for compensation
from May 26 to 29, 2009.
Appellant requested a telephonic hearing with an Office hearing representative, which
was held on November 18, 2009. At the hearing appellant stated that on May 26, 2009 she was
driving home on her lunch break when she experienced severe pain in her neck, right shoulder
and arm. She received treatment at a local emergency room on that date and clarified that she
was seen by a physician’s assistant. Appellant was scheduled for treatment by Dr. Meister on
May 28, 2009, but his office cancelled the appointment. On May 30, 2009 she received the note
from Dr. Meister stating she should not use her right arm. Following the hearing, appellant
submitted medical evidence pertaining to right shoulder surgery on October 30, 2009.

2

A June 25, 2009 memorandum of phone call indicated that appellant had been temporarily assigned as officer in
charge (OIC) in January 2009 while the permanent OIC was on a temporary detail.

2

In a decision dated January 19, 2010, the hearing representative affirmed the July 28,
2009 decision. She found the medical evidence was insufficient to establish employment-related
disability for the dates claimed.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.7 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such a causal relationship.9 Causal relationship is a medical
issue and the medical evidence required to establish a causal relationship is rationalized medical
evidence.10 The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship.11
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

10

Elizabeth Stanislaw, 49 ECAB 540 (1998).

11

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

3

ANALYSIS
Appellant sustained injury to her right shoulder on February 19, 2009 accepted for
tendinitis. On May 26, 2009 she experienced sharp right shoulder pain. Appellant went to the
emergency department of her health care provider and she received treatment from a physician’s
assistant. The treatment records advised that she should be off work on May 26, 27
and 28, 2009.
In order to meet appellant’s burden of proof to establish the claimed disability is
employment related, there must be probative medical evidence on the issue of causal relationship
between her disability and the employment injury. The treatment records from the physician’s
assistant does not constitute competent medical evidence as a physician’s assistant is not a
“physician” as defined under 5 U.S.C. § 8101(2).12 Appellant submitted a note dated May 28,
2009 from Dr. Meister, but he provided only a brief statement that she should not use her right
arm. He did not provide a history or a rationalized medical opinion on the issue of her disability
for the dates claimed. Moreover, appellant indicated that she did not actually see Dr. Meister on
May 28, 2009.
There is no other medical evidence of record that addresses her disability from May 26 to
29, 2009. None of appellant’s attending physicians provided a rationalized medical opinion
relating her disability on the claimed dates to the February 19, 2009 employment injury. It is
appellant’s burden of proof to establish the period of disability. She did not meet her burden of
proof in this case.
CONCLUSION
The Board finds that appellant did not establish an employment-related total disability
from May 26 to 29, 2009.

12

George H. Clark, 56 ECAB 162 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2010 is affirmed.
Issued: November 18, 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