United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION NY HARBOR
HEALTH CARE SYSTEM, Brooklyn, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0061
Issued: November 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 9, 2018 appellant, through counsel, filed a timely appeal from April 20 and 24,
2018 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional conditions casually related to the
accepted February 12, 2015 employment injury; (2) whether appellant has met his burden of proof
to establish total disability for the period March 27 through July 18, 2015 causally related to his
accepted February 12, 2015 employment injury; (3) whether OWCP has met its burden of proof
to terminate appellant’s entitlement to wage-loss compensation and medical benefits effective
February 3, 2017; and (4) whether appellant has met his burden of proof to establish continuing
employment-related residuals or disability after February 3, 2017 causally related to the accepted
February 12, 2015 employment injury.
FACTUAL HISTORY
On February 13, 2015 appellant, then a 32-year-old staff pharmacist, filed a traumatic
injury claim (Form CA-1) alleging that on February 12, 2015 he sustained bilateral knee injuries
when a coworker pushed his chair and caused his knees to strike against sharp edges of drawers
on a cabinet while in the performance of duty. He stopped work on February 20, 2015 and received
continuation of pay benefits.
On February 25, 2015 appellant began treating with Dr. Kenneth McCulloch, a Boardcertified orthopedic surgeon. On initial examination Dr. McCulloch noted evidence of traumatic
osteochondral damage, patellofemoral syndrome, traumatic patellar tendinitis, and possible
meniscus pathology, and deep peroneal nerve neuropraxia including nerve contusion extending
into both lower extremities. In a March 10, 2015 disability note, he opined that appellant was
totally disabled from February 20 through March 26, 2015 from chondromalacia of patella,
tendinitis, and medial meniscus tear.
A March 2, 2015 magnetic resonance imaging (MRI) scan of the right knee revealed mild
joint effusion; a March 2, 2015 MRI scan of the left knee revealed small focal tear of the medial
meniscus and joint effusion; and an April 15, 2015 electromyogram (EMG) revealed compression
neuropathy in both peroneal nerves affecting mainly sensory fibers.
On June 12, 2015 OWCP accepted the claim for bilateral knee contusions.
In examination reports, disability notes, and duty status reports (CA-17) forms from
March 25 through July 13, 2015, Dr. McCulloch opined that appellant was unable to work due to
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the April 24, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

bilateral knee contusions, compartment syndrome, osteochondrial damage, and deep peroneal
nerve neuropathy, chondromalacia of patella, tendinitis, medial meniscus tear, and nerve
symptoms, bilateral knee pain, chondropathy, and radiculopathy. He also opined that appellant
was totally disabled from July 13 through August 26, 2015 due to his bilateral knee patellofemoral
injuries.
In a May 11, 2015 report, Dr. Arthur Hryhorowych, a Board-certified physiatrist, noted
appellant’s history of injury. He diagnosed bilateral knee arthropathies and “rule[d] out”
compression neuropathy.
In a June 17, 2015 duty status report, Dr. Dorothy J. Norwood, an internist, opined that
appellant could resume work. She opined that appellant’s neuropathic symptoms and balance
problems were inconsistent with the February 12, 2015 employment injury and that the small left
medial meniscus tear should have resolved after four months.
In a July 8, 2015 report, Dr. Hryhorowych opined that appellant had persistent compression
neuropathy of both peroneal nerves affecting mainly sensory fibers.
In a July 23, 2015 state workers’ compensation form report, Dr. Charlene Scheim, an
osteopathic physician specializing in neurology, opined by checking a box marked “yes” that the
incident appellant described was the competent medical cause of his knee sprain/strain. She also
opined that he was totally disabled.
On July 24, 2015 appellant submitted a wage-loss compensation claim (Form CA-7)
alleging total disability for the period March 27 to July 18, 2015.
An August 4, 2015 EMG revealed mild peroneal neuropathy involving the left lower
extremity.
By decision dated September 11, 2015, OWCP denied appellant’s claim for wage-loss
compensation for the period March 27 through July 18, 2015. It found that the medical evidence
of record did not contain a rationalized medical explanation as to how his accepted bilateral knee
contusions caused total disability.
In a September 29, 2015 report, Dr. Jill Bressler, a Board-certified neurologist, diagnosed
bilateral peroneal neuropathies, right worse than left, due to bilateral knee trauma.
In an October 7, 2015 report, Dr. McCulloch noted that appellant’s initial MRI scans had
not demonstrated significant damage. He ordered repeat MRI scans as he was not responding to
conservative measures. An October 29, 2015 MRI scan of the left knee demonstrated a small
peripheral tear within the medial meniscus and mild joint effusion. An October 30, 2015 MRI
scan of the right knee was compatible with grade 4 chondral damage, as compared to the March 2,
2015 MRI scan. Mild joint effusion was also noted. On November 16, 2015 Dr. McCulloch
released appellant to return to work with restrictions and recommended a second opinion.
Appellant returned to full-time, light-duty work on November 30, 2015.

3

In his July 11, 2016 report, Dr. McCulloch noted that appellant reported no previous
history to his knees prior to the February 12, 2015 work-related injury where he incurred direct
trauma, which resulted in patellofemoral symptoms bilaterally, a small peripheral tear of the
medial meniscus of the left knee, and right knee grade 4 chondral damage. He noted that appellant
had permanent impaired function accompanied by superimposed prepatellar bursitis of the right
knee. Dr. McCulloch opined that appellant reached maximum medical improvement (MMI) and
had a permanent partial disability.
In a July 12, 2016 report, Dr. Leon Sultan, a Board-certified orthopedic surgeon serving as
an OWCP second opinion physician, reviewed the medical record and the statement of accepted
facts (SOAF).4 He opined that examination of appellant’s knees was unremarkable and that
appellant’s accepted knee conditions had resolved with no ongoing work-related disability or
residuals. Dr. Sultan opined that there was no correlation between appellant’s examination and
the bilateral knee MRI scan readings. He opined that appellant was able to perform his regular
work duties in a full-time, full-duty capacity.
In a July 18, 2016 report, Dr. Mehul Shah, an orthopedic surgeon, specializing in sports
medicine, noted the history of appellant’s February 12, 2015 employment injury. Other than joint
line tenderness, he found appellant’s physical examination unremarkable. Dr. Shah indicated that
bilateral knee x-rays were not significant for degenerative joint disease, the MRI scan of the right
knee had possible small full thickness cartilage defect medial patellar facet, and the MRI scan of
the left knee had possible tiny peripheral medial meniscal tear. He provided an assessment of
patellofemoral syndrome of the bilateral knees. Bilateral knee x-rays dated July 18, 2016 were
reported as essentially normal.
In a July 28, 2016 report, Dr. Russel H. Silver, a Board-certified physiatrist, diagnosed left
knee meniscus tear, right knee damage within the medial patella facet, and bilateral knee pain. He
opined that if the history of the occurrence was correct, then the February 12, 2015 “accident is
the competent producing cause of appellant’s existing pathology.”
On August 31, 2016 appellant, through counsel, requested reconsideration of OWCP’s
September 11, 2015 decision. OWCP received statements from appellant and counsel, along with
physical therapy reports.
In an August 23, 2016 report, Dr. Shah noted that when appellant was seen approximately
19 months after his injury, he had reached MMI, he had permanent partial disability, and the
physical examination was consistent with bilateral knee patellofemoral pain. He opined that, given
the described mechanism of injury and the fact that he did not have knee complaints prior to the
accident, appellant’s bilateral knee patellofemoral pain, chondral damage of the patella, and
subsequent inability to work “seems causally related to [appellant’s] work-related injury.”
By decision dated November 21, 2016, OWCP denied modification of its September 11,
2015 decision. It found that there was no rationalized medical opinion which explained how
appellant’s accepted bilateral knee contusion caused him total disability during the period claimed.

4

The SOAF is not of record.

4

OWCP further found that there was no rationalized medical opinion which explained how the
additional diagnoses were caused or aggravated by the February 12, 2015 employment injury.
On December 7, 2016 OWCP noted that appellant was currently in receipt of medical
benefits, but proposed to terminate appellant’s entitlement to wage-loss compensation and medical
benefits, finding that Dr. Sultan’s July 12, 2016 report represented the weight of the medical
evidence.
OWCP received January 2 and 3, 2017 letters from counsel and statements from appellant
dated December 23, 2015 and December 14, 2016. Appellant argued that his grade 4 chondral
damage was directly caused by his employment-related injury.
In a November 25, 2016 report, Dr. Silver diagnosed bilateral knee capsulitis, bilateral
knee traumatic arthritis, meniscus tear, and joint effusion caused by the February 12, 2015
employment incident. He also opined that appellant was able to work with permanent restrictions
which stemmed from the February 12, 2015 employment injury. Handwritten notes by Dr. Silver,
dated January 4, 2017, were also submitted.
By decision dated February 3, 2017, OWCP terminated appellant’s entitlement to wageloss compensation and medical benefits, effective February 3, 2017. Determinative weight was
accorded to Dr. Sultan’s July 12, 2016 report.
OWCP subsequently received brief handwritten notes dated February 3 and March 3, 2017
from Dr. Silver.
In a March 10, 2017 progress report, Dr. Scheim noted that appellant was working full time
without restrictions. She diagnosed unspecified synovitis and tenosynovitis and lesion of an ulnar
nerve of an unspecified upper limb. Dr. Scheim opined, by checking a box, that the diagnosed
conditions were causally related to the February 12, 2015 employment injury.
In a June 19, 2017 report, Dr. Scheim diagnosed bilateral knee joint dysfunction and “rule
out” peroneal neuropathy. She opined that the February 12, 2015 trauma caused direct injury and
damage to appellant’s left medial meniscus, right medial patellar facet, and left peroneal nerve.
Appellant also developed a small focal tear of the left knee medial meniscus, right knee grade 4
chondral damage within the medical patellar facet likely secondary to trauma, and left peroneal
nerve neuropathy. Dr. Scheim concluded that the injuries he sustained to his bilateral knees were
permanent injuries directly causally related to the February 12, 2015 employment injury and that
he was totally disabled “as a result of his injuries” from February 12 through November 30, 2015.
She also indicated that appellant was partially disabled from November 30, 2015 to the present.
On November 14 and December 1, 2017, and January 23, 2018 appellant, through counsel,
requested reconsideration of OWCP’s decisions dated November 21, 2016 and February 3, 2017.5
He argued that OWCP had failed to accept all injuries and conditions sustained as a result of the

5
Counsel’s January 23, 2018 letters separately requested review of OWCP’s November 21, 2016 and February 3,
2017 decisions.

5

February 12, 2015 employment injury as compensable and that the medical evidence of record
established employment-related disability during the period March 27 through July 18, 2015.
By decision dated April 20, 2018, OWCP denied modification of its February 3, 2017
termination decision.
By decision dated April 24, 2018, OWCP also denied modification of its November 21,
2016 decision.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6 To establish causal relationship between the condition and the
employment event or incident, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background, supporting such a causal relationship.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional diagnosed conditions casually
related to the accepted February 12, 2015 employment injury.
OWCP accepted appellant’s claim for bilateral knee contusions. It denied expansion of the
acceptance of his claim to include additional diagnosed conditions as his physicians had not
provided sound medical rationale which explained how the February 12, 2015 employment injury
caused or contributed to the additional conditions.
Appellant submitted a series of reports from Dr. McCulloch. In his initial report of
February 25, 2015, and in subsequent reports and disability notes from March 10 through July 11,
2016, Dr. McCulloch opined that there was evidence of traumatic osteochondral damage,
patellofemoral syndrome, traumatic patellar tendinitis, possible meniscus pathology, deep
peroneal nerve neuropraxia including nerve contusion extending into both lower extremities, and
disability arising therefrom. However, he did not offer medical rationale explaining how the

6

See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018);
Jaja K. Asaramo, 55 ECAB 200 (2004).
7

See T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

8

See T.E., id.; P.M., Docket No. 18-0287 (issued October 11, 2018).

6

accepted employment injury caused the diagnosed conditions.9 Dr. McCulloch did not explain
how the mechanism of injury would have physiologically caused or aggravated the diagnosed
conditions.10 In his July 11, 2016 report, he opined that the February 12, 2015 employment-related
injury resulted in patellofemoral symptoms bilaterally, and a small peripheral tear of the medial
meniscus of the left knee and right knee grade 4 chondral damage, all of which was accompanied
by superimposed prepatellar bursitis of the right knee. While Dr. McCulloch noted that appellant
had no history prior to the accepted employment injury, an opinion that a condition is causally
related to an incident because the employee was asymptomatic before the injury is insufficient,
without adequate rationale, to establish causal relationship.11 For these reasons, the Board finds
that Dr. McCulloch’s reports are insufficient to meet appellant’s burden of proof.
In May 11 and July 8, 2015 reports, Dr. Hryhorowych noted the history of injury and
diagnosed bilateral knee arthropathies and compression neuropathy of both peroneal nerves.
However, he failed to provide an opinion that the accepted February 12, 2015 employment injury
caused or aggravated appellant’s diagnosed conditions. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.12 These reports, therefore, are insufficient to establish
appellant’s claim.
Dr. Bressler, in her September 29, 2015 report, provided an assessment of bilateral
peroneal neuropathies which she opined was due to the bilateral knee trauma. However, she failed
to offer medical rationale explaining how appellant’s diagnosed conditions were caused or
aggravated by the February 12, 2015 accepted employment injury. As noted, the failure to provide
medical rationale in support of a causation finding results in the determination that Dr. Bressler’s
report is insufficient to establish appellant’s burden of proof.13
In his July 18, 2016 report, Dr. Shah provided an assessment of patellofemoral syndrome
bilateral knees, but failed to provide an opinion that the accepted February 12, 2015 employment
injury caused or aggravated appellant’s diagnosed condition.14 In his August 23, 2016 narrative
report, he opined that appellant’s chondral damage of the patella and his subsequent inability to
work “seemed” causally related to his work-related injury. While Dr. Shah diagnosed chondral
damage of the patella, his opinion on causality was speculative. The Board has held that medical

9

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009) (a
medical report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale).
10

See T.H., Docket No. 18-1736 (issued March 13, 2019); C.F., id.; R.R., Docket No. 16-1901 (issued
April 17, 2017).
11

See F.H., Docket No. 18-1238 (issued January 18, 2019); J.R., Docket No. 18-0206 (issued October 15, 2018).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

M.C., Docket No. 18-0361 (issued August 15, 2018).

14

See supra note 10.

7

opinions that are speculative or equivocal in character are of diminished probative value.15 For
these reasons, his reports are insufficient to meet appellant’s burden of proof.
Dr. Scheim diagnosed knee sprain/strain, in her July 23, 2015 initial report, and unspecified
synovitis and tenosynovitis and lesion of an ulnar nerve of an unspecified upper limb in her
March 10, 2017 report. In both reports, she opined by checking a box marked “yes” that the
diagnoses were casually related to the February 12, 2015 employment injury. However, a mere
conclusion without the necessary rationale explaining how work activities could result in the
diagnosed conditions is insufficient to meet the employee’s burden of proof.16 Areport that
addresses causal relationship with a checkmark, without medical rationale explaining how the
employment injury caused or aggravated the diagnosed condition, is of diminished probative value
and insufficient to establish causal relationship.17
In her June 19, 2017 report, Dr. Scheim opined that the February 12, 2015 employment
injury caused direct injury and damage to appellant’s left medial meniscus, right medial patellar
facet, and left peroneal nerve. However, the Board notes that she merely offered a conclusion. No
supporting medical rationale was provided to explain her conclusory opinion regarding the
relationship between the diagnosed conditions and the accepted February 12, 2015 employment
injury.18 Dr. Scheim did not explain how specific employment factors physiologically caused any
of the diagnosed conditions. Without explaining how physiologically the movements involved in
appellant’s February 12, 2015 employment injury caused or contributed to his diagnosed
condition, her opinion on causal relationship is insufficiently rationalized and is of limited
probative value.19
The handwritten notes and medical reports from Dr. Silver also failed to provide medical
rationale explaining how the February 12, 2015 employment injury resulted in the additional
conditions. In his July 28, 2016 report, Dr. Silver diagnosed left knee meniscus tear, right knee
damage within the medial patella facet, and bilateral knee pain. He opined that, if the history of
the occurrence was correct, then the February 12, 2015 accident was the competent producing
cause of appellant’s existing pathology. However, no supporting medical rationale was given
explaining Dr. Silver’s conclusory opinion regarding the relationship between the diagnosed
conditions and the accepted February 12, 2015 employment injury.20 Likewise, while he also
opined, in his November 25, 2016 report, that the diagnosed bilateral knee capsulitis, bilateral knee
traumatic arthritis, meniscus tear and joint effusion were caused by the February 12, 2015
employment injury, he again offered a conclusory opinion without any supporting medical
15

See T.H., supra note 10; D.R., Docket No. 17-0971 (issued October 5, 2017); D.D., 57 ECAB 734, 738 (2006);
Kathy A. Kelley, 55 ECAB 206 (2004).
16

See D.P., Docket No. 17-0148 (issued May 18, 2017).

17
See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).
18

See V.P., Docket No. 17-1925 (issued March 1, 2018); see also supra note 13.

19

See V.P., id.; M.C., Docket No. 17-1579 (issued November 28, 2017).

20

See V.P., id.; T.M., supra note 9; Beverly A. Spencer, 55 ECAB 501 (2004).

8

rationale.21 Thus, Dr. Silver’s reports are insufficient to establish appellant’s claim to expand the
accepted conditions resulting from the February 12, 2015 employment injury.
OWCP also received several MRI scan reports of the knees as well as EMG studies which
diagnosed appellant’s lower extremity conditions, but failed to offer a medical opinion addressing
whether the diagnosed conditions were caused or aggravated by the February 12, 2015
employment injury. The Board has held that reports of diagnostic tests lack probative value as
they do not provide an opinion on causal relationship between his employment incident and a
diagnosed condition.22
Appellant has the burden of proof to submit rationalized medical evidence establishing that
the acceptance of his claim should be expanded to include additional conditions.23 He has not
submitted such evidence and thus has not met his burden of proof to establish his claim.24
LEGAL PRECEDENT -- ISSUE 2
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.25 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.26
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.27 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.28
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
21

Id.

22

See C.F., supra note 9; S.G., Docket No. 17-1054 (issued September 14, 2017).

23

See M.M., Docket No. 19-0951 (issued October 24, 2019) (where an employee claims that a condition not
accepted or approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish
that the condition is causally related to the employment injury); R.J., Docket No. 17-1365 (issued May 8, 2019);
Jaja K. Asaramo, supra note 6.
24

T.C., Docket No. 18-1498 (issued February 13, 2019); D.S., Docket No. 18-0061 (issued May 29, 2018).

25
See M.B., Docket No. 18-1455 (issued March 11, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005).
26

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

27

Id. at § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

28

See G.T., Docket No. 18-1369 (issued March 13, 2019); Merle J. Marceau, 53 ECAB 197 (2001).

9

background, supporting such causal relationship.29 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 between the diagnosed condition and the specific employment factors identified
by the employee.30
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish total disability
for the period March 27 through July 18, 2015 causally related to his accepted February 12, 2015
bilateral knee contusions.
Dr. McCulloch, opined, in reports and disability notes from March 10 through July 11,
2016, that appellant was totally disabled due to bilateral knee contusions and his “bilateral knee
patellofemoral injuries,” which included nonaccepted conditions. However, he did not explain
why appellant was disabled during this time period due to objective medical findings of his
accepted conditions. To establish a period of disability the medical evidence must provide a
discussion of how objective medical findings attributable to the accepted conditions support a
finding that appellant could not perform his job duties.31
None of the reports from Drs. Hryhorowych, Bressler, Shah, or Silver addressed the
specific period of disability claimed. The Board will not require OWCP to pay compensation for
disability in the absence of 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.32
While Dr. Schein opined, in her July 23, 2015 initial report, that appellant was totally
disabled, she did not address any specific dates of disability or otherwise provide medical
reasoning explaining why any current disability was due to the employment injury.33 In her
February 15, 2017 report, she did not address his disability during the period claimed.34 In her
June 19, 2017 report, Dr. Scheim opined that appellant was totally disabled for the period
February 12 through November 30, 2015 and that he was partially disabled on an ongoing basis
commencing November 30, 2015. However, she did not relate his disability to the accepted
employment injury and the opinion is therefore of no probative value.35

29

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

30

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
31

See W.E., Docket No. 17-0451 (issued November 20, 2017).

32

See E.B., Docket No. 17-0875 (issued December 13, 2018); Fereidoon Kharabi, 52 ECAB 291 (2001).

33

See E.B., id.; C.L., Docket No. 16-0004 (issued June 14, 2016).

34

See B.K., Docket No. 18-0386 (issued September 14, 2018).

35

See E.B., supra note 32.

10

The Board therefore finds that the medical evidence of record does not support appellant’s
claim of total disability for the period March 27 through July 18, 2015 due to his accepted
February 12, 2015 employment injury.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. It may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.36
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.37
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.38 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.39
ANALYSIS -- ISSUE 3
The Board finds that OWCP met its burden of proof to terminate appellant’s entitlement to
wage-loss compensation and medical benefits effective February 3, 2017.
In his comprehensive July 12, 2016 report, Dr. Sultan noted his review of the SOAF and
medical record. He described the February 12, 2015 employment injury, appellant’s complaints
and his physical examination findings, which included unremarkable objective findings with no
residual motion restriction, no ligamentous instability, and no disuse atrophy or patellofemoral
crepitus in both knees. Dr. Sultan indicated that the ongoing subjective complaints in regard to
both knees did not correspond with the objective examination findings. From an orthopedic point
of view, he further found that there was no correlation between the objective examination and the
bilateral knee MRI scan readings. Dr. Sultan opined that appellant had no ongoing residuals or
disability of the accepted bilateral knee contusions as the accepted conditions had resolved,
appellant was clinically stable, and he was at MMI. He further opined that appellant had no
physical limitations due to the February 12, 2015 employment injury and that he could work in a
full-time, full-duty capacity as a pharmacist.
The Board finds that OWCP properly accorded the weight of medical opinion to Dr. Sultan
who reported that appellant no longer had residuals or disability as a result of the February 12,
2015 employment injury. Dr. Sultan based his opinion on a proper factual and medical history
and physical examination findings and provided medical rationale for his opinion that he did not
have residuals or work limitations as a result of the employment injury. Accordingly, OWCP
36

See J.D., Docket No. 18-0101 (issued August 27, 2018); Jaja K. Asaramo, supra note 6.

37

See J.D., id.

38

See S.M., Docket No. 18-0673 (issued January 25, 2019); Furman G. Peake, 41 ECAB 361, 364 (1990).

39

Id.; see also Calvin S. Mays, 39 ECAB 993 (1988).

11

properly relied on his second opinion report in terminating appellant’s entitlement to wage-loss
compensation and medical benefits.40
Subsequent to Dr. Sultan’s evaluation, appellant was evaluated by Dr. Shah on July 18,
2016 and Dr. Silver on July 28, 2016. As previously discussed, neither Dr. Shah, in his July 18
and August 23, 2016 narrative reports, nor Dr. Silver, in his July 28, 2016 report, provided a wellreasoned explanation as to why appellant continued to have residuals or disability for work due to
the February 12, 2015 employment injury.
In response to OWCP’s December 7, 2016 proposed termination, it received handwritten
notes from Dr. Silver, dated November 21 and 25, 2016 and January 4, 2017, along with a
November 25, 2016 narrative report. However, these reports offered no opinion or medical
rationale as to why appellant continued to require work restrictions or ongoing medical care due
to the accepted bilateral knee contusions.
The Board finds Dr. Sultan’s opinion to be probative evidence and reliable and sufficient
to justify OWCP’s termination of wage-loss compensation and medical benefits for the accepted
conditions of bilateral knee contusion. The remaining medical evidence of record is insufficient
to overcome the weight accorded to Dr. Sultan’s second opinion or to create a conflict.41
LEGAL PRECEDENT -- ISSUE 4
As OWCP met its burden of proof to terminate appellant’s entitlement to wage-loss
compensation and medical benefits on February 3, 2017, the burden shifted to appellant to
establish that he had continuing disability causally related to the accepted conditions.42 Causal
relationship is a medical issue. The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.43
ANALYSIS -- ISSUE 4
The Board finds that appellant has not met his burden of proof to establish continuing
residuals or disability after February 3, 2017 causally related to the accepted February 12, 2015
employment injury.
The handwritten notes of Dr. Silver, dated January 4, February 3, and March 3, 2017, fail
to contain a diagnosis or provide discussion on disability causally related to the accepted bilateral

40

R.B., Docket No. 19-0204 (issued September 6, 2019).

41

See J.D., supra note 36; K.E., Docket No. 17-1216 (issued February 22, 2018).

42

See J.D., id.; Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

43

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

12

knee conditions.44 Thus, they are of no probative value and insufficient to establish causal
relationship.
OWCP also received reports from Dr. Scheim. As previously discussed, in her March 10,
2017 report, Dr. Scheim did not offer a definite diagnosis of a medical condition and her opinion
was insufficient to establish causal relationship. She also did not address disability, but indicated
that appellant was working without restrictions. In her June 19, 2017 report, Dr. Scheim opined
that the February 12, 2015 employment injury caused direct injury and damage to his left medial
meniscus, right medial patellar facet, and left peroneal nerve. She also opined that appellant was
totally disabled from February 12 through November 30, 2015. However, Dr. Scheim did not
address whether he had residuals or disability causally related to the accepted employment
conditions. Thus, contrary to counsel’s assertion on appeal, her June 19, 2017 opinion is
insufficient to establish causal relationship.
As there is no medical evidence of record sufficient to establish that appellant continued to
have residuals or disability after February 3, 2017 due to the accepted February 12, 2015
employment injury, the Board finds that he did not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional conditions casually related to the
accepted February 12, 2015 employment injury. The Board also finds that he has not met his
burden of proof to establish total disability for the period March 27 through July 18, 2015 causally
related to his accepted February 12, 2015 employment injury. Further, the Board finds that OWCP
has met its burden of proof to terminate appellant’s entitlement to wage-loss compensation and
medical benefits effective February 3, 2017. The Board also finds that he did not met his burden
of proof to establish continuing employment-related residuals or disability after February 3, 2017
causally related to the February 12, 2015 employment injury.

44

Id.

13

ORDER
IT IS HEREBY ORDERED THAT the April 24 and 20, 2018 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: November 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 12-1546
Issued: February 6, 2013

Case Submitted on the Record

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

JURISDICTION
On July 11, 2012 appellant, through her attorney, filed a timely appeal from a June 20,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability
beginning November 24, 2010 causally related to her accepted employment condition.
FACTUAL HISTORY
On January 23, 2008 appellant, then a 45-year-old police officer, injured her right wrist
while lifting an unruly child. OWCP accepted her claim for sprain of the right wrist, sprain of
the right wrist radiocarpal, late effects of the sprain/strain of the right wrist without tendon injury
1

5 U.S.C. §§ 8101-8193.

and tear of the triangular fibrocartilage. It authorized right wrist surgery which was performed
on June 9, 2008. Appellant returned to limited duty and also received wage-loss compensation
for intermittent disability.
Appellant was initially treated by Dr. Stephen Greene, a Board-certified family
practitioner, from January 24 to March 10, 2008, for a right wrist injury sustained when she was
trying to restrain a disruptive child. Dr. Greene noted mild soft tissue swelling and diagnosed
right wrist strain. He recommended a wrist support and returned appellant to restricted work
with no use of the right hand. A March 27, 2008 magnetic resonance imaging (MRI) scan of the
right wrist showed two cysts in the capitate and tearing of the triangular fibrocartilage.
Appellant came under the treatment of Dr. Gary Chen, a Board-certified orthopedist, from May 1
to July 31, 2008 for a right wrist injury sustained at work. Dr. Chen diagnosed triangular
fibrocartilage complex tear with dorsal distal radioulnar joint ligament plastic deformity. On
June 9, 2008 he performed a right wrist partial synovectomy, distal wrist and distal radius
chondroplasty, open repair of the volar radiocarpal ligament and triangular fibrocartilage repair.
Dr. Chen diagnosed right wrist triangular fibrocartilage complex tear, volar radiocarpal ligament
tear, distal radioulnar joint ligament laxity and distal radius intra-articular chondral lesion. In a
work capacity evaluation dated July 31, 2008, he returned appellant to work full time with
restrictions.
On August 4, 2008 appellant returned to work in a modified position as a postal officer
assigned to the badge unit with sedentary duties subject to Dr. Chen’s restrictions. She
continued to be treated by him. In a April 7, 2009 duty status report, Dr. Chen returned appellant
to work full time with restrictions on the right arm and hand of lifting or gripping limited to 10
pounds, no twisting and carrying limited to 10 pounds. On April 21, 2009 the employing
establishment offered her a limited-duty position as a postal police officer with duties
conforming to Dr. Chen’s reports.2
On December 7, 2010 appellant claimed compensation from November 23 to 30, 2010.
In a Form CA-7a, she noted that her doctor required her to rest her right wrist. Appellant
submitted a November 23, 2010 report from Dr. Chen, who diagnosed right wrist sprain and
strain. Dr. Chen opined that she was temporarily totally disabled effective November 23
to 30, 2010. He advised appellant could work modified duty effective December 1, 2010, with
no forceful gripping/grasping with the right hand, no pushing or pulling over five pounds and
light use of the right hand with all office supplies and duties.
On December 1, 2010 the employing establishment offered appellant a limited-duty job
as a modified postal police officer, full time subject to the restrictions provided by Dr. Chen on
November 23, 2010. Appellant accepted the position and returned to work.
In a letter dated December 13, 2010, OWCP requested that appellant submit additional
information with regards to her claim for compensation. It requested her to submit medical
evidence establishing that she was totally disabled due to the accepted condition for the period
claimed.
2

On February 4, 2010 OWCP granted appellant a schedule award for 15 percent permanent impairment of the
right arm. The period of the award was from November 21, 2009 to October 14, 2010.

2

Appellant submitted a December 10, 2010 report from Dr. Daniel Capen, a Boardcertified orthopedist, who noted her history as related by her and stated that she presented for
treatment of her right hand. X-rays showed no evidence of fracture or dislocation. Dr. Capen
diagnosed internal derangement of the right wrist. He noted that appellant was currently
working in a modified duty capacity with restrictions of light use of the right hand, no
continuous twisting, pushing or pulling, limited to simple grasping and fine manipulation.
Dr. Capen advised that she could continue to work within restrictions. In a December 10, 2010
work status report, he noted that appellant was restricted to light use of the right hand,
continuous twisting limited to one pound, continuous pushing and pulling limited to five pounds,
simple grasping and fine manipulation limited to one pound. The restrictions would last for six
to eight weeks. In a December 23, 2010 form report, Dr. Capen’s first report of occupational
injury or illness, he noted a history of injury and repeated his diagnoses. He noted objective
findings of the right arm of a scar along the volar wrist, pain and tenderness. Dr. Capen noted
that appellant could perform modified work. In a January 27, 2011 work status form, he noted
that she was totally disabled from January 27 to March 21, 2011.
In a decision dated February 17, 2011, OWCP denied appellant’s claim for compensation
for total disability for the period beginning November 24, 2010.
On February 22, 2011 appellant requested reconsideration.
She submitted a
November 23, 2010 report from Dr. Chen who noted that she presented with pain in the right
wrist joint and weakness and was unable to continue her current job status. Dr. Chen noted
findings of slight right wrist swelling, tenderness and decreased range of motion. He diagnosed
wrist sprain/strain, radiocarpal sprain and late effect sprain/strain. Dr. Chen opined that
appellant was disabled until January 28, 2011.
Appellant was treated by Dr. Capen from January 27 to May 5, 2011 for persistent right
wrist pain with numbness and tingling. On January 27, 2011 Dr. Capen noted limited range of
right wrist motion with tenderness. He advised appellant was working modified duties which
aggravated her complaints. Appellant reported working at a desk job and continuously writing
for several hours a day, using her right hand and wrist. Dr. Capen noted that because no
modified duties were available, she was totally disabled as of January 27, 2011. On March 10
and April 7, 2011 he diagnosed internal derangement of the right wrist and noted taking
appellant off work because she had limited range of motion and a questionable internal
derangement which was an extension of her injury. Dr. Capen opined that she was totally
disabled while undergoing investigative studies and rest to improve her wrist. He recommended
shockwave therapy. In a work status form dated March 10, 2010, Dr. Capen noted that appellant
was totally disabled from March 10 to April 10, 2011. In a May 5, 2011 work status report, he
noted that she was totally disabled from May 5 to June 27, 2011. Also submitted was a
February 7, 2011 right wrist MRI scan which revealed subchondral cystic changes in the carpal
bones, likely degenerative and no ligament tear. On April 11 and 25, 2011 appellant was treated
by Dr. A. Stern, a Board-certified neurologist, who diagnosed right wrist/hand tenosynovitis and
tendinopathy. Dr. Stern performed two shockwave therapies.
On May 18, 2011 the employing establishment submitted a statement from appellant’s
supervisor who noted appellant’s work duties consisted of approximately two hours of writing a
day. These duties included maintaining radio communication documenting calls, generating

3

badges which included writing information onto a log, maintaining vehicles which included
printing information onto a log book, generating control badges by manually imputing
information, creating badges for new hires that included writing information on a log book and
providing access control through the use of electronic hardware on gates.
In a decision dated June 9, 2011, OWCP denied modification of the February 17, 2011
decision.3
Appellant continued to be treated by Dr. Capen who on May 5, 2011 diagnosed internal
derangement of the right wrist and status post surgery. Dr. Capen opined that she remained
totally disabled. In a work status form dated June 24, 2011, he noted that appellant could return
to work with restrictions on June 27, 2011 of no forceful lifting, twisting, pulling and minimal
computer work with the right hand. On May 2, 2011 appellant was treated by Dr. Stern who
diagnosed right wrist/hand tenosynovitis and tendinopathy. Dr. Stern performed a shockwave
therapy.
On June 27, 2011 the employing establishment offered appellant a limited duty as a
postal police officer subject to the restrictions set forth by Dr. Capen on June 24, 2011 which
appellant accepted.
Appellant continued to be treated by Dr. Capen who noted decreased range of motion
with tenderness and reiterated his diagnoses. Dr. Capen recommended physical therapy and
continued work restrictions. In a January 20, 2012 report, he noted appellant’s continued right
hand symptoms and indicated that surgery had been recommended. In continuing work status
reports, Dr. Capen continued her work restrictions. A September 16, 2011 MRI scan of the right
wrist revealed a tear of the radial attachment of the triangular fibrocartilage and no evidence of
carpal tunnel syndrome. On March 9, 2012 Dr. Capen noted that appellant continued to have
residuals of her work injury and had not reached maximum medical improvement. He noted that
his January 20, 2012 restrictions were permanent. In a May 11, 2012 report, Dr. Capen noted
appellant’s complaints of significant right wrist pain and diagnosed internal derangement of the
right wrist and status post wrist surgery. He continued her work restrictions.
Appellant was also treated by Dr. Anthony Ahn, a Board-certified orthopedist, from
January 6 to February 13, 2012. Dr. Ahn noted a history of injury and diagnosed triangular
fibrocartilage injury of the right wrist. In a February 13, 2012 primary treating physician’s
progress report, he diagnosed right ulnar impaction and recommended a wrist brace.
In a decision dated June 20, 2012, OWCP denied modification of the February 17, 2011
decision.

3

Appellant appealed to the Board. In an order dated March 12, 2012, the Board set aside the June 9, 2011
decision finding that OWCP failed to consider all the evidence of record at the time of the decision. The Board
remanded the case so that OWCP could properly consider all the evidence at the time of the decision and issue an
appropriate merit decision on the claim. Docket No. 11-1621 (issued March 12, 2012).

4

LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.4 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.5 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.6 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.7
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.8
ANALYSIS
OWCP accepted appellant’s claim for sprain of the right wrist, sprain of the right wrist
radiocarpal, late effects of the sprain/strain of the right wrist without tendon injury and tear of the
triangular fibrocartilage. It authorized right wrist surgery which was performed on June 9, 2008.
Appellant stopped work on November 24, 2010 and returned to a limited-duty job on
December 1, 2010. She continued to work limited duty until January 27, 2011, when she
stopped work completely. On June 24, 2011 appellant returned to a limited-duty position. The
Board finds that the medical evidence is insufficient to establish that periods of total disability
beginning November 24, 2010 were caused or aggravated by the accepted conditions.9
In support of her claim, appellant submitted reports from Dr. Capen beginning
December 10, 2010 when he noted findings and diagnoses and stated that appellant could
continue working full time within restrictions. Dr. Capen’s initial reports did not support that
she was totally disabled due to her accepted conditions and he did not otherwise clearly explain
how her modified duties exceeded her work restrictions. On January 27, 2011 he noted that
appellant’s modified duties aggravated her symptoms as she was continuously writing for several
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Id.

6

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

C.S., Docket No. 08-2218 (issued August 7, 2009).

8

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

9

Although OWCP denied that appellant had total disability beginning November 24, 2010, it continued to pay
her wage-loss compensation for intermittent hours of wage loss incidental to medical appointments. These
intermittent payments are not at issue in the present appeal.

5

hours a day with her right hand. Dr. Capen found that she was totally disabled as of
January 27, 2011. Similarly, in reports dated March 10 and April 7, 2011, he noted taking
appellant off work because she had limited range of motion of the right wrist and a questionable
internal derangement which was an extension of her injury. Dr. Capen opined that she was
totally disabled while undergoing investigative studies. Likewise on May 5, 2011 he made
diagnoses and opined that appellant remained totally disabled. Although these reports and work
status forms indicated that appellant was disabled on or after January 27, 2011, Dr. Capen failed
to provide a rationalized opinion explaining the reasons why she was disabled for any particular
period due to the accepted conditions.10 As noted, part of appellant’s burden of proof includes
submitting rationalized medical evidence which supports a causal relationship between the
alleged disabling condition and the accepted injury. Other reports from Dr. Capen either
indicated that she could work modified duties or did not specifically address how her accepted
conditions caused total disability for the period in question.
Appellant also submitted a November 23, 2010 narrative report from Dr. Chen who noted
she presented with right wrist pain and weakness and was unable to continue her current job
status. Dr. Chen diagnosed wrist sprain/strain, radiocarpal sprain and late effect sprain/strain.
He opined that appellant was totally disabled until January 28, 2011. In another November 23,
2010 report, Dr. Chen noted total disability from November 23 to 30, 2010 but stated that she
could work modified duty effective December 1, 2010. His reports are insufficient to establish
appellant’s claim as he did not provide any medical rationale explaining the reasons why she was
totally disabled after November 23, 2010 due to her accepted conditions. Dr. Chen also did not
explain why he listed a differing period of total disability. Therefore, this report is insufficient to
meet appellant’s burden of proof.
Reports of other physicians, such as Dr. Ahn and Dr. Stern, did not specifically address
the cause of appellant’s claimed disability on or after November 24, 2010. Consequently, these
reports are insufficient to establish the claimed disability on or after November 24, 2010, is
causally related to the accepted conditions.
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 failed to establish that her disability for the period
beginning November 24, 2010 is causally related to the accepted employment injury.

10

It also appears that Dr. Capen’s opinion did not have an accurate understanding of appellant’s duties. On
January 27, 2011 he noted that appellant reported continuously writing for several hours with her right hand.
However, on May 18, 2011, appellant’s supervisor indicated that appellant’s work duties consisted of only about
two total hours of writing spaced throughout a workday. See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where
the Board held that medical opinions based upon an incomplete history have little probative value).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2012 is affirmed.
Issued: February 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL FINANCE CENTER,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 08-978
Issued: March 5, 2009

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated August 15, 2007 and January 31, 2008. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
refused to reopen appellant’s case for reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 46-year-old information technology (IT) specialist, filed a (Form CA-2)
claim for benefits based on an emotional condition on June 27, 2005. She stated that she was
forced to work mandatory overtime periods for 16 months; she asserted that management
wrongfully denied her requests to be excused from such duties. Appellant also alleged

harassment on the part of first and second line supervisors. On the form, the employing
establishment indicated that appellant had been performing the same duties since she accepted
the position in June 2003.
Appellant submitted a May 1, 2005 note from Dr. C. Bryan Miller, Board-certified in
family practice, who stated, “limit work to 40 hours per week due to health reasons.”
In a report dated June 15, 2005, Dr. Robert U. Weiss, a specialist in family practice, stated
that appellant was experiencing anxiety and depression, secondary to stress at work. He opined
that she should refrain from working over 40 hours a week. In a June 23, 2005 report, Dr. Weiss
noted that appellant had been under “enormous” stress at work for approximately one year. He
stated that her symptoms, which included exhaustion, sleeplessness, palpitations, low energy,
change in eating habits, headaches, depressed moods and anxiety, had worsened over the past few
months. Dr. Weiss reiterated the diagnoses of anxiety and depression and opined that appellant’s
condition was due to work-related stress.
The employing establishment controverted appellant’s claim and submitted a June 2, 2005
statement to her (received by the Office on July 14, 2005) from JoAnn John, supervisor for IT
specialists, responding to her request to be exempted from working overtime. She granted the
request and excused her from working overtime for one week but requested additional medical
information to support any additional periods. Jim Julian, appellant’s division chief stated:
“[Appellant] recently submitted a medical statement from [Dr. Miller] which states,
‘limit work [to] 40 [hours per week] due to health reasons.’ The medical slip is
unclear in its meaning and does not provide enough medical information to base
any determination. [Appellant’s job as an] IT [s]pecialist on the ISPC [Information
Systems Policy and Control] Staff requires [her] to work at least [eight] hours of
mandatory overtime each two weeks. If [she is] seeking an exception to this
requirement for medical reasons, [her] request must be fully documented before an
administrative decision can be made on this issue.... [Appellant is] excused from
the mandatory overtime for pay period 11 only, pending receipt and review of any
information [she] may present.”
Ms. John instructed appellant to submit the following additional medical information to
support her request: a history and diagnoses of her medical/psychiatric conditions; a copy of her
most recent medical evaluation, including diagnostic procedures; and prognoses of her current
conditions, including plans for future treatment and the expected date of full or partial recovery.
She also requested a list of restrictions entailed by these conditions, if any and an explanation as to
why they are warranted by these conditions; this included an explanation of how requiring her to
work eight extra hours over a 10-day period would involve risk to these conditions.
Accompanying this letter was a copy of an IT specialists’ job description, which indicated that the
employee could be required to carry a pager, work overtime or be on-call outside of normal
business hours.
By letter dated August 30, 2005, the Office advised appellant that she needed to submit
additional information in support of her claim. It asked appellant to describe in detail the
employment-related conditions or incidents which she believed contributed to her emotional

2

condition and to provide specific descriptions of all practices, incidents, etc., which she believed
affected her condition. The Office also asked appellant to clarify and further explain whether she
was required to work overtime or take work home with her in order to complete her assigned duties
and if so, how often and for how long.
In a statement dated October 15, 2005, appellant stated:
“I have been under stress within my Federal employment for a long time now. It
is hard to pin point an exact date. I can say that I first visited a physician with my
concerns on May 31, 2005. At this time the physician stated I was experiencing
stress. In an effort to lessen this stress within my Federal employment the
physician wrote an excusal from any overtime required. This request was refused
by my management/personnel office, and I was then requested to get additional
information.... I was experiencing heart palpitations, headaches, fatigue, low
energy, a lowered eating habit and anxiety.... Dr. Weiss then diagnosed me as
anxious and depressed and prescribed me an antidepressant medication.
Dr. Weiss also provided the information requested in the letter dated June 2, 2005
(previously submitted to your office) from my management’s personnel office.
Upon submitting this information, I received an additional letter (previously
submitted to your office) of rejection for my physicians excusal from the required
mandatory overtime due to this illness.
“After receiving the last letter that contained: ‘disciplinary action up to and
including termination from federal service,’ [supervisor] JoAnn John
continuously made comments around me relating to this. The comments were
‘NFC is firing people now,’ ‘NFC is firing people for anything.’ I felt and my coworkers agreed, these comments were directed at me….”
Appellant stated that one of the factors that caused her emotional condition was the
employing establishment’s mandatory overtime requirement, which it had implemented in
February 2003. She further stated:
“While acting one week that JoAnn John was out of town, I was required to
prepare a statistical weekly report that initiated that very same week. This report
was due by 12:00 each Wednesday. At 11:30 I went into Mike Zeringues’ office
to inform him by his 12:00 deadline, that a portion of the report was incomplete
due to late arrival of stats from another section within the ISPC. When I handed
him the report he commented ‘In other words you did nothing then.’
“When given my performance interim on April 28, 2005 by my supervisor
JoAnn John, I was told that I would have disciplinary action taken on me if I miss
any required overtime. I had fallen one and a half hours short of my required
overtime the previous pay period due to illness. In my 26 years of federal service
I have never been threatened with such action, have an excellent performance
record and feared this record being ruined. The continued fear of being out of
work and missing the required overtime due to illness or even worse, an illness on
my young son laid stressful on me day to day.”

3

Appellant related that she was told at this meeting that an audit report run against her
keystrokes indicated a low degree of productivity on her part. She subsequently documented the
number of access requests she had completed the previous week and brought them to a May 20,
2005 meeting with Ms. John to discuss her work performance again. Appellant denied
Ms. John’s statement at this meeting that the keystroke audit reflected several hours of
nonproductive time, asserting that she was a persistent worker who did not take breaks. When
she suggested that she keep a log of time entries for each request she entered in order to confirm
the audit report findings and clear up the matter, Ms. John denied this request. However,
notwithstanding Ms. John’s denial, appellant decided to investigate on her own and ran an audit
report against her own keystrokes, which allegedly showed that the audit process did not record
every keystroke or action. She also compared her own output to other IT’s and allegedly found
that she was three times more productive than some of her coworkers during the same time
period for which she was reprimanded. Appellant stated:
“I decided to discuss my findings with the Divisions Chief, Jim Julian. I
requested a meeting and met with him. At which time I presented all my findings.
He stated he would look into the matter and asked if I would leave these reports
with him so that he could discuss them with my supervisor JoAnn John and
Branch Chief, Mike Zeringue. He stated that he can clearly see I was doing three
times more than others and if all the administrators worked as I did we would not
have the backlog we have today. Nothing ever became of this meeting I had with
Jim Julian. I was so upset over all of this it brought me to tears.”
***
“On June 3, 2005 the only manager present was the Division Head, Jim Julian.
One of our customers went to Jim in order to have a request processed
immediately. Jim came to look for someone to work this request and assigned the
task to me. This was a large request, which I worked the entire day attempting to
complete. At the time Bobby Borja was acting in JoAnn John’s absence.... Since
Bobby Borja was the acting, he sent this request to me via email. Late that
afternoon JoAnn John called Bobby and stated, ‘whatever you gave [appellant] to
work, get it back from her and place it on my desk.’ When Bobby came to me
and said this, I was shocked.... I stopped working on the request and wrote an
email message to Jim Julian, since he had left for the day, stating the details to
what had happened with the request he had assigned to me. Shortly, after doing
this, Bobby Borja received another phone call from JoAnn John. He came over to
me and said that JoAnn John is on the telephone and she asked him to tell me to
open whatever she had sent to me in my email box.... The message from JoAnn
John pretty much accused me of helping a customer on my own without having
management approval. I responded to her by stating I had followed the rules as
they were given to SAAG [Security Access Administration Group] in our desk
procedure. I was so upset over this incident I was shaking and crying.”

4

Lastly, appellant alleged that Ms. John would constantly denigrate her performance by
yelling things at her over the petition between their offices. She stated that many of her
coworkers commented on how obvious it was that she was singled out and mistreated in this
fashion.
In a letter to the Office dated January 12, 2006, Mr. Julian, appellant’s division chief,
stated:
“Thank you for the opportunity to review [appellant’s] statement and provide our
comments. As [she] states in her claim, she believes that her stress is largely due to
mandatory overtime of eight hours each two-week period. It should be noted that
employees may select how the extra time is worked (such as an hour a day for eight
days or any other option) and employees have the option of working the required
overtime from home. As stated in ... the CA-2 form, [appellant] was aware of the
mandatory overtime when she accepted the position on June 1, 2003.
“Mandatory overtime has been required from time to time in the Administration
Section of Information Systems Security Office [ISSO] for the last five or more
years. Management is forced to impose mandatory overtime when the backlog of
security access requests becomes extremely large causing ISSO to not meet the
service level agreement with our customers. There are a number of factors that
contribute to the size of the backlog [which include]: [i]ncreased number of
requests due to additional agencies being payrolled; [i]ncrease in the number of
computing platforms; and the fact that access has to be permitted manually on each
computing platform, i.e., mainframe, UNIX servers, Oracle servers, Windows
servers, Novell servers, etc; [t]emporary loss of productivity due to employee
illnesses, necessary training or conducting [s]ecurity [o]fficer training in
Washington, D.C., [given that] anytime an employee is out, the employee’s
productivity is lost.
“In [appellant’s] second level supervisor’s opinion, there was more of a perception
of a conflict than an actual conflict. [She] became very agitated when she thought
management was ‘checking up’ on her. [Appellant] was told numerous times that it
is management’s responsibility to monitor an employee’s activity and that she was
not the only one monitored. She viewed this as an attack, which sparked the
question “what does she have to hide?” If an employee is performing their job at or
above the expected level, they usually want their management to know they are
doing a good job.
“ISSO has a service level agreement with our customers to provide access
administration within five business days from the receipt of the request. The
volume of requests can increase significantly from time to time due to the factors
outlined earlier. During times of high volumes and large backlogs, mandatory
overtime is sometimes required. This causes some stress; however, this is the way
it has been for the last number of years. The employees know it and have adjusted
to it. It is [appellant’s] second level supervisor’s opinion that [she] causes herself
stress with her constant concern about management checking up on her.

5

“Management always encourages employees who state they are having some
situation or problem to talk to Workforce Services Staff and to the Employee
Assistance Staff. [Appellant] also stated that she had no problem working [eight]
hours and being stress free. It was the extra hour of doing the same work that gave
her stress. She stated that it was also because she was away from her family. In an
effort to accommodate the employees having to work the mandatory overtime,
ISSO devised an agreed upon process of letting the employee work overtime from
home. This was accomplished by giving the employee an agreed upon amount of
work for an agreed upon amount of time. This seemed to be acceptable by most of
the employees.”
Mr. Julian noted that appellant was hired as a GS-12 IT specialist, whose primary
responsibility is to process access requests; she did not have to monitor access. He stated that the
SAAG had been understaffed for the previous three years, which created backlogs. ISSO’s
requests to increase their staff were invariably rejected due to lack of funding. Mr. Julian
explained that ISSO tried to minimize the effects of being shorthanded by instituting a work from
home process. With regard to appellant’s performance while working under these conditions, he
stated:
“[Appellant] was very knowledgeable and very good at processing requests.
However, the monitoring of employees’ work showed a pattern where [she] would
have large gaps in her processing. These gaps usually consisted of an hour in the
morning and afternoon with a two-hour gap at lunch. When asked about this,
[appellant] stated [that] she was working on other platforms. When management
checked the requests that [appellant] was working on, it showed that no access on
other platforms was needed. [Appellant] would run monitoring reports on other
employees to see what they were doing and try to compare her to them. She was
told that running these types of reports was not part of her job function. If
[appellant] had concerns, then she should bring these concerns to management and
let management resolve them. Also, [she] was encouraged to work with Workforce
Services [Staff], which she did. However, Workforce Services [Staff] informed me
that though [appellant] may have had some legitimate complaints, it appeared to
them that she was also an instigator and caused some of her own problems.
“[Appellant] seemed fixated on the idea that someone was out to get her. She could
not seem to grasp that it is management’s responsibility and duty to monitor their
employees.
“When [appellant] brought her concerns to management, she was given the
opportunity to submit medical documentation supporting her claim of workrelated depression and anxiety. Her supervisor waived the mandatory overtime
policy for one pay period pending the review of the medical documentation.
[Appellant’s] supervisor also extended deadlines, at [her] request, for submitting
the information. In two separate letters dated June 2 and 21, 2005, management

6

advised [appellant] on what constitutes an acceptable medical statement.1 In our
opinion, the medical documentation that [appellant] submitted does not give
enough information to support her claim that her anxiety and depression are work
related.”
By decision dated February 16, 2006, the Office denied appellant’s claim on the basis
that she failed to establish any compensable factor of employment and thus fact of injury was not
established.
On September 14, 2006 appellant requested reconsideration. She submitted statements
from coworkers Sheila Ratcliffe, Charlene Johnson and her husband, John Kendrick, which were
received by the Office on September 18, 2006. Ms. Ratcliffe advised that she had been a
coworker and good friend of appellant’s for 19 years. She stated that appellant was a
conscientious and dedicated employee and that they always completed their projects in a timely
fashion. Ms. Ratcliffe indicated, however, that she became aware that appellant’s situation had
changed within the past few years, though she no longer worked directly with her. She stated:
“I could tell [appellant] was getting real stressed with her job. [Appellant’s]
supervisor, JoAnn John, called her down numerous times. Sometimes it was even
in meetings in front of her coworkers. [Appellant] has always done a fantastic
job. I could n[o]t see what the problem was. [Appellant] went to her third level
supervisor to see if things could be worked out. During these times we would
meet after work for coffee or get something to eat. I tried calming her down and
just letting her talk.”
Coworker Ms. Johnson advised that she had witnessed the incident which occurred on
June 3, 2005 and noted her agreement with appellant’s description of what happened that day.
She stated:
“[Appellant] was the most upset I have ever seen her. She was trembling and in
tears. I advised her to request leave, punch out and go home. [Appellant]
responded that due to the fact JoAnn John was not in the office sitting in the
office next to her and that there was only 35 minutes left to her workday, she
would stick it out.
“Because my office was located directly across from [appellant’s], I [ha]ve
observed several personal attacks made on [her] by Ms. John, [who] would call
[appellant] down or bash her work by way of screaming things to her from office
to office over petitions. These attacks grew more frequent to a near daily
occurrence. At times, these attacks had me feeling very uncomfortable within my
work environment.
1

The employing establishment also submitted copies of e-mails between appellant and management’s employee
relations specialist, dated June 10 and 13, 2005, in which management responded to appellant’s query regarding the
regulatory authority for requesting medical information to support overtime excusal. In its June 13, 2005 e-mail,
management’s employee relations specialist advised appellant that 5 C.F.R. § 339 stipulated that management was
required to obtain medical documentation from the employee detailing why she could not work overtime or
accommodate their working conditions.

7

“[Appellant] was a very knowledgeable and dedicated employee. She was always
eager to assist me when I needed help within our work assignments and has taught
me a lot.”
Appellant’s husband, Mr. Kendrick, indicated in his statement that the period appellant
referenced in her claim was the most stressful of their relationship. He related that she would
come home from work daily in “a foul mood” which often led to fits of crying when he asked her
what was wrong. In addition, Mr. Kendrick stated that appellant experienced sleeplessness,
anxiety and depression which her physician considered work related. He stated that appellant
requested a departmental transfer and subsequently asked to be excused from mandatory
overtime.
By decision dated August 15, 2007, the Office denied appellant’s request for
modification of the February 16, 2006 decision.
By letter dated November 6, 2007, appellant requested reconsideration. In her letter, she
reiterated contentions she presented in previous statements and rebutted some of the factual
statements made by management in response to her allegations. Appellant denied Mr. Julian’s
statement that she was aware of the mandatory overtime requirements when she accepted the
position in June 2003. She stated that no one with management discussed the demands of
mandatory overtime that came with this position and that therefore she was not afforded the
opportunity to decline the position based on this factor. Appellant asserted that, contrary to
Mr. Julian’s statement that mandatory overtime was required from “time to time,” management
mandated bi-weekly overtime for two consecutive years, almost without interruption. She also
rejected Mr. Julian’s assertion that there was merely “a perception” of conflict at her worksite,
reiterating her contention that Ms. John harassed her on several occasions. Appellant stated that
Ms. John’s harassment, derogatory comments and discriminatory treatment were known to
coworkers and management.2 She dismissed Mr. Julian’s statement that her second line
supervisor, Mr. Zeringue, corroborated Ms. John’s denial of inappropriate conduct toward her,
alleging that she was never present or involved with any discussions of her situation.3 Appellant
also rejected management’s suggestion to work some of the mandatory overtime at home
because it was too time-consuming and because she felt that there was nothing to gain from it.
She also stated that she felt uncomfortable carrying home paper documents containing sensitive
data. Finally, appellant alleged that, by requiring her to submit medical documentation, the
employing establishment violated its own overtime policy, which states that “the justification for
excusing employees from overtime should not be limited to medical reasons” and that “[e]very
effort should be made to avoid scheduling employees for overtime when it may involve a
hardship on employees’ health or family welfare.”

2

According to appellant, Ms. John threatened her by stating, “I am going to run reports and see exactly what you
are doing!” She stated that she was not concerned because this would have confirmed exactly how much work she
was doing, which might have put an end to her harassment.
3

Appellant stated that Ms. John was subsequently removed from her management position. However, she
provided no proof of this assertion nor did appellant indicate the reason for Ms. John’s alleged removal.

8

By decision dated January 31, 2008, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.4 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.5
The first issue to be addressed is whether appellant has established factors of employment
that contributed to her alleged emotional condition or disability. Where the disability results
from an emotional reaction to regular or specially assigned work duties or a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.6 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of the Act.7
ANALYSIS -- ISSUE 1
The Board finds that the evidence of record does not establish that the administrative and
personnel actions taken by management in this case were in error and are therefore not
considered factors of employment. An employee’s emotional reaction to an administrative or
personnel matter is not covered under the Act, unless there is evidence that the employing
establishment acted unreasonably.8 Appellant has not presented sufficient evidence that the
employing establishment acted unreasonably or committed error with regard to the incidents of
alleged unreasonable actions involving personnel matters on the part of the employing
establishment.
Appellant alleged that she sustained stress in the performance of her duties as an IT
specialist due to management’s mandatory overtime policy. The Board has held that overwork
4

See Debbie J. Hobbs, 43 ECAB 135 (1991).

5

See Ruth C. Borden, 43 ECAB 146 (1991).

6

Lillian Cutler, 28 ECAB 125 (1976).

7

Id.

8

See Alfred Arts, 45 ECAB 530, 543-44 (1994).

9

may be a compensable factor of employment.9 However, the employing establishment advised
that the mandatory overtime policy had been in place when appellant accepted her position in
June 2003 and her IT specialist job description stated that overtime work could be required.
Appellant indicated that in her October 15, 2005 statement that she was aware that management
had instituted its mandatory overtime requirement in February 2003. Management stated that it
had been forced to impose mandatory overtime whenever the backlog of security access requests
became excessive to the extent that ISSO could not meet the service level agreement with its
customers. It stated that, while the mandatory overtime requirement caused some stress, most of
its employees were aware of the need for it and had adjusted to it. The employing establishment
advised that it had implemented a program, accepted by most employees, which allowed them to
work overtime from home to help them satisfy their overtime requirements. Appellant, however,
stated that she was not comfortable working at home and refused to do so. She also alleged that
management wrongfully denied her requests to be excused from the mandatory overtime
requirement. However, the record indicates that Ms. John tried to accommodate appellant’s
purported difficulties working overtime by granting her request to be excused from such duty for
one week while requesting additional medical information to support any additional periods of
excusal, in accordance with administrative policy. While appellant did submit a summary note
from Dr. Miller indicating that she should not work more than 40 hours per week, management
determined that this did not constitute medical evidence sufficient to demonstrate that she should
not work overtime for extended periods. Lastly, she alleged that Ms. John caused her stress by
threatening her with disciplinary action during her April 28, 2005 interim performance
evaluation because she did not accumulate the minimum number of overtime hours for that pay
period. Appellant, however, has not submitted evidence indicating that the employing
establishment erred or acted abusively in implementing its overtime policy. Thus, these
disciplinary matters are not compensable factors of employment.
The Board has held that emotional reactions to situations in which an employee is trying
to meet her position requirements are compensable.10 However, appellant has submitted
insufficient evidence to establish that the employing establishment acted unreasonably or
committed error with regard to setting guidelines and monitoring her performance. She failed to
show that management improperly reprimanded her for filing an incomplete weekly statistical
report, that Ms. John acted improperly in terminating her project in June 2005 or that the audit
report commissioned by the employing establishment constituted agency error, as she alleged. In
addition, appellant admittedly disobeyed management’s explicit instructions when she initiated
her own audit report. She failed to demonstrate that management was exceeding its
administrative responsibilities or that it engaged in improper conduct in discharging its
supervisory responsibilities and the incidents cited above are not compensable absent evidence of
agency error or abuse.
As part of the managerial function, a supervisor must assign work. Appellant did not
submit any evidence to substantiate that any of her work assignments were in error or were
abusive.
9

Sandra F. Powell, 45 ECAB 877 (1994); William P. George, 43 ECAB 1159 (1992); Georgia F. Kennedy,
35 ECAB 1151 (1984).
10

See Lillian Cutler, supra note 6.

10

Regarding appellant’s allegation that she developed stress due to the uncertainty of her
job duties and her insecurity about maintaining her position, the Board has previously held that a
claimant’s job insecurity is not a compensable factor of employment under the Act.11 A reaction
to such factors did not constitute an injury arising within the performance of duty; such
personnel matters were not compensable factors of employment in the absence of agency error or
abuse. Appellant has failed to establish error or abuse with regard to her allegation that the
employing establishment acted improperly in issuing her letters of warning and discussing
possible disciplinary actions with her. While she became agitated because management was
checking up on her, Mr. Julian informed her that it was management’s responsibility to monitor
an employee’s activity and that she was not the only one monitored. Appellant’s complaints that
she was treated unfairly by management were rebutted by Ms. John and Mr. Julian, who stated
that the monitoring of her work showed a pattern of large gaps in her processing. They also
noted, as stated above, that appellant ran monitoring reports on other employees without
authorization to see what they were doing and tried to compare herself to them. Management
tried to accommodate her concerns by referring her to counseling at Workforce Services, which
concluded that while appellant may have had some legitimate complaints, it appeared to them
that she was also an instigator and caused some of her own problems. Disciplinary matters
consisting of counseling sessions, discussions or letters of warning for conduct pertain to actions
taken in an administrative capacity and are not compensable as factors of employment. Thus,
these actions on the part of management did not constitute factors of employment.
The Board finds that appellant has failed to submit sufficient evidence to establish her
allegations that her supervisor engaged in a pattern of harassment, intimidation or discrimination.
Appellant alleged that Ms. John was hostile and uncooperative and spoke to her in a
condescending, offensive manner on numerous occasions, but did not provide sufficient evidence
to establish that she was harassed or treated in a discriminatory manner.12 Mere perceptions of
harassment or discrimination are not compensable; a claimant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.13
Mr. Julian and Ms. John denied appellant’s allegations that she was unfairly singled out
or treated in a discriminatory manner. Appellant alleged that they gave her unreasonable
restrictions and expectations that they did not impose on other employees, but failed to submit
documentation to prove these allegations. Ms. John and Mr. Julian noted that appellant was a
competent employee but stated that they counseled her about her performance because she failed to
meet certain deadlines and goals and behaved in an insubordinate manner by running her own audit
report comparing her performance with that of other employees. They indicated that these were
constructive measures, part of their managerial functions, taken to apprise appellant of the
importance of following procedure and meeting deadlines. Appellant alleged that her supervisor
made statements and engaged in actions which she believed constituted harassment and

11

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

12

See Joel Parker, Sr., 43 ECAB 220 (1991). (The Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
13

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

11

discrimination, but she provided no corroborating evidence or witness statements to establish
that the statements actually were made or that the actions actually occurred.14
The Office reviewed all of appellant’s allegations of harassment, abuse and mistreatment
and found that they were not substantiated or corroborated. To that end, the Board finds that the
Office properly found that the episodes of harassment cited by appellant did not factually occur
as alleged by her, as she failed to provide any corroborating evidence for her allegations. As
such, appellant’s allegations constitute mere perceptions or generally stated assertions of
dissatisfaction with a certain superior at work which do not support her claim for an emotional
disability.15 For this reason, the Office properly determined that these incidents constituted mere
perceptions of appellant and were not factually established. Appellant has not submitted
evidence sufficient to establish that management engaged in a pattern of harassment toward her
or created a hostile workplace environment.
The Board finds that appellant has not established a compensable work factor. For this
reason, the medical evidence will not be considered.16 The Board finds that the Office properly
denied compensation for an alleged emotional condition in its February 16, 2006 and August 15,
2007 decisions.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.17 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.18
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; she has not advanced a relevant legal argument not previously
14

The Board finds that the September 18, 2007 statements from appellant’s husband and her coworkers,
Ms. Radcliffe and Ms. Johnson, fail to establish harassment on the part of Ms. John. While the statement from
Ms. Johnson indicates that she witnessed harassment and heard derogatory comments made by Ms. John to
appellant, it does not provide sufficient evidence of specific incidents to be considered compensable. The Board
also rejects appellant’s assertion that derogatory statements allegedly made by Ms. John and Mr. Zeringue were
compensable. Although the Board has recognized the compensability of verbal abuse in certain circumstances, this
does not imply that every statement uttered in the workplace will give rise to coverage under the Act. Harriet J.
Landry, 47 ECAB 543, 547 (1996). Appellant has not shown how such isolated comments would rise to the level of
verbal abuse or otherwise fall within the coverage of the Act. See Alfred Arts, supra note 8.
15

See Debbie J. Hobbs, supra note 4.

16

See Margaret S. Krzycki, supra note 13.

17

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

18

Howard A. Williams, 45 ECAB 853 (1994).

12

considered by the Office; and she has not submitted relevant and pertinent evidence not
previously considered by the Office. She made certain assertions regarding her prior awareness
of mandatory overtime requirements and the amount of overtime she would be required to work
when she accepted her position in June 2003. Appellant reiterated that Ms. John made
derogatory comments and engaged in a pattern of harassment and discrimination toward her,
conduct with which she alleged that her second line supervisor Mr. Zeringues was not familiar
and reiterated her discomfort with management’s suggestion to perform some overtime hours at
home. These contentions, however, were previously considered and rejected by the Office in
previous decisions and are therefore cumulative and repetitive. Lastly, appellant has failed to
show that management violated its own overtime policy by requiring her to submit medical
documentation to support her request to be excused from working overtime.19 Her
reconsideration request failed to show that the Office erroneously applied or interpreted a point
of law nor did it advance a point of law or fact not previously considered by the Office. The
Office did not abuse its discretion in refusing to reopen appellant’s claim for a review on the
merits.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty. The Board finds that the Office
properly refused to reopen appellant’s case for reconsideration on the merits of her claim under 5
U.S.C. § 8128(a).

19

Appellant submitted a copy of NFC overtime policy which stated, as she contended, that justification for
excusing overtime should not be limited to medical reasons and that every effort should be made to avoid scheduling
employees for overtime when it involved a hardship to the employee’s health or family welfare. However, the
policy also indicated that “upon presentation of a reasonable justification acceptable to the person authorized to
approve overtime, employees may be excused from overtime.” In other words, the stated policy indicates that the
decision to excuse employees from performing overtime is discretionary. Appellant has failed to show that the
employing establishment abused its discretion in denying her request for additional exemptions.

13

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2008 and August 15, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14