United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, Albuquerque, NM,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jennifer Raymond, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0717
Issued: January 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 29, 2016 appellant, through counsel, filed a timely appeal from a January 8,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On March 5, 2014, appellant, then a 37-year-old recreation specialist supervisor, filed an
occupational disease claim (Form CA-2) alleging that he developed an emotional condition as a
result of actions by management including verbal abuse, failure to provide proper instructions to
perform his job, changing work duties without notice, and refusing a request for reasonable
accommodations. He became aware of his condition and realized it was causally related to his
employment on March 5, 2013. Appellant stopped work on March 1, 2014.
Appellant submitted a series notes from Dr. B. Cody Wright, a Board-certified
psychiatrist, dated November 22, 2013 to May 15, 2014, who requested that appellant not be
assigned supervisory duties beyond what was detailed in his job description. Dr. Wright
recommended that appellant not work from March 3 to April 1, 2014 because his work situation
exacerbated his medical condition. Appellant was also seen by a social worker for generalized
anxiety disorder.
On April 18, 2014 OWCP asked appellant to submit additional evidence to include a
detailed description of the employment incidents that contributed to his claimed illness. It
requested that the employing establishment provide comments from a knowledgeable supervisor
on the accuracy of all statements.
Appellant submitted an April 17, 2014 statement and alleged that K.D, a supervisor, and
C.R., the center director, harassed and discriminated against him because of his serviceconnected psychological disabilities. He alleged that K.D. demanded that he accept additional
responsibilities for which he had not been hired and which he was unable to perform without
creating an extremely stressful situation for himself. Appellant noted that he was not part of the
management team and was never consulted before he was temporarily assigned as a duty officer,
which was an increase in responsibility. He asserted that the employing establishment failed to
appropriately compensate him for duty officer and shift supervisor duties. Appellant alleged that
K.D. verbally berated him and accused him of using his disability as an excuse. He asserted that
K.D. belittled him publicly in the gym in front the students he was supervising. Appellant
alleged that the reason there was a constant need for someone to cover as duty officer was
because another supervisor, D.F., consistently failed to perform his duties, which included
preparing a duty roster in advance for job coverage. He alleged that, on April 4, 2014, C.R.
verbally threatened him to sign a document. Appellant asserted that the employing establishment
failed to provide reasonable accommodations. He alleged that the management team did not
elevate his request for assistance in addressing the harassment in the workplace to headquarters.
In an April 28, 2014 statement, C.R. noted that appellant’s actual duties had not varied
from his official position description as a recreation specialist. He advised that appellant was
generally able to perform the required duties in accordance with expectation. C.R. noted,
however, that appellant had performance and conduct problems. He advised that on

2

February 28, 2014 appellant had been issued a proposed seven-day suspension for two instances
of failure to follow instruction, two instances of inappropriate conduct, and one instance of
absence without official leave. C.R. provided a copy of a recreation specialist, GS-9, position
description which noted responsibilities of management and supervision of less than 25 percent
and administration of recreation programs and services up to 50 percent. The description noted
that the position was located at a Job Corps Center and the incumbent was required to work
nonstandard tours of duty, weekends, and holidays, and might require overtime on a regular and
recurring basis. The job description further indicated that the incumbent would perform other
duties as assigned.
Appellant submitted a response to OWCP’s questionnaire and reiterated his allegations of
harassment and discrimination. He advised that he had filed an Equal Employment Opportunity
(EEO) complaint. Appellant also submitted copies of his timesheets.
The employing establishment submitted a May 28, 2014 statement from K.D. who
confirmed that appellant was a GS-9 recreation specialist who had supervisory responsibilities.
On October 7, 2013 K.D. sent out a tentative work schedule to provide supervisory coverage. He
noted using bargaining unit employees as little as possible in a supervisory capacity. Appellant
was asked to cover shifts as was K.D. He noted that he did not want to work from 8:00 a.m. to
4:30 p.m., but requested to work from 3:30 p.m. to 12:00 a.m. on Sundays because he was
having financial problems and needed a night differential. K.D. accommodated the shift change
request. He noted, however, that appellant did not report for work on Sunday evening; rather,
appellant submitted a new schedule request to work Monday through Thursday from 12:00 p.m.
to 8:30 p.m. and Friday 2:00 p.m. to 10:30 p.m. Appellant attributed his schedule request to his
disability. K.D. requested proper medical documentation supporting why appellant could not
work his current schedule. He advised that, on October 12, 2013, appellant again requested that
he changed his schedule so that he could work later in the evening to assist with supervision.
K.D. reported meeting with appellant more than once to inform him that he was to assist as duty
officer for only 20 percent of his workload and to inform him if the situation changed. He
denied that he harassed or bullied appellant. K.D. noted meeting with appellant had in June 2013
for his mid-year performance appraisal and informed appellant that he was working at an
unacceptable level. He stated a formal investigation of appellant’s allegations of workplace
harassment revealed no evidence of harassment. K.D. noted that appellant had admitted to being
a heavy drinker and having anxiety issues for years. He noted that appellant was accommodated
in the workplace when he submitted appropriate medical documentation in support of his request
to work only six hours a day, to not work past 10:00 p.m. and to arrive late so that he could
attend therapy appointments in the mornings. K.D. submitted e-mails documenting his
statement.
In a decision dated September 10, 2014, OWCP denied appellant’s claim for an
emotional condition as he did not meet his burden of proof to establish that he sustained an
injury in the performance of duty. It explained that he did not establish an emotional condition
“that arose during the course of employment and within the scope of compensable work factors.”
On September 19, 2014 the employing establishment’s Office of Adjudication accepted
appellant’s EEO complaint, in part, for further investigation. OWCP requested that the
employing establishment provide additional information regarding this EEO complaint.

3

The employing establishment submitted a February 5, 2014 notice of proposed
suspension for seven days based on a failure to follow instructions on two occasions and
inappropriate conduct on August 17, 2013. It also submitted a June 19, 2014 decision where the
proposed suspension had been reduced to a letter of reprimand. The employing establishment
also submitted a March 6, 2014 reasonable accommodation information report, in which it
approved appellant’s request for an adjustment to his afternoon schedule so that he could attend
morning medical appointments.
In an April 4, 2014 statement, L.C., a coworker, reported that appellant was assigned to
be the shift leader at 7:30 p.m., but refused to assume the responsibilities. Appellant claimed that
he was the recreation supervisor, but that his supervisor had not directed him to run the shift.
L.C. indicated that for safety of the center staff and students he assumed all responsibilities of
shift leader.
By statement dated April 5, 2014, C.R. acknowledged that he was informed by staff on
duty that appellant had refused to act as duty officer. He attempted to reach appellant by
telephone, but was unsuccessful and drove to the facility. Appellant claimed that he had not
been instructed to be acting duty officer, but was a recreation specialist.
The employing establishment submitted an April 6, 2014 statement from D.F., a
supervisor, who noted that on April 3, 2014 he and appellant had reviewed the work schedule
and appellant’s physician note indicating that appellant could work four hours a day the first
week, six hours a day the second week, and eight hours a day thereafter. D.F. stated that
appellant was instructed to come into work the next day from 7:30 p.m. to 11:30 p.m. to serve as
the duty officer and appellant agreed. When appellant arrived at 7:30 p.m., however, he refused
to be the duty officer.
On November 8, 2014 appellant requested reconsideration of the September 10, 2014
decision.
On December 19, 2014 the employing establishment’s injury compensation office
indicated that appellant had requested several schedule changes as reasonable accommodation.
On October 7, 2013 appellant had requested a change in work schedule from Sunday 3:30 p.m.
to 12:00 a.m. instead of 8:00 a.m. to 4:30 p.m.; on October 2, 2013 appellant had requested a
reasonable accommodation for a lower grade position; and appellant requested a work schedule
from Monday to Thursday from 12:00 p.m. to 8:30 p.m. and Friday 2:00 p.m. to 10:30 p.m.
K.D. noted administrative actions in response to appellant’s reasonable accommodation request
included: changing appellant’s work schedule in October 2013 to work later in the evenings to
assist with supervision to accommodate appellant; confirming appellant was not required to
supervise the residential department more than 20 percent of his weekly duties; adjusting
appellant’s schedule so that he could attend therapy appointments during the day; and adjusting
appellant’s schedule in April 2014 so that he would not have to work past 10:00 p.m.
C.R. denied the allegation that, on April 4, 2014, he publicly ridiculed appellant; rather,
he explained that he and appellant were in a conference room and spoke in a normal tone. He
further noted that appellant had not signed a document on that evening. C.R. advised that an

4

employing establishment investigation of appellant’s harassment allegations found no evidence
of harassment by K.D., but found that appellant had sent inappropriate texts to K.D.
In a decision dated April 13, 2015, OWCP denied modification of the decision dated
September 10, 2014 finding that appellant had not established any compensable employment
factors.
On July 28, 2015 appellant, through counsel, requested reconsideration. Counsel
continued to claim that appellant had developed an emotional condition in the performance of
duty. In support of his request, appellant submitted a July 10, 2014 declaration (statement) by
appellant, which detailed allegations of discrimination and harassment. Also submitted was a
November 13, 2014 affidavit and a December 2, 2014 rebuttal affidavit, which described alleged
incidents of harassment and discrimination by management.
Appellant submitted a
psychological evaluation dated June 10, 2015, which diagnosed generalized anxiety disorder,
exacerbated by his work environment.
Appellant submitted witness statements from M.R., a coworker, dated May 11 and
December 8, 2014, who observed appellant working as a shift supervisor and duty officer. M.R.
indicated that appellant had a 50 percent service-connected disability with generalized anxiety
disorder and did not handle stress well. He noted K.D. would harass appellant by assigning him
extra duties outside of his position description in an attempt to make appellant fail. Appellant
reported receiving threatening and intimidating e-mails and being verbally abused by K.D. In a
December 6, 2014 witness statement, I.M., a recreation assistant, indicated that appellant was his
supervisor and was often directed by K.D. to be duty officer. In a December 8, 2014 statement,
G.A., a coworker, witnessed appellant begin to shake and collapse in a meeting. A
December 15, 2014 witness statement from S.D., a coworker, noted that appellant described his
anxiety and panic attacks due to work-related issues.
The employing establishment submitted an August 12, 2015 statement from E.L., an
injury compensation specialist, who indicated that the employing establishment had
accommodated appellant’s schedule change requests that would allow him to attend therapy
appointments and to earn additional premium pay for Sunday evening shifts. Additionally, E.L.
noted that K.D. had scheduled himself to work evenings and Sundays to assist with overall
center management in an effort to ease appellant’s concerns about being in charge alone. She
indicated that, as a GS-9, appellant was responsible for some management and administration
functions as referenced in his position description. E.L. further indicated that employing
establishment employees are not provided higher pay when taking on acting duties such as those
described by appellant and that this was considered to be “other duties assigned” in the position
description.
On December 16, 2015 appellant asserted that K.D.’s statements were untrue. He
indicated that it became routine for him to be the duty officer, which took away from the job he
was hired to do as a recreation specialist. Appellant noted that, as a GS-9 recreation specialist,
he was not responsible for management and administration functions within the recreation
department, but it became a daily occurrence that he was required to be duty officer which
increased his stress level.

5

In a decision dated January 8, 2016, OWCP denied modification of the decision dated
April 13, 2015.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.7 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.8 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.9 On the other hand the disability is not covered where
it results from such factors as an employee’s fear of a reduction-in-force or his or her frustration
from not being permitted to work in a particular environment or to hold a particular position.10
ANALYSIS
Appellant has alleged that K.D. and C.R. harassed and discriminated against him because
of his service-connected psychological disabilities. He alleged that K.D. demanded that he
3

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

4

28 ECAB 125 (1976).

5

See Robert W. Johns, 51 ECAB 137 (1999).

6

Lillian Cutler, supra note 4.

7

J.F., 59 ECAB 331 (2008).

8

M.D., 59 ECAB 211 (2007).

9

Roger Williams, 52 ECAB 468 (2001).

10

See supra note 4.

6

accept responsibilities for which he had not been hired and which created an extremely stressful
situation for him. Appellant indicated that he was not part management and had never been
consulted when he was temporarily assigned as a duty officer, which was a major increase in
responsibility. He asserted that the employing establishment did not appropriately compensation
him for duty officer and shift supervisor duties which he claimed were above his grade level.
Appellant also alleged that K.D. verbally berated him and that C.R. verbally threatened him. He
asserted that the employing establishment failed to provide him reasonable accommodations.
Finally, appellant alleged that the employing establishment management team did not
appropriately address his concerns about workplace harassment.
The Board must review whether these alleged incidents and conditions of employment
are covered employment factors under the terms of FECA. Appellant has attributed his
emotional condition to performing his regular or specially assigned duties of his position. He
generally alleged that he was overworked and was assigned additional responsibilities as a duty
officer where he was responsible for the entire facility and he was unable to perform the duties
without experiencing extreme stress. Appellant submitted witness statements from M.R. and
I.M. who noted that appellant was often directed by K.D. to be duty officer. However, these
witness statements provided insufficient corroboration of any specific incidents. C.R. disputed
appellant’s allegations and explained that appellant’s position as a recreation specialist, GS-9,
did have management and supervision responsibilities, as well as other duties as assigned. He
noted that appellant’s actual duties did not vary from his official description and that appellant
was generally able to perform the required duties in accordance with expectation. Similarly, E.L.
confirmed that, as a GS-9, appellant was responsible for some management and, administration
functions and, when he took on acting duties such as those described by him, these were
considered “other duties assigned” in the position description. The Board has held that
overwork, if substantiated by sufficient factual information to support the claimant’s account of
events, may be a compensable factor of employment.11
The Board finds, however, that appellant has provided insufficient evidence to establish
these allegations of overwork and being assigned duties outside his position description.
Therefore, appellant has not established a compensable factor under Cutler.12
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,13 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative
or personnel action established error or abuse by the employing establishment superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
11

Bobbie D. Daly, 53 ECAB 691 (2002).

12

See supra note 4.

13

See 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

7

whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.14
Appellant alleged that K.D. demanded that he accept additional responsibilities that he
was not hired to perform and that appellant was unable to perform those duties without
experiencing extreme stress. He further alleged that he was not part of the management team
and was never consulted when he was temporarily assigned as a duty officer. The Board notes
that the assignment of work is an administrative function15 and the manner in which a supervisor
exercises his or her discretion falls outside the ambit of FECA. In a statement dated April 28,
2014, C.R. noted that appellant’s actual duties did not vary from his position description as a
recreation specialist and noted that appellant was generally able to perform the required duties in
accordance with expectation. Similarly, K.D. indicated on May 28, 2014 that appellant’s
position as a GS-9 recreation specialist had supervisory responsibilities. Absent evidence of
error or abuse, appellant’s mere disagreement or dislike of a managerial action is not
compensable.16 The Board finds that he has not offered sufficient evidence to establish error or
abuse regarding his work assignments. The employing establishment has either denied
appellant’s his allegations or explained the reasons for its actions in these administrative matters.
Appellant has presented no corroborating evidence to support that the employing establishment
acted unreasonably in making his work assignments. Accordingly, he has not established a
compensable factor of employment in this regard.
Appellant asserted that the employing establishment failed to pay him appropriate
compensation for duty officer and shift supervisor duties he performed above his grade level.
This is an administrative matter and, as noted, a reaction to such matters fall outside the coverage
of FECA absent evidence of error or abuse.17 The Board finds that no evidence of error or abuse
in this administrative matter. E.L. indicated that employing establishment employees are not
provided higher pay when taking on acting duties such as those described by appellant and is
considered “other duties assigned” in the position description. There is no other contradicting
evidence.
Appellant alleged that the reason there was a constant need for someone to cover as duty
officer was because K.F. consistently failed to perform his job duties, which included preparing a
duty roster in advance for job coverage. He further alleged that the employing establishment
management team failed to elevate his request for assistance in addressing the harassment in the
workplace to headquarters. The Board has found that an employee’s complaints concerning the
14

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

15

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

16

See Barbara J. Latham, 53 ECAB 316 (2002); see also Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy
Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB
1260, 1266-67 (1988). (The Board finds that allegations such as improperly assigned work duties, which relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned work duties and do not
fall within the coverage of FECA.
17

See id.; see also Nona Stanford, Docket No. 00-1295 (issued May 22, 2001) (no evidence of error or abuse by
the employing establishment with respect to appellant’s allegations of not being properly compensated).

8

manner in which a supervisor performs his duties as a supervisor or the manner in which a
supervisor exercises his supervisory discretion fall, as a rule, outside the scope of coverage
provided by FECA. This principle recognizes that a supervisor or manager in general must be
allowed to perform his duties, that employees will at times dislike the actions taken, but that
mere disagreement or dislike of a supervisory or management action will not be actionable,
absent evidence of error, or abuse.18 Absent evidence of error or abuse, appellant’s mere
disagreement or dislike of a managerial action is not compensable.19 The Board finds that
appellant has not established error or abuse in this matter. Appellant provided no corroborating
evidence regarding this allegation nor did he explain the context and specifics of this incident.
There is no evidence that the employing establishment acted unreasonably in this matter.
Appellant asserted that the employing establishment did not provide him with reasonable
accommodations. The Board notes that reasonable accommodation issues are not generally
related to the employment; they are administrative functions of the employing establishment and
not duties of the employee.20 The employing establishment submitted an August 12, 2015
statement from E.L., injury compensation specialist, explaining that the employing establishment
had accommodated appellant’s requests for schedule changes that would allow him to attend his
therapy appointments and also to earn additional premium pay for Sunday evening shift.
Additionally, E.L. noted that K.D. had scheduled himself to work evenings and Sundays to assist
with overall center management in an effort to ease appellant’s concerns about being in charge
alone. Appellant has failed to establish that the employing establishment erred or acted
abusively in this matter.
Appellant alleged that he was harassed and discriminated against by K.D. and C.R.
because of his service-connected mental disabilities. He alleged that K.D. had verbally berated
him, accused him of using his disability as an excuse, and belittled him in front of students that
he supervised. Appellant further indicated that on April 4, 2014 C.R. verbally threatened him to
sign a document. To the extent that incidents alleged as constituting harassment or a hostile
environment by a manager are established as occurring and arising from appellant’s performance
of his regular duties, these could constitute employment factors.21 However, for harassment to
give rise to a compensable disability under FECA, there must be evidence that harassment did in
fact occur. Mere perceptions of harassment are not compensable under FECA.22
The evidence fails to support appellant’s claim for harassment as a cause for his
emotional condition. C.R. denied appellant’s allegation that on April 4, 2014 he publicly
ridiculed appellant. Rather, C.R. explained that appellant and he were in a conference room and
that he had spoken to appellant in a normal tone. He advised that an employing establishment
18

See Marguerite J. Toland, 52 ECAB 294 (2001).

19

Supra note 16.

20

See Judy Kahn, 53 ECAB 321 (2002).

21

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

22

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).

9

investigation of appellant’s allegations of harassment found no evidence that K.D. had harassed
appellant, but found that appellant had sent inappropriate texts to K.D. K.D. also denied
appellant’s allegations that he had harassed or bullied appellant. He indicated that appellant had
complained of being threatened by management, but he failed did to cite any specific instances
of harassment. Although appellant alleged that his supervisor harassed and engaged in actions,
which he believed constituted harassment, he provided insufficient corroborating evidence to
establish his allegations.23 He submitted statements from M.R. who noted that K.D. would
harass appellant by assigning him extra duties outside of his position description in an attempt to
make appellant fail. Appellant also submitted statements from G.A., I.M., and S.D. who noted
witnessing appellant’s panic attacks. The factual evidence, however, fails to support his
allegations of harassment by C.R. or K.D. The witness statements are not specific as to the time
or place of any claimed harassing incidents and lack sufficient context to establish any disparate
treatment. The Board finds that appellant has not established a compensable work factor with
respect to the claimed harassment.
Appellant alleged that K.D. and C.R. had verbally berated and threatened him. The
Board has recognized the compensability of verbal abuse and threats in certain circumstances.
This does not imply, however, that every statement uttered in the workplace will give rise to
coverage under FECA.24 The Board finds that the facts of the case do not support any specific
incidents of verbal abuse. C.R. and K.D. denied ridiculing or threatening appellant. As noted,
witness statements from G.A., I.M., M.R., and S.D. were not specific as to the time or place of
any claimed verbal abuse nor did they provide context for any of their statements.25 The Board
finds that appellant has provided insufficient corroborating evidence to establish that specific
incidents occurred at particular times and places.26 There is no corroborating evidence to support
that any verbal interaction with appellant by C.R. or K.D. rose to the level of a compensable
employment factor.27
Appellant also noted filing an EEO claim for harassment and discrimination. However,
grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.28 None of the information submitted established improper action by
the employing establishment. Thus, the evidence regarding EEO matter does not establish a
compensable employment factor under FECA.

23

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
24

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

25

See Joe M. Hagewood, 56 ECAB 479 (2005) (without a detailed description of the specific statements made, a
compensable employment factor was not established; the mere fact a supervisor or employee may raise his voice
during the course of a conversation does not warrant a finding of verbal abuse).
26

See supra note 23.

27

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

28

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

10

Consequently, appellant has not established his claim for an emotional condition as he
has failed to establish any compensable employment factors.29
On appeal, appellant reiterated his allegations, asserting that he has established error or
abuse by the employing establishment. As explained, the Board finds that he has not established
any compensable employment factors.
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 the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

29

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE ARMY, TANK -AUTOMOTIVE ARMAMENTS COMMAND,
RED RIVER ARMY DEPOT, Texarkana, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 15-0889
Issued: October 27, 2015

Case Submitted on the Record

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

JURISDICTION
On March 16, 2015 appellant filed a timely appeal from a January 28, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for permanent impairment
of his right arm.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 24, 2010 appellant, then a 53-year-old welder, filed a traumatic injury claim
(Form CA-1) alleging that on February 17, 2010, while he was descending from working on top
of a Bradley vehicle, he fell on concrete and hit his right wrist, thereby sustaining a broken right
wrist. OWCP accepted appellant’s claim on the same date he filed for a fracture of an
unspecified part of radius (alone), closed, right. It later accepted his claim for the additional
conditions of closed fracture lower end of radius (alone), other right; and right carpal tunnel
syndrome. On February 25, 2010 appellant underwent an open reduction and internal fixation
right radius Synthes plate. On May 12, 2012 he underwent a carpal tunnel release for his right
hand.
On December 16, 2013 appellant filed a claim for a schedule award.
By letter dated December 27, 2013, OWCP informed appellant of the specific evidence
required to support his claim for a schedule award. It noted that he needed to submit a narrative
medical report with a physician determining whether appellant had reached maximum medical
improvement with regard to his accepted employment injuries; note the diagnosis on which any
impairment is based, including any related surgery; provide a detailed description of all pertinent
objective findings and subjective complaints; and provide a detailed description of any
permanent impairment of the same member or function which preexisted the injury.
In response, appellant submitted an October 5, 2013 report by Dr. Randy Terrell, an
osteopath, noting that appellant’s chief complaint was neck pain and hand pain. Dr. Terrell
diagnosed chronic neck pain due to cervical spondylosis and status post open reduction and
internal fixation for right wrist fracture in 2010 and right carpal tunnel release in 2012. He noted
no joint tenderness or enlargement, but did note decreased range of motion of the right wrist.
Dr. Terrell also noted decreased sensation in the right hand. He also provided range of motion
findings.
By decision dated January 28, 2015, OWCP denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the American Medical Association, Guides to the Evaluation
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

of Permanent Impairment (A.M.A., Guides).4 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5 For
impairment ratings calculated on or after May 1, 2009, OWCP should advise any physician
evaluating per impairment to use the sixth edition.6
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member as a result of any employment injury.7 OWCP procedures
provide that to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this date occurred (date of maximum medical improvement), describe the impairment
in sufficient detail so that it can be visualized on review and computes the percentage of
impairment in accordance with the A.M.A., Guides.8
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on grade modifier for Functional
History (GMFH), grade modifier for Physical Examination (GMPE) and grade modifier for
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).10
ANALYSIS
OWCP accepted appellant’s claim for fracture unspecified part of radius (alone), closed,
right; closed fracture lower end of radius (alone), other right; and right carpal tunnel syndrome.
Appellant underwent surgeries on his right wrist on February 25, 2010 and May 12, 2012. By
decision dated January 28, 2015, OWCP denied his schedule award claim.
The Board finds that appellant has not submitted sufficient evidence to establish that, as a
result of his employment injury, he sustained any permanent impairment to a scheduled member
such that he would be entitled to a schedule award. By letter dated December 27, 2013, OWCP
informed him of the type of evidence necessary to establish his schedule award claim. In
response, appellant submitted an October 5, 2013 report wherein Dr. Terrell diagnosed appellant
with cervical spondylosis and status post open reduction and internal fixation and wrist fracture

4

Id.

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.l5a
(February 2013).
6

Id. at Chapter 2.808.6.a (January 2010).

7

Tammy L. Meehan, 53 ECAB 229 (2001).

8

Supra note 5 at Chapter 2.808.5 (February 2013).

9

A.M.A., Guides 494-531.

10

Id. at 521.

3

in 2010 and right carpal tunnel release in 2012. Dr. Terrell noted decreased range of motion of
the right wrist and decreased sensation in the right hand.
The Board finds that Dr. Terrell’s October 5, 2013 report is insufficient to establish that
appellant is entitled to a schedule award. OWCP procedures provide that maximum medical
improvement must be reached before a schedule award can be made.11 Dr. Terrell failed to state
that maximum medical improvement had been reached and provided no impairment rating for
appellant’s right wrist.12 Thus, his report is insufficient to establish that appellant reached
maximum medical improvement and sustained a permanent impairment of his right wrist.
The Board notes that it is appellant’s burden of proof to establish that he sustained a
permanent impairment of a scheduled member as a result of an employment injury.13 The
medical evidence must include a description of any physical impairment in sufficient detail so
that the claims examiner and others reviewing the file would be able to clearly visualize the
impairment with its resulting restrictions and limitations.14 Appellant did not submit such
evidence and thus, OWCP properly denied his schedule award claim.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award
for permanent impairment of his right arm.

11

Supra note 5 at Chapter 3.700.3(a)(1) (January 2010).

12

J.R., Docket No. 14-1949 (issued April 28, 2015).

13

E.D., Docket No. 10-967 (issued January 7, 2011).

14

See A.L., Docket No. 08-1730 (issued March 16, 2009).

15

L.F., Docket No. 10-343 (issued November 29, 2010); V.W., Docket No. 09-2026 (issued February 16, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 28, 2015 is affirmed.
Issued: October 27, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashua, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Bradley M. Lown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2358
Issued: June 16, 2009

Case Submitted on the Record

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

JURISDICTION
On August 28, 2008 appellant filed a timely appeal from an August 8, 2008 merit
decision of the Office of Workers’ Compensation Programs denying modification of its finding
that she had no further employment-related disability.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she had continuing disability after
June 22, 1997 causally related to her January 19, 1994 work injury.

1

Although the August 8, 2008 decision purports to be a nonmerit decision denying reconsideration, the Office’s
analysis of the evidence indicates that it reviewed the merits of appellant’s claim. Accordingly, the Board will
exercise jurisdiction over the merits of the claim. See Delphyne L. Glover, 51 ECAB 146, 147 (1999).

FACTUAL HISTORY
This case is before the Board for the fourth time. In a decision dated September 6, 2000,
the Board affirmed February 29 and May 29, 1998 decisions finding that appellant was not
entitled to compensation after June 22, 1997 due to her accepted work injuries of cervical strain,
right shoulder strain and right hip strain.2 By decision dated July 21, 2004, the Board affirmed
the Office’s June 5, 2003 decision denying modification of its finding that she had no disability
after June 22, 1997 and a December 16, 2003 decision denying her request for reconsideration
under section 8128.3 On February 17, 2006 the Board affirmed a June 1, 2005 decision denying
appellant’s request for a hearing and a September 29, 2005 decision denying merit review under
section 8128.4 The findings of fact and conclusions of law from the prior decisions are hereby
incorporated by reference.
On May 9, 2008 appellant requested reconsideration.5 By letter dated May 12, 2008, her
attorney asserted that she continued to experience pain due to her work injury. Counsel
submitted a magnetic resonance imaging (MRI) scan study of appellant’s left knee dated
November 9, 2007, an MRI scan study of the right shoulder dated May 4, 2008, an April 16,
2008 operative report of a left knee arthroscopy and physical therapy reports from 1995 to the
present. On May 27, 2008 he provided treatment notes dated 1997 to 2009 from Dr. M. Dennis
Wachs, an attending Board-certified orthopedic surgeon and pain management reports dated
1999 to 2008 from Dr. S. Asim Razvi, a Board-certified anesthesiologist.
In a report dated June 3, 2008, Dr. Razvi related that he had treated appellant for low
back pain since July 1999. He stated, “At that time [she] presented to me with low back pain
that she states started after she had a slip and fall while delivering mail on some ice in a
driveway in 1994. [Appellant] says that[,] since the time of the fall, the pain has been present
and has gotten progressively worse to the time she saw me back in 1999.” Dr. Razvi noted that
an MRI scan study showed a disc bulge with some impingement on the right at L5-S1. He
asserted that as appellant had no back pain prior to the fall, it was “highly likely that the current
back pain that [appellant] is experiencing was caused by her slip and fall on the ice in 1994.
[Appellant] is suffering from ongoing disability.”
On August 4, 2008 Dr. Wachs described his treatment of appellant beginning January 25,
1994 after she slipped and fell on ice on January 19, 1994. He noted that, at the time of his
2

Docket No. 98-2432 (issued September 6, 2000). The Office accepted that appellant sustained cervical strain,
right shoulder strain and right hip strain when she fell on ice on January 19, 1994. The Board found that the Office
met its burden of proof to terminate her compensation effective June 22, 1997 based on its finding that the opinion
of Dr. Gerald M. DeBonis, a Board-certified orthopedic surgeon and Office referral physician, represented the
weight of the medical evidence.
3

Docket No. 04-630 (issued July 21, 2004).

4

57 ECAB 441 (2006). On May 16, 2007 the Board denied appellant’s petition for reconsideration. Order
Denying Petition for Reconsideration, (Docket No. 06-75, issued May 16, 2007).
5

Appellant’s request for reconsideration was untimely as it was made more than one year after the last merit
decision. The Office, however, within its discretion, treated her request as timely and reopened her case. See
5 U.S.C. § 8128(a).

2

initial evaluation on January 25, 1994, appellant complained initially of pain in the right shoulder
and hip. Dr. Wachs stated, “[Appellant’s] problems persisted in multiple areas, the shoulder, the
right hip, the left knee and ultimately the back. Her further treatments revealed that indeed the
back was, to my understanding, injured at the time of this torsional injury and it ultimately
resulted in the diagnosis being made of a disc rupture at L5-S1.”
Dr. Wachs noted that a left knee arthroscopy obtained April 16, 2008 revealed
degenerative changes due to her torsional injury. An MRI scan study of the cervical spine in
March 2008 showed severe spinal stenosis at multiple levels and a February 2008 MRI scan
study of the lumbar spine showed L4-5 bilateral facet hypertrophic changes and a small disc
bulge, bilateral facet changes at L3-4 with some mild redundancy of the ligamentum flavum and
L5-S1 degenerative changes and mild bilateral facet hypertropohic changes. Dr. Wachs
concluded:
“In summary, [appellant] had a slip on ice resulting in a torsional fall which had
the immediate effect of pain in her right shoulder, right hip and left leg, left thigh
and left knee. She has been disabled for work since then with treatment of the
various difficulties that I have recounted that are related to her torsional injury,
namely her right shoulder, right hip, left knee, lower back and neck.”
By decision dated August 8, 2008, the Office denied modification of its finding that
appellant failed to establish that she had employment-related disability after June 22, 1997.6
LEGAL PRECEDENT
Once the Office meets its burden of proof to terminate appellant’s compensation benefits,
the burden shifts to appellant to establish that she has continuing disability causally related to her
accepted employment injury.7 To establish a causal relationship between the condition as well as
any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background, supporting
such a causal relationship.8 Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence.9 Rationalized
medical evidence is evidence which includes a physician’s rationalized medical opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. 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 rationalize explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10 Neither
6

As previously noted, the Office asserted that it was denying appellant’s request for reconsideration under section
8128 but weighed the evidence submitted and thus reviewed the merits of her claim.
7

Manual Gill, 52 ECAB 282 (2001).

8

Id.

9

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

10

Michael S. Mina, 57 ECAB 379 (2006); Leslie C. Moore, 52 ECAB 132 (2000).

3

the fact that a disease or condition manifests itself during a period of employment nor the belief
that the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.11
ANALYSIS
The Office terminated appellant’s compensation effective June 22, 1997 based on its
finding that she had no further disability due to her accepted conditions of cervical strain, right
shoulder strain and right hip strain. By decisions dated September 6, 2000 and July 21, 2004, the
Board affirmed the Office’s finding that she had no further disability after June 22, 1997 causally
related to her January 19, 1994 employment injury. On February 17, 2006 the Board affirmed a
June 1, 2005 decision denying appellant’s request for a hearing and a September 29, 2005
decision denying her request for reconsideration under section 8128.
On May 9, 2008 appellant requested reconsideration. She submitted physical therapy
reports from 1994 to 2008. A physical therapist, however, is not a physician within the meaning
of the Act and thus not competent to provide a medical opinion.12
Appellant further submitted progress reports from Dr. Razvi dated 1999 through 2008
and treatment notes from Dr. Wachs dated 1997 through 2008. Neither physician, however,
addressed the pertinent issue of whether appellant had any continuing disability after June 22,
1997 causally related to her employment injury and thus these reports are of little probative
value.
On June 3, 2008 Dr. Razvi indicated that he had treated appellant since July 1999 for low
back pain. He diagnosed a disc bulge with right L5-S1 impingement. Dr. Razvi found that it
was “highly likely” that her current back pain was due to her 1994 fall on ice and indicated that
she had “ongoing disability.” His opinion that it was “highly likely” that appellant’s back pain
was due to her employment injury is couched in speculative terms and thus of diminished
probative value.13 Additionally, the Office did not accept her claim for a low back condition.
Where appellant claims that a condition not accepted or approved by the Office was due to her
employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.14 As
Dr. Razvi’s opinion is speculative and unsupported by medical rationale, it is insufficient to meet
her burden of proof.15
In a report dated August 4, 2008, Dr. Wachs reviewed his treatment of appellant for
problems with her right shoulder, right hip, left leg, left thigh, left knee and back due to her
11

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

12

5 U.S.C. § 8101(2); A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

13

Id.

14

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

15

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

4

torsional fall on January 19, 1994. He related that her slip and fall on the ice immediately caused
pain in her right shoulder, right hip, left leg and left knee. Dr. Wachs found that appellant also
experienced a disc injury to her lower back causally related to her January 19, 1994 slip and fall.
He further found degenerative changes in the left knee due to work injury and cervical stenosis
due to degenerative changes. Dr. Wachs asserted that she was disabled from work as of
January 19, 1994 due to injuries in her right shoulder, right hip, left knee, lower back and neck as
a result of her employment injury. He did not, however, explain why the January 19, 1994
injury, accepted by the Office for cervical strain, right shoulder strain and right hip strain,
continued to cause disability after June 22, 1997. The issue of whether a claimant’s disability is
related to an accepted condition is a medical question which must be established by a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disability is causally related to employment factors and supports that conclusion with sound
medical reasoning.16 Further, as previously noted, the Office did not accept a low back condition
or degenerative changes of the left knee and cervical spine as employment related and thus it is
appellant’s burden to show that the conditions are employment related by submitting rationalized
medical evidence.17 Dr. Wachs did not provide sufficient rationale for his opinion that the
January 19, 1994 employment injury caused a low back or degenerative condition and thus his
opinion is of little probative value.18
Appellant has not met her burden of proof to establish that she had any further
employment-related disability after June 22, 1997; consequently, the Office properly denied her
claim.
CONCLUSION
The Board finds appellant has not established that she had continuing disability after
June 22, 1997 due to her January 19, 1994 work injury.

16

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

17

See Jaja K. Asaramo, supra note 14.

18

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 8, 2008 is affirmed.
Issued: June 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ravenna, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1524
Issued: March 4, 2011

Case Submitted on the Record

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

JURISDICTION
On May 18, 2010 appellant, through her attorney, filed a timely appeal from the April 13,
2010 merit decision of the Office of Workers’ Compensation Programs denying her claim for an
employment-related injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her low back
condition is causally related to a July 6, 2009 employment incident.
On appeal, appellant’s attorney contends that the April 13, 2010 Office decision was
contrary to fact and law.
FACTUAL HISTORY
On July 18, 2009 appellant, then a 27-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 6, 2009 she sustained a low back injury while in the
performance of duty. Her mailbag was heavier than usual because it was the day after a holiday

and she injured her low back when it “suddenly gave out” and she was unable to twist or turn.
Appellant stopped work that day.
In a July 27, 2009 report, Dr. Bina Mehta, a Board-certified physiatrist, reported that she
had seen appellant in the spring with severe pain in the lumbar area. She noted that appellant’s
condition improved and appellant did not obtain a lumbar magnetic resonance imaging (MRI)
scan they had discussed. Dr. Mehta diagnosed appellant with lumbar sprain and strain (847.2)
and limited appellant’s work activity to two hours of walking and four hours of mounted mail
delivery.
On August 17, 2009 the Office administratively accepted appellant’s claim as a “quick
close case” and authorized up to $1,500.00 in medical care and treatment. It requested additional
factual and medical information from her. The Office allotted appellant 30 days to submit
additional evidence and respond to its inquiries.
By decision dated September 23, 2009, the Office denied appellant’s claim on the
grounds that she did not submit sufficient medical evidence to establish a back condition related
to the incident at work.
On October 5, 2009 appellant requested an oral hearing, by telephone. In a
September 28, 2009 report, Dr. Mehta advised that appellant went on a cruise vacation on
September 14, 2009 and had a seizure while on the beach. She indicated that appellant fell and
received 10 stitches in her forehead and was taking Dilantin. Dr. Mehta diagnosed lumbar sprain
and strain. In an August 17, 2009 progress report, she reported that appellant’s back pain had
improved after a severe increase for a few days due to sneezing and noted that they were
awaiting authorization of a lumbar MRI scan.
In an October 27, 2009 report, Dr. Mehta stated that appellant was still experiencing back
pain, which continued to be more severe when she sneezed. She reported that appellant’s lumbar
MRI scan revealed multilevel facet hypertrophy with a disc bulge at L4.
On December 11, 2009 the Office scheduled a telephonic hearing for January 12, 2010.
In a November 30, 2009 report, Dr. Mehta stated that appellant’s back condition had
improved, but her pain was “never less than a 7/10” on the analog pain scale. She indicated that
appellant’s pain was excruciating on some days and that driving her mail truck, hitting potholes
and carrying heavy bags triggered pain. Dr. Mehta reported that appellant’s neurologist “did not
feel that she had a seizure and that she actually had heat stroke” on September 14, 2009. She
diagnosed lumbar sprain and strain (847.2), lumbosac spondylosis without myelopathy (721.3)
and displacement of a lumbar disc without myelopathy (722.10). A January 11, 2010 progress
report noted that appellant’s back condition was “about the same,” her pain medications “were
doing fine” and that appellant did not take them while at work.
On January 12, 2010 an Office hearing representative conducted a telephonic hearing and
granted appellant’s request to hold the record open for 30 days to submit additional medical
evidence. Appellant resubmitted reports dated July to October 2009, from Dr. Mehta that were
previously of record.

2

By decision dated April 13, 2010, the Office denied appellant’s claim on the grounds that
she failed to submit sufficient medical evidence to establish causal relationship. It found that she
had a preexisting medical condition affecting the lower back prior to the July 6, 2009
employment incident. The Office found that appellant did not submit sufficient medical opinion
evidence to establish that the July 6, 2009 work incident aggravated her low back condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury2 was
sustained in the performance of duty, as alleged and that any disability or medical condition for
which compensation is claimed is causally related to the employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5

1

5 U.S.C. §§ 8101-8193.

2

The Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee).
3

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

4

Id. Shirley A. Temple, 48 ECAB 404 (1997); see John J. Carlone, 41 ECAB 354 (1989).

5

Id. See Gary J. Watling, 52 ECAB 278 (2001).

3

ANALYSIS
The Office has accepted that the employment incident of July 6, 2009 occurred at the
time, place and in the manner alleged. The issue is whether appellant sustained a low back
injury resulted from the July 6, 2009 employment incident. The Board finds that she did not
meet her burden of proof to establish a causal relationship between her lumber condition and the
July 6, 2009 employment incident.
In a July 27, 2009 medical report, Dr. Mehta diagnosed appellant with lumbar sprain and
strain and placed restrictions on appellant’s employment activities. She advised that appellant
had previously been treated in the spring for a lumber condition. Dr. Mehta related that on
July 6, 2009 appellant’s mailbag was heavier than usual and appellant felt pain across the lumber
area. In an August 17, 2009 medical report, she noted that appellant’s back pain had improved
after sneezing incidents ceased. In an October 27, 2009 progress note, Dr. Mehta reported that
appellant’s lumbar MRI scan showed multilevel facet hypertrophy and a disc bulge at L4 and
that appellant still experienced back pain. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.6 These reports are insufficient to meet appellant’s
burden of proof to establish causal relationship between her low back condition and the July 6,
2009 employment incident. Dr. Mehta did not address how carrying a mailbag was competent to
cause or contribute to appellant’s low back condition,
In a November 30, 2009 report, Dr. Mehta reported that appellant’s back condition had
improved, but her pain was never less than a 7 on a 10-point pain scale. She diagnosed lumbar
sprain and strain, lumbosac spondylosis without myelopathy and displacement of a lumbar disc
without myelopathy. Dr. Mehta indicated that driving a mail truck, hitting potholes and carrying
heavy bags triggered appellant’s pain. Although she provided a firm diagnosis, she failed to
adequately address the issue of causal relationship. Dr. Mehta did not explain how the
mechanism of the July 6, 2009 employment incident aggravated appellant’s back condition.
Rather, she addressed causal relation in terms of other employment duties. Moreover, Dr. Mehta
noted that appellant had a seizure while on vacation but did not address how this related to
appellant’s low back symptoms. Her reports are not sufficient to establish that appellant
sustained an injury on July 6, 2009.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the July 6, 2009 employment incident,
she has failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant did not submit sufficient medical evidence to establish that
the July 6, 2009 employment incident caused her low back condition.

6

C.B., 61 ECAB ___ (Docket No. 09-2027, issued May 12, 2010); S.E., 60 ECAB ___ (Docket No. 08-2214,
issued May 6, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
DEPOT, FLEET READINESS CENTER EAST,
Cherry Point, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1868
Issued: April 22, 2013

Case Submitted on the Record

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

JURISDICTION
On September 13, 2012 appellant filed a timely appeal from an August 23, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
effective August 26, 2012 on the grounds that he refused an offer of suitable work.
On appeal, appellant contends that he refused the offered position as it exceeded his
medical restrictions. He also alleges that the employing establishment omitted required tasks
from job description to make the position appear light duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before November 1, 1994 appellant, then a 51-year-old
aircraft mechanic, sustained an aggravation of degenerative arthritis of both thumbs, the left
wrist and both knees due to repetitive motion and strenuous activities in the performance of duty.
He stopped work in early 1998 and did not return. Appellant received compensation for total
disability on the daily rolls beginning on December 2, 1998 and on the periodic rolls as of
January 3, 1999. He underwent a partial meniscectomy of the right knee on March 17, 1999.
Appellant remained under medical treatment for the accepted arthritic conditions.
Dr. Thomas E. Bates, an attending Board-certified orthopedic surgeon, submitted reports
from May 2006 through September 21, 2009 diagnosing severe degenerative arthritis of both
knees, the left wrist and the carpometacarpal joints of both thumbs. He noted that appellant
could perform a “desk-type” job. Dr. Bates performed a total left knee arthroplasty on
November 10, 2009, approved by OWCP. Appellant sustained a myocardial infarction on
November 12, 2009, necessitating an open quadruple bypass on November 16, 2009.
OWCP obtained a second opinion on November 2, 2010 from Dr. James A. Maultsby, a
Board-certified orthopedic surgeon, including a functional capacity evaluation. Dr. Maultsby
found that appellant could work eight hours a day with standing, twisting, pushing and pulling
limited to two hours, lifting for one hour and no bending, stooping, climbing, kneeling or
squatting. He restricted lifting to 5 pounds and pushing and pulling to 10 pounds. Dr. Maultsby
opined that appellant had not yet attained maximum medical improvement.
Dr. Bates performed a total right knee arthroplasty on November 16, 2010, approved by
OWCP. He submitted progress notes indicating that appellant was improving with physical
therapy.
On October 13, 2011 the employing establishment offered appellant a full-time position
as an aircraft mechanic helper, assisting in the disassembly, repair, rework and assembly of
aircraft. The job required the use of hand and power tools, climbing, kneeling, crouching,
stooping, walking on slippery or uneven surfaces, and frequent lifting and carrying “parts and
equipment that weigh up to 40 pounds.” Appellant refused the position on October 25, 2011,
contending that walking on uneven surfaces, kneeling and crouching exceeded his activity
limitations following bilateral knee arthroplasties.
In a November 17, 2011 report, Dr. Bates noted that appellant’s left knee had improved
and encouraged him to begin an exercise program. A March 27, 2012 functional capacity
evaluation demonstrated that appellant could perform light duty for 40 hours a week, including
“walking and standing to a significant degree.” Appellant was able to complete work tasks in a
stooped position, but could not squat or kneel. His grip strength and hand tool dexterity were
within normal limits. Appellant’s lift strength capacity was rated at 25 pounds on occasional
basis. On April 19, 2012 Dr. Bates found that appellant was doing well after bilateral knee
replacement and had reached maximum medical improvement. He cleared appellant for
“extensive vocational rehabilitation for return to nonheavy labor.”

2

In a May 4, 2012 report and accompanying December 14, 2011 work capacity evaluation
(Form OWCP 5), Dr. Bates noted that appellant could not return to full duty as an aircraft
mechanic due to severe bilateral carpometacarpal arthrosis. He opined that appellant was “[f]it
for duty otherwise, including desk work.” Dr. Bates permanently restricted appellant from any
lifting and from excessive use of either or both hands.
By letter dated May 10, 2012, OWCP advised appellant that the offered position was
suitable work within the limitations provided by Dr. Bates. It further advised him of the penalty
provision under section 8106(c) of FECA for refusing suitable work. OWCP afforded him 30
days to either accept the offered position or provide valid reasons for his refusal.
In a June 4, 2012 letter, appellant responded that he could not perform the aircraft
mechanic helper position as he could not perform complex repetitive tasks due to advanced
arthritis in both thumbs, and could not walk on slippery or uneven surfaces, stoop or kneel due to
bilateral knee replacements.
In a July 18, 2012 letter, OWCP advised appellant that it had considered his reasons for
refusal and found them unacceptable. It afforded him 15 days in which to accept the position or
his wage-loss compensation benefits would be terminated. OWCP noted that no further reasons
for refusal would be considered.
In a July 25, 2012 telephone conversation with OWCP personnel, appellant asserted that
his bilateral hand arthritis would prevent him from performing the offered mechanic helper
position. On August 23, 2012 the employing establishment verified that the offered aircraft
mechanic helper position remained open and available to appellant. Appellant did not accept the
position or submit additional evidence prior to August 23, 2012.
By decision dated August 23, 2012, OWCP terminated appellant’s wage-loss
compensation benefits and schedule award entitlement effective August 26, 2012 under 5 U.S.C.
§ 8106(c) on the grounds that he refused an offer of suitable work.2 It found that the offered
aircraft mechanic helper position conformed to Dr. Bates’ opinions and March 27, 2012
functional capacity evaluation demonstrating that appellant could perform sedentary to light
work with permanent bilateral hand restrictions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits. It has authority under section 8106(c)(2) of FECA to terminate
compensation for any partially disabled employee who refuses or neglects to work after suitable
work is offered. To justify termination, OWCP must show that the work offered was suitable,
that appellant was informed of the consequences of her refusal to accept such employment and
that she was allowed a reasonable period to accept or reject the position or submit evidence or

2

The decision does not specify the date of the termination. An August 23, 2012 compensation payment log sheet
provides August 26, 2012 as the termination date.

3

explain why the position is not suitable.3 In this case, it terminated appellant’s compensation
under section 8106(c)(2) of FECA, which provides that a partially disabled employee who
refuses or neglects to work after suitable work is offered to, procured by or secured for the
employee is not entitled to compensation.”4
OWCP regulations provide factors to be considered in determining what constitutes
“suitable work” for a particular disabled employee, include the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.5 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.6 Section 10.517(a) of FECA’s implementing regulations provide that an employee
who refuses or neglects to work after suitable work has been offered or secured by the employee,
has the burden of showing that such refusal or failure to work was reasonable or justified.7
Pursuant to section 10.516, the employee shall be provided with the opportunity to make such a
showing before a determination is made with respect to termination of entitlement to
compensation.8
ANALYSIS
OWCP accepted that appellant sustained an aggravation of degenerative arthritis of both
thumbs, the left wrist and both knees. Appellant underwent total left knee arthroplasty on
November 10, 2009 and a total right knee arthroplasty on November 16, 2010, procedures
approved by OWCP. Dr. Maultsby, a Board-certified orthopedic surgeon and second opinion
physician, opined on November 2, 2010 that appellant could perform full-time light-duty work
with lifting limited to five pounds.

3

See Ronald M. Jones, 52 ECAB 190, 191 (2000); see also Maggie L. Moore, 42 ECAB 484, 488 (1991), reaff’d
on recon., 43 ECAB 818, 824 (1992). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.10 (July 1997). (The claims examiner must
make a finding of suitability, advise the claimant that the job is suitable and that refusal of it may result in
application of the penalty provision of 5 U.S.C. § 8106(c)(2) and allow the claimant 30 days to submit his or her
reasons for abandoning the job. If the claimant submits evidence and/or reasons for abandoning the job, the claims
examiner must carefully evaluate the claimant’s response and determine whether the claimant’s reasons for doing so
are valid).
4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

Rebecca L. Eckert, 54 ECAB 183 (2002).

6

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

7

20 C.F.R. § 10.517(a); Ronald M. Jones, 52 ECAB 190 (2000).

8

Id. at § 10.516.

4

On October 13, 2011 the employing establishment offered appellant a full-time position
as an aircraft mechanic helper, requiring frequent lifting up to 40 pounds. Appellant declined the
position on October 25, 2011, contending that he was medically unable to perform the required
duties. A March 27, 2012 functional capacity evaluation showed a lifting capacity of 25 pounds
occasionally. Dr. Bates, an attending Board-certified orthopedic surgeon, opined on May 4,
2012 that appellant could perform full-time duty with permanent restrictions against any lifting
or excessive use of either or both hands.
OWCP advised appellant by May 10, 2012 letter that the offered position was suitable
work within his medical limitations. On July 18, 2012 it afforded him 15 days to accept the
position or his wage-loss compensation benefits would be terminated. OWCP terminated
appellant’s wage-loss compensation benefits and schedule award eligibility effective August 26,
2012 under section 8106(c) of FECA on the grounds that he had refused an offer of suitable
work. The Board finds, however, that the offered aircraft mechanic helper position was not
suitable work as it exceeded appellant’s medical restrictions.
The aircraft mechanic helper position offered to appellant on October 13, 2011 required
frequent lifting and carrying “parts and equipment that weigh up to 40 pounds.” The 40-pound
lifting requirement exceeds Dr. Maultsby’s November 2, 2010 5-pound lifting limitation, the 25pound lifting capacity demonstrated on the March 27, 2012 functional capacity evaluation and
Dr. Bates’ May 4, 2012 permanent restriction against any lifting. As the October 13, 2011 job
offer exceeded Dr. Bates’ and Dr. Maultsby’s restrictions, it was not suitable work under section
8106(c) of FECA. Therefore, OWCP erred in terminating appellant’s wage-loss compensation
and schedule award eligibility.9 The case will be returned to OWCP for payment of all
compensation due and owing and reinstatement of all appropriate compensation benefits.
The Board therefore finds that OWCP’s August 23, 2012 decision terminating appellant’s
wage-loss compensation and schedule award eligibility was improper. The decision will be
reversed and the case returned to OWCP for reinstatement of appropriate benefits.
On appeal, appellant contends that he refused the offered position as it exceeded his
medical restrictions. He also alleges that the employing establishment omitted required tasks
from job description to make the position appear light duty. As stated, OWCP’s termination of
appellant’s wage-loss compensation and schedule award eligibility must be reversed as the
offered position was not suitable work.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and schedule ward eligibility effective August 26, 2012 on the grounds that he refused an offer
of suitable work. The offered position was not suitable work as it exceeded his medical
restrictions.

9

W.F., Docket No. 10-1828 (issued May 13, 2011); Mary E. Woodard, 57 ECAB 211 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2012 is reversed.
Issued: April 22, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
McHenry, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1373
Issued: January 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 22, 2016 appellant filed a timely appeal from a March 17, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated June 15, 2015 to the filing of this appeal, the Board
lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether appellant abandoned her request for a telephone hearing before an
OWCP hearing representative.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2015 appellant, then a 45-year-old rural letter carrier, filed an
occupational disease claim (Form CA-2) alleging that she experienced daily migraines from
exposure to vehicle fumes. She stopped work on February 11, 2015.
By decision dated June 15, 2015, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a diagnosed condition causally related to the
accepted employment factor.
Appellant, on July 14, 2015, requested a telephone hearing before an OWCP hearing
representative.
On January 27, 2016 OWCP notified appellant that it would hold a telephone hearing on
March 7, 2016 at 1:00 p.m. Eastern Standard Time. It instructed her to call the provided toll-free
number and enter a pass code when prompted.
In a decision dated March 17, 2016, OWCP’s Branch of Hearings and Review found that
appellant had abandoned her hearing request. It determined that she received written notification
of the hearing 30 days in advance, but failed to appear. The Branch of Hearings and Review
further found that appellant had failed to contact OWCP either before or after the scheduled
hearing to explain her absence.
On appeal appellant maintains that she did not abandon her hearing, but instead
telephoned at 2:00 p.m. as she lived in the Central Standard Time zone and was trying to adjust
for Eastern Standard Time.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.2 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.3 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.4
A hearing before the Branch of Hearings and Review can be considered abandoned only
under very limited circumstances.5 With respect to abandonment of hearing requests, OWCP’s
procedures provides in relevant part that failure of the claimant to appear at the scheduled
2

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

3

20 C.F.R. § 10.617(b).

4

See R.C., 59 ECAB 521 (2008); Michelle R. Littlejohn, 42 ECAB 463 (1991).

5

C.T., Docket No. 08-2160 (issued May 7, 2009); Claudia J. Whitten, 52 ECAB 483 (2001).

2

hearing, failure to request a postponement, and failure to request in writing within 10 days after
the date set for the hearing that another hearing be scheduled shall constitute abandonment of the
request for a hearing. Under these circumstances, the Branch of Hearings and Review will issue
a formal decision finding that the claimant has abandoned her request for a hearing and return the
case to the district office.6
ANALYSIS
In a decision dated June 15, 2015, OWCP denied appellant’s occupational disease claim
after finding that the medical evidence was insufficient to establish that her migraines were
causally related to factors of her federal employment. Appellant timely requested a telephone
hearing before an OWCP hearing representative on July 14, 2015. On January 27, 2016
OWCP’s Branch of Hearings and Review notified appellant, by mail, that it had scheduled her
telephone hearing for March 7, 2016 at 1:00 p.m. Eastern Standard Time. It provided a toll-free
number and a pass code to use at the time of the hearing. Appellant did not request a
postponement and did not call in for the scheduled hearing. She also did not submit a written
request within the 10-day period following the scheduled hearing explaining her absence and
asking that another hearing be scheduled.7 Accordingly, the Board finds that appellant
abandoned her request for a hearing.
On appeal appellant relates that she telephoned for the scheduled hearing an hour late
because she incorrectly adjusted for Eastern Standard Time. There is no evidence, however, that
she provided this information to OWCP within 10 days of the scheduled hearing. The Board is
limited to reviewing only that evidence which was before OWCP at the time it rendered its
decision. 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005). The record
substantiates that appellant did not appear at the scheduled hearing after proper notice had been
provided. The Board therefore finds that she abandoned her request for a telephone hearing.8
CONCLUSION
The Board finds that appellant abandoned her request for a telephone hearing before an
OWCP hearing representative.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011).
7

20 C.F.R. § 10.622(f).

8

See L.D., Docket No. 16-0316 (issued April 13, 2016); S.J., Docket No. 16-0670 (issued July 5, 2016).

3

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4