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

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

Docket No. 20-0438
Issued: May 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 19, 2019 appellant filed a timely appeal from a September 16, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability, commencing November 5, 2015, causally related to her accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On February 2, 2010 appellant, then a 31-year-old former part-time flexible city carrier,
filed an occupational disease claim (Form CA-2) alleging major depression, stress, anxiety,
fatigue, crying spells and digestive problems due to factors of her federal employment. OWCP
accepted that she sustained major depression (single episode) and a generalized anxiety disorder,
which arose on or about November 19, 2009. It accepted that appellant had been subjected to three
unjustified disciplinary actions that occurred on September 17, November 9, and 19, 2009.
Appellant stopped work on November 19, 2009 and OWCP paid her wage-loss compensation for
disability from work on the supplemental rolls commencing February 4, 2010 and on the periodic
rolls commencing June 6, 2010. On January 23, 2012 she returned to work in a part-time, limitedduty capacity. Appellant eventually increased to a six-hour workday, but then stopped work
entirely on June 28, 2012. OWCP paid her appropriate wage-loss compensation.
By decision dated March 5, 2014, OWCP terminated appellant’s wage-loss compensation
effective March 9, 2014 because she no longer had disability due to her accepted employment
conditions as of that date. It based its termination action on a June 28, 2012 report of Dr. David W.
Aycock, a clinical psychologist, and a June 19, 2012 report of Dr. Kenneth E. Goolsby, a Boardcertified psychiatrist and OWCP referral physician. Appellant appealed to the Board and, by
decision dated September 12, 2014, the Board reversed the March 5, 2014 termination decision,3
finding that the reports of Dr. Aycock and Dr. Goolsby were insufficient to establish that
appellant’s accepted employment conditions no longer caused disability. OWCP resumed paying
appellant wage-loss compensation on the periodic rolls.
On February 4, 2015 appellant returned to work in a full-time position as a billing clerk
with a private employer providing chiropractic services, and OWCP paid her compensation for
loss of wage-earning capacity.
In a September 15, 2015 report, Dr. Aycock noted that appellant’s current diagnoses were
depressive disorder, not otherwise specified, and anxiety disorder, not otherwise specified, and
indicated that these conditions were not aggravations of any preexisting conditions. He advised
that she had been able to function appropriately in an accommodating position as a billing clerk
for a private employer.
Appellant stopped work on November 5, 2015 and filed a claim for a recurrence of
disability (Form CA-2a) on November 9, 2015, alleging that she sustained a recurrence of
disability on November 5, 2015, due to her accepted emotional conditions. On the Form CA-2a
she indicated that her original injury had never resolved.

2

Docket No. 17-0050 (issued August 2, 2017); Docket No. 14-1161 (issued September 12, 2014).

3

Id.

2

In a November 5, 2015 report, Dr. Aycock indicated that appellant was suffering from her
accepted depression and anxiety conditions, and had been experiencing a recurrence of the
symptom complex of her original injury. He opined that her depressive and anxiety disorders were
directly caused by “her treatment on the job” at the employing establishment. Dr. Aycock
maintained that the return of appellant’s symptom complex could not be reasonably attributed to
any other cause except her mistreatment by the postmaster at the employing establishment. He
found that she was totally disabled as a result of the original injury.
In a November 25, 2015 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of her recurrence of disability claim. It afforded
her 30 days to respond.
In response to the development letter, appellant submitted a November 30, 2015 report
from Dr. Aycock who found that she sustained a totally disabling recurrence of her original 2009
symptom pattern that was caused by the harassment from her supervisors. He noted that she
reported that she enjoyed her new job and performed it well until October 2015 when her
depressive and anxiety symptoms returned with memories and dreams of her original employmentrelated injury. Dr. Aycock advised that appellant “began to experience the same symptoms that
debilitated her in 2009 with no other explanation beyond a spontaneous recurrence of the injuryrelated condition.”
Appellant also submitted notes from her psychotherapy treatment sessions. In notes dated
November 2, 2015, Dr. Aycock indicated that she reported that she received a performance
evaluation from her private employer containing a rating of three out of five in all but one area.
He noted that appellant reported that her functioning was deteriorating and that her depression and
anxiety were returning. Appellant worried that her disability was returning to a more intense level.
Dr. Aycock indicated that she reported that she was not working as quickly or proficiently as her
supervisor wanted and that she felt overwhelmed in her job each day. On November 5, 2015 he
indicated that appellant reported that her symptoms were intensifying and he believed that she was
now disabled from work. On November 30, 2015 Dr. Aycock noted that she reported that she was
still struggling with intensified depressive and anxiety symptoms related to her 2009 workplace
injury.
Appellant submitted a December 1, 2015 statement in which she indicated that there were
no recent events occurring at her private employer that caused her to stop working on
November 5, 2015. She maintained that she stopped work due to suffering a recurrence of her
2009 symptoms of depression and job-related stress caused by the employing establishment.
Appellant indicated that she enjoyed working for her private employer and asserted that her
accepted depression and anxiety conditions had never resolved.
In a January 20, 2016 decision, OWCP denied appellant’s claim, finding that she had not
met her burden of proof to establish a recurrence of disability commencing November 5, 2015 due
to her accepted emotional conditions. It determined that Dr. Aycock’s reports did not contain
sufficient medical rationale to establish such a recurrence of disability. OWCP noted that the
medical evidence of record, including treatment notes from November 2015, supported that there
were intervening causes that contributed to appellant’s inability to continue working at her
employer, such that there was no spontaneous recurrence of the accepted work-related condition.

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Appellant disagreed with the January 20, 2016 decision and, on February 10, 2016, she
requested a review of the written record by a representative of OWCP’s Branch of Hearings and
Review.
In a February 1, 2016 report, Dr. Aycock opined that appellant’s condition exactly
corresponded with the definition of a recurrence of disability, namely a spontaneous change in the
medical condition, which resulted from a previous injury or occupational illness without an
intervening injury or new exposure to factors causing the original illness. He noted that the
recurrence of her accepted conditions was not a result of her experiences at her private employer
and indicated that her experiences at the clinic were “uniformly positive.”
By decision dated July 26, 2016, OWCP’s hearing representative affirmed OWCP’s
January 20, 2016 decision, finding that Dr. Aycock failed to adequately explain why appellant’s
current symptoms were completely a result of her 2009 injury, rather than being related to a new
intervening exposure in her private employment.
Appellant appealed to the Board and, by decision dated August 2, 2017,4 the Board
affirmed OWCP’s July 26, 2016 decision.
On October 17, 2017 appellant requested reconsideration of the denial of her recurrence of
disability claim. She submitted a March 1, 2018 statement in which she argued that new evidence
from Dr. Aycock addressed the perceived deficiencies of his earlier reports.
Appellant submitted an October 10, 2017 letter from Dr. Aycock who advised that she was
suffering from the accepted conditions of anxiety disorder and depressive disorder. Dr. Aycock
indicated that the letter was written to cure the deﬁciencies that were previously found in
appellant’s case. He noted that her accepted work injuries were caused by unjustified disciplinary
actions while she was employed as a letter carrier for the employing establishment, actions which
were well documented in appellant’s original complaint. Dr. Aycock indicated that appellant
actually enjoyed her employment experiences at her private employer. He maintained that she was
treated well by her employer, got along well with coworkers, and was given work that she could
accomplish appropriately. Dr. Aycock indicated that appellant reported no difﬁculties with her
employment at her private employer. He advised that, in November 2015, her anxiety and
depressive symptom complex intensiﬁed as a result of her personal perceptions of not being
adequate to fulﬁll her job duties. Dr. Aycock asserted that these feelings were not precipitated by
any behaviors of appellant’s private employer’s staff and he noted that she had been evaluated
positively by her supervisors there. He opined that the feelings of inadequacy and the
intensification of her depression and anxiety were directly related to a recurrence of the mindset
she experienced while at the employing establishment. Dr. Aycock indicated that appellant’s selfassessment reﬂected the negativity she underwent when she was injured at the employing
establishment, i.e., the injury that was accepted by OWCP. He maintained that she could not shake
these perceptions or the anxious and depressive conditions they spawned and, therefore, she was
reinjured and could not sustain her job with private employer.

4

Supra note 2.

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By decision dated June 28, 2019, OWCP denied modification of its prior decision, finding
that appellant had not submitted sufficient medical evidence to establish a recurrence of disability,
commencing November 5, 2015, causally related to her accepted emotional conditions. It
determined that the evidence submitted on reconsideration was not sufficient to modify the prior
denials of her claim “because the evidence on file does not support your recurrence of disability
beginning [November 5, 2015] was directly related to the original accepted work injury.” OWCP
noted, “[t]here were new intervening factors that had an impact on your emotional condition that
contributed to your disability.”
On July 29, 2009 appellant requested reconsideration of the June 28, 2019 decision and
submitted a July 22, 2019 statement, in which she argued that her disability beginning
November 5, 2015 was entirely related to a spontaneous recurrence of the emotional conditions
she suffered at the employing establishment in 2009.
By decision dated September 16, 2019, OWCP denied modification of the June 28, 2019
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.5 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.6
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.7 Where no such rationale is present,
the medical evidence is of diminished probative value.8
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
5

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

6

Id.

7

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

8

H.T., Docket No. 17-0209 (issued February 8, 2018).

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of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work.9 As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition, or a change in the nature and extent of the limited-duty job requirements.10
ANALYSIS
The Board preliminarily notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s July 26, 2016 decision, which was considered by the
Board in its August 2, 2017 decision. Findings made in prior Board decisions are res judicata
absent further merit review by OWCP under section 8128 of FECA.11 The Board finds that
appellant has not met her burden of proof to establish a recurrence of disability, commencing
November 5, 2015, causally related to her accepted employment injury.
Appellant submitted an October 10, 2017 letter from Dr. Aycock who advised that she was
suffering from the accepted conditions of anxiety disorder and depressive disorder, which were
caused by unjustified disciplinary actions while she was employed as a letter carrier for the
employing establishment. Dr. Aycock indicated that she actually enjoyed her private employment
experiences. He maintained that appellant was treated well by her private employer, got along
well with coworkers, and was given work that she could accomplish appropriately. Dr. Aycock
indicated that she reported no difﬁculties with her private. He advised that, in November 2015,
appellant’s anxiety and depressive symptom complex intensiﬁed as a result of her personal
perceptions of not being adequate to fulﬁll her job duties. Dr. Aycock asserted that these feelings
were not precipitated by any behaviors of her private employer’s Clinic staff and he noted that she
had been evaluated positively by her supervisors there. He opined that the feelings of inadequacy
and the intensification of her depression and anxiety were directly related to a recurrence of the
mindset she experienced while at the employing establishment. Dr. Aycock indicated that
appellant’s self-assessment reﬂected the negativity she underwent when she was injured at the
employing establishment. He maintained that she could not shake these perceptions or the anxious
and depressive conditions they spawned and, therefore, she was reinjured and could not sustain
her job with her private employer.
The Board finds that Dr. Aycock’s October 10, 2017 report is of limited probative value
with respect to appellant’s recurrence of disability claim because he failed to provide a rationalized
medical opinion explaining his conclusion that appellant’s claimed recurrence of disability
beginning November 5, 2015 was due to her accepted emotional conditions, major depression
(single episode) and generalized anxiety disorder. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how a given medical condition/level of disability has an employment-related cause.12 Dr. Aycock
9
See D.W., Docket No. 19-1584 (issued July 9, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020);
Terry R. Hedman, 38 ECAB 222 (1986).
10

C.B., Docket No. 19-0464 (issued May 22, 2020); see R.N., Docket No. 19-1685 (issued February 26, 2020).

11

C.M., Docket No. 19-1211 (issued August 5, 2020).

12

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

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did not describe appellant’s accepted depression and anxiety conditions in any detail or explain
the medical process through which they could have caused disability on or after
November 5, 2015. He did not sufficiently describe the basis for the recurrence of her accepted
employment conditions. Dr. Aycock only generally noted, without elaboration that appellant was
subjected to unjustified disciplinary actions while she was employed as a letter carrier for the
employing establishment.
In OWCP’s regulations, a recurrence of disability is defined, in part, as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition
which had resulted from a previous injury or illness without an intervening injury or new exposure
to the work environment that caused the illness.13 Dr. Aycock did not adequately describe
appellant’s work circumstances during her private employment or otherwise sufficiently explain
why appellant’s emotional condition commencing in November 2015 was not related to her private
work or other nonwork-related causes. Importantly, he did not discuss his own psychotherapy
notes from November 2015 in which appellant reported events suggesting she might have reacted
to factors associated with her work at her private employer. In this regard, Dr. Aycock’s
October 10, 2017 report is of limited probative value regarding appellant’s recurrence of disability
claim because it is not based on a complete and accurate factual and medical history. The Board
has held that a report on a medical question is of limited probative value if it is not based on a
complete and accurate factual and medical history.14
As appellant has not submitted medical evidence establishing a recurrence of disability,
commencing November 5, 2015, causally related to her accepted emotional conditions, the Board
finds that she has not met her burden of proof.
On appeal, appellant alleges that OWCP misinterpreted the evidence of record, including
Dr. Aycock’s various reports. As explained above, Dr. Aycock’s reports did not provide sufficient
medical rationale to support recurrence, therefore, appellant has not met her 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 her burden of proof to establish a recurrence of
disability, commencing November 5, 2015, causally related to her accepted employment injury.

13

See supra note 6.

14

See supra note 8. See also M.W., Docket No. 20-0881 (issued January 13, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the September 16, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE,
Billings, MT, Employer
__________________________________________

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

Docket No. 13-165
Issued: March 19, 2013

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 October 31, 2012 appellant, through his attorney, filed a timely appeal from the
September 28, 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 met its burden of proof to rescind its acceptance of
appellant’s claim for an August 11, 2011 work injury.
FACTUAL HISTORY
On November 4, 2011 appellant, then a 46-year-old administrative officer, filed a
traumatic injury claim alleging a back injury at about 10:15 p.m. on Thursday, August 11, 2011,
when he slipped and fell on a wet surface while retrieving laundry from a dryer at the “federal”
1

5 U.S.C. §§ 8101-8193.

apartment complex where he lived. On the claim form, Yvonne Misiaszek, appellant’s
immediate supervisor, indicated on November 8, 2011 that appellant’s regular work hours were
8:00 a.m. to 5:00 p.m., Monday through Friday. She stated that the accident did not occur in the
performance of duty because appellant was off duty at the time.
In a December 23, 2011 decision, OWCP accepted that appellant sustained displacement
of lumbar intervertebral disc without myelopathy.
In a January 17, 2012 statement, Kevin Stiffarm, an acting chief executive officer for the
employing establishment, stated that appellant held the position of administrative officer which
did not include a regular and routine requirement to be available for recall on a 24/7 basis.2 He
noted that appellant maintained normal office hours of 8:00 a.m. to 5:00 p.m., Monday through
Friday. Mr. Stiffarm stated that appellant was not required to reside in government quarters and
indicated that his occupancy in the quarters was best described as that of a tenant paying monthly
rent for the occupancy of the government quarters. He concluded that appellant was not injured
in the performance of duty and enclosed a copy of a quarters assignment and acceptance
agreement signed by appellant on January 20, 2011 and a housing policy document which
discussed the occupant’s responsibilities for maintaining the quarters and grounds.3
In a February 6, 2012 letter, OWCP advised appellant that it proposed to rescind its
acceptance of his August 11, 2011 work injury. The proposed rescission was based on new
evidence in the form of the January 17, 2012 letter of Mr. Stiffarm. It showed that appellant did
not sustain an injury in the performance of duty on August 11, 2011. OWCP provided appellant
with 30 days from the date of the letter to submit evidence and argument challenging the
proposed action.
In a March 4, 2012 letter, appellant challenged the proposed rescission of the acceptance
of his claim. He claimed that he was on call at all times for work and that he was required, or at
least expected, to live in government quarters. Appellant disagreed that he was responsible for
taking care of the grounds of the quarters.
In an April 9, 2012 decision, OWCP rescinded its acceptance of appellant’s claim for an
August 11, 2011 work injury. It noted that its rescission was based on the January 17, 2012
letter of Mr. Stiffarm which established that appellant was not in the performance of duty when
he sustained an accident on August 11, 2011. OWCP provided a discussion of the “bunkhouse
rule” which generally states that, when an employee who is required or expected to live in
quarters or premises furnished or made available by his employer and is injured during the
reasonable use or occupancy of such premises, the injury arises out of and in the course of
employment. It noted, however, that the new evidence of record showed that appellant was not
required or expected to live in government quarters and that he was not on call for work at the
time of the August 11, 2011 accident. Moreover, appellant was not performing any work duties
at the time of the accident.
2

Mr. Stiffarm indicated that the employing establishment had not previously been provided an opportunity to
formally comment on appellant’s August 11, 2011 injury.
3

The documents indicate that tenants had extensive responsibilities in maintaining living quarters and grounds,
including mowing lawns and keeping walkways clear of debris.

2

Appellant requested a telephone hearing with an OWCP hearing representative. During
the July 13, 2012 hearing, he testified that he lived in government housing and was required or at
least expected, to do so. Appellant asserted that he was on call with his work at all times. He
claimed that there was no other housing available within a reasonable distance. Counsel
acknowledged that appellant was not explicitly required to live in government housing but
argued that he was expected to live in such housing.
In an August 8, 2012 letter, P.J. Smith, a human resources assistant for the employing
establishment, reiterated that appellant was not required or expected to live in government
housing. The employing establishment noted that there was other housing available within a
reasonable commuting distance of 13 miles of his duty station. Appellant had worked overtime
before, but he was not an “on call” employee and not on call at the time of the August 11, 2011
accident. His actions at the time of the accident were not in any way connected to his work
duties.
In a September 28, 2012 decision, a hearing representative affirmed OWCP’s April 9,
2012 decision. She found that new evidence, including the letters from employing establishment
officials, established that appellant was not in the performance of duty at the time of the
August 11, 2011 accident. Therefore, the rescission of the acceptance of appellant’s claim was
proper.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.4 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and
issue a new decision.5 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.6
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that, once OWCP accepts a claim, it has the burden of justifying the termination or modification
of compensation benefits. This holds true where, as here, OWCP later decides that it erroneously
accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of the rationale for rescission.7
While injuries occurring to employees at their residences are not generally compensable,
if an employee is required or expected to live in quarters or premises furnished or made available
4

5 U.S.C. § 8128.

5

John W. Graves, 52 ECAB 160, 161 (2000).

6

See 20 C.F.R. § 10.610.

7

John W. Graves, supra note 5.

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by his or her employer and is injured during the reasonable use or occupancy of such premises,
such injuries have been held to have occurred in the performance of duty and to be compensable.
This rule has been referred to as the “bunkhouse rule.”8 The bunkhouse rule is further set forth
in OWCP’s procedures, which state, in pertinent part:
“(1) An employee has the protection of [FECA] if injured during the reasonable
use of premises which he or she is required or expected to occupy and which are
provided by the employer. In this category of cases, the official superior should
be requested to submit a statement showing:
(a) Whether the employee was required or expected to occupy the
quarters where the injury occurred and, if so, this should be
explained fully;
(b) Whether the employer provided the quarters for the employee
and, if so, this should be explained fully; and
(c) In what activity the employee was engaged at the time of the
injury.”9
ANALYSIS
On August 11, 2011 appellant filed a traumatic injury claim alleging that he sustained a
back injury at about 10:15 p.m. on Thursday, August 11, 2011, when he slipped and fell while
retrieving laundry from a dryer at the apartment complex where he lived. On December 23,
2011 OWCP accepted that he sustained displacement of lumbar intervertebral disc without
myelopathy.
OWCP rescinded its acceptance of appellant’s claim based on new evidence of record,
including a January 17, 2012 statement from Mr. Stiffarm, an acting chief executive officer for
the employing establishment. Mr. Stiffarm asserted that appellant was not injured in the
performance of duty on August 11, 2011.
The Board finds that OWCP presented sufficient evidence to meet its burden of proof to
rescind its acceptance of appellant’s claim for an August 11, 2011 work injury. This record
supports that appellant did not sustain an injury in the performance of duty on August 11, 2011.
Appellant’s regular work hours were 8:00 a.m. to 5:00 p.m., Monday through Friday, and the
accident occurred outside these hours. Despite the fact that appellant lived in a federally-run
apartment complex, he was not required by the employing establishment or expected to live in
government housing. Therefore, appellant’s accident did not fall within the purview of the
bunkhouse rule or occur in the performance of duty.10 Appellant alleged generally that he was
on call at the time of the August 11, 2011 accident which occurred outside his regular work
hours. The evidence of record does not establish that he was an “on call” employee or otherwise
8

Jimmy T. Vest, Docket No. 01-157 (issued October 25, 2001); Edmond B. Wagoner, 39 ECAB 758 (1988).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(e) (August 1992).

10

See supra notes 8 and 9.

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on call at the time of the August 11, 2011 accident. Moreover, it is not established that appellant
was performing any work duties at the time of the accident; rather, he was doing his laundry.
The January 17, 2012 letter of Mr. Stiffarm was supported by the August 8, 2012 letter of P.J.
Smith, a human resources assistant for the employing establishment.
OWCP presented sufficient evidence to show that appellant did not sustain an injury in
the performance of duty on August 11, 2011. It met its burden of proof to rescind its acceptance
of appellant’s claim for an August 11, 2011 injury in the form of displacement of lumbar
intervertebral disc without myelopathy.
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 OWCP met its burden of proof to rescind its acceptance of
appellant’s claim for an August 11, 2011 work injury.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2013
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
U.S. POSTAL SERVICE, O’HARE AIR MAIL
CENTER, Chicago, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1057
Issued: March 18, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from a February 25,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 her burden of proof to establish greater than one
percent permanent impairment of each upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On January 15, 1998 appellant, then a 34-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she had developed bilateral carpal tunnel syndrome due
to factors of her federal employment including repetitive duties. On January 16, 1999 she
underwent electrodiagnostic studies including an electromyogram and nerve conduction velocity
(EMG/NCV) studies of the upper extremities. These tests demonstrated bilateral median nerve
findings. OWCP assigned the claim File No. xxxxxx810 and, on March 17, 1999, accepted it for
bilateral carpal tunnel syndrome.3
On February 5, 2000 appellant filed an occupational disease claim (Form CA-2) alleging
that she developed pain and stiffness in her neck, shoulder, and middle back area on her left side
due to factors of her federal employment including repetitive movements. OWCP assigned that
claim File No. xxxxxx757 and, on February 23, 2000, accepted it for cervical and left trapezius
strains.
On December 29, 2000 OWCP administratively combined OWCP File No. xxxxxx810 and
OWCP File No. xxxxxx757. OWCP File No. xxxxxx810 was designated as the master file.
On May 8, 2002 appellant filed a schedule award claim (Form CA-7). She alleged that she
had reached maximum medical improvement (MMI) for her accepted bilateral carpal tunnel
syndrome. By decision dated February 24, 2004, OWCP denied the schedule award claim.
On November 19, 2012 appellant again filed a schedule award claim (Form CA-7).
In a December 4, 2012 development letter, OWCP noted the deficiencies in the schedule
award claim and requested medical evidence supporting permanent impairment. It afforded
appellant 30 days to respond.
In a December 7, 2012 report, Dr. Neil Allen, a Board-certified neurologist, opined that
appellant had reached MMI and listed her ongoing symptoms of bilateral hand numbness, pain,
tingling, weakness, and locking of the digits. On physical examination he found mild thenar
atrophy on the left, loss of muscle strength in extension, and loss of grip strength. For the right
upper extremity Dr. Allen reported mild thenar atrophy, loss of muscle strength in extension and
in grip strength, and a positive Tinel’s sign and Phalen’s test. He applied the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,

3
On April 16, 1999 appellant underwent a right carpal tunnel surgical release. On October 18, 2000 she underwent
a left carpal tunnel surgical release.

2

Guides)4 and rated appellant’s right upper extremity impairment in accordance with Table 15-23,
page 449, Entrapment/Compression Neuropathy Impairment. Dr. Allen referenced appellant’s
January 18, 1999 EMG and found a grade modifier for test findings of 1. He then applied a grade
modifier of 3 for history, due to constant symptoms; a grade modifier of 3 for physical findings,
due to atrophy or weakness, based on appellant’s mild thenar atrophy, and mild reductions in grip
and pincher strength; and functional scale, grade modifier 3, based on a QuickDASH score of 80.
Dr. Allen reached six percent permanent impairment of each of appellant’s upper extremities.
On November 4, 2013 OWCP’s district medical adviser (DMA), Dr. David H. Garelick,
Board-certified in orthopedic sports medicine, reviewed Dr. Allen’s December 7, 2012 report. He
disagreed with Dr. Allen’s reliance on the 1999 preoperative EMG, as well as his findings of
weakness and atrophy, and concluded that appellant had no permanent impairment of her upper
extremities.
By decision dated February 26, 2015, OWCP denied appellant’s schedule award claim,
finding that Dr. Garelick’s November 4, 2013 report was entitled to the weight of the medical
evidence.
On March 5, 2015 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated January 15, 2016, OWCP’s hearing representative vacated the
February 26, 2015 decision and remanded the case for further development, including a second
opinion evaluation.
On September 30, 3016 OWCP referred appellant, a statement of accepted facts (SOAF),
and a list of questions to Dr. Allen Brecher, a Board-certified orthopedic surgeon, for a second
opinion evaluation of her permanent impairment for schedule award purposes.
In his October 21, 2016 report, Dr. Brecher reviewed the SOAF and noted appellant’s
accepted carpal tunnel syndrome, history of back fusion and herniated cervical disc. On physical
examination he found positive Tinel’s sign and Phalen’s test, which were reduced with distraction,
which he determined indicated an exaggeration of symptoms. Dr. Brecher disagreed with
Dr. Allen’s findings of loss of strength and loss of range of motion, and noted questionable positive
Tinel’s sign and Phalen’s test. He applied Table 15-23, page 449 of the A.M.A., Guides, and listed
a grade modifier for functional history (GMFH) of 1, due to mild impairment; a grade modifier for
physical examination (GMPE) of 1, as she had no atrophy or numbness; a grade modifier for
clinical studies (GMCS) of 1, as she had a prior abnormal EMG/NCV studies. Dr. Brecher found
a final upper extremity impairment rating of two percent permanent impairment of each upper
extremity due to carpal tunnel syndrome. He further found that appellant’s accepted cervical
sprain had resolved with no impairment of the upper extremities due to normal sensory and motor
findings.
On December 23, 2016 OWCP’s DMA, Dr. William Tontz, a Board-certified orthopedic
surgeon, reviewed Dr. Brecher’s report and concluded that appellant had one percent permanent
4

A.M.A., Guides (6th ed. 2009).

3

impairment of each of her upper extremities in accordance with page 449 of the A.M.A., Guides.
He found that appellant had reached MMI on October 21, 2016.
By decision dated January 19, 2017, OWCP granted appellant a schedule award for one
percent permanent impairment of each upper extremity. On January 24, 2017 appellant, through
counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review.
In a May 11, 2017 addendum to his December 7, 2012 report, Dr. Allen asserted that
Dr. Tontz inappropriately applied postoperative electrodiagnostic studies to determine the test
findings grade modifier of Table 15-23, page 449, of the A.M.A., Guides. He further asserted that
Dr. Tontz did not explain how he reached his one percent permanent impairment rating. Dr. Allen
concluded that his initial December 7, 2012 impairment rating was correct.
By decision dated September 26, 2017, OWCP’s hearing representative vacated the
January 19, 2017 OWCP decision and remanded for a DMA to consider Dr. Allen’s May 11, 2017
addendum.
In an October 16, 2017 report, Dr. Michael M. Katz, a Board-certified internist and DMA,
reviewed the medical evidence and found a conflict in the physical findings from Drs. Allen and
Brecher. He requested an impartial medical examination to resolve this issue.
On February 14, 2018 OWCP declared a conflict in the medical evidence and referred
appellant, along with a SOAF and list of questions to Dr. Hytham Shadid, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In his April 12, 2018 report, Dr. Shadid reviewed the SOAF and medical records, and
performed a physical examination. He noted that appellant reported bilateral hand pain.
Dr. Shadid found full range of motion and strength in muscle testing in appellant’s bilateral upper
extremities. He also noted normal sensory findings in the medial nerve distribution confirmed by
two point discrimination. Dr. Shadid noted normal Phalen’s testing and Tinel’s signs bilaterally.
He reviewed appellant’s January 16, 1999 EMG which included findings of abnormal sensory
action potentials, bilaterally. Dr. Shadid applied the nerve entrapment evaluation method of the
A.M.A., Guides found in Table 15-23, page 449 of the A.M.A., Guides. He determined that the
grade modifier test findings was one based on the preoperative 1999 electrodiagnostic testing.
Dr. Shadid found that the grade modifier physical findings was also one due normal appearance,
strength, and sensory examinations. He determined that the grade modifier history was one due to
subjective complaints. Dr. Shadid determined that appellant had one percent permanent
impairment of each of her upper extremities.
Dr. Shadid explained his disagreement with Dr. Allen’s impairment rating asserting that
Dr. Allen had “over relied on subjective factors” such as the QuickDASH score. He opined that
this score was based on exaggerated subjective complaints as appellant currently reported that she
was capable of performing all her activities of daily living as well as performing light-duty work
independently. Dr. Shadid also found no evidence for loss of range of motion, thenar atrophy, or
radicular pain on his physical examination and noted that these findings were supported by
appellant’s negative electrodiagnostic studies. He found that appellant had reached MMI.

4

On April 19, 2018 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and DMA,
reviewed the medical evidence of record and found that appellant had one percent right upper
extremity permanent impairment due to carpal tunnel syndrome and one percent left upper
extremity permanent impairment due to carpal tunnel syndrome.
By decision dated May 10, 2018, OWCP denied appellant’s claim for an additional
schedule award. On May 16, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated February 25, 2019, OWCP’s hearing representative found that appellant
had no more than one percent permanent impairment of her upper extremities for which she had
previously received a schedule award, noting that the special weight of the medical evidence rested
with Dr. Shadid.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
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 A.M.A., Guides, published in 2009.7 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).9 Evaluators are directed to provide reasons for their impairment choices,
including the choices of diagnoses from regional grids and calculations of modifier scores.10

5

Supra note 2.

6

20 C.F.R. § 10.404.

7

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, ICF: A Contemporary Model of Disablement.

10

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

5

Permanent impairment due to carpal tunnel syndrome is evaluated under the procedures
found in Table 15-23, page 449, Entrapment/Compression Neuropathy Impairment, and
accompanying relevant text.11 In Table 15-23, grade modifier levels (ranging from 0 to 4) are
described for the categories test findings, history, and physical findings. The grade modifier levels
are averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down by one percent based on Functional
Scale, an assessment of impact on daily living activities.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to consultant DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the DMA providing rationale for the
percentage of impairment specified.13
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.14
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”15
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP had determined that there was a conflict in the medical opinion evidence between
Dr. Allen an attending physician, and Dr. Brecher, an OWCP referral physician, on the issue of
the extent of appellant’s upper extremity permanent impairment due to her accepted condition. In
order to resolve the conflict, it properly referred appellant, pursuant to section 8123(a) of FECA,16
to Dr. Shadid, a Board-certified orthopedic surgeon, for an impartial medical examination and an
opinion on permanent impairment.
In an April 12, 2018 report, Dr. Shadid reviewed the medical record and the SOAF and
provided examination findings. Based on his examination findings, he applied Table 15-23, page
449 of the A.M.A., Guides and determined that the grade modifier for test findings was 1 based
on the preoperative 1999 electrodiagnostic testing. Dr. Shadid found that the grade modifier for
physical findings was also one due normal strength and sensory examinations. He determined that
the grade modifier for history was one due to subjective complaints. Dr. Shadid then determined
11

A.M.A., Guides 449, Table 15-23; C.M., Docket No. 19-0125 (issued August 16, 2019).

12

A survey completed by a given claimant, known by the name QuickDASH (Disabilities of the Arm, Shoulder,
and Hand), may be used to determine the function scale score. A.M.A., Guides 448-49.
13

Supra note 7 at Chapter 2.808.6(f) (August 2002).

14

5 U.S.C. § 8123(a); A.G., Docket No. 18-0815 (issued January 24, 2019).

15

A.I., Docket No. 19-0193 (issued May 1, 2019).

16

Supra note 14.

6

that appellant had one percent permanent impairment of each of her upper extremities. He found
that appellant had reached MMI.
On April 19, 2018 a DMA reviewed Dr. Shadid’s April 12, 2018 report and concurred in
his rationale and determination.
The Board finds that Dr. Shadid and the DMA improperly utilized Table 15-23. The rating
process found in Table 15-23 requires an average of the three grade modifiers to reach the grade
of the final rating category. In applying the average of Dr. Shadid’s grade modifiers, the grade is
one, which has a default impairment value of two in accordance with page 448 and Table 15-23,
page 449 of the A.M.A., Guides. This default value is then to be modified up or down based on
the functional scale grade which is based on QuickDASH score. As neither Dr. Shadid, nor the
DMA applied the appropriate formula or explained why appellant’s permanent impairment rating
should be reduced to one from the default value two, the Board finds that the case is not in posture
for a decision.
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report.17 OWCP’s procedures further
provide that, while an OWCP medical adviser may review the opinion of an impartial medical
specialist in a schedule award case, the resolution of the conflict is the specialist’s responsibility
and not that of OWCP’s medical adviser. The medical adviser should not resolve the conflict of
medical opinion or attempt to clarify or expand the opinion of the medical referee. If clarification
is necessary, a supplemental report should be obtained from the referee specialist.18
The case shall therefore be remanded for OWCP to request a supplemental report from
Dr. Shadid applying the formula as described on page 448 of the A.M.A., Guides to the grade
modifiers that he found. It shall also request that he provide an accurate QuickDASH score, and
apply this score to modify the default value for the grade found, if necessary. After this and other
such further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

17
Supra note 7 at OWCP Directed Medical Examinations, Chapter 3.500.4.g(3)(b) (July 2011) (If clarification or
additional information is necessary, the claims examiner should write to the specialist to obtain it.) K.S., Docket No.
17-1663 (issued March 28, 2018); P.O., Docket No. 15-1631 (issued June 2, 2016); K.C., Docket No. 14-0791 (issued
August 8, 2014); Guiseppe Aversa, 55 ECAB 164 (2003).
18

Supra note 7 at Chapter 2.808.6(g)(1) and (2) (March 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 18, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

8


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

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 14-468
Issued: July 1, 2014

Oral Argument June 11, 2014

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 26, 2013 appellant filed a timely appeal from an August 20, 2013 merit
decision and an October 30, 2013 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for an oral
hearing as untimely; and (2) whether appellant met her burden of proof to establish that she
sustained an injury in the performance of duty on March 22, 2013, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 30, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that she did not receive a copy of OWCP’s August 20,
2013 decision and was advised by OWCP that the decision would be reissued, allowing her to
have 30 days from that date to request an oral hearing, but on October 30, 2013 denied her
hearing request as untimely.
FACTUAL HISTORY
On May 2, 2013 appellant, then a 42-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained a lower back and left leg injury in the performance of
duty on March 22, 2013 as the result of lifting a heavy load.
Appellant submitted an April 3, 2013 report from Dr. Robert G. Liss, a Board-certified
orthopedic surgeon, who diagnosed sciatica and indicated that the date of injury was
March 27, 2013. Dr. Liss restricted appellant to modified duty with restrictions as of April 3,
2013 and anticipated her return to full duty effective April 11, 2013.
In a May 4, 2013 statement, Marty Stewart, appellant’s supervisor, indicated that he had
no knowledge of the injury appellant sustained in Monroeville and that she never reported the
injury to him. He came to work one morning and there was a CA-1 form on his desk with
instructions to give it to appellant. Mr. Stewart advised that appellant did not miss any work due
to an injury until her last day on April 9, 2013.
In a May 13, 2013 letter, OWCP notified appellant of the deficiencies of her claim. It
afforded her 30 days to submit additional evidence and respond to its inquiries. Appellant
submitted a May 17, 2013 narrative statement that she immediately reported her injury to the
employing establishment.
In a May 28, 2013 report, Dr. Liss obtained a history that appellant hurt her back lifting a
dolly out of a truck in February 2013. Appellant experienced some clicking and popping in the
right side of her low back. It was injured again on March 22, 2013 when she was lifting a
hopper. The pain in appellant’s back and left buttock and leg worsened. She worked until
April 10, 2013. Dr. Liss diagnosed a lumbar strain with left radicular symptoms and referred
appellant for physical therapy and for a magnetic resonance imaging (MRI) scan of the lumbar
spine. On June 18, 2013 he reported that appellant’s MRI scan was normal and that she was still
having pain in her low back with some occasional radiation down the left leg.
By decision dated August 20, 2013, OWCP denied appellant’s claim. It found that the
evidence submitted failed to establish that the injury occurred at the time, place and in the
manner alleged.
In an August 27, 2013 telephone call memorandum, appellant notified OWCP that she
had not received the August 20, 2013 decision in her claim. Rather, she received an August 20,
2013 decision concerning a claimant under File No. xxxxxx260. OWCP advised that it would
send appellant a correct copy of the August 20, 2013 decision for her case.
In an appeal request form postmarked September 23, 2013, appellant requested an oral
hearing before an OWCP hearing representative. She submitted a September 23, 2013 narrative
statement and an April 3, 2013 report from Dr. Ravindra Vajjhala, a Board-certified emergency
2

medicine physician, who diagnosed back pain with sciatica. Dr. Vajjhala listed the date of injury
as March 30, 2013 and appellant stated that her pain started with a clicking or popping noise
from her right leg and complained of left-sided back pain with numbness.
By decision dated October 30, 2013, OWCP denied appellant’s request for an oral
hearing finding that it was untimely because it was not made within 30 days of the August 20,
2013 decision. It exercised its discretion and further denied the request for the reason that the
relevant issue of the case could be addressed by requesting reconsideration and submitting
evidence not previously considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [his or her] claim before a representative of
the Secretary.”3
Section 10.615 of Title 20 of the Code of Federal Regulations provide: “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”4 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.5 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.6 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.7
20 C.F.R. § 10.127, effective as of January 4, 1999, provides:
“A copy of the decision shall be mailed to the employee’s last known address. If
the employee has a designated representative before OWCP, a copy of the
decision will also be mailed to the representative. A copy of the decision will also
be sent to the employer.”8
ANALYSIS -- ISSUE 1
In this case, OWCP issued a decision on August 20, 2013. Under the mailbox rule, it is
presumed, in the absence of evidence to the contrary, that a notice mailed to an individual in the
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616.

6

See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

7

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

8

20 C.F.R. § 10.127; see also Diane M. Redden, Docket No. 04-558 (issued May 12, 2004).

3

ordinary course of business was received by that individual.9 This presumption arises when it
appears from the record that the notice was properly addressed and duly mailed.10 The
appearance of a properly addressed copy in the case record, together with the mailing custom or
practice of OWCP itself, will raise the presumption that the original was received by the
addressee.11 However, as a rebuttable presumption, receipt will not be assumed when there is
evidence of nondelivery.12 The presumption of receipt does not apply where a notice is sent to
an incorrect address.13
In this case, the presumption of receipt is rebutted by evidence in the record that appellant
did not receive a copy of OWCP’s August 20, 2013 decision pertaining to her claim. In an
August 27, 2013 telephone call memorandum, appellant notified OWCP that she did not receive
an August 20, 2013 decision in her case but an August 20, 2013 decision regarding another
claimant under File No. xxxxxx260. OWCP advised that it would send her a correct copy of the
August 20, 2013 decision in her claim, but did not reissue the August 20, 2013 decision. This
evidence is sufficient to rebut the presumption that appellant was properly sent a copy of the
August 20, 2013 decision.14
The Board has held that a decision under FECA is not deemed to have been issued unless
appellant has been sent a copy of the decision.15 The record on appeal indicates that OWCP’s
August 20, 2013 decision was not properly issued. OWCP’s failure to timely notify appellant of
the decision denied her the opportunity to exercise her appeal rights in a timely fashion,
including the right to request a hearing within 30 days of the date of the decision.
The case will be remanded to OWCP as the August 20, 2013 decision was not properly
issued.
CONCLUSION
The Board finds that OWCP’s August 20, 2013 decision was not properly issued. This
case will be remanded to OWCP for proper reissuance of the August 20, 2013 decision to protect
appellant’s appeal rights.16
9

See George F. Gidicsin, 36 ECAB 175 (1984) (when OWCP sends a letter of notice to a claimant, it must be
presumed, absent any other evidence, that the claimant received the notice).
10

See Michelle Lagana, 52 ECAB 187 (2000).

11

See Larry L. Hill, 42 ECAB 596 (1991).

12

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued
September 14, 2009).
13

See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).

14

See E.C., Docket No. 11-1774 (issued February 27, 2012).

15

See Belinda J. Lewis, 43 ECAB 552 (1992); Thomas H. Harris, 39 ECAB 899 (1988); see also Diane M.
Redden, supra note 8.
16

In light of the Board’s resolution of the first issue, the second issue is moot.

4

ORDER
IT IS HEREBY ORDERED THAT the October 30 and August 20, 2013 decisions of
the Office of Workers’ Compensation Programs are set aside and the case remanded for further
proceedings consistent with this decision of the Board.
Issued: July 1, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Waco, TX, Employer
__________________________________________

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

Docket No. 14-102
Issued: April 1, 2014

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 October 21, 2013 appellant filed a timely appeal from an October 4, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying an emotional
condition claim. 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 established that she sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On December 30, 2011 appellant, then a 66-year-old nurse and associate chief for
behavioral health, filed an occupational disease claim (Form CA-2) alleging that she sustained an
1

5 U.S.C. § 8101 et seq.

emotional condition with consequential cardiovascular issues on or before April 4, 2011 after she
received an e-mail from Supervisor Karen Spada requesting research for a patient. She stopped
work on April 4, 2011. Ms. Spada controverted the claim. Appellant returned to work on
December 19, 2011.
In a January 13, 2012 letter, OWCP advised appellant of the additional evidence needed
to establish her claim. It requested a complete description of the work factors alleged to have
caused the claimed emotional condition. OWCP also requested a statement from appellant’s
attending physician explaining how and why the identified incidents caused the claimed
emotional condition. Appellant was afforded 30 days to submit such evidence.
In a statement received on February 6, 2012, appellant noted that she began work at the
employing establishment in December 2009. She was responsible for 515 patients and 240 staff.
Appellant received fully successful performance appraisals on April 27 and November 8, 2010,
with positive remarks about her leadership and flexibility. She asserted that commencing on
February 7, 2011 there was a pattern of hostility and reprisals due to her age by her supervisors
Ms. Spada and Linda Wolf, as follows: a February 7, 2011 e-mail by Ms. Spada stating that she
was not sufficiently assertive or engaged; a February 18, 2011 informal job counseling session
with Ms. Wolf; Ms. Spada’s alleged failure to greet her at a March 15, 2011 town hall meeting; a
March 16, 2011 e-mail from Ms. Spada criticizing her lack of support for subordinate managers;
Ms. Spada knowingly giving her a short deadline to complete a crisis intervention team review in
March 2011; March 21, 2011 written memorandum of counseling from Ms. Spada regarding her
failure to return an urgent telephone call regarding suicide prevention and an irregularity with
dispensing narcotics;2 a January 3, 2012 e-mail from Ms. Spada that she did not understand
information she had requested from appellant regarding overtime; Ms. Spada telling her on
January 12, 2012 that Ms. Wolf wished to speak to her; Ms. Spada asking her to calculate the
overtime for a patient on January 3, 2012; Ms. Spada asking her to explain the overtime chart on
January 5, 2012; and a January 12, 2012 conversation with Ms. Spada and Ms. Wolf that
appellant feared would turn into a counseling session. Appellant submitted copies of the e-mails
and performance appraisals.
In a March 29, 2012 memorandum, Ms. Wolf denied appellant’s allegations of hostility
and reprisals. She asserted that the February 18, 2011 counseling session was not disciplinary
and that appellant had thanked her for the feedback. Ms. Wolf submitted copies of her e-mails to
appellant from July 2010 to March 2011 requesting reports, updates, research, leadership action
plans and training plans. She explained that each of the requests pertained to appellant’s
assigned job duties and were necessary to assure the proper functioning of a complex patient care
organization. Ms. Wolf emphasized that appellant was always given reasonable deadlines to
complete assigned tasks and projects.

2

In a March 21, 2011 e-mail to appellant, Ms. Spada stated that the e-mail constituted official written counseling
for “failure to ensure patient safety” and following correct protocols regarding medication errors and suicide
attempts. She was “extremely disappointed in [appellant’s] lack of follow through and [her] lack in respecting [her]
direct order to call [Ms. Spada] back … tonight … as in ASAP … with [her] plan.” Ms. Spada stated that
appellant’s failure to follow up was a “total lack of accountability for [her] patients and the staff who provide their
care.”

2

Appellant also alleged that during a May 7, 2012 team teleconference, Ms. Spada stated
that it was inappropriate for appellant to have left the meeting to use the restroom, that
Ms. Spada asked her to complete a staffing methodology on June 4, 2012, that a clerical staffer
asked her to call Ms. Spada on June 5, 2012, and that on June 6, 2012 Ms. Spada requested a
staffing plan for a new 1:1 observation directive and provided suggestions for formulating the
plan.
Appellant also submitted reports dated from April 4 to December 6, 2011 from
Dr. Michael Menache, an attending Board-certified internist, noting the onset of hypertension
and palpitations in 2004. Dr. Menache held appellant off work from August 22 to December 19,
2011 due to “stress at work.”
By decision dated September 27, 2012, OWCP denied appellant’s claim on the grounds
that fact of injury was not established. It found that she did not establish any compensable work
factors. OWCP noted that appellant attributed her condition to the administrative functions of
job discussions, performance feedback and appraisals and that no error or abuse was shown that
would bring these actions into the performance of duty. It further found that she did not submit
sufficient evidence to substantiate her allegations of reprisals or a hostile work environment.
In a July 4, 2013 letter, appellant requested reconsideration. She submitted an undated
statement from a coworker and a September 14, 2012 statement from her brother relating her
account of problems at work. Appellant also provided a September 19, 2012 report from
Dr. John V. Elwood, an attending licensed clinical psychologist, who diagnosed severe stress
related to appellant’s “difficult relationship with the Director of Patient Care Services.” She also
submitted a duplicate of Dr. Menache’s December 6, 2011 report.
By decision dated October 4, 2013, OWCP denied modification on the grounds that the
evidence submitted did not establish employing establishment error or abuse regarding the
administrative incidents appellant identified as causative.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
Where disability results from an employee’s reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

3

coverage of FECA.5 To establish entitlement to benefits, a claimant must establish a factual
basis for the claim by supporting the allegations with probative and reliable evidence.6 This
burden includes the submission of a detailed description of the employment factors or conditions
which appellant believes caused or adversely affected the condition or conditions for which
compensation is claimed.7
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship.8 If a claimant implicates a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.9
The Board has held that a variety of work factors are compensable under FECA. Among
them, overwork is a compensable factor of employment if appellant submits sufficient evidence
to substantiate this allegation.10 Also, in certain circumstances, working overtime is sufficiently
related to regular or specially assigned duties to constitute a compensable employment factor.11
Additionally, conditions related to stress resulting from situations in which an employee is trying
to meet his or her position requirements are compensable.12
ANALYSIS
Appellant alleged that she sustained an emotional condition with consequential
cardiovascular issues due to a pattern of reprisals and criticism by her supervisors, creating a
hostile work environment. OWCP found these to be noncompensable factors. Therefore, the
Board must review whether the alleged incidents are covered employment factors under FECA.
Appellant attributed her emotional condition to performance appraisals, February 7,
March 16, 2011, January 3 and 5, 2012 e-mails, January 5 and 12, 2012 conversations
commenting on her work, and a February 18, 2011 nondisciplinary job counseling session.
However, performance appraisals are administrative and are not compensable unless error or
5

5 U.S.C. §§ 8101-8193. Lillian Cutler, 28 ECAB 125 (1976).

6

Ruthie M. Evans, 41 ECAB 416 (1990).

7

Effie O. Morris, 44 ECAB 470 (1993).

8

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

9

Marlon Vera, 54 ECAB 834 (2003).

10

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

11

Ezra D. Long, 46 ECAB 791 (1995).

12

Trudy A. Scott, 52 ECAB 309 (2001).

4

abuse is shown.13 The Board has characterized supervisory discussions or evaluations of job
performance as administrative or personnel matters of the employing establishment, which are
covered only when a showing of error or abuse is made.14 In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.15 To support a claim, a claimant must establish a factual basis
by providing probative and reliable evidence.16 Ms. Wolf’s March 29, 2012 supervisory
statement disputed appellant’s allegations and clarified that her interactions with appellant were
to assure patient safety in a complex work environment. Under these circumstances, the Board
finds that appellant has not submitted sufficient evidence to support that her supervisors acted
erroneously or abusively regarding the e-mails, conversations or job counseling. Therefore,
appellant has not established the memorandum as a compensable work factor.17
Appellant also attributed her condition to a March 21, 2011 written memorandum of
counseling for failure to abide by narcotics and patient safety rules. Disciplinary actions
including oral reprimands, discussions or letters of warning for conduct are noncompensable
administrative actions unless the employee shows that management acted unreasonably.18 To
support such a claim, a claimant must establish a factual basis by providing probative and
reliable evidence.19 In the present case, appellant did not contend that Ms. Wolf, her supervisor,
was mistaken in finding that appellant violated employing establishment procedures. Ms. Wolf
provided a March 29, 2012 statement explaining that her communications with appellant were to
ensure patient safety in a complex work environment. Under these circumstances, the Board
finds that appellant has not established error or abuse by Ms. Wolf in issuing the March 21, 2011
memorandum of counseling. Therefore, appellant has not established the memorandum as a
compensable work factor.20
Appellant also attributed her condition to Ms. Spada asking her to calculate overtime on
January 3, 2012, complete a staffing methodology on June 4, 2012 and a staffing plan on
June 6, 2012. She also alleged stress from Ms. Spada stating that she did not want appellant to
leave the room during teleconferences on May 7, 2012 and asking appellant to call her on
June 5, 2012. An employee’s dissatisfaction with the way a supervisor performs duties or
exercises discretion in assigning work is not compensable absent error or abuse.21 As appellant

13

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

14

Roger W. Robinson, 54 ECAB 846 (2003).

15

Ruth S. Johnson, 46 ECAB 237 (1994).

16

See Barbara J. Nicholson, 45 ECAB 843 (1994).

17

Janice I. Moore, 53 ECAB 777 (2002).

18

Ruth S. Johnson, supra note 15.

19

See Barbara J. Nicholson, 45 ECAB 843 (1994).

20

Janice I. Moore, supra note 17.

21

Donney T. Drennon-Gala, 56 ECAB 469 (2005); Linda J. Edward-Delgado, 55 ECAB 401 (2004).

5

did not submit corroborating evidence establishing error or abuse, she failed to establish a
compensable employment factor in this regard.
Appellant also alleged a pattern of harassment and reprisals based on age. For
harassment or discrimination to give rise to a compensable disability under FECA, there must be
probative and reliable evidence that harassment or discrimination did in fact occur.22 Mere
perceptions of harassment, retaliation or discrimination are not compensable under FECA.23
Appellant did not submit probative evidence, such as witness statements, corroborating her
allegations of retaliation, discrimination and harassment based on grievance activities. The
absence of such documentation diminishes the validity of appellant’s contentions in this case,
where there is no evidence to document that she was discriminated or retaliated against.
Additionally, Ms. Wolf’s March 29, 2012 statement refutes appellant’s allegations. As she has
not established these incidents as factual, she has not established a compensable employment
factor under FECA with respect to the claimed reprisals.
Regarding appellant’s allegations that Ms. Wolf assigned short deadlines and that
Ms. Spada failed to greet her at a March 15, 2011 town hall meeting, the Board finds that she did
not submit sufficient evidence to establish these allegations as factual. In particular, Ms. Wolf
noted in her March 29, 2012 statement that appellant was given sufficient time to complete
assigned tasks. As these incidents have not been established as factual, they are not compensable
factors of employment.
Therefore, the Board finds that appellant did not establish that she sustained an emotional
condition as alleged, as she did not establish any compensable factors of employment.24
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty as alleged.

22

Marlon Vera, supra note 9.

23

Kim Nguyen, 53 ECAB 127 (2001).

24

As appellant did not establish any compensable factors of employment, the medical evidence need not be
considered. Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 4, 2013 is affirmed.
Issued: April 1, 2014
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
U.S. POSTAL SERVICE, CARDWELL
STATION, Fresno, CA, Employer
__________________________________________

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

Docket No. 12-1052
Issued: November 28, 2012

Case Submitted on the Record

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

JURISDITION
On April 19, 2012 appellant filed a timely appeal of the November 1, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease
claim. 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 sustained a back condition in the performance of duty
causally related to factors of her federal employment.
On appeal, appellant contends that she should undergo another second opinion
examination because during the initial examination she was in a cast due to a broken ankle
sustained on August 8, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 18, 2011 appellant, then a 51-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on March 30, 2010 she first became aware of her
lumbar conditions which included grade 1 spondylolisthesis, stenosis, radiculopathy,
spondylosis, facet disease, synovial cyst and disc herniation. She further alleged that on April 6,
2011 she first realized that the deterioration of her back was caused by years of bending, twisting
and lifting. Appellant stopped work on November 30, 2010 and returned to work on
July 18, 2011.
In an undated narrative statement, appellant described her work duties as a city letter
carrier. She also described the development of her back condition and medical treatment.
Medical reports dated January 5 through June 9, 2011 which contained the typed name of
Dr. Henry E. Aryan, an attending Board-certified neurosurgeon, obtained a history that appellant
had been suffering from bilateral back pain for many years. Appellant was born with a partial
tethered spinal cord that was not surgically treated. She underwent surgery on January 12, 2011
to treat the same diagnosed lumbar conditions listed in her Form CA-2.
A November 2, 2010 report which contained the typed name of Dr. Frank R. Tamura, a
Board-certified radiologist, stated that a magnetic resonance imaging scan of the lumbar spine
revealed low lying conus with thickened filum that was most worrisome for the tethered cord and
mild grade 1 anterior spondylolisthesis at L5-S1 that was attributed to degenerative facet disease.
There was no syrinx, cord edema, disc herniation or central canal or neural foramen-stenosis.
In a January 12, 2011 report, Kelly Speir, a physical therapist, stated that appellant was
given a home exercise program to treat her lumbar pain.
By letter dated August 19, 2011, OWCP referred appellant, together with the case record
and a statement of accepted facts, to Dr. Alice M. Martinson, a Board-certified orthopedic
surgeon, for a second opinion. In a September 26, 2011 report, Dr. Martinson advised that she
could not perform an appropriate evaluation because appellant was nonweight-bearing.
Appellant was wearing a short leg cast following surgery to repair a left ankle fracture sustained
on August 9, 2011. Dr. Martinson stated that a transfixion screw needed to be removed prior to
any weight-bearing or rehabilitative efforts. She recommended that appellant be rescheduled for
an examination in approximately three months.
In a September 29, 2011 letter, OWCP requested that the employing establishment
submit factual evidence regarding appellant’s claim. Also, on September 29, 2011 it advised her
that the evidence submitted was insufficient to establish her claim. OWCP requested that
appellant submit medical evidence, including a rationalized medical opinion from an attending
physician which described her symptoms and provided dates of examination and treatment,
findings, test results, a diagnosis together with medical reasons on how the claimed work
activities caused or contributed to the diagnosed condition. Appellant was afforded 30 days to
submit the requested evidence. She did not respond.

2

In a November 1, 2011 decision, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish that she sustained a back condition causally
related to the accepted employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.5 Neither the fact that appellant’s
condition became apparent during a period of employment nor, her belief that the condition was
caused by her employment is sufficient to establish a causal relationship.6
ANALYSIS
In a November 1, 2011 decision, OWCP accepted as factual that appellant performed
repetitive duties while working as a city letter carrier, but found that the medical evidence was
insufficient to establish that she sustained a back injury causally related to the accepted factors of
her employment. The Board finds that this case is not in posture for a decision.

2

5 U.S.C. §§ 8101-8193.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989); Victor J. Woodhams, 41 ECAB 345 (1989).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 4 at 351-52 (1989).

6

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

OWCP referred appellant to Dr. Martinson, an OWCP referral physician, for a second
opinion. In a September 26, 2011 report, Dr. Martinson stated that she did not examine appellant
because she was wearing a short leg cast following repair of a left ankle fracture. She related
that a transfixion screw needed to be removed before any weight-bearing or rehabilitative efforts
could be made. Dr. Martinson recommended that appellant be rescheduled for examination in
approximately three months. As she failed to provide current examination findings, OWCP was
obliged to further develop the medical evidence.
Proceedings under FECA are not adversarial in nature and OWCP a disinterested arbiter.7
While the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.8 Accordingly, once
it undertakes to develop the medical evidence further, it has the responsibility to do so in the
proper manner.9 As OWCP undertook development of the medical evidence by referring
appellant to Dr. Martinson, it had an obligation to secure a report adequately addressing the
relevant issue.10 The case will be remanded to OWCP to refer appellant to an appropriate
medical specialist, together with the case record and a statement of accepted facts, for an
evaluation and rationalized medical opinion on whether she sustained a back injury causally
related to the accepted factors of her employment. Following this and any other development
deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s claim.
On appeal, appellant contended that she should undergo another second opinion
examination because she was in a cast during the first examination. As stated, the case will be
remanded to OWCP for further development of the medical evidence and issuance of a de novo
decision on appellant’s claim for compensation.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant
sustained a back injury causally related to the accepted factors of her employment.

7

R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57
ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004).
8

D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004).

9

See A.A., supra note 7; Melvin James, 55 ECAB 406 (2004).

10

Id.; see also Peter C. Belkind, 56 ECAB 580 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the November 1, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: November 28, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 14-62
Issued: April 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 12, 2013 appellant filed a timely appeal of an April 8, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her request
for reconsideration. As more than 180 days elapsed from the issuance of the most recent merit
decision of December 10, 2012, to the filing of this appeal pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant timely requested an oral argument before the Board. By letter dated
December 13, 2013, the Clerk of the Board requested that appellant submit the issues to be argued, as well as the
reasons why oral argument was necessary and advised that oral arguments were only held in Washington, DC.
Appellant was asked to confirm her request for oral argument. She did not respond to this request. Accordingly, the
Board in its discretion has proceeded to adjudicate the appeal as submitted on the record.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant argued the merits of her case.
FACTUAL HISTORY
On April 20, 2011 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained an emotional condition due to factors of
her federal employment, including a heated exchange with her supervisor on March 29, 2011.
By decision dated April 30, 2012, OWCP found that appellant failed to establish a
compensable factor of employment. It denied the claim on the basis that the evidence was not
sufficient to establish that she was injured in the performance of duty.
Appellant requested an oral hearing before an OWCP hearing representative, which was
held on September 25, 2012.
By decision dated December 10, 2012, OWCP’s hearing representative affirmed the
April 30, 2012 decision.
On March 6, 2013 appellant requested reconsideration. She submitted a March 8, 2013
report from Dr. Michael J. Papantones, Ph.D a licensed clinical psychologist, who advised that
her anxiety was due to the treatment she sustained in her job at the employing establishment.
By decision dated April 8, 2013, OWCP denied appellant’s request for reconsideration of
the merits. It found that she did not submit pertinent new and relevant evidence or show that
OWCP erroneously applied or interpreted a point of law not previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right. It vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and

3

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

2

pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
In support of her March 6, 2013 reconsideration request, appellant submitted a March 8,
2013 report from Dr. Papantones, who indicated that her anxiety was due to the mistreatment she
experienced at her job. The Board finds that the submission of this report did not require
reopening her case for merit review. It was medical in nature and not relevant to whether
appellant established a compensable factor of employment. Therefore, the report does not
constitute relevant and pertinent new evidence and is not sufficient to require OWCP to reopen
her claim for consideration of the merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did she submit any relevant and pertinent new evidence not
previously considered. The Board finds that she did not meet any of the necessary requirements
and is not entitled to further merit review.8
On appeal, appellant argues the merits of her case.
jurisdiction over the merits of the case.

The Board notes that it lacks

CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

See L.H., 59 ECAB 253 (2007).

3

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4