United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS VETERANS
HEALTHCARE SYSTEM, Little Rock, AK,
Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0959
Issued: June 26, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On March 31, 2017 appellant, through counsel, filed a timely appeal from a December 14,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of 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 established that she sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On January 20, 2016 appellant, then a 33-year-old registered nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained post-traumatic stress disorder (PTSD),
depression, anxiety, stress, insomnia, ovarian cysts, and fibroids causally related to her federal
employment. She attributed her condition to taking care of patients with physical and mental
problems, being exposed to violence and threats, and a hostile work environment. Appellant first
became aware of her condition and its relationship to her federal employment on
November 19, 2014. Her supervisor related that on November 11, 2015 appellant was reassigned
from the emergency room (ER) to the nursing service office and media office.
In a January 12, 2016 statement, appellant related that she began to work as an ER nurse
in September 2012. She had difficulties beginning November 2014 due to work duties and had to
withdraw from a Master’s program due to anxiety and depression. Appellant noted working with
veterans who had physical and mental conditions. She attributed her stress to exposure to “patient
abuse, physically, and mentally.” Appellant asserted that management harassed, bullied, and
discriminated against her which worsened her condition. In 2014, a patient with PTSD and
schizophrenia informed her that he wanted to die and later committed suicide. Appellant wondered
if she could have done more to help the patient. She related:
“They come to the ER yelling, kicking, spitting, fighting, in hand cuffs, threatening
to kill themselves or kill someone else, is it a cry for help or something else, who
knows but am I the one to judge. I can hear the screams and cry out for help in my
sleep. I suffer from nightmares due to caring for patients with PTSD and other
mental problems such as schizophrenia.”
Appellant described her physical problems caused by stress, including grinding her teeth,
an abnormal menstrual cycle, cysts, and fibroids. She asserted that, on May 13, 2014, a veteran
with PTSD and schizophrenia cornered her in a triage room after he had “stabbed another man to
death.” Appellant related that she was “his triage nurse, the very next person he saw after
committing this gruesome crime. He visits me in my nightmares often.”
Appellant further asserted that she was bullied because she was the only African-American
nurse in the ER for three years. In 2015, another nurse abused an African American man and she
did not intervene. The man threatened to kill the nurse who verbally abused him and appellant
wondered if he was also going to shoot her. She reported the incident to her supervisor, but was
too nervous to provide a written statement. Appellant’s coworkers allegedly made false
allegations. In 2014, appellant was injured when a patient pushed a coworker onto her ankle. She
advised that many patients had problems with drugs and were upset, disrespectful, and violent if
“they do not get what they want and when they want it.” Appellant also remembered a patient
who died alone of cancer.

2

On January 25, 2016 the employing establishment controverted appellant’s claim, asserting
that she had not substantiated her allegations of wrongdoing or harassment and also had not
submitted medical evidence in support of her claim.
OWCP, in a development letter dated February 16, 2016, requested that appellant provide
additional factual and medical evidence.
By decision dated March 22, 2016, OWCP denied appellant’s emotional condition claim.
It found that she had not established any compensable factors of employment, noting that she had
not responded to its request for additional information.3
On March 23, 2016 appellant submitted additional evidence. In a March 15, 2016
statement, she related working 12-hour shifts three or four times a week and on each shift would
see five or more suicidal patients. Appellant advised that the patient who trapped her in the triage
room was brought in by the police covered with dirt and “cursing, fighting, biting, and kicking,”
which made it a “regular day in the ER.” She related, “Seeing this type of behavior every day all
day does something to a person, mentally and physically.” Appellant noted injuring an ankle when
a patient pushed a coworker who fell onto her ankle. She related being harassed, bullied, and
discriminated against, noting that an African American manager hired her, and coworkers asked if
she was going to be that manager’s “snitch.” Appellant received frequent, unfounded requests for
information (RFIs). She asserted that another nurse bullied her and verbally abused an African
American patient, who looked at her for assistance, but she did nothing. The patient threatened to
kill the other nurse while looking at both of them. Appellant told her supervisor what happened,
but did not provide a written statement. Appellant also noted that coworkers called a physician
from India a “little brown man.”
In July 2015, appellant received a disciplinary action for failing to take a patient’s complete
vital signs on January 21, 2015 and subsequently lost her scholarship, but a white coworker did
the same thing and kept her scholarship. Management also accused her of sleeping at work. In
2014, appellant was upset after a patient who sought help at the ER committed suicide. She noted
that as an ER nurse she was expected to treat patients with psychiatric conditions. Patients,
especially those on drugs or with mental conditions, often threated to kill all of them, but did not
threaten appellant specifically. Appellant related having extensive exposure to violence at work
and patients who were combative secondary to delirium, dementia, or psychiatric disorders.
On February 3, 2014 management accused appellant of “making out with an [employing
establishment] police officer.” She overheard coworkers talking about it in a restaurant. The
supposed incident occurred when appellant’s husband was talking to her as they sat in their vehicle.
A police officer, L.S., asked her husband to move the car because an ambulance was arriving.
Both appellant and the police officer, who was black, received RFIs.
Appellant’s father died from cancer in October 2012 at the same time she was treating a
dying cancer patient. She advised that seeing death frequently “does something to a person
(mentally) and it began to get harder and harder for me.” Appellant described other medical
3
Counsel advised on March 16, 2016 that she was attaching supporting evidence. However, there was no evidence
accompanying the correspondence.

3

conditions, including ovarian cysts and fibroids, which she believed were caused or aggravated by
stress.4
Regarding the accusation about appellant and a police officer, on February 3, 2014, a
supervisor issued appellant an RFI about an incident that occurred when she was engaged in
“actions of a sexual nature” with an employing establishment police officer in the parking lot while
on duty. In an e-mail dated February 20, 2014, R.K., a union representative, indicated that there
were still rumors that appellant and a police officer had engaged in inappropriate sexual behavior.
He noted that the police had proven the rumor was unfounded, but that it continued to spread.
In a March 2, 2015 memorandum, L.S., the police officer who was the other subject of the
rumor, related that on February 11, 2014 a coworker told him that he had heard that he and
appellant had engaged in sexual misconduct. He noted that an investigation proved that this
allegation was unfounded. L.S. expressed concern that this was an attempt to denigrate his
character or that of the other party and related, “It is in my opinion that the [ER] staff is deliberately
spreading false and derogatory statements of which fall under the premise of defamation of
character as all that is being purported is false information.”
On March 3, 2016 S.M., a coworker, advised that appellant complained to her about stress
and her treatment at work.
In a March 11, 2016 statement, A.H., a coworker, described incidents in the ER that she
considered discrimination. She related that appellant was the first black registered nurse in ER
and that the other nurses would not care for her patients. A.H. maintained that appellant received
the most critical patients and that she was injured when another nurse angered a patient.
Coworkers gossiped and complained about appellant and tried to have her removed.
E.M., a coworker, in an undated statement received by OWCP on March 23, 2016, related
that the ER at the hospital was “a very fast paced, stressful environment. A large number of
veterans see[n] in the ER present with large number of suicidal/homicidal chief complaints. It is
not uncommon for staff members in the ER to be physically and verbally assaulted by patients.
Due to these highly stressful situations, there are times when the atmosphere in the ER is very
hostile and unpleasant to work throughout the shift.” E.M. advised that, on October 15, 2015,
appellant was upset about discrimination in the ER.
Appellant received numerous RFI’s from supervisors regarding matters such as leaving the
ER, being wrapped in a blanket, and patient care.
T.M., a coworker, provided an undated statement, received by OWCP on March 28, 2016,
in which she related that she heard a rumor that appellant was involved with an ER security guard.
C.S., another coworker, provided an undated statement indicating that management knew a nurse
had made false allegations regarding appellant and others. K.N., a medical clerk, advised that
coworkers on appellant’s ER shift disliked her, refused to help her with patients, and whispered
derogatory comments about her under their breath. Other nurses stated that appellant was a snitch
for the nurse manager and spread a rumor about her and a police officer in a parking lot. K.N. and
4

Appellant also provided supporting medical evidence.

4

appellant both witnessed a nurse speaking in an inappropriate way to a patient, but appellant was
afraid of retaliation if she gave a statement regarding the incident.
On April 19, 2016 counsel requested reconsideration. She asserted that appellant
established an emotional condition due to dealing with violent and dying patients, which was a
reaction arising from the performance of her job duties under Lillian Cutler.5 Counsel further
asserted that appellant established harassment from being falsely accused of sexual misconduct
with a police officer while at work. She argued that the medical evidence established that appellant
sustained an emotional condition due to compensable employment factors.
Appellant submitted additional evidence with her request for reconsideration, including
incident report case numbers indicating that on June 20, 2014 a patient allegedly threatened harm
to an ER staff member, and on December 7, 2014 a patient assaulted an ER staff member causing
injury. She submitted an April 14, 2014 letter, in which she advised J.G., a supervisor, that she
felt hostility as an African American working in the ER, noting that coworkers asked if she was a
“snitch” and indicated that she heard offensive racial comments, including about the presidential
election and cases currently in the news. Appellant also noted that other nurses referred to a
physician as a “little brown man.” One nurse stated that she was more black than appellant because
appellant did not eat chicken or barbeque, which she found “blatant stereotyping.” Appellant
alleged that she got RFIs based on unsupported rumors.
On April 14, 2014 the employing establishment denied appellant’s Step 2 grievance after
finding that there was no evidence management violated articles of a contract. The employing
establishment advised that a fact-finding did not substantiate allegations that she had engaged in
sexual misconduct with a police officer on duty.
On March 19, 2015 a nurse advised that appellant was sitting at a nurse station on
March 14, 2015 wrapped in a blanket with her eyes closed. After a fact finding, on June 8, 2015
the employing establishment found that she was sitting wrapped in a blanket apparently asleep at
the nurses’ station and that two of her patients did not receive proper monitoring of their vital
signs. It issued a reprimand on November 8, 2015.
In a February 27, 2016 e-mail, R.K. indicated that management issued appellant several
RFIs in February 2014, one of which involved a claim that she was in a car with a police officer.
He related that he reported to her supervisor as an eyewitness that she was in a vehicle with her
husband and not a police officer, but the rumors continued. R.K. related that management made
no effort to squelch the false rumors.
In an e-mail dated May 19, 2014, received by OWCP on April 19, 2016, appellant advised
management that at night on May 13, 2014 she was working at a computer in the triage room with
the door open and that when she looked up a “highly agitated” patient, who was a murder suspect,
was standing over her. She recommended that the doors to the triage stay closed.

5

28 ECAB 125 (1976).

5

OWCP, by letter dated October 20, 2016, requested that the employing establishment
provide comments from a supervisor with knowledge of the accuracy of appellant’s contentions.
It further asked for a copy of her position description.
The position description for a registered nurse provided that the “incumbent may
occasionally be exposed to patients who are combative secondary to delirium, dementia, or
psychiatric disorders.”
In a November 3, 2016 statement, L.D., an acting nurse manager, disagreed that appellant
withdrew from a Master’s program due to stress and anxiety, noting that the withdrawal occurred
after a March 30, 2015 disciplinary action. She advised that she did not know if appellant had
complained about exposure to physical or mental abuse by patients. L.D. indicated that she had a
work injury on January 14, 2014, but did not identify how the injury occurred. She related that
the employing establishment confirmed “that the complainant[s] timing of allegations immediately
followed unfounded allegations of unprofessional behavior filed against her on March 3, 2014”
and that she submitted an April 14, 2014 e-mail about concerns with stress due to her work
environment. Management responded by providing cultural sensitivity training. L.D. advised that
appellant’s harassment and bullying allegations were vague and could not be substantiated. She
noted that about 5 to 10 percent of ER visits were for mental health treatment and quoted the
position description about exposure to combative patients. It was noted that on May 13, 2014
appellant had not been enclosed in a triage room with a patient because there were two doors.
After the incident, management installed locking doors. L.D. confirmed that in 2015 management
investigated allegations that a nurse verbally abused an African American veteran, but that
appellant did not “validate what she witnessed. Based on other statements received, progressive
disciplinary action was taken.” She maintained that management investigated all violations of
procedures with RFIs, noting that it issued 222 RFIs to ER staff in 2015 and 130 RFIs to ER staff
in 2016. Regarding the death of a patient, L.D. advised that appellant received a letter of
admonishment on March 30, 2015 when appellant failed to obtain a complete assessment of a
patient in her care and the patient coded upon transfer. She performed her job duties in a
satisfactory manner until November 11, 2015, when her physician opined that she could not work
in patient care. L.D. listed the dates appellant received verbal counseling regarding leave issues
and performance issues.
By decision dated December 14, 2016, OWCP denied modification of its March 22, 2016
decision. It found that appellant had not established any compensable employment factors.
On appeal counsel maintains that appellant has established an emotional condition in the
performance of duty. She questions why OWCP accepted a statement from L.D., who had only
acted as a supervisor for two months and had no actual knowledge of the alleged incidents.
Counsel asserts that it was the “very core of performing [appellant’s] job duties that contributed to
her conditions….” She notes that, caring for volatile patients was part of her work duties, she had
to withdraw from a Master’s program, and that RFIs contributed to her stress performing her
employment duties. Counsel also maintains that she was falsely accused of acting improperly with

6

a police officer, a compensable work factor under William Groner.6 She further asserts that the
medical evidence supports appellant’s claim.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned duties or to a requirement imposed by the employment,
the disability comes within the coverage of FECA.7 On the other hand, the disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force or her frustration
from not being permitted to work in a particular environment or to hold a particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.9 However, the Board has
held that where the evidence establishes error or abuse on the part of the employing establishment
in what would otherwise be an administrative matter, coverage will be afforded.10 In determining
whether the employing establishment has erred or acted abusively, the Board will examine the
factual evidence of record to determine whether the employing establishment acted reasonably.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.12 A claimant must establish
a factual basis for her allegations with probative and reliable evidence. Grievances and Equal
Employment Opportunity complaints, by themselves, do not establish that workplace harassment
or unfair treatment occurred.13 The issue is whether the claimant has submitted sufficient evidence
under FECA to establish a factual basis for the claim by supporting his or her allegations with

6

Docket No. 04-0628 (issued September 2, 2004). In Groner, the Board found that a disciplinary action was based,
in part, on a false allegation and that the false allegation constituted a compensable work factor.
7

Supra note2; Trudy A. Scott, 52 ECAB 309 (2001); supra note 5.

8

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

9

See Matilda R. Wyatt, 52 ECAB 421 (2001); reaff’d on recon., 42 ECAB 556 (1991); Thomas D. McEuen,
41 ECAB 387 (1990).
10

See William H. Fortner, 49 ECAB 324 (1998).

11

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

12

See Michael Ewanichak, 48 ECAB 364 (1997).

13

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

7

probative and reliable evidence.14 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in fact
for the contentions made, as opposed to mere perceptions of the claimant, which in turn may be
fully examined and evaluated by OWCP and the Board.15
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or 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 and which working conditions are not deemed factors of employment and may
not be considered.16 If a claimant does implicate 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.17
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim as she had
not established any compensable employment factors. The Board must, therefore, initially review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of FECA.
Appellant primarily attributed her condition to prolonged exposure to patient abuse, both
physically and mentally. As part of her federal employment, she dealt with mentally ill, abusive,
suicidal, and drug-addicted patients. In 2014, a patient told appellant that he wanted to die and
subsequently committed suicide. Schizophrenic patients and patients with PTSD would arrive at
the ER screaming, spitting, and threatening bodily harm. On May 13, 2014 a patient who had
recently killed someone stood over appellant in the triage room. Usually, around five patients per
shift were suicidal and some patients came in kicking and biting. Many patients were addicted to
drugs and were upsetting, disrespectful, and sometimes violent. One patient pushed a coworker
onto appellant, injuring her ankle. Appellant maintained that she reacted adversely from
repeatedly witnessing violent and hostile behavior, and also experienced sadness dealing with
dying patients.
The Board has held that emotional reactions to situations in which an employee is trying
to meet his or her position requirements are compensable.18 Appellant’s job duties, as set forth in
the position description provided by the employing establishment, included caring for combative
14

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

15

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

16

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

17

Id.

18

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

8

patients who may be mentally ill, delirious, or demented. E.M., in a March 23, 2016 statement,
confirmed that many patients had suicidal or homicidal complaints and verbally or physically
abused the staff in the ER. Where a claimed disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to an imposed employment
requirement, the disability comes within the coverage of FECA.19 As appellant attributed her
emotional condition to exposure to mental and physical abuse by patients in the course of her
employment duties, she has identified a compensable employment factor under FECA.
Appellant also attributed her stress to receiving numerous RFIs, disciplinary action, and
losing her scholarship for a Master’s program. In Thomas D. McEuen,20 the Board held that an
employee’s emotional reaction to administrative actions or personnel matters taken by the
employing establishment is not covered under FECA as such matters pertain to procedures and
requirements of the employing establishment and do not bear a direct relation to the work required
of the employee. The Board noted, however, that coverage under FECA would attach if the facts
surrounding the administrative or personnel action established error or abuse by employing
establishment superiors in dealing with the claimant. Absent evidence of such error or abuse, the
resulting emotional condition must be considered self-generated and not employment generated.
In a statement dated November 3, 2016, L.D. provided a list of disciplinary actions issued
to appellant and noted that all staff received numerous RFIs to evaluate violations of procedure.
She indicated that appellant received verbal counseling for leave and performance issues and a
March 30, 2015 letter of admonishment for failing to perform a complete patient assessment.
Appellant has not submitted any evidence corroborating her allegation that she wrongfully
received disciplinary action, RFIs, or the loss of her scholarship and thus has not established error
or abuse by the employing establishment with respect to these matters.21
Appellant additionally contended that she experienced harassment and discrimination by
management and coworkers. Harassment and discrimination by supervisors and coworkers, if
established as occurring and arising from the performance of work duties, can constitute a
compensable work factor.22 A claimant, however, must substantiate allegations of harassment and
discrimination with probative and reliable evidence.23
Appellant maintained that she was bullied and discriminated against due to her race and
witnessed a racial incident where another nurse verbally abused an African American patient. She
alleged that coworkers asked if she was a “snitch” because a black manager hired her. Appellant
notified her supervisor on April 14, 2014 that she heard offensive racial comments while at work.
On March 11, 2016 A.H. indicated that other nurses did not assist her with nursing care. Another
coworker, K.N., indicated that appellant’s coworker did not like her, would not help her, made
19

Robert Bartlett, 51 ECAB 664 (2000); Ernest St. Pierre, 51 ECAB 623 (2000).

20

See Thomas D. McEuen, supra note 9.

21

See L.M., Docket No. 15-0854 (issued June 22, 2015).

22

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

23

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

9

disparaging comments, and stated that she was a snitch. In her November 3, 2016 statement, L.D.
related that management had responded to appellant’s April 14, 2014 e-mail, indicating that they
provided cultural sensitivity training to the staff at meetings. She also confirmed that progressive
discipline was taken regarding the contention that a nurse verbally abused an African American
veteran. The witness statements provide support for appellant’s contention that she was referred
to as a snitch and that a nurse abused an African American veteran. As appellant has established
her allegations of harassment and discrimination with reliable and probative evidence, she has a
compensable work factor.24
Appellant further alleged that she was falsely accused of sexual misconduct with L.S., a
police officer, in the parking lot of the employing establishment. She maintained that she was
sitting in a vehicle with her husband rather than L.S. On February 3, 2014 a supervisor requested
that appellant complete a RFI about an incident that occurred when she engaged in sexual acts
with a police officer in the parking lot during her work shift. L.S., on March 2, 2015, noted that
an investigation revealed that he was not in the car with her, but that rumors continued. He asserted
that the ER staff was deliberately spreading false statements. Other coworkers provided statements
confirming hearing that appellant and a police officer were in a vehicle together. R.K., in a
February 27, 2016 e-mail, indicated that he witnessed her in the car with her husband rather than
L.S., noting that management had not tried to stop the false allegation. L.D., in a November 3,
2016 statement, generally indicated that “unfounded allegations of unprofessional behavior” were
made against appellant on March 3, 2014. Appellant has factually established her assertion that
she was falsely accused of sexual misconduct with a coworker and that her coworkers spread false
statements about the alleged misconduct. Accordingly, the Board finds that appellant has
established harassment and discrimination in being falsely accused of sexual misconduct.25
Appellant has established as compensable work factors that she experienced stress due to
prolonged exposure to physical and mental abuse by patients during the performance of her regular
work duties under Cutler and that she experienced harassment and discrimination. As OWCP
found that there were no compensable employment factors, it did not analyze or develop the
medical evidence. The case will be remanded to OWCP for this purpose.26 Following this and
such further development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

24

See K.B., Docket No. 11-0384 (issued April 6, 2012).

25

See generally I.D., Docket No. 16-0581 (issued December 12, 2016) (where the Board found that a claimant
established sexual harassment when a coworker released a video of her of a sexual nature to coworkers).
26

See Robert Bartlett, 51 ECAB 664 (2000).

10

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 26, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Chantilly, VA, Employer
__________________________________________

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

Docket No. 19-1520
Issued: September 15, 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 July 9, 2019 appellant filed a timely appeal from February 12 and June 7, 2019 merit
decisions of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held at the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted to allow him an
opportunity to verbally present arguments in support of his claim. The Board, in exercising its discretion, denies his
request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a
review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve
a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as
submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On December 17, 2017 appellant, then a 47-year-old federal air marshal, filed an
occupational disease claim (Form CA-2) alleging that, on October 6, 2017, the employing
establishment involuntarily placed him on sick leave for 280 hours and directed him to seek a
psychiatric examination which revealed that he had an adjustment disorder caused by occupational
stressors. He noted that he first became aware of his condition and its relationship to his federal
employment on November 22, 2017. On the reverse side of the claim form, the employing
establishment noted that appellant was last exposed to the conditions alleged to have caused his
condition on October 7, 2017 and he returned to work on December 1, 2017.3
In a development letter dated December 27, 2017, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and attached a questionnaire for his completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide additional
information, including comments from a knowledgeable supervisor and an explanation of
appellant’s work activities. It afforded both parties 30 days to submit the necessary evidence.
The employing establishment did not respond to OWCP’s December 27, 2017 request for
information.
In a January 7, 2018 letter, appellant responded to OWCP’s development letter. He
contended that the employing establishment retaliated against him by failing to submit
documentation and medical evidence supporting his claim. On October 6, 2017 the employing
establishment ordered appellant not to enter its facilities and forced him to exhaust 280 hours of
his sick leave until he was able to seek and personally pay a nonagency psychiatrist to examine his
mental health. Appellant asserted that the employing establishment also revoked his agency-issued
firearm in public by sending two uniformed federal air marshals who wore body armor labeled
“POLICE” and exposed firearms in exterior holsters in black Suburban vehicles equipped with red
and blue emergency lights to a grocery store parking lot in his town. He contended that the
employing establishment immediately placed him back on full duties after it received a medical
report by Dr. Kiran Iqbal, a Board-certified psychiatrist, who concluded that its directive was
retaliatory. Appellant asserted that a current federal air marshal told him that years ago the
employing establishment had directed her onto paid leave and to undergo a paid psychiatric
examination as a result of “four-hand gossip.” She believed that the employing establishment was
retaliating against him. Appellant had a 15-year ongoing whistleblower retaliation case against
the employing establishment and he prevailed against its appeal to the U.S. Merit Systems
Protection Board (MSPB), U.S. Court of Appeals, and the U.S. Supreme Court. He noted that
numerous mainstream media outlets had reported the Supreme Court’s affirmation of his case and
3
On January 1, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) seeking compensation for
disability from work from October 7 to November 30, 2017.

2

his 2003 protected disclosures which had alarmed congressional leaders. Appellant contended that
since the employing establishment was forced to retroactively reinstate him in 2015, it used several
methods to gaslight him. He stated that the supervisor ﬁled a complaint accusing him of being a
homicidal “racist.” It was determined that the complaint was unfounded and the supervisor had
committed perjury in an affidavit. The employing establishment failed to give appellant
substantive duties for six months as he had no ﬁrearms, medical, or top secret clearance
restrictions. During four of those months, he sat in an empty and windowless room and behind a
printer table with no partition, telephone, or drawers. He noted that the employing establishment
criminal investigators were currently probing appellant for his 2010 disclosures regarding a federal
air marshal who was terminated, reinstated, and then again faced a second termination until she
began having sexual relations with the married deciding official who had removed him from
employment in 2006. Appellant asserted that he was currently in his third involuntary redirected
assignment after a supervisor complained that it was impossible to remain covert during ﬂight
missions. He recounted that on May 24, 2016 a supervisor filed a complaint with an Equal
Employment Opportunity investigator indicating that appellant’s lack of substantive
responsibilities was having a negative effect on him and other federal air marshals who observed
him sitting around all day with nothing signiﬁcant to do since he had been forced into an
involuntary redirected assignment. One of appellant’s rating supervisors who attempted to shield
him from retaliation was demoted to a ﬂying federal air marshal. Appellant noted that his lateral
and promotional applications had been rejected despite the testimony of his deciding official that
he had an unblemished record and was consistently an exemplary ofﬁcer, and his well-documented
performance record. He contended that his fellow officers avoided him for fear of association. A
previous rating supervisor warned appellant that the employing establishment had hoped that he
would explode. Appellant recently reported substantive dangers to Ronald Reagan National
Airport’s Terminal A and commercial passenger airline cockpits and their pilots during ﬂight,
which had been investigated by the U.S. Office of Special Counsel since 2016.
Appellant submitted a May 24, 2016 e-mail and a nondisciplinary letter of counseling that
was issued to a supervisory federal air marshal for failing to follow policy. The supervisor had
sent an inappropriate video to appellant who showed it to two employees.
Appellant also submitted medical evidence. In a November 28, 2017 report, Dr. Iqbal
diagnosed adjustment disorder with anxiety on Axis I, history of supraventricular tachycardia on
Axis III, occupational stressors on Axis IV, and a global assessment functioning score of 80 on
Axis V. She reported no diagnosis on Axis II. Dr. Iqbal opined that appellant was psychologically
suitable to perform the duties and responsibilities of a federal air marshal, which included to be
entrusted with national security information and carrying a firearm.
OWCP received an August 12, 2016 letter in which appellant’s U.S. congressional
representative requested that the administrator of the employing establishment provide documents
and communications related to its retaliation against appellant for being a whistleblower and denial
of his promotion. It was noted that the MSPB found that the employing establishment had
retaliated against appellant when he was removed from employment in 2006 and required him to
be retroactively restored, effective April 11, 2006. In June 2015, appellant was reinstated in his
former position. He had not received an annual in-position-increase since 2002 despite his
supervisor’s testimony that his performance was exemplary. Since February 26, 2016 appellant

3

had been assigned to an empty room with no work duties while he was previously assigned to
covert flying missions in the Middle East.
E-mails dated April 21, and June 14 and 24, 2016, concerned appellant’s reassignment on
April 26, 2016, his lack of work duties, and the scheduling of training, and the denial of his
April 13, 2016 request for reassignment following his completion of a detail assignment from
February 26 to April 13, 2016. He submitted additional e-mails that either had illegible dates or
were dated October 6 through December 7, 2017 addressing appellant’s surrender of his firearm
and other equipment on October 6, 2017, medical treatment and pay status, restoration of his sick
leave, and request to be placed on administrative leave.
By letter dated March 19, 2018, appellant submitted a November 22, 2017 e-mail from
Dr. Kathleen Christian, an employing establishment clinical psychologist, with whom he had
treated a few days prior. Dr. Christian announced her retirement, noting that she was denied the
ability to leverage her experience for the good of federal air marshals and she had realized that she
was part of a system that put the emotional well-being of them at risk.
OWCP received additional medical evidence.
By decision dated June 13, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish an emotional condition in the performance of duty,
as alleged. It found that he had not established a compensable employment factor. OWCP
concluded that the requirements had not been met for establishing an injury as defined by FECA.
On July 12, 2018 appellant requested an oral hearing before a representative of OWCP ’s
Branch of Hearings and Review, which was held on November 28, 2018. He testified that the
employing establishment retaliated against him, and in June 2018 it had issued a second proposed
notice of termination. Appellant further testified that an investigation of his retaliation complaint
had been launched, as well, as his disclosure that he initially filed in 2003 concerning problematic
cockpit security issues. He noted that this investigation resulted in his July 2003 termination.
Appellant also testified that he was retaliated against for making protected disclosures as a
whistleblower against a special counsel who was arrested in 2006 by the Federal Bureau of
Investigations for transferring his lesbian, gay, bisexual, and transgender employees.
By decision dated February 12, 2019, the hearing representative affirmed the June 13, 2018
decision, finding that appellant had not established a compensable employment factor for his
emotional condition claim.
On March 13, 2019 appellant requested reconsideration and submitted additional evidence.
A December 18, 2018 letter by the U.S. Office of Special Counsel advised appellant that it had
transmitted his allegations of gross mismanagement and a substantial and specific danger to public
health and safety by employees at the employing establishment to the Secretary of the employing
establishment for a report pursuant to 5 U.S.C. § 1213(c).
OWCP, by decision dated June 7, 2019, denied modification of the February 12, 2019
decision.

4

LEGAL PRECEDENT
To establish an emotional condition causally related to factors of a claimant’s federal
employment, he or she must submit: (1) factual evidence identifying and supporting employment
factors or incidents alleged to have caused or contributed to the condition; (2) rationalized medical
evidence establishing an emotional condition or psychiatric disorder; and (3) rationalized medical
opinion evidence establishing that the emotional condition is causally related to the identified
compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.5 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction in force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.6
An employee’s emotional reaction to administrative or personnel matters generally falls
outside of FECA’s scope.7 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.8 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor.9 In determining whether the
employing establishment has erred or acted abusively, the Board will examine the factual evidence
of record to determine whether the employing establishment acted reasonably. 10

4

See S.K., Docket No. 18-1648 (issued March 14, 2019); C.M., Docket No. 17-1076 (issued November 14, 2018);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
5

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
6

Cutler, id.

7

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB
566 (1991).
8

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005); McEuen, id.

9

Id.

10
A.O., Docket No. 19-1612 (issued April 8, 2021); D.I., Docket No. 19-0534 (issued November 7, 2019); T.G.,
Docket No. 19-0071 (issued May 28, 2019).

5

OWCP’s procedures provide:
“An employee who claims to have had an emotional reaction to conditions of employment
must identify those conditions. The [claims examiner] must carefully develop and analyze
the identified employment incidents to determine whether or not they in fact occurred and
if they occurred whether they constitute factors of the employment. When an incident or
incidents are the alleged cause of disability, the [claims examiner] must obtain from the
claimant, agency personnel and others, such as witnesses to the incident, a statement
relating in detail exactly what was [stated] and done. If any of the statements are vague or
lacking detail, the responsible person should be requested to submit a supplemental
statement clarifying the meaning or correcting the omission.”11
OWCP’s regulations provide that an employer who has reason to disagree with an aspect
of the claimant’s allegation should submit a statement that specifically describes the factual
argument with which it disagrees and provide evidence or argument to support that position. 12 Its
procedures further provide in certain types of claims, such as a stress claim, a statement from the
employer is imperative to properly develop and adjudicate the claim. 13
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has attributed his emotional condition to error or abuse in administrative and
personnel matters by the employing establishment. He alleged that the employing establishment
retaliated against him for making protected disclosures as a whistleblower and prevailing against
its appeal of his retaliation case and then being required to reinstate him in his former position at
the direction of the MSPB, a federal appeals court, and the U.S. Supreme Court. Appellant
contended that the employing establishment failed to provide assistance in processing his claim as
it did not submit his paperwork and medical evidence. He also contended that it ordered him to
not enter its facilities, placed him on sick leave from October 7 through November 30, 2017 and
revoked his agency-issued firearm until he was cleared to return to work after undergoing a
directed psychiatric examination. Appellant further contended that a supervisor called him a
homicidal racist. Additionally, he asserted that he was not assigned any substantive work duties
for six months. Appellant further asserted that he was being investigated by employing
establishment criminal investigators for his 2010 protected disclosures concerning a federal air
marshal who had a sexual relationship with a deciding official who once terminated him. He also
asserted that he was currently in his third involuntary redirected assignment. Appellant claimed
that his prior supportive supervisor was demoted. He further claimed that his applications for
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997). See
G.K., Docket No. 20-0508 (issued December 11, 2020); S.L., Docket No. 17-1780 (issued March 14, 2018).
12

20 C.F.R. § 10.117(a). See R.S., Docket No. 20-1307 (issued June 29, 2021); G.K., id.; M.T., Docket No. 18-1104
(issued October 9, 2019).
13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2)
(June 2011); R.S., id.; G.K., supra note 11; M.T., id.

6

promotions were denied despite being an exemplary officer with an unblemished performance
record. Appellant also claimed that his requests for reassignment and to be placed on
administrative leave were also denied.
OWCP, in a development letter on December 27, 2017, requested that the employing
establishment review appellant’s allegations and provide, among other things, comments from a
knowledgeable supervisor regarding the accuracy of his allegations. No response was received.
The Board finds that it is unable to make an informed decision in this case as the employing
establishment did not respond to OWCP’s request for information. 14 As noted, OWCP’s
regulations provide that an employer with reason to disagree with any aspect of appellant’s claim
shall submit a statement describing its disagreement with a specific allegation or argument and
submit evidence such as witness statements supporting its position. 15 Moreover, its procedures
provide that, in emotional condition cases, a statement from the employing establishment is
necessary to adequately adjudicate the claim. 16
Although it is a claimant’s
disinterested arbiter but, rather,
particularly when such evidence
establishment or other government

burden of proof to establish his or her claim, OWCP is not a
shares responsibility in the development of the evidence,
is of the character normally obtained from the employing
source. 17

The case will, accordingly, be remanded to OWCP for further development of the evidence
regarding appellant’s allegations of error or abuse in the employing establishment’s handling of
administrative and personnel matters. It shall again request that the employing establishment
provide a detailed statement and relevant evidence and/or argument regarding his allegations. The
employing establishment shall include any reports resulting from investigations, and/or final
agency decisions. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision regarding whether appellant has established an emotional condition
in the performance of duty.
CONCLUSION
The Board finds that this case is not in posture for decision.

14
S.S., Docket No. 19-1021 (issued April 21, 2021); G.K., supra note 11; G.I., Docket No. 19-0942 (issued
February 4, 2020); V.H., Docket No. 18-0273 (issued July 27, 2018).
15

Supra note 12.

16

Supra note 11.

17
See C.K., Docket No. 20-1493 (issued March 29, 2021); G.K., supra note 11; R.A., Docket No. 17-1030 (issued
April 16, 2018); K.W., Docket No. 15-1535 (issued September 23, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the June 7 and February 12, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: September 15, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
L.G., Appellant
and
DEPARTMENT OF THE ARMY, DENTAL
CLINIC, Fort Drum, NY, Employer
__________________________________________

)
)
)
)
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)
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)

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

Docket No. 16-1074
Issued: March 8, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 25, 2016 appellant filed a timely appeal from the April 4, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish causal relationship
between her diagnosed carpal tunnel syndrome and factors of her federal employment.
FACTUAL HISTORY
On August 31, 2015 appellant, then a 58-year-old dental assistant filed an occupational
disease claim (Form CA-2) for right wrist carpal tunnel syndrome that allegedly arose in the
performance of duty on or about November 23, 2005. She attributed her right wrist condition to
1

5 U.S.C. § 8101 et seq.

repetitive motion of hands, wrists, and forearms while providing patient care to an average of six
to eight patients daily for 17 years. Appellant did not stop work. No additional information
accompanied the Form CA-2.
By letter dated October 16, 2015, OWCP informed appellant of the type of factual and
medical evidence needed to support her claim, and requested that she submit such evidence
within 30 days. It particularly requested that appellant have her physician provide an opinion,
supported by a medical explanation, as to how work activities caused or aggravated her claimed
condition.
OWCP received October 22, 2015 treatment notes from Dr. D. Peter VanEenenaam, a
Board-certified orthopedic surgeon, who diagnosed right carpal tunnel syndrome and
recommended a right carpal tunnel release.
In an October 29, 2015 statement, appellant described her duties, which included
cleaning, scaling, and polishing teeth, condensing and carving amalgams, and suctioning. She
noted that she saw seven to eight patients a day, “with operative double booked on some dates.”
Appellant explained that it was approximately 30 minutes on average chair time. She noted that
her outside activities included spending time with her family, friends, and cats, watching
television, surfing on her iPad, enjoying time at her summer cottage, and taking care of her
elderly parents. Appellant also indicated that on November 23, 2005 she experienced right hand
numbness and tingling, decreased grip strength, and increased numbness. She also noted that she
was diagnosed with diabetes in 2009, and noticed the numbness and tingling on
November 23, 2005. Appellant indicated that the grip of instruments due to numbness was
starting to be a concern regarding her daily job performance.
By decision dated November 30, 2015, OWCP denied appellant’s claim. It found that
she had not submitted medical evidence containing a firm diagnosis in connection with the
claimed work factors/events.
Appellant timely requested a review of the written record by an OWCP hearing
representative.
An April 10, 2015 bilateral upper extremity electromyography and nerve conduction
velocity (EMG/NCV) study revealed moderate compression of the right median sensory nerve
across the wrist.
Appellant submitted an unsigned and undated authorization for examination and/or
treatment (Form CA-16). On the attending physician’s report side of the form, on August 25,
2015 Dr. Bryan Petti, an osteopath and Board-certified family practitioner, noted a history of
gradual onset and gradual increase in right hand pain, numbness and tingling. He diagnosed
right carpal tunnel syndrome and checked the box marked “yes” in response to whether he
believed the condition was caused or aggravated by the employment activity.
In an October 5, 2015 narrative report, Dr. VanEenenaam, explained that appellant had a
long history of progressively worsening tingling and numbness of the right thumb, index, and
long fingers dating back to 2005. He related that appellant worked as a dental hygienist and
“that is when it started.” Dr. VanEenenaam further noted that she had progressively worsening
2

nocturnal paresthesias in the right upper extremity and it was difficult to perform motor
activities, even in her job. He explained that to hold the metal instruments in her right hand,
appellant found it difficult to feel it properly. Dr. VanEenenaam diagnosed right carpal tunnel
syndrome. He advised that it interfered with appellant’s work, as her job was basically repetitive
with the use of the right hand doing fine motor activities, which was often consistent with the
development of carpal tunnel syndrome. Dr. VanEenenaam recommended a right carpal tunnel
release.
By decision dated April 4, 2016, an OWCP hearing representative affirmed as modified
the November 30, 2015 decision. She found that appellant established a medical diagnosis, but
found that the claim remained denied as the medical evidence of record failed to provide a
rationalized opinion supporting causal relationship.
LEGAL PRECEDENT
A claimant seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 diagnosed
condition is causally related to the identified employment factors.4
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.5 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.6 Additionally, the physician’s opinion
must be expressed in terms of a reasonable degree of medical certainty, and must be supported
by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factor(s).7

2

Id..

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

Robert G. Morris, 48 ECAB 238 (1996).

6

Supra note 4.

7

Id.

3

ANALYSIS
Appellant alleged that she developed right carpal tunnel syndrome due to the daily
activities of her work as a dental assistant. OWCP denied her claim, finding there was
insufficient medical evidence to establish that her diagnosed right carpal tunnel syndrome had
been caused or aggravated by her federal employment. The Board finds that appellant failed to
meet her burden of proof to establish causal relationship.
In his August 25, 2015 report, Dr. Petti diagnosed right carpal tunnel syndrome and
indicated his belief that the condition was employment related. However, he did not offer an
explanation regarding causal relationship. Merely checking a box marked “yes” on an attending
physician’s report (Form CA-16), without more by way of medical rationale, will not suffice for
purposes of establishing causal relationship.8
In the October 5, 2015 report, Dr. VanEenenaam noted that appellant had a long history
of progressively worsening and tingling and numbness of the thumb and index and long finger of
the right hand dating back to 2005. He explained that appellant worked as a dental hygienist and
“that is when it started.” Dr. VanEenenaam revealed that appellant had progressively worsening
nocturnal paresthesias in the right upper extremity and found it difficult to perform motor
activities, even in her job. For example, he explained that in order to hold the metal instruments
in her right hand, appellant found it difficult to feel it properly. Dr. VanEenenaam diagnosed
carpal tunnel syndrome on the right upper limb and opined that it interfered with appellant’s
work. He explained that appellant’s job was basically comprised of repetitive use of the right
hand doing fine motor activities. Dr. VanEenenaam opined that this was often consistent with
the development of carpal tunnel syndrome. The Board notes that his opinion is equivocal as he
did not specifically explain how appellant’s duties as a dental hygienist caused the diagnosed
condition. The Board has held that medical opinions which are equivocal are of diminished
probative value.9
Dr. VanEenenaam’s October 22, 2015 treatment notes are similarly insufficient to satisfy
appellant’s burden of proof as he did not offer an opinion on causal relationship.
On appeal appellant argued that her condition was caused by her duties at work.
However, as found above, the medical evidence is insufficiently rationalized to establish her
claim.
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.

8

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

9

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related, or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).

4

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish causal
relationship between her diagnosed right carpal tunnel syndrome and her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Huron, MI, Employer
__________________________________________

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)
)

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

Docket No. 11-6
Issued: August 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 29, 2010 appellant filed a timely appeal of the July 2, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for avascular
necrosis. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his avascular
necrosis of both hips is causally related to his September 27, 2004 employment injuries.
On appeal, appellant contends that the medical evidence established that his avascular
necrosis was causally related to his September 27, 2004 employment injuries. He argues that
OWCP erroneously gave weight to the impartial medical examiner over the opinions of other
physicians. Appellant also submitted articles that he contends support his case.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 16, 2009, this
Board affirmed OWCP’s October 31, 2007 and July 18, 2008 finding that appellant did not
establish that his bilateral hip avascular necrosis was causally related to his September 27, 2004
employment injury.2 The facts of the case as set forth in the prior decision and order are
incorporated herein by reference.
On September 27, 2004 appellant, then a 56-year-old letter carrier, sustained injury to his
left knee when a moving flats tray caught his leg, causing him to lose his balance and fall to the
floor. OWCP accepted his claim for left knee strain, left knee contusion and torn cartilage of the
left knee. Dr Gerald J. Jerry, a treating Board-certified orthopedic surgeon, opined that, although
appellant’s avascular necrosis preexisted his injury, the work-related fall on September 27, 2004
aggravated his condition to the point of needing surgical correction. On July 22, 2005
Dr. Bruce D. Abrams, a Board-certified orthopedic surgeon to whom OWCP referred appellant
for a second opinion, advised that his work-related condition was a contusion to the left knee.
He opined that appellant’s knee contusion did not aggravate or precipitate the secondary
diagnosis of hip disease. In order to resolve the conflict in medical opinion between Dr. Jerry
and Dr. Abrams, OWCP referred appellant to Dr. Joseph Salama, a Board-certified orthopedic
surgeon, for an impartial medical examination. In an opinion dated September 29, 2005,
Dr. Salama concluded that appellant’s right hip condition was preexisting and neither was caused
nor aggravated by the September 27, 2004 employment injury. In an addendum dated June 7,
2007, he clarified that appellant had previous avascular necrosis and that the natural progression
of the disease was not related to his September 27, 2004 work injury. Appellant submitted
further reports, including an August 20, 2007 report by Dr. Rafia Khalil, a Board-certified
internist with a subspeciality in rheumatology and a colleague of Dr. Jerry. Dr. Khalil did not
believe that the diagnosis of preexisting avascular necrosis could be entertained and opined that
the right hip did show mild avascular necrosis without collapse and that this was probably related
to appellant’s injury. Appellant also submitted further reports by Dr. Jerry wherein he opined
that appellant’s fall caused a traumatic injury to the area of his left hip, which caused his
avascular neurosis.
By decision dated July16, 2009, the Board found that the weight of the medical opinion
rested with the well-rationalized opinion of Dr. Salama, the impartial medical examiner.
On March 26, 2010 appellant requested reconsideration.
In a February 2, 2010 report, Dr. William N. Grant, a Board-certified internist, obtained a
history that on September 27, 2004 appellant tripped over a tray of mail and fell on his left knee.
He noted that appellant had severe bilateral hip and left knee pain and, prior to the accident,
never had left knee or hip discomfort. Dr. Grant concluded that “it is more likely than not that
the avascular necrosis of the left hip and degenerative disease in his right hip were secondary to
the accident that occurred on [September 27, 2004].” He stated that it was well documented in
the literature that avascular necrosis can be secondary to trauma event. In a second report of the
2

J.G., Docket No. 09-112 (issued July 16, 2009).

2

same date, Dr. Grant opined that appellant had a 28 percent impairment of his left lower
extremity pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009).
In a May 6, 2010 opinion, Dr. Nabil F. Angley, a Board-certified orthopedic surgeon,
advised that he could not provide an impairment rating.
By decision dated July 2, 2010, OWCP reviewed appellant’s claim on the merits but
denied modification of its prior decisions finding that he had not established that the avascular
necrosis of both hips was causally related to the September 27, 2004 employment injury.
LEGAL PRECEDENT
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.3 An award of
compensation may not be based on appellant’s belief of causal relationship.4 Causal relationship
is a medical issue, and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence that includes a physician’s rationalized opinion on
whether there is a causal relation is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized medical opinion in
whether there is a causal relationship between the claimant’s diagnosed condition and the
established incident or factor of employment. The opinion must be based on a complete factual
and medical background of appellant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established incident or factor of employment.5
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.6 When the case is referred to an
impartial medical specialist for the purpose of resolving a conflict in medical evidence, the
opinion of such specialist will be given special weight when based on a proper factual and
medical background and sufficiently well rationalized on the issue presented.7
ANALYSIS
The Board had previously reviewed this case and affirmed OWCP’s determination that
appellant had not established that his avascular necrosis to both hips was causally related to his
3

T.W., Docket No. 10-1799 (issued March 21, 2011).

4

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

5

John W. Montoya, 54 ECAB 306 (2003).

6

5 U.S.C. § 8123(a). See Elsie L. Price, 54 ECAB 734 (2003); Raymond J. Brown, 52 ECAB 192 (2001).

7

See Bernadine P. Taylor, 54 ECAB 342 (2003); Anna M. Delaney, 53 ECAB 384 (2002).

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September 27, 2004 employment injuries. The Board found that the special weight of the
medical evidence rested with the opinion of Dr. Salama, the impartial medical examiner, who
opined that appellant’s hip condition was preexisting and not caused or aggravated by accepted
employment incident. The Board finds that the additional evidence submitted does not change
its conclusion. As stated in our prior decision, the well-rationalized opinion of Dr. Salama is
entitled to special weight.
In assessing the medical evidence, the number of physicians supporting one position or
another is not controlling. The weight of such evidence is determined by its reliability, its
probative value and its convincing quality.8 The February 2, 2010 opinion by Dr. Grant, wherein
he concluded that it was “more likely than not” that appellant’s avascular necrosis of the left hip
and degenerative disease in his right hip were secondary to the accident that occurred on
September 27, 2004, is not sufficient to establish a causal relationship. Initially, the Board notes
that his opinion is not well rationalized. Dr. Grant does not provide any medical explanation in
support of his conclusion. Furthermore, his notation that “it is more likely than not that the
avascular necrosis of the left hip and degenerative disease” were related to appellant’s injury and
his statement that medical literature indicates that avascular necrosis “can be secondary to a
trauma event” was couched in speculative terms and therefore lacked the necessary reasonable
medical certainty.9 Accordingly, Dr. Grant’s opinion is not sufficient to overcome the weight
given to the well-rationalized opinion of the impartial medical specialist, Dr. Salma.
The Board finds that the remaining evidence is also insufficient to establish causal
relationship. The opinions of Dr. Angley and Dr. Grant with regards to appellant’s impairment
are not relevant to the issue of whether he suffered from avascular necrosis of both hips causally
related to his September 27, 2004 employment injuries.10 Finally, the Board notes that excerpts
from medical journals and other publications are of no evidentiary value in establishing the
necessary causal relationship between a claimed condition and employment factors because such
materials are of general application and are not determinative of whether the specifically claimed
condition is related to the particular employment factors alleged by the employee.11
Accordingly, appellant has failed to establish that he sustained a work-related aggravation of his
avascular necrosis.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
avascular necrosis of both hips is causally related to his September 27, 2004 employment injury.

8

T.S., Docket No 09-1245 (issued May 24, 2010).

9

Kathy A. Kelley, 55 ECAB 205 (2004).

10

The Board also notes that appellant submitted additional evidence on appeal. However, the Board cannot
consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
11

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

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 2, 2010 is affirmed.
Issued: August 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Bushkill, PA,
Employer
__________________________________________

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

Docket No. 11-50
Issued: October 26, 2011

Case Submitted on the Record

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

JURISDICTION
On October 7, 2010 appellant filed a timely appeal of the July 28, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a back injury in the
performance of duty on January 17, 2010, as alleged.
On appeal, appellant contends that the medical evidence is sufficient to establish that he
sustained a back injury on January 17, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 18, 2010 appellant, then a 42-year-old park ranger, filed a traumatic injury
claim alleging that on January 17, 2010 he hurt the left side of his back when he was struck by a
car while conducting a traffic stop. He was struck by a rearview mirror in the low back.
By letter dated January 27, 2010, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit medical evidence, including a
rationalized medical opinion from an attending physician which described a history of injury and
provided dates of examination and treatment, findings, test results, a diagnosis together with
medical reasons on why the diagnosed condition was caused or aggravated by the January 17,
2010 incident. Appellant was allotted 30 days to submit additional evidence. He did not
respond.
In a March 5, 2010 decision, OWCP denied appellant’s claim. It found that he did not
submit any medical evidence to establish that he sustained an injury causally related to the
accepted January 17, 2010 employment incident.
On March 17, 2010 appellant requested a review of the written record.
Appellant submitted medical records from Pocono Medical Center. A January 17, 2010
laboratory report stated that appellant’s urinalysis test results were negative. In a January 17,
2010 emergency room report, Dr. Nancy L. Gabana, Board-certified in emergency medicine,
obtained a history of the accepted employment incident and appellant’s medical, social and
family background. She listed findings on physical, psychiatric and neurological examination.
Dr. Gabana advised that appellant had left lower back/flank pain secondary to the January 17,
2010 employment incident. In a January 17, 2010 emergency room discharge report, Dr. Gabana
noted that appellant was given Motrin to treat the diagnosed back condition.
In an undated narrative statement, appellant related that after Michael Klubek, a park
ranger and reporting officer, conducted a criminal investigation of the accepted employment
incident, he took him to Pocono Medical Center for medical treatment.
In an unsigned accident form report, Park Ranger Klubek provided findings of his on-thescene investigation of the January 17, 2010 employment incident. After he cleared the scene, he
took appellant to Pocono Medical Center for treatment of his low back pain. Park Ranger
Klubek submitted witness statements and photographs of the damaged vehicles involved in the
accepted incident.

2

In a July 28, 2010 decision, OWCP’s hearing representative affirmed the March 5, 2010
decision. He found that the medical evidence was insufficient to establish that appellant
sustained an injury causally related to the accepted January 17, 2010 employment incident.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 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.4 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.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.6
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the

2

On appeal, appellant has submitted new evidence. However, the Board cannot consider evidence that was not
before OWCP at the time of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). Appellant
may resubmit this evidence and legal contentions to OWCP accompanied by a request for reconsideration. 5 U.S.C.
§ 8128; 20 C.F.R. § 10.606.
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 4.
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

7

Linda S. Jackson, 49 ECAB 486 (1998).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).

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identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
OWCP accepted that appellant was struck by a car on January 17, 2010 while working as
a park ranger. The Board finds that the medical evidence of record is insufficient to establish
that his back condition was caused or aggravated by the January 17, 2010 employment incident.
Dr. Gabana’s reports found that appellant had left lower back/flank pain secondary to the
January 17, 2010 employment incident. The Board has held that pain is generally a symptom,
not a firm medical diagnosis.11 A medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion regarding causal relationship which is unsupported
by medical rationale.12 Dr. Gabana did not provide a firm medical diagnosis of a back condition
resulting from the January 17, 2010 employment incident. Moreover, he did not explain how an
accepted incident caused or contributed to appellant’s low back condition. Lacking this medical
explanation, the Board finds that Dr. Gabana’s reports are insufficient to establish appellant’s
claim.13
The laboratory test results did not provide any medical opinion addressing whether
appellant sustained an injury causally related to the January 17, 2010 employment incident.14
The Board finds, therefore, that this evidence is insufficient to establish his claim.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back injury causally related to the accepted January 17, 2010
employment incident. While appellant contended that the medical evidence of record established
that he sustained an employment-related back injury on January 17, 2010; for the reasons stated,
the Board finds that he did not submit sufficiently rationalized medical evidence to establish his
claim.
Although OWCP denied appellant’s claim of injury, it did not adjudicate the issue of
whether he should be reimbursed for incurred medical expenses. Ordinarily, the employing
establishment will authorize treatment of a job-related injury by providing the employee with a
properly executed CA-16 within four hours.15 Pursuant to section 8103 of FECA,16 however,
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Charles E. Evans, 48 ECAB 692 (1997).

11

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

12

T.M., Docket No. 08-0975 (issued February 6, 2009).

13

S.S., 59 ECAB 315, 322 (2008); George Randolph Taylor, 6 ECAB 986, 988 (1954).

14

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

15

Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (September 1995).
16

5 U.S.C. § 8103.

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OWCP has broad discretionary authority to approve unauthorized medical care which it finds
necessary and reasonable in cases of emergency or other unusual circumstances.17 It may
exercise its discretion to authorize medical care even if a Form CA-16 has not been issued and
the claim is subsequently denied. Payment in such situations is determined on a case-by-case
basis.18
Park Ranger Klubek verified that appellant was struck by a car while conducting a traffic
stop. He was transported to Pocono Medical Center by Park Ranger Klubek where he received
treatment that day. In denying appellant’s claim, OWCP failed to consider whether emergency
or otherwise unusual circumstances were present such that reimbursement of medical expenses
would be appropriate in this case. The Board finds that the circumstances of the case warrant
additional development of this issue. The case will be remanded to OWCP for further
development, to be followed by the issuance of a de novo decision on this aspect of appellant’s
claim.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a back injury in the
performance of duty on January 17, 2010, as alleged. The case is remanded to OWCP for
adjudication of the issue of reimbursement of medical expenses related to his treatment on
January 17, 2010.

17

Val D. Wynn, supra note 15; 20 C.F.R. § 10.304.

18

See Thomas W. Keene, 42 ECAB 623 (1991); see also Federal (FECA) Procedure Manual, supra note 15.

5

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed in finding that appellant did not meet his burden
of proof. The decision is set aside as to the issue of reimbursement of medical expenses. The
case is remanded for further action consistent with this decision.
Issued: October 26, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Gaithersburg, MD, Employer
__________________________________________

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

Docket No. 19-1345
Issued: January 28, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 5, 2019 appellant filed a timely appeal from a February 27, 2019 merit decision
and a May 28, 2019 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.
ISSUES
The issues are: (1) whether appellant filed a timely claim for compensation pursuant to
5 U.S.C. § 8122(a); and (2) whether OWCP properly denied his request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 19, 2018 appellant, then a 51-year-old contract specialist, filed an
occupational disease claim (Form CA-2) alleging that he sustained a stress-related condition due
1

5 U.S.C. § 8101 et seq.

to learning on or about July 15, 2013 that he had been reassigned to another position. He indicated
that he both became aware of his condition and realized that it was caused or aggravated by factors
of his federal employment on July 15, 2013. Appellant indicated that his issues were “continuous.”
In a statement dated November 11, 2018, appellant indicated that on approximately
July 15, 2013 he learned that management had reassigned him from a position as a management
analyst to a position as a contract specialist at a different work location.2 He maintained that he
had immediately experienced extreme stress and that “such issues continue to this very day.”
Appellant advised that he had missed work intermittently from July 18, 2013 through
November 15, 2015 due to stress.
In a development letter dated January 2, 2019, OWCP informed appellant that the evidence
submitted was currently insufficient to establish his claim, noting that it did not appear that his
claim was timely filed. It advised him of the type of medical and factual evidence needed,
including the date that he had become aware of his condition, the date of last exposure to the
identified workplace stressors, and a detailed description of the employment factors to which he
attributed his condition. In a separate development letter of even date, OWCP requested that the
employing establishment provide comments from a knowledgeable supervisor regarding the
accuracy of appellant’s allegations.
In a January 24, 2019 response, appellant again alleged that he had experienced stress after
learning about his involuntary reassignment on July 15, 2013. He related, “I was written out of
work by a medical doctor from July 18 through August 31, 2013 due to the aforementioned issues
surrounding my forcible reassignment and the stress[-]related issues I was and [am] currently
experiencing.” Further appellant alleged that he was “written out of work” by the same medical
provider from November 13 to 15, 2013, January 7 to 9, 2014 and indicated since these specific
times that he has been “written out of work” due to his work-related stress. He advised that the
issues from his stress-related condition continued to the present.
By decision dated February 27, 2019, OWCP denied appellant’s occupational disease claim
as it was untimely filed. It found that he had become aware of the relationship between his
condition and his federal employment on July 15, 2013, but had not filed a claim until
November 19, 2018.
On March 11, 2019 appellant requested reconsideration. He asserted that the issue to which
he attributed his condition were continuous, and thus maintained that it was “unfair to assign a
fixed beginning date.”
By decision dated May 28, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).

2
Appellant additionally contended that he had sustained physical injuries on various dates. OWCP developed the
issue of whether he had sustained an orthopedic condition under OWCP File No. xxxxxx307.

2

LEGAL PRECEDENT -- ISSUE 1
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.3 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation, for disability or
death must be filed within three years after the injury or death.4
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his or her condition and his or her employment. Such awareness is competent to start the
limitation period even though the employee does not know the precise nature of the impairment or
whether the ultimate result of such affect would be temporary or permanent.5 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.6 Section 8122(b)
of FECA provides that the time for filing in latent disability cases does not begin to run until the
claimant is aware or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.7 It is the employee’s burden
to establish that a claim is timely filed.8
ANALYSIS -- ISSUE 1
The Board finds that appellant filed a timely claim for compensation pursuant to 5 U.S.C.
§ 8122(a).
In his November 19, 2018 occupational disease claim, appellant advised that he had
become aware of his condition and its relationship to his federal employment on or around
July 15, 2013. In statements dated November 11, 2018 and January 24, 2019, he related that he
continued to experience stress-related issues due to his reassignment.
OWCP found appellant’s claim untimely under 5 U.S.C. § 8122(a). It determined that he
had become aware of his condition and its relationship to his employment on July 15, 2013, but
had not filed the claim until November 29, 2018, more than three years later. However, appellant
filed an occupational disease claim and noted that he had continuing stress due to a series incidents
to the present time caused by exposure to the identified employment factors. The time limitations
does not begin to run until appellant is no longer exposed to the identified factors alleged to have

3

A.S., Docket No. 18-1094 (issued February 7, 2019); C.D., 58 ECAB 146 (2006).

4

5 U.S.C. § 8122(a).

5

See G.M., Docket No. 18-0768 (issued October 4, 2018).

6

L.H., Docket No. 19-0818 (issued December 9, 2019).

7

5 U.S.C. § 8122(b); see also J.E., Docket No. 16-1493 (issued May 7, 2018).

8

See A.S., supra note 3.

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contributed to an employment injury.9 The Board has held that, if an employee continues to be
exposed to injurious working conditions, the time limitation begins to run on the last date of this
exposure.10 Appellant specified that the employment factors causing his stress-related condition
continued to the present day. Therefore, his claim was timely filed under 5 U.S.C. § 8122(a).
As appellant has filed a timely claim for compensation, the case is remanded to OWCP to
further develop and adjudicate the merits of the claim. Following any further development that it
deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that appellant filed a timely claim for compensation pursuant to 5 U.S.C.
§ 8122(a).11
ORDER
IT IS HEREBY ORDERED THAT the May 28 and February 27, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside, and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: January 28, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9

C.L., Docket No. 16-0854 (issued August 24, 2016).

10

R.A., Docket No. 16-0090 (issued March 21, 2016).

11
In view of the Board’s disposition of issue one regarding the merit issue of timeliness, the issue of whether OWCP
properly denied appellant’s request for reconsideration of the merits of the claim under section 8128(a) is moot.

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