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

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

Docket No. 13-856
Issued: September 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 26, 2013 appellant,through her attorney, fileda timely appeal from a merit
decision of the Office of Workers’ Compensation Programs (OWCP) datedJanuary 29, 2013.
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 developed a consequentialleft shoulder condition in the
performance of duty due to factors of her federal employment.
FACTUAL HISTORY
Appellant, a 52-year-old mail processor, filed a Form CA-2 claim for benefits on May 22,
2012, alleging that she developed a left shoulder sprain causally related to factors of her

1

5 U.S.C. § 8101 et seq.

employment. She indicated on the form that she sustained a left shoulder condition because a
prior injury to her right shoulder caused increased use of her left arm and left shoulder.
On May 30, 2012 OWCP advised appellant that it required additional factual and medical
evidence to determine whether she was eligible for compensation benefits. It asked that she
submit a comprehensive medical report from her treating physician describing her symptoms and
the medical reasons for her condition and an opinion as to whether her claimed condition was
causally related to her federal employment and a diagnosis of her claimed condition. OWCP
requested that appellant submit the additional evidence within 30 days.
In a report dated March 29, 2012, received by OWCP on June 5, 2012, Dr. Thomas
Rench, Board-certified in emergency medicine, stated that appellant had sustained a left shoulder
injury on that date, caused by closing a cardoor; she related that she was experiencing sharp,
severe pain in her left shoulder and that she was unable to use her arm after being injured.
Dr. Rench noted a history of shoulder strains. On examination he stated that appellant had
effusion in her left shoulder in the acromion area and was unable to elevate her arm. Dr. Rench
indicated that she otherwise had a normal shoulder examination except for soft tissue tenderness
at the supraspinatus of the left shoulder. He stated that x-rays were not warranted and diagnosed
a sprained left shoulder and left upper arm sprain.
In a July 2, 2012 report, Dr. Joaquin Tinio, Board-certified in internal medicine, stated that
he had treated appellant for left shoulder pain on April 27, May 15 and June 30, 2012. He advised
that she experienced left arm and shoulder pain with elevation and rotation of the left shoulder and
left arm. Dr. Tinio diagnosed left shoulder arthralgia with a possible rotator cuff injury. He stated
that nonemployment activities may have contributed to the injury. Dr. Tinio advised that appellant
was required to frequently lift both arms while sorting mail and stated that repetitive movement of
shoulders had increased inflammation, resulting in pain and limited range of motion.
In a June 29, 2012 statement, received by OWCP on July 10, 2012, appellant stated that she
used her left arm to perform her daily work duties. While sweeping mail, she would use her left
arm to pull and sweep mail trays and engage in constant, repetitive lifting and carrying.
By decision dated July 11, 2012, OWCP denied appellant’s claim, finding that she failed to
establish fact of injury. It noted that she had filed another claim for a right shoulder injury, case
number xxxxxx387, which had been accepted and for which she had been off work from
January 18to March 10, 2012, when she returned to work. OWCP stated that appellant failed to
present any evidence regarding her work duties as of March 10, 2012 and continuing which
showed how, in performing these duties, she developed a left shoulder condition due to overuse
caused by the right shoulder injury. It also noted that she sustained a nonwork-related left
shoulder injury on March 28 or 29, 2012 while closing her car door on her way home. OWCP
found that appellant failed to submit sufficient medical evidence in support of her claim that she
sustained a left shoulder condition in the performance of duty.
In a statement dated July 24, 2012, received by OWCP on September 7, 2012, appellant
reiterated her previous description of her work duties and stated that she was using her left arm
and left shoulder exclusively when she returned to work on March 10, 2012 because she was
trying to avoid using herright arm and right shoulder.

2

By letter dated July 16, 2012, appellant’s attorney requested an oral hearing, which was
held on November 9, 2012. At the hearing appellant testified that, after returning to work on
March 10, 2012, following her disability due to her right shoulder injury, she was assigned to
light duty. She stated that she was restricted from lifting more than five pounds and from
overhead reaching with her right arm. As a result appellant was required to lift, carry and toss
parcels weighing 20 to 40 pounds with her left arm, which resulted in her left shoulder condition.
She also testified that she injured her left shoulder on March 28, 2012 while closing a cardoor.
In a July 7, 2011 report, received by OWCP on December 13, 2012, Dr. Patricia S.
Grayson, Board-certified in internal medicine, advised that appellant had been experiencing left
shoulder discomfort for several weeks. She noted that she worked at a job casing mail and had
sustained no known injury. Dr. Grayson scheduled her for x-ray testing.
Appellant underwent x-ray testing of her left shoulder on April 3 and 27, 2012. The
results of these tests, which were compared to the July 7, 2011 x-ray tests, showed left shoulder
sprain and left shoulder impingement syndrome. The April 27, 2012 x-ray report showed mild
arthritic changes in the acromioclavicular joint, with slight downsloping of the acromial process
which could contribute to impingement.
In a report dated July 26, 2012, received by OWCP on December 13, 2012, Dr. Jaime
Sabogal, Board-certified in orthopedic surgery, related that appellant asserted that she had been
experiencing left shoulder pain for several months; the pain increased with activity, especially
overhead reaching. He diagnosed cervical radiculopathy, spondylo-arthropathy and sprain of the
left shoulder and left upper arm. Dr. Sabogal stated that the results of x-ray testing indicated that
appellant had impingement syndrome in her left shoulder.
In a November 29, 2012 report, received by OWCP on January 4, 2013, Dr. Sabogal
reiterated that his initial examination on July 24, 2012 was consistent with left shoulder
impingement syndrome. He administered a cortisone injection which provided temporary pain
relief. Dr. Sabogal noted that appellant was seen in the emergencyroom on March 28, 2012, at
which time she stated that she had sustained a left shoulder injury one hour earlier. Appellant
had advised she went home from work on March 28, 2012. Dr. Sabogal opined that, due to the
demands of her job, which entailed repetitive, constant physical work, appellant’s inability to
perform adequately with her right shoulder caused her to overuse her left shoulder while
performing her work duties; this overuse caused the left shoulder to be more prone to injury and
therefore simple tasks such as closing a cardoor resulted in severe pain. She concluded based on
reasonable medical certainty that appellant had left shoulder impingement syndrome produced
and aggravated by the demands of her job as a postal worker and that she required further
treatment including cortisone injections, physical therapy and possibly surgery.
By decision dated January 29, 2013, an OWCP hearing representative found that
appellant had established fact of injury. He found, however, that she failed to present medical
evidence sufficient to establish that she sustained a left shoulder condition in the performance of
duty.

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LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of a disease or condition for which
compensation is claimed; (2) a factual statement identifying the 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
employment factors identified by the claimant. The medical opinion must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.3
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.5 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates her claimed left shoulder condition to factors of her
employment. For this reason, she has not discharged her burden of proof to establish her claim
that this condition was sustained in the performance of duty.
Appellant submitted reports from Drs. Rench, Tinio, Grayson and Sabogal, who related
appellant’s complaints of left shoulder pain, stated findings on examination and provided
diagnoses for her left shoulder condition. None of these physicians, however, provided a
probative, rationalized medical opinion that the claimed conditions or disability were causally
related to employment factors. Dr. Rench asserted in his March 29, 2012 report that appellant
had a history of shoulder strains, including a nonwork-related left shoulder injury caused by
closing a car door. He advised that she was experiencing sharp, severe pain in her left shoulder
and that on examination she had effusion in her left shoulder in the acromion area and was
unable to elevate her arm. Dr. Rench stated that appellant’s left shoulder examination was
normal except for soft tissue tenderness at the supraspinatus of the left shoulder. He diagnosed a
2

20 C.F.R. § 10.5(q).

3

Solomon Polen, 51 ECAB 341, 343-44 (2000).

4

See Joe T. Williams, 44 ECAB 518, 521 (1993).

5

Id.

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sprained left shoulder and left upper arm sprain. In his July 2, 2012 report, Dr. Tinio stated that
appellant experienced left arm and shoulder pain with elevation and rotation of the left shoulder
and left arm; he diagnosed left shoulder arthralgia with a possible rotator cuff injury. He stated
that she was required to frequently lift both arms while sorting mail and that repetitive movement
of shoulders had increased inflammation, resulting in pain and limited range of motion. Dr. Tinio
also opined, however, that nonemployment activities might have contributed to the injury. In her
July 7, 2011 report, Dr. Grayson stated that appellant had been experiencing left shoulder
discomfort for several weeks. She asserted that appellant worked at a job casing mail and had
sustained no known injury and scheduled her for x-ray testing.
The opinions of these physicians are of limited probative value as they do not contain any
medical rationale how or why appellant’s claimed conditions were currently affected by or
related to factors of employment.6 The weight of medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of physician’s
knowledge of the facts of the case, the medical history provided, the care of analysis manifested
and the medical rationale expressed in support of stated conclusions.7 Drs. Rench, Tinio and
Grayson did not sufficiently describe appellant’s job duties or explain the medical process
through which such duties would have been competent to cause the claimed conditions.
Appellant also submitted reports dated July 26 and November 29, 2012 from
Dr. Sabogal,who advised that she had been experiencing left shoulder pain for several months,
which increased with activity, especially overhead reaching. Dr. Sabogal diagnosed cervical
radiculopathy, spondylo-arthropathy, sprain of the left shoulder and left upper arm and left
shoulder impingement syndrome based on x-ray tests. In his November 29, 2012 report, he
opined that, due to the repetitive nature of her job work, her limitations stemming from her right
shoulder injury caused her to overuse her left shoulder while performing her work duties; this
overuse caused the left shoulder to be more prone to injury and therefore a simple maneuver,
such as closing a car door, resulted in severe pain. Dr. Sabogal concluded that her left shoulder
impingement syndrome was caused and aggravated by the demands of her job as a postal worker.
Dr. Sabogal’s opinion, however, is of limited probative value as it does not contain
sufficient medical rationale explaining how appellant’s job duties physiologically caused her
claimed left shoulder conditions. In addition, he did not explain why her left shoulder symptoms
were not due to long-term employment factors as opposed to the March 28, 2012 incident in
which she injured her left shoulder while closing a car door, which was not work related.
Dr. Sabogal’sreport thus did not constitute adequate medical evidence to establish that
appellant’s claimed left shoulder conditions were causally related to her employment.
Appellant also submitted several reports from nurses and physician’s assistants. These
reports, however, do not constitute medical evidence under section 8101(2). Because healthcare
providers such as nurses, acupuncturists, physicians assistants and physical therapists are not

6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

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considered “physicians” under FECA, their reports and opinions do not constitute competent
medical evidence to establish a medical condition, disability or causal relationship.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed left shoulder condition was causally related to her employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed left shoulder condition was sustained in the performance of duty.

8

5 U.S.C. § 8101(2); see alsoG.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).
9

Id.

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ORDER
IT IS HEREBY ORDERED THATthe January 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, EAST LIBERTY
STATION, East Liberty, PA, Employer
__________________________________________

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Appearances:
Joseph J. Chester, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0514
Issued: May 4, 2018

Case Submitted on the Record

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

JURISDICTION
On January 3, 20172 appellant, through counsel, filed a timely appeal from a July 8, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 8, 2016, the date of OWCP’s last decision was January 4, 2017.
Since using January 9, 2017, the date the appeal was received by the Clerk of the Appellate Boards would result in
the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service
postmark is January 3, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
an emotional condition in the performance of duty.
On appeal counsel contended that OWCP failed to follow the William A. Couch5 remand
order from the Board, that the employing establishment failed to submit evidence contradicting
appellant’s allegations, and that there was no independent medical evaluation by OWCP.
FACTUAL HISTORY
This case has previously been before the Board. In its July 29, 2015 order,6 the Board set
aside the July 30, 2014 merit decision and remanded the case for OWCP to consider all the
evidence in the record. The facts and circumstances as set forth in the Board’s prior decision are
incorporated herein by reference. The relevant facts are as follows.
On June 25, 2013 appellant, then a 52-year-old manager of customer services, filed an
occupational disease claim (Form CA-2) alleging that he developed shingles, nose bleeds, stress,
anxiety, depression, nausea, high blood pressure, heart palpitations, insomnia, and poor
concentration due to “cumulative stressful conditions” including administrative abuse by
management. He noted that he first became aware of his condition on May 30, 2013 and first
attributed his condition to his employment on that date.
Appellant provided a June 6, 2013 note from Dr. Howard P. Friday, a licensed clinical
psychologist, who advised that appellant was totally disabled due to a mental health condition
since May 31, 2013.
In a July 12, 2013 narrative statement, appellant noted working at the employing
establishment for 31 years in a variety of jobs. He provided background information regarding
stress-related claims due to work from 2000 through 2008. In 2008, appellant applied for his
current position and filed an Equal Employment Opportunity (EEO) complaint regarding age
discrimination practices. In 2008, he began working as a manager East Liberty, Pa. Appellant
alleged that from 2008 through 2012 he was denied detail assignments and promotions. He
asserted that younger candidates were selected despite his seniority and qualifications. Appellant
alleged a discriminatory pattern with regard to age, gender, and retaliation for special details and
3

5 U.S.C. § 8101 et seq.

4

Together with his appeal request, appellant, through counsel, submitted a timely request for oral argument
pursuant to 20 C.F.R. § 501.5(b). By order dated May 9, 2017, the Board exercised its discretion and denied the
request as appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case
as submitted on the record. Order Denying Request for Oral Argument, Docket No. 17-0514 (issued May 9, 2017).
5

41 ECAB 548 (1990).

6

Order Remanding Case, Docket No. 15-0656 (issued July 29, 2015).

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higher level promotions. L.H., a manager, recommended appellant for a detail assignment as a
manager, in plant support, EAS-25, but his management denied this. C.S., a manager, requested
appellant for a similar detail in November 2011, but management denied the detail explaining that
appellant was needed in his job. Appellant alleged that he was pulled from detail assignments and
put back at East Liberty Station because the acting managers had unacceptable performance or left
the job. He asserted that he should not be kept from career developing opportunities, assignments,
and details because of his excellent performance at the East Liberty Station.
Appellant alleged on May 15, 2012 he conducted street supervision with his supervisor,
M.G., on a carrier, R.R. He and M.G. noted numerous time-wasting activities and directed R.R.
in completing his duties. Appellant refused to comply with these directives twice. He and M.G.
then informed R.R. that the discussion would continue at the employing establishment. After
returning to the employing establishment, appellant received a telephone call from Postmaster
J.M., who inquired if appellant had sworn at R.R. He denied the allegation. Later that day,
manager M.P. removed appellant from his position due to 10 to 15 customer complaints regarding
the interactions with R.R. Appellant was immediately detailed as an operational industrial
engineer (OIE) in a different employing establishment location. He was then removed from the
OIE position and “bounced around the district being placed anywhere that someone was needed
for a task.” Appellant alleged that employing establishment procedures were not followed in these
assignments. He was then assigned to a specific Christmas 2012 project in an OIE position.
Appellant alleged that he was required to work 22 hours each Monday for “Monday Night Priority
Processing” in December 2012.
Appellant interviewed for an opening in an EAS-23 OIE position, and L.H. selected him
based on his qualifications, performance, merit, and experience. R.C., the district manager, did
not approve appellant’s selection. Appellant asserted that L.H. informed him that this was due to
his EEO activity. He alleged retaliation and discrimination. The employing establishment
reposted EAS-23 OIE position and chose a different selecting official, R.J., a plant manager.
Appellant asserted that the reposting and reassignment was not within the employing establishment
protocol and procedures for selection process. He alleged that this was unlawful retaliatory and
discriminatory practices as well as error by R.C. On February 29, 2013 appellant returned to his
manager position at East Liberty Station. He interviewed for the reposted EAS-23 OIE position
in March 2013. The employing establishment selected a different employee for this job on
May 3, 2013. Appellant noted that he completed his industrial engineer education in 1983, while
the selected employee graduated in 2009. He asserted that selecting a significantly less qualified
candidate was “blatant … unlawful retaliation and discrimination.” Appellant attributed his
current physical and emotional conditions to this “wrong-doing.”
On June 15, 2013 M.M. witnessed appellant experience a nose bleed. He reported that
appellant was upset over the selection process and listed appellant’s assertions of high blood
pressure, headaches, and shingles. Appellant submitted a witness statement from V.N., dated
June 16, 2013 which asserted that appellant was an enthusiastic and committed employee, but that
“his usual lively attitude became lackluster” after he was denied promotion. In a June 19, 2013
statement, M.T., a friend, opined that appellant’s demeanor had changed and attributed this to
appellant’s career.

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In a July 8, 2013 statement, R.C., the district manager, disagreed with appellant’s allegation
about his lack of promotion. He disputed that appellant was denied promotion based on his EEO
activity. R.C. asserted that he had no knowledge of appellant’s prior EEO activities and did not
discuss this with L.H. He alleged that the first posting was not awarded because L.H. did not
follow proper procedures including interviewing candidates and receiving prior approval before
discussing the selection with any candidate. R.C. reported “The posting was cancelled and not
awarded since integrity of the process was compromised.” The position was reposted in a different
location to better serve the employing establishment. Appellant applied and was interviewed, but
was not selected as he was not the most qualified candidate. R.C. asserted that the successful
candidate was selected in accordance with the regulations governing the filling of nonbargaining
unit positions. He further noted that appellant had not occupied a long-term OIE position for more
than 15 years and had only a few short-term details in an OIE position. R.C. also noted that
appellant’s performance as the manager in the East Liberty Station was below the required levels.
In a July 15, 2013 letter, OWCP noted that appellant had two previous stress claims that it
had denied.7 It requested additional factual and medical evidence in support of his claim and
afforded him 30 days to respond. OWCP also requested additional information from the
employing establishment on the same date.
K.P., the employing establishment’s human resources manager, responded on August 12,
2013 and denied discriminating against appellant. He noted that there were numerous employee
and customer complaints against appellant. K.P. also noted that appellant had received
disciplinary and predisciplinary actions in 2010, 2011, and 2012.
On July 19, 2013 M.P. denied instructing appellant to perform street supervision on R.R.
with M.G. and noted that she instructed him not to perform this street supervision. She noted that
a customer submitted a statement supporting the carrier’s allegation that appellant screamed and
cursed at him on the street. M.P.’s superior instructed her to remove appellant as manager until
the incident was investigated. She reported that appellant was moved several places throughout
the investigation and worked for L.H. The completed investigation demonstrated no actual proof
of the allegations and appellant returned to his position. M.P. denied that appellant returned due
to unacceptable performance from his replacement, instead noting that the employing
establishment was short-staffed with management personnel. The employing establishment
provided a June 30, 2012 petition signed by more than 60 employees alleging that appellant created
a hostile work environment and an imminent safety issue.
On August 1, 2013 Dr. Dawn M. Sarver, an osteopath, diagnosed malignant hypertension.
She noted that appellant had a history of high blood pressure. Appellant believed that his high
blood pressure was due to work stress and aggravation. Dr. Sarver noted that he had obsessive
thoughts about the wrong doing at work with repetitive sentences.
Dr. Friday examined appellant on August 13, 2013 and diagnosed generalized anxiety
disorder and major depressive disorder. He opined that appellant’s adjustment problems were
directly related to stress in appellant’s work environment.
7

These other claims are not before the Board on the present appeal.

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Appellant submitted an additional statement on August 13, 2013 and alleged that R.C.
denied him a promotion with no valid reason following a valid selection process. He disagreed
that policy dictated the denial of his promotion and noted that R.C. denied his promotion in
December 2012 and that the employing establishment policy referenced by R.C. was not
established until May 21, 2013. Appellant submitted a copy of the employing establishment’s
policy regarding vacancies dated May 21, 2013 which noted that all selections of OIE vacancies
should be submitted to the area office. In a separate August 13, 2013 statement, he noted that this
policy was made effective in January 2013, but not implemented until May 21, 2013 as a result of
his claims. Appellant alleged that R.C. did not have permission to move the OIE position, but did
so to change the selection official. He noted that he had over 4 years of details in engineering jobs
within the past 15 years contrary to Robert Cintron’s allegations.
On August 28, 2013 Dr. Sarver noted recurrent depression/adjustment disorder in context
of work stressors. She diagnosed major depression, single episode.
In a September 27, 2013 decision, OWCP found that appellant had not established
compensable work factors as a cause of his claimed conditions. Thus, appellant had not established
an injury in the performance of duty. He requested an oral hearing from OWCP’s Branch of
Hearings and Review on October 4, 2013.
Dr. Friday found that appellant was totally disabled from work commencing May 31, 2013,
until he allowed appellant to return to work on October 31, 2013. He recommended that appellant
perform “a nonmanagement, support level position.” Dr. Friday repeated these recommendations
and restrictions on October 29, 2013.
Appellant testified during the oral hearing before an OWCP hearing representative on
May 14, 2014. He noted that he returned to work on February 28, 2014. Appellant described the
street observation of R.R. and asserted that M.P. assigned this activity. He noted that following
R.R.’s false allegations he was removed from his position. Appellant was detailed for three months
in the National Distribution Center (NDC) beginning in May 2012 and then assigned to six
different jobs within four months from June to October 2012. He alleged that no other employees
were ever moved this frequently. Appellant noted that he was disciplined due to the incident with
M.P. and received a letter for improper conduct which was later expunged. Regarding his
application for promotion in December 2012 as an OIE level 23, he noted that his prior position
was a level 22 management status. Appellant noted that he was interviewed and selected by L.H.,
but R.C. did not agree to his selection. He testified that L.H. told him that R.C. did not want to
promote him because of his EEO activities. Appellant filed an EEO complaint regarding the denial
of promotion. He noted that the employing establishment reposted the position in February 2013,
at a different location and with a different selecting official. Appellant interviewed for the job
again, but the position was awarded to an individual with less than three years of experience while
appellant had over 30 years of experience. He noted that after he was denied the promotion on
May 5, 2013 he had a nervous breakdown.
Appellant stopped work on May 31, 2014 based on Dr. Friday’s recommendation. He
noted that he served acting engineer until February 2013, when R.C. returned him to his
managerial position. Appellant alleged that, from February to May 2013, while he served as
manager of customer service, M.P. harassed him with false statements and micro-management.

5

M.P. was in his building every day and stopped by unannounced. Appellant testified that he did
not work from June to February 2014 and used sick leave. In October 2013, he requested
reasonable accommodations which the employing establishment denied. Appellant disputed
R.C.’s account of events regarding the denial of the OIE promotion. He noted receiving a letter of
warning on October 10, 2013 for unsatisfactory attendance while he was using his accumulated
sick leave. Appellant alleged that this was harassment. He further alleged that D.C., manager of
labor, improperly wrote the letter of warning which should have been composed by M.P.
Appellant alleged that D.C. forged M.P.’s electronic signature on October 4, 2013. He alleged
that M.P. informed him that she did not want to send the letter of warning. Appellant noted that
he believed that the letter of warning was removed from his personnel file. He testified that he
was required to conduct street supervisions and that he had begun disciplinary processes on R.R.
for his failure to make his return time.
Following the hearing, counsel submitted additional evidence. L.H. completed a statement
dated October 7, 2013 and asserted that she followed proper procedures when she selected
appellant for the OIE 23 position. She reported that there was no requirement at the time of the
interview to have an area operational industrial engineer present for the interview and the initial
selection process. L.H. noted, “All proper procedures were followed during the interview and
initial selection process.” She noted that appellant was not interested in downgrading to an OIE
21 position and noted that she was instructed to end his detail assignment to the industrial engineer
position.
Appellant provided an October 4, 2013 letter with M.P.’s electronic signature indicating
that she was investigating his unavailability for duty. M.P. directed him to attend an
October 9, 2013 interview. Appellant received an October 10, 2013 letter of warning for
unsatisfactory attendance signed by her. On November 8, 2013 he asked that the letter be
immediately rescinded. In a November 14, 2013 letter, M.P. noted that she was investigating
appellant’s long-term and on-going unavailability for duty. She directed him to report for an
administrative interview on November 20, 2013.
M.P. completed a statement on June 18, 2014 in response to appellant’s testimony and
denied visiting his duty station daily from February to May 2013. She noted that she did not need
to announce her office visits to managers that she supervised.
D.C. reviewed the incident with R.R. in a statement dated June 18, 2014 and noted that
once the evidence was gathered that there was insufficient proof to support charges of misconduct
by appellant. He noted that M.P. instructed appellant not to perform street observations. D.C.
noted that appellant was not entitled to verbal warnings prior to the letter of warning for failure to
maintain regular attendance. He noted that he prompted and advised M.P. “to do her job, to enforce
postal rules and finally begin to address [appellant’s] ongoing unavailability for work.” D.C.
admitted that he drafted and sent the October 4, 2013 written warning under M.P.’s electronic
signature which she later rescinded and issued another with an actual signature. He denied that
any rules were broken by mailing a written warning under electronic signature.
K.P. responded to appellants’ allegations during the hearing and noted that the employing
establishment was justified in denying the selection of appellant for the OIE job as L.H. did not
follow proper procedures. He noted that appellant had applied for 20 positions since 2012.

6

Appellant withdrew from 3, 6 were cancelled, and he was not selected for 11 of these positions.
While on leave, he applied for and interviewed for six higher level positions.
Appellant submitted L.H.’s affidavit in his EEO claim. L.H. noted that she selected him
for the OIE 23 position, and that two additional concurrences were required, the human resources
manager, K.P., and the district manager, R.C. She reported that the district manager R.C., did not
concur with appellant’s selection. L.H. noted that the district manager noted that she could offer
appellant an OIE 21 position, but as this was a downgrade appellant was not interested. She noted
following employing establishment guidelines as she had been trained. L.H. notified appellant
that the managers did not agree with her decision and told him that she did not know why. She
noted that she was not aware of appellant’s prior EEO activity when she selected him, but later
became aware of it. L.H. noted, “The District Manager noted that the complainant had cost this
organization too much money in EEOs and later the complainant stated to me that he had prior
EEO activity….”
Appellant provided a memorandum dated December 17, 2012 from L.H. to R.C., which
addressed the EAS-23 position and the recommendation of appellant for the position. L.H.
reviewed the three other candidates and selected appellant based on his extensive project
management skills and network distribution center experience. The human resources manager,
K.P., denied the recommendation.
R.C. completed an EEO investigative affidavit and noted that comparative analysis did not
support appellant’s promotion and that appellant should not have been told that he was selected
until the approval process was completed. He denied any knowledge of appellant’s prior EEO
activity. In response to the question of whether R.C. had made the statement that “complainant
has cost this organization too much money in EEOs,” R.C. replied, “[Appellant’s] performance
and the cost of moving him to other assignments were made in private to [L.H.] during a
conversation at the NDC. [Appellant] had issued in previous assignments that resulted in poor
performance issues. [Appellant] was currently detailed as a result of poor performance to the
NDC. I was asking [L.H.] about his performance. We discussed the interview package. I noted
[that] I had not seen the package and would have to review prior to approving.”
In a July 30, 2014 decision, OWCP’s hearing representative found that appellant had not
established compensable employment factors and affirmed the denial of his claim.
Appellant appealed to the Board. In a July 29, 2015 decision, the Board found that
OWCP’s hearing representative failed to consider all the evidence submitted in reaching a
decision. The Board remanded for a de novo decision.8
Following the Board’s July 29, 2015 decision, OWCP issued a decision on September 8,
2015 and denied appellant’s claim, finding that he had not established an employment factor in the
performance of duty. It found that the OIE EAS-23 position posting and hiring was an
administrative or personnel matter. OWCP further determined that appellant’s reaction to not
receiving the job was not compensable. Appellant, through counsel, requested an oral hearing on

8

Supra note 5.

7

October 6, 2015. Counsel subsequently requested a review of the written record in lieu of an oral
hearing.
By decision dated July 8, 2016, an OWCP hearing representative affirmed the
September 8, 2015 decision finding that appellant had not met his burden of proof to establish that
he sustained an injury in the performance of duty. She determined that he had not established
discrimination, harassment, abuse, or wrongdoing constituting a factor of employment. OWCP’s
hearing representative further determined that appellant had not established a compensable factor
of employment and that OWCP was not required to consider the medical evidence.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler, the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA.9 There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within coverage under FECA.10
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.11 In contrast, a disabling condition resulting from an employee’s feelings of
job insecurity per se is not sufficient to constitute a personal injury sustained in the performance
of duty within the meaning of FECA. Thus, disability is not covered when it results from an
employee’s fear of a reduction-in-force, nor is disability covered when it results from such factors
as an employee’s frustration in not being permitted to work in a particular environment or to hold
a particular position.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.13 Where 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.14 A claimant must support his or her allegations with probative

9

28 ECAB 125 (1976).

10

See Robert W. Johns, 51 ECAB 136 (1999).

11

Supra note 8.

12

Id.

13

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

14
Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon; 42 ECAB
566 (1991).

8

and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.15
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
developed an emotional condition in the performance of duty.
Appellant has not attributed his emotional condition to difficulties in carrying out his
employment duties and, therefore, has not implicated a compensable factor of employment under
Cutler.17
Rather, appellant has attributed his emotional condition to administrative actions of the
employing establishment which he asserted were erroneous. In Thomas D. McEuen,18 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 determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.19
Appellant alleged that the employing establishment erred in removing him from his
position pending an investigation regarding his interactions with R.R. Investigations are
considered to be an administrative function of the employing establishment as they are not related
to an employee’s day-to-day duties or specially assigned duties or to a requirement of the
employment. The employing establishment retains the right to investigate an employee if
wrongdoing is suspected. An employee’s disagreement with an investigation is not covered under

15

Roger Williams, 52 ECAB 468 (2001).

16

E.C., Docket No. 15-1743 (issued September 8, 2016); Alice M. Washington, 46 ECAB 382 (1994).

17

Supra note 8.

18

Supra note 13.

19

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

9

FECA, absent a showing of error of abuse on the part of the employing establishment.20 As
appellant has submitted no corroborating evidence supporting that the employing establishment
erred in conducting an investigation regarding the events of May 15, 2012 and his interactions
with R.R. which resulted in customer complaints, he has not established a compensable factor of
employment with regard to this event.
Appellant also alleged that he was denied him unspecified promotions or assignments. He
attributed his condition to his assignment to numerous positions from May through
December 2012. Appellant asserted that the employing establishment did not establish its
procedures in these assignments. He testified that he was assigned to six different positions within
four months from June to October 2012. The denial of promotion or disagreement with
assignments is not a compensable factor of employment as it is administrative in nature and does
not arise from the employee’s duties. Rather, it is considered self-generated as it amounts to
frustration over not being able to hold a particular position or to work in a particular environment.21
Appellant alleged error or abuse by the employing establishment in regard to the denial of
his promotion to the EAS-23 OIE position. He asserted that L.H. selected him based on his
qualifications, but that R.C. did not approve his selection due to his EEO activities. Appellant also
alleged that the employing establishment violated its procedures.
R.C. denied appellant’s assertion that he declined to promote him to the EAS-23 OIE job
as result of appellant’s EEO activity. He also denied any knowledge of appellant’s involvement
with EEO complaints. R.C. indicated that appellant did not receive the promotion because L.H.
had not followed proper procedures and the integrity of the process was compromised. K.P., the
human resources manager, concurred that L.H. did not follow proper procedures.
L.H. asserted that she followed procedures in selecting appellant. Her affidavit included
the assertion, “The District Manager [R.C.] noted that the complainant had cost this organization
too much money in EEOs and later the complainant stated to me that he had prior EEO activity….”
R.C. noted, “[Appellant’s] performance and the cost of moving him to other assignments were
made in private to [L.H.] during a conversation at the NDC. [He] had issues in previous
assignments that resulted in poor performance issues. [Appellant] was currently detailed as a result
of poor performance to the NDC. I was asking [L.H.] about his performance. We discussed the
interview package. I noted [that] I had not seen the package and would have to review prior to
approving.”
The Board finds that appellant has not established a compensable factor with regard to the
denial of promotion to the EAS-23 OIE position. While L.H. submitted a statement supporting
her allegations, R.C. and K.P. offered an acceptable reason for denying appellant the promotion,
that L.H. failed to follow proper procedures and that the needs of the service required the position
in a different location. Appellant did not provide any independent or probative evidence to
establish that the employing establishment erred or was abusive in the handling of his work

20

C.P., Docket No. 16-0018 (issued February 19, 2016); K.W., 59 ECAB 271 (2007).

21

J.M., Docket No. 16-0312 (issued June 22, 2016); Martha L. Watson, 46 ECAB 407, 418 (1995).

10

assignments.22
establishment.

The Board does not find error or abuse in this action of the employing

Appellant alleged error or abuse in the letter of warning asserting that D.C. improperly
wrote it using M.P.’s electronic signature. D.C. admitted writing the letter of warning, but denied
that this action broke employing establishment rules. Disciplinary actions such as letters of
warning are considered administrative actions.23 Appellant did not provide any probative evidence
to establish that D.C. erred or was abusive in issuing the letter of warning.24
Appellant has also attributed his emotional condition to discrimination based on age and
gender. He also alleged that M.P. harassed him from February to May 2013 by false statements
and micromanagement. Appellant asserted harassment through the letter of warning. M.P. denied
daily visits to his duty station from February to May 2013 and noted that she did not need to
announce her office visits to her supervisees. The employing establishment denied that appellant
was subjected to harassment or discrimination and he has not submitted sufficient evidence to
establish that he was harassed or discriminated against by his supervisors. Appellant alleged that
supervisors made statements and engaged in actions which he believed constituted harassment and
discrimination, but he provided no corroborating evidence, such as witness statements, to establish
that the statements actually were made or that the actions actually occurred.25 Thus, he has not
established a compensable employment factor under FECA with respect to the claimed harassment
and discrimination.
The Board finds that appellant has failed to establish a compensable factor under FECA.
Consequently, appellant has not met his burden of proof to establish an injury in the performance
of duty. Since no compensable factors of employment have been established, the Board will not
consider the medical evidence of record.26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed an emotional condition in the performance of duty.

22

D.C., Docket No. 16-1870 (issued May 19, 2017).

23

L.R., Docket No. 14-1990 (issued January 17, 2015).

24

E.C., Docket No. 15-1743 (issued September 8, 2016).

25

J.T., Docket No. 16-1424 (issued March 7, 2017).

26

Supra note 23; A.K., 58 ECAB 119 (2006).

11

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 4, 2018
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paulette Craig, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0899
Issued: June 19, 2018

Case Submitted on the Record

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

JURISDICTION
On March 17, 2017 appellant, through his representative, filed a timely appeal from a
January 19, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2
As more than one year has elapsed from the last merit decision dated August 29, 1997 to the filing

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
Appellant timely requested oral argument before the Board. By order dated March 15, 2018, the Board exercised
its discretion and denied his request, finding that the issues involved could be adequately addressed in a decision based
on a review of the case record. Order Denying Request for Oral Argument, Docket No. 17-0899 (issued
March 15, 2018).

of this appeal,3 the Board lacks jurisdiction to review the merits of his claim, pursuant to the
Federal Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the prior decisions are incorporated herein by reference. The relevant facts are as follows.
On December 22, 1995 appellant, then a 34-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that on that date he injured his back and neck in an
employment-related motor vehicle accident. He stopped work on December 23, 1995 and returned
to his usual employment on January 8, 1996. OWCP accepted the claim for cervical and
lumbosacral strain.
On July 26, 1996 appellant underwent a lumbar medial branch neurotomy at L2-3, L3-4,
L4-5, and L5-S1 to treat a bilateral herniated disc.
Appellant, on October 17, 1996, filed a recurrence of disability claim (Form CA-2a)
beginning July 24, 1996 causally related to his December 22, 1995 employment injury. He
indicated that he was scheduled for another surgery on his disc in two weeks. Appellant underwent
a repeat lumbar medial neurotomy at L2 through S1 on January 9, 1997.
By decision dated August 29, 1997, OWCP found that appellant’s July 1996 and
January 1997 bilateral lumbar medial branch neurotomies at L2-3, L3-4, and L4-S1 were not
medically necessary due to his December 22, 1995 employment injury. It noted that the surgery
was performed for the diagnosed conditions of a herniated lumbar disc and central and lumbar
instability with lumbar facet arthropathy, neither of which had been accepted as employment
related.
On November 6, 1997 appellant requested reconsideration.
By decision dated
November 18, 1997, OWCP denied his request for reconsideration after finding that he had not
submitted evidence or raised an argument sufficient to warrant reopening his case for further merit
review under 5 U.S.C. § 8128(a).

For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(d)(2)
(2008).
3

4

5 U.S.C. § 8101 et seq.

5
Docket No. 99-0149 (issued April 18, 2000); Order Denying Petition for Reconsideration (issued October 30,
2000); Docket No. 16-0604 (issued August 18, 2016).

2

Appellant again requested reconsideration on December 2, 1997. By decision dated
December 9, 1997, OWCP denied his request for reconsideration of the merits of his claim under
section 8128(a).
Appellant appealed to the Board. By decision dated April 18, 2000, the Board affirmed
the November 18 and December 9, 1997 OWCP decisions denying his request to reopen his case
for further review of the merits of his claim under section 8128(a).6 The Board found that appellant
had not submitted evidence or raised an argument sufficient to warrant further merit review of his
case.
On January 19, 2001 appellant again requested reconsideration of OWCP’s August 29,
1997 decision. He argued that he required multiple surgeries as a result of his December 22, 1995
work injury.
OWCP, by decision dated February 13, 2001, denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It found that he had not provided evidence showing that it erred in issuing its last merit decision.
In a letter dated June 25, 2015, appellant advised that he was not receiving workers’
compensation. He requested back pay. Appellant resubmitted an October 12, 1998 report from
Dr. K.E. Vogel, a Board-certified neurosurgeon. Dr. Vogel attributed appellant’s lumbar surgeries
in July 1996, January 1997, and February 1998 to his December 1995 work injury.7 By letter
dated August 26, 2015, OWCP informed appellant that he should follow the appeal rights from its
prior decisions.8 Appellant, on August 26, 2015, requested reconsideration. He related that
Dr. Vogel examined him subsequent to his return to work and found that he had to have three
surgeries due to his work injury. Appellant maintained that he was totally disabled from 1995 to
May 5, 2000 as a result of his employment injury.
On September 22, 2015 appellant submitted an August 26, 2003 report from Dr. Roberta
Bell, a neuropsychologist. Dr. Bell obtained a history of him being unable to function cognitively
after the December 22, 1995 employment injury such that he missed a filing deadline to apply for
retirement benefits. She found that appellant had an intellectual and academic disability severe
enough “to interfere with his ability to complete an application for retirement in a timely manner.”
In a letter received by OWCP on September 28, 2015, appellant contended that he had
submitted clear evidence that he could not timely file for his workers’ compensation benefits as a
result of a mental handicap.
Docket No. 99-0149 (issued April 18, 2000). On October 30, 2000 the Board denied appellant’s petition for
reconsideration of its April 18, 2000 decision. Order Denying Petition for Reconsideration, Docket No. 99-0149
(issued October 30, 2000).
6

Dr. Vogel, in an undated report received August 26, 2015, reviewed appellant’s history of lumbosacral, cervical,
left leg, and left arm pain after a December 1995 motor vehicle accident. He related, “In all medical probability [his]
signs and symptoms are casually related to the incident of December 1995.” Dr. Vogel further opined that appellant’s
need for surgery resulted from the December 22, 1995 employment injury
7

8
On August 6, 2015 appellant requested compensation from December 22, 1995 to May 5, 2004. In an August 12,
2015 response, OWCP informed him of the evidence required to establish a recurrence of disability.

3

In a report dated September 28, 2015, Dr. Karita Kewalramani, a Board-certified internist,
discussed appellant’s history of a motor vehicle accident on December 22, 1995, two medial
branch neurotomies, and a cage fusion at L3-4. She diagnosed lumbar disc syndrome, lumbar
mechanical dysfunction at L5-S1, and right L4 and S1 lumbar radiculopathy. Dr. Kewalramani
indicated in a November 9, 2015 note that appellant was totally and permanently disabled from
employment.
On November 18, 2015 Dr. Vogel examined appellant for lumbosacral pain. He reviewed
appellant’s history of surgeries in 1996, 1997, and 1998. Dr. Vogel related, “In all medical
probability, [appellant’s] signs and symptoms at that time and the three subsequent surgeries were
necessitated by the motor vehicle injury while at work on December 22, 1995. He reports
[appellant] has been unable to return to work since the December 22, 1995 injury.”
By decision dated December 23, 2015, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
Appellant appealed to the Board. By decision dated August 18, 2016, the Board affirmed
the December 23, 2015 decision.9 The Board found that appellant had not submitted evidence or
raised an argument sufficient to demonstrate clear evidence of error.
In a statement received October 17, 2016, appellant indicated that he was submitting
evidence for reconsideration. He maintained that FECA time limitation provisions were not
applicable because he was incompetent. On October 21, 2016 appellant requested reconsideration.
Appellant resubmitted the September 28, 2015 report from Dr. Kewalramani and the
November 18, 2015 report from Dr. Vogel. He also submitted an August 31, 2000 letter from his
private disability insurer and evidence from the Office of Personnel Management (OPM) regarding
his application for disability retirement. Appellant further submitted a February 10, 1999 return
to work certification for the employing establishment.
On May 16, 2016 Dr. Vogel opined that appellant was totally disabled from work from
1996 until February 2000 subsequent to two spinal surgeries.
Dr. Bell, in a report dated September 12, 2016, discussed appellant’s history of 1995 and
February 2000 motor vehicle accidents. She diagnosed mild mental retardation after the 1995
accident that was permanent. Dr. Bell noted that appellant subsequently experienced multiple
strokes from 2005 to 2007. She opined that he was “unable to file paperwork in a timely manner
in 2001.”
In progress reports dated March 4 and September 28, 2016, Dr. Jacques Whitecloud, a
Board-certified physiatrist, discussed his treatment of appellant for low back, knee, and leg pain.
He diagnosed chronic pain and lumbar radiculitis. In his September 28, 2016 report,
Dr. Whitecloud noted that Dr. Vogel attributed appellant’s lumbar radiculitis to his
“work[-]related injury in 1995 and subsequent injuries.” He related his current symptoms to the
1995 employment injury.

9

Docket No. 16-0604 (issued August 18, 2016).

4

By decision dated January 19, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.10 When determining the one-year period for requesting
reconsideration, the last day of the period should be included unless it is a Saturday, Sunday, or a
federal holiday.11 Timeliness is determined by the document receipt date (i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System).12 The Board has found that
the imposition of the one-year time limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.13
Section 10.607(c) provides, “The year in which a claimant has to timely request
reconsideration shall not include any period subsequent to an OWCP decision for which the
claimant can establish through probative medical evidence that he or she is unable to communicate
in any way and that his or her testimony is necessary in order to obtain modification of the
decision.”14 OWCP’s procedures further advise that the one-year time limit to request
reconsideration does not include any period in which the claimant can establish through the
submission of medical evidence that he could not communicate and his testimony was necessary.15
OWCP may not deny an application for review solely because the application was untimely
filed. When an application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether the application demonstrates clear evidence of error.16 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
application for review demonstrates clear evidence of error on the part of OWCP.17
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
10

20 C.F.R. § 10.607(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
12

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

13

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

14

See 20 C.F.R. § 10.607(c).

15

Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.4(c) (February 2016).

16

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

17

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.1602.5(a) (February 2016).

5

produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to prima facie shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision.18
OWCP’s procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.19
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.20
ANALYSIS
OWCP’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original decision.21 A right to reconsideration within one
year also accompanies any subsequent merit decision on the issues.22 The last merit decision was
issued by OWCP on August 29, 1997. Appellant’s October 2016 request for reconsideration was
received more than one year after the August 29, 1997 decision and thus it was untimely.
Therefore, he must demonstrate clear evidence of error by OWCP in its August 29, 1997
decision.23
On appeal appellant argues that he should not be subject to the time limitation provisions
of FECA because he was not mentally competent. Section 10.607(a) of OWCP’s regulations sets
forth the time limitation period for requesting reconsideration as one year of the date of the decision
for which review is sought.24 The year for filing a timely request for reconsideration does not
include any period in which a claimant can establish through probative medical evidence that he
was unable to communicate in any way, and his testimony was necessary to obtain modification.25
Appellant has not provided medical evidence supporting that he was unable to communicate and

18

Robert G. Burns, 57 ECAB 657 (2006).

19

Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No.
16-1240 (issued December 1, 2016).
20

See D.S., Docket No. 17-0407 (issued May 24, 2017).

21

20 C.F.R. § 10.607(a).

22

See Robert F. Stone, 57 ECAB 292 (2005).

23

20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

24

Id. at § 10.607(a).

25
Id. at § 10.607(c); see also Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.4(c)
(February 2016); S.W., Docket No. 16-0208 (issued April 21, 2016).

6

thus could not timely request reconsideration.26 In a September 12, 2016 report, Dr. Bell
diagnosed mild mental retardation due to his 1995 motor vehicle accident and indicated that he
could not timely file paperwork in 2001. Her report is insufficient to support that appellant’s
mental condition rendered him unable to communicate during the relevant time period of one year
from the date of OWCP’s last merit decision dated August 29, 1997.27 Additionally, appellant
timely requested reconsideration of the August 29, 1997 decision on November 6, and
December 2, 1997. He also appealed OWCP’s nonmerit decisions denying his requests for
reconsideration to the Board in October 1998. On January 19, 2001 appellant again requested
reconsideration of the August 29, 1997 decision. The factual evidence does not support his
contention that he was unable to timely request reconsideration of OWCP’s last merit decision
issued August 29, 1997.
The Board finds that appellant has failed to demonstrate clear evidence of error. On
reconsideration appellant resubmitted 2015 reports from Dr. Kewalramani and Dr. Vogel. As this
evidence duplicated evidence already of record, it is insufficient to establish clear evidence of error
absent a showing that OWCP erred in its evaluation of the evidence.28
Appellant also submitted evidence regarding his application for disability retirement with
OPM, a letter regarding his private disability insurance, and a February 1999 return to work
certificate. The relevant issue, however, is whether he has established that his July 1996 and
January 1997 lumbar surgeries were causally related to his December 22, 1995 employment injury.
Evidence that is not germane to the issue on which the claim was denied is insufficient to
demonstrate clear evidence of error.29
Dr. Vogel, in a report dated May 16, 2016, opined that appellant was totally disabled from
work from 1996 to February 2000 following two spinal surgeries. Dr. Whitecloud provided
progress reports dated March 4 and September 28, 2016 describing his treatment of appellant for
low back, knee, and leg pain. On September 28, 2016 he attributed appellant’s lumbar radiculitis
to his 1995 work injury. The Board finds that these reports fail to demonstrate clear evidence of
error on the part of OWCP as they are irrelevant to the underlying issue of causal relationship
between the work injury and appellant’s 1996 and 1997 surgeries.30 Additionally, as noted, clear
evidence of error is intended to represent a difficult standard and even such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.31
On appeal appellant contends that the evidence establishes that he was disabled from work
subsequent to surgeries necessitated by his employment injury. As noted, however, the issue is
whether he has demonstrated clear evidence of error by OWCP in finding that his July 1996 and
26

See J.H., Docket No. 14-0118 (issued April 28, 2014).

27

See E.P., Docket No. 17-1086 (issued October 13, 2017).

28

See S.E., Docket No. 14-0068 (issued July 28, 2014).

29

See T.G., Docket No. 17-0814 (issued October 20, 2017); F.R., Docket No. 09-0575 (issued January 4, 2010).

30

See L.B., Docket No. 17-0760 (issued September 5, 2017).

31

See A.M., Docket No. 17-1900 (issued February 22, 2018).

7

January 1997 spinal surgeries were unrelated to his December 22, 1995 work injury. Appellant
has not raised an argument or submitted any evidence that manifests on its face that OWCP
committed an error in denying appellant’s claim. He has not provided evidence of sufficient
probative value to raise a substantial question as to the correctness of OWCP’s decision. Thus,
the evidence is insufficient to demonstrate clear evidence of error.32
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2018
Washington, DC

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

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

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

32

See M.B., Docket No. 17-1505 (issued January 9, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BORDER PATROL, Wellton, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1607
Issued: January 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 23, 2012 appellant, through his attorney, filed a timely appeal from a May 8,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating his
medical benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s authorization for medical
benefits effective November 15, 2011 on the grounds that he had no further need for medical
treatment due to his December 31, 2006 employment injury.
FACTUAL HISTORY
On January 1, 2007 appellant, then a 33-year-old border patrol agent, filed a traumatic
injury claim alleging that on December 31, 2006 he injured his neck and back in a motor vehicle
1

5 U.S.C. § 8101 et seq.

accident. He stopped work on January 1, 2007 and returned to work on January 2, 2007. OWCP
accepted the claim for sprains of the lumbar, cervical and thoracic spine.
Appellant filed claims for compensation for intermittent dates that he missed work due to
medical appointments beginning November 2, 2010. On November 2, 2010 Dr. Ramoun D.
Jones, an anesthesiologist, discussed his complaints of moderate back pain and listed findings on
examination. He diagnosed lumbar spondylosis and treated appellant with “left-sided
radiofrequency ablation at L2 through S1.” Dr. Jones provided similar pain management
services from December 2010 through May 2011.
On May 9, 2011 OWCP referred appellant to Dr. William P. Curran, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a report dated May 23, 2011, Dr. Curran
reviewed the history of injury and medical evidence of record. He noted that a magnetic
resonance imaging scan study revealed a left lateral bulging disc at C3-4 with stenosis and that
x-rays showed osteoarthritis of the facet joints at L3 through S1 and mild degenerative joint
degeneration at C5 through 7. On examination Dr. Curran found “palpable tenderness without
spasms of the cervical spine and both trapezia” and a positive cervical compression test. He
found tenderness but no spasms in the thoracolumbar spine at the sciatic notches. Dr. Curran
stated, “It is my opinion that [appellant’s] current complaints are related to myelodegenerative
changes involving cervical, thoracic and lumbar spine as his strains/sprains have resolved.” He
related that “[Appellant’s] objective findings on physical examination do not corroborate his
subjective complaints.” Dr. Curran found that appellant had no residuals of his December 31,
2006 motor vehicle accident. In a June 8, 2011 work restriction evaluation, he opined that
appellant could perform his usual employment.
On July 28, 2011 OWCP advised appellant of its proposed termination of his
compensation and medical benefits on the grounds that he had no residuals of his employment
injury.
In a report dated July 29, 2011, Dr. Jones diagnosed cervical and thoracic spondylosis
with facet syndrome and provided cervical radiofrequency.2 He provided similar pain
management services through November 2011.
By decision dated November 10, 2011, OWCP denied appellant’s claim for
compensation for intermittent dates from November 2, 2010 to June 24, 2011.
In a decision dated November 15, 2011, OWCP terminated appellant’s authorization for
medical benefits effective that date.3 It found that Dr. Curran’s opinion represented the weight
of the evidence and established that he had no further residuals of his accepted work injury.

2

On July 15, 2011 appellant received treatment from a physician’s assistant in the emergency room for back pain.

3

OWCP indicated that it was terminating appellant’s compensation and entitlement to medical treatment. As it
was not paying him compensation, however, OWCP improperly characterized the issue as termination of wage-loss
compensation. The issue is whether appellant has residuals of his employment injury entitling him to further
medical treatment.

2

On November 22, 2011 appellant, through his attorney, requested a telephone hearing
before an OWCP hearing representative on the November 10 and 15, 2011 decisions. A hearing
was held on March 5, 2012.
In a report dated April 4, 2012, Dr. Jones related that he had
November 2007 for pain in the back of his head, neck and trapezius.
implantation of a spinal cord stimulator. Dr. Jones stated, “Essentially,
from pain which [appellant] states started with his motor
December 31, 2006].”

treated appellant since
He recommended trial
all of these issues stem
vehicle accident [of

By decision dated May 8, 2012, an OWCP hearing representative reversed the
November 10, 2011 decision denying compensation for intermittent dates from November 2010
to June 2011 and affirmed the November 15, 2011 termination of medical benefits. He found
that appellant had established entitlement to compensation for intermittent days lost from work
while obtaining medical treatment from Dr. Jones. The hearing representative determined that
Dr. Curran’s opinion established that he had no further residuals of his work injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.7
ANALYSIS
OWCP accepted that appellant sustained lumbar, cervical and thoracic sprain due to a
December 31, 2006 motor vehicle accident. Appellant stopped work on January 1, 2007 and
returned to work on January 2, 2007.
In reports dated 2010 to 2011, Dr. Jones listed findings on examination and provided pain
management services. He did not, however, address whether appellant had residuals of his
December 31, 2006 employment injury or why he required medical treatment. Medical evidence

4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

7

Id.

3

that does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship.8
On May 9, 2011 OWCP referred appellant to Dr. Curran for a second opinion
examination. The Board finds that OWCP met its burden of proof to terminate his authorization
for medical benefits through the opinion of Dr. Curran, who determined that he had no residuals
of his accepted employment injury. In a report dated May 23, 2011, Dr. Curran reviewed the
history of injury and listed detailed findings on physical examination. He found tenderness to
palpation but no spasms of the cervical and thoracic spine. Dr. Curran noted that diagnostic
studies revealed a left lateral C3-4 disc bulge with stenosis, osteoarthritis at L3 through S1 and
mild cervical degenerative joint disease. He diagnosed myelodegenerative changes of the
cervical, thoracic and lumbar spine. Dr. Curran found that appellant had no residuals of his
cervical, thoracic and lumbar spine. He explained that the objective findings on examination did
not support the subjective complaints. Dr. Curran provided a thorough review of the factual and
medical background and accurately summarized the relevant medical evidence. Moreover, he
provided detailed findings on examination and reached conclusions regarding appellant’s
condition which comported with his findings.9
The remaining evidence of record submitted prior to OWCP’s termination of medical
benefits is insufficient to show that appellant had residuals of his December 31, 2006
employment injury. In a report dated April 4, 2012, Dr. Jones indicated that he had treated
appellant since 2007 for head, neck and trapezius pain. He asserted that the diagnosed
conditions resulted from pain that appellant related began after a December 2006 motor vehicle
accident. While Dr. Jones described appellant’s belief that his problems began after his motor
vehicle accident, he did not provide an independent opinion regarding causation. A physician’s
report is of little probative value when it is based on a claimant’s belief rather than the
physician’s independent judgment.10 The Board thus finds that the weight of the evidence
establishes that appellant had no residuals of his accepted work injury, effective November 15,
2011, the date OWCP terminated his authorization for medical benefits.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s authorization for medical
benefits effective November 15, 2011 on the grounds that he had no further need for medical
treatment due to his December 31, 2006 employment injury.

8

S.E., Docket No. 08-2214 (issued May 6, 2009); Conrad Hightower, 54 ECAB 796 (2003).

9

See Pamela K. Guesford, supra note 6.

10

Earl David Seale, 49 ECAB 152 (1997).

4

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 17, 2013
Washington, DC

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

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

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

5