United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. MARINE CORPS, AIR STATION,
Cherry Point, NC, Employer
__________________________________________

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

Docket No. 14-386
Issued: May 27, 2014

Case Submitted on the Record

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

JURISDICTION
On December 6, 2013 appellant filed a timely appeal from a July 25, 2013 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.2
ISSUE
The issue is whether appellant has established that modification of an April 17, 2013
wage-earning capacity determination was warranted.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted evidence on appeal. The Board has reviewed the evidence that was before OWCP at the
time of the July 25, 2013 decision, but cannot review any new evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 11, 2009 appellant, then a 44-year-old boiler plant operator, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a right knee injury from a slip and fall in the
performance of duty on March 5, 2009. OWCP accepted the claim for right knee torn medial
meniscus, right knee internal derangement and right leg joint derangement. Appellant underwent
right knee surgeries on January 12 and July 29, 2010, and May 12, 2011. He received
compensation for wage loss commencing April 24, 2009.
The record indicates that the employing establishment offered appellant a position as a
motor vehicle dispatcher. The position was described as mostly sedentary, with some walking
carrying, bending or lifting up to 25 pounds. In a report dated October 26, 2012, Dr. Robert
Alex Creighton, a Board-certified orthopedic surgeon, indicated that appellant had received a job
offer that required lifting up to 25 pounds. He stated that appellant wanted to try the position.
Dr. Creighton indicated that appellant continued to have right knee discomfort and diagnosed
right knee early arthritis.
Appellant accepted the position on December 4, 2012, and began working on
December 17, 2012. A memorandum of telephone call with the employing establishment
indicated that appellant’s current pay rate was $36,384.00 annually. By letter dated January 23,
2013, OWCP advised appellant that it was reducing his wage-loss compensation based on actual
earnings. The accompanying worksheet indicated the current pay rate for the date-of-injury job
was $1.081.63 per week, and his current actual earnings were $699.69 per week.
In a report dated February 15, 2013, Dr. Creighton stated that appellant was complaining
of increased knee pain. He reported that appellant “appears [to be] doing more than his
restrictions guidelines stated.” Dr. Creighton provided results on examination and diagnosed
right knee early arthritis.
By decision dated April 17, 2013, OWCP determined that actual earnings as a motor
vehicle dispatcher of $699.69 per week fairly and reasonably represented his wage-earning
capacity. It stated that pursuant to 5 U.S.C. § 8115(a) it was reducing appellant’s wage-loss
compensation based on an earning capacity of 65 percent of his date-of-injury position.
On May 2, 2013 appellant filed a recurrence claim (Form CA-2a) indicating that he had
stopped working as of April 22, 2013. He asserted that the new position he had taken “did not
meet the restrictions” provided by his physician and “what was supposed to be a sedentary
position was not.” Appellant stated that, as a result of being placed in the new job, he suffered
increased pain and swelling. He also asserted that he had to see a physician for stress associated
with “the entire ordeal that he had to endure during the last four years.”
In a report dated April 19, 2013, Dr. Creighton stated that appellant was seen for
continuing right knee issues and difficulty with his current work placement. He reported that
appellant suffered from knee arthritis and received periodic steroid injections. According to
Dr. Creighton, appellant was unable to do stairs or any type of manual labor such as washing
buses, which appellant was currently performing. He diagnosed continued arthritis.

2

By report dated June 20, 2013, Dr. Creighton responded to specific questions from
OWCP regarding appellant’s condition. He diagnosed “osteoarthritis postinjury and surgeries,”
stated “yes” there was a material worsening of appellant’s condition on April 22, 2013 from
“increased pain due to activity beyond his work restrictions as prescribed.” Dr. Creighton
indicated that appellant had positive effusion and swelling with decreased range of motion, and
walked with a limp. In a note dated July 17, 2013, he stated that appellant had been
“lifting/walking beyond what a sedentary job entails.”
In a decision dated July 25, 2013, OWCP denied modification of the April 17, 2013
wage-earning capacity determination. It found that the evidence was insufficient to warrant
modification.
LEGAL PRECEDENT
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.3
OWCP procedures state that, after a claimant has been working for 60 days, it will make
a determination as to whether actual earnings fairly and reasonably represent wage-earning
capacity.4 The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,5 has been codified at 20 C.F.R. § 10.403. OWCP
first calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury position.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.7 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.8

3

Dennis E. Maddy, 47 ECAB 259 (1995).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (February 2013).
5

5 ECAB 376 (1953).

6

20 C.F.R. § 10.403(d).

7

Sue A. Sedgwick, 45 ECAB 211 (1993).

8

Id.

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ANALYSIS
In the present case, appellant had begun work in the position of motor vehicle dispatcher
as of December 17, 2012. By decision dated April 17, 2013, OWCP found that the actual
earnings of $699.69 a week fairly and reasonably represented his wage-earning capacity. When
appellant stopped working on April 22, 2013, the issue was whether the wage-earning capacity
determination should be modified.
A modification of the wage-earning capacity determination is warranted, as noted above,
if there is a material change in the nature and extent of the employment-related condition.
Although the attending physician, Dr. Creighton, stated in his June 20, 2013 report that “yes”
there was a material change on April 22, 2013, this is not itself sufficient to establish a
modification of the wage-earning capacity determination. The Board notes that Dr. Creighton
continued to diagnose right knee arthritis. The accepted conditions in this case are right knee
torn medial meniscus, right knee internal derangement and right leg joint derangement. Since
the material change must be established in an employment-related condition, an arthritis
condition must first be established as employment related. Dr. Creighton made no reference to
the causal relationship between right knee arthritis and the March 5, 2009 employment injury.
The issue presented on this appeal is whether there was a material change in a condition causally
related to the March 5, 2009 employment injury. Dr. Creighton does not provide a medical
report, with an opinion based on sound medical reasoning and an accurate background,
establishing right knee arthritis as causally related to the March 5, 2009 employment injury.9
The Board accordingly finds that appellant has not established a modification of the April 17,
2013 wage-earning capacity determination based on a material change in an employment-related
condition as of April 22, 2013.
Another basis for modification of the April 17, 2013 wage-earning capacity
determination is evidence that the original determination was erroneous. Appellant did not
provide specific arguments with respect to error in the original wage-earning capacity
determination. As noted above, wages actually earned are generally the best measure of wageearning capacity and appellant did work in the position for more than 60 days. Appellant has
stated that he felt the job was not a sedentary job, but the job description indicated that the
position was not completely sedentary but did have physical demands that included bending and
lifting. Dr. Creighton stated in a February 15, 2013 report that appellant appeared to be doing
more than his “restriction guidelines,” but it is unclear what specific restrictions he was referring
to, or how the job exceeded these restrictions. Based on the evidence of record, appellant did not
establish that the original wage-earning capacity determination was erroneous.
It is appellant’s burden of proof to establish that a modification of the April 17, 2013
wage-earning capacity determination was warranted. Based on the evidence of record, appellant
did not meet his burden of proof. Appellant may request modification of the wage-earning
capacity determination, supported by new evidence or argument, at any time before OWCP.
9

Probative medical evidence is evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning. See D.E., Docket No. 13-2104 (issued March 7, 2014); S.S., 59 ECAB
315 (2008).

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CONCLUSION
The Board finds appellant has not established that a modification of the April 17, 2013
wage-earning capacity determination was warranted.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 25, 2013 is affirmed.
Issued: May 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milford, CT, Employer
__________________________________________

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

Docket No. 16-1366
Issued: April 6, 2017

Case Submitted on the Record

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

JURISDICTION
On June 22, 2016 appellant filed a timely appeal of a May 5, 2016 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
since the last merit decision on December 15, 2014 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to demonstrate clear evidence of error.
FACTUAL HISTORY
On June 6, 2014 appellant, then a 50-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he sustained postlaminectomy syndrome as a result of his federal
1

5 U.S.C. § 8101 et seq.

employment. He had stopped work on May 6, 2013. Appellant submitted a July 7, 2014 note
describing his modified job duties since 2006 and referred to a February 12, 2014 report from
Dr. Lawrence Rapp, a Board-certified neurosurgeon selected as a second opinion physician, from
a prior traumatic injury claim for a June 6, 1994 back injury.2
Appellant submitted a February 12, 2014 report from Dr. Rapp. Dr. Rapp noted that
appellant had worked in some capacity until May 6, 2013, and his described job duties could
certainly be responsible for aggravating his underlying degenerative disease and accelerating his
L3-4 disc disease. He then discussed possible treatment options, including surgery.
OWCP also received a July 25, 2013 report from Dr. Nadine Jennings, a Board-certified
physiatrist. Dr. Jennings indicated that appellant underwent lumbar surgery on May 10, 2005
and, although there was some postoperative improvement, appellant continued to complain of
low back pain. She opined that he was totally disabled as a result of chronic low back pain and
lumbar postlaminectomy syndrome related to his 1994 injury.
By decision dated July 18, 2014, OWCP denied the claim for compensation. It found that
appellant had not established the factual element of the claim.
On November 4, 2014 appellant requested reconsideration of the claim. In an
October 27, 2014 letter, he indicated that he had been off work for an extended period and then
returned to work in 2006. Appellant described his job duties in bulk mail entry and distributionrelated tasks. He also submitted a second October 27, 2014 letter, indicating that he felt medical
evidence had been ignored because OWCP had combined the two cases.3
By decision dated December 15, 2014, OWCP reviewed the merits of the claim. It found
that appellant had described the job duties alleged to have contributed to a back condition, but as
to the medical evidence, OWCP found it was insufficient to meet appellant’s burden of proof.
OWCP found Dr. Rapp had reviewed only the full duties of a clerk, rather than the modified
duties appellant performed, and his report did not establish an employment-related disability as
of May 6, 2013 causally related to the identified work duties.
Appellant again requested reconsideration on September 8, 2015. He indicated that an
additional medical report was enclosed. The current case file does not include additional
medical evidence.4

2

The 1994 claim was accepted for lumbar sprain, lumbar disc degeneration, lumbar spondylosis, and closed
dislocation lumbar vertebra. A loss of wage-earning capacity determination was issued on September 6, 1996 based
on a modified clerk position (OWCP File No. xxxxxx079). Appellant filed a claim for a recurrence of disability
commencing May 6, 2013. By decision dated January 17, 2014, OWCP denied modification of the loss of wageearning capacity determination.
3

The record does not indicate that the 1994 claim has been administratively combined with the current claim.

4

The master OWCP File No. xxxxxx079 shows OWCP received, on September 8, 2015, an August 3, 2015
report from Dr. Rapp.

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By decision dated October 14, 2015, OWCP denied merit review of the claim. It did not
address any medical evidence and found that appellant had not established entitlement to a merit
review.
On January 13, 2016 appellant requested reconsideration. He submitted an August 3,
2015 report from Dr. Rapp, who indicated that he felt his prior reports had been clear. Appellant
reported a history of injury in June 1994 and the results of prior examinations. Dr. Rapp
indicated that appellant had provided an extensive description of his job duties that he had read
the description and “as such, I would state these are a contributing factor.” As to disability, he
indicated that he would defer to the physical medicine specialist, Dr. Jennings. Appellant
asserted that report had been previously submitted. He resubmitted the October 27, 2014 letter
indicating that he felt the medical reports had been improperly ignored due to combining of case
records.
By decision dated May 5, 2016, OWCP found the reconsideration request was untimely
filed. It further found that there was no evidence that new medical documentation had been
submitted prior to the October 14, 2015 decision and appellant had not demonstrated clear
evidence of error. OWCP did not review the August 3, 2015 report from Dr. Rapp.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.5 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”6
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.7 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.8 It, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a) of
FECA.9 As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.10 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of it in its most recent merit decision. The

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.605 (2012).

7

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
9

5 U.S.C. §§ 8101 et seq.

10

20 C.F.R. § 10.607 (2012).

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evidence must be positive, precise, and explicit and must manifest on its face that OWCP
committed an error.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.12 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.13 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.14 A determination of whether the claimant has
established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.15
ANALYSIS
In the present case, the last decision on the merits of the claim was the December 15,
2014 OWCP decision. Appellant filed the reconsideration request at issue on January 13, 2016.
Since this is more than one year after the last merit decision, it was untimely filed. As an
untimely reconsideration request, appellant must demonstrate clear evidence of error by OWCP.
Appellant argued that he had previously submitted an August 3, 2015 report from
Dr. Rapp and that the evidence of record had not been properly reviewed. The Board agrees and
finds that appellant has demonstrated clear evidence of error by OWCP. When appellant
submitted the reconsideration request on September 8, 2015, he indicated that he was submitting
an additional medical report. He clearly identified the current OWCP file number and a date of
injury as 2013.
The Board has reviewed the case record for the master OWCP File No. xxxxxx079 and
finds that on September 8, 2015 OWCP received the August 3, 2015 report from Dr. Rapp. It is
well established that when OWCP is adjudicating a claim, it is obligated to consider all evidence
properly submitted by a claimant and received prior to the issuance of its final decision.16 When

11

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

12

Annie L. Billingsley, 50 ECAB 210 (1998).

13

Jimmy L. Day, 48 ECAB 652 (1997).

14

Id.

15

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

16

See William A. Couch, 41 ECAB 548 (1990).

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OWCP fails to properly consider relevant evidence submitted, it raises a substantial question as
to the correctness of the decision and demonstrates clear evidence of error.17 In the present case,
appellant had properly submitted relevant evidence on September 8, 2015 and the October 14,
2015 OWCP decision failed to review the evidence. The Board finds that appellant has
demonstrated clear evidence of error in this case.
The case will be remanded to OWCP. After such further development as is deemed
necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds that appellant has demonstrated clear evidence of error and the case is
remanded to OWCP for further proceedings consistent with this decision of the Board.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2016 is reversed.
Issued: April 6, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

See H.G., Docket No. 16-0610 (issued October 19, 2016)(appellant submitted evidence one day prior to an
OWCP decision, but OWCP did not review the evidence and asserted it was not available for viewing until a day
after the final decision. The Board found the failure to review the evidence showed clear evidence of error by
OWCP); see also S.P., Docket No. 13-0646 (issued February 4, 2014) (OWCP’s failure to review relevant medical
evidence in its decisions showed clear evidence of error).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sparks, NV, Employer
__________________________________________

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

Docket No. 17-1166
Issued: October 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 8, 2017 appellant, through counsel, filed a timely appeal from a January 27,
2017 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.
ISSUE
The issue is whether appellant has established a permanent impairment of the left upper
extremity causally related to her accepted employment injury.

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.

FACTUAL HISTORY
On August 16, 2010 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral medial epicondylitis due to
repetitive work duties. OWCP accepted bilateral medial epicondylitis and paid wage-loss
compensation for total disability beginning October 18, 2010.
On August 18, 2011 appellant elected to receive retirement benefits from the Office of
Personnel Management in lieu of workers’ compensation. She filed a claim for a schedule award
(Form CA-7) on November 16, 2011.
In a report dated December 3, 2012, Dr. Kenneth J. Matteoni, an orthopedic surgeon,
indicated that appellant sought treatment for her left elbow on that date after an extended
absence. He related, “According to [her] she injured the elbow approximately [six] weeks ago.
[Appellant] states she was pouring spaghetti sauce into a baggie at home and she felt a ‘ripping’
sensation in the left elbow. She had some immediate pain and discomfort.” Dr. Matteoni noted
that appellant’s pain occurred over the medial epicondyle. He interpreted x-rays as showing a
“very small bony avulsion” and diagnosed left medial epicondylitis of the elbow.
Dr. Matteoni, in a January 14, 2013 progress report, discussed appellant’s continued left
elbow pain. He recommended surgery.
On February 21, 2013 Dr. James Christensen, a Board-certified orthopedic surgeon,
performed a left debridement and repair of the flexor origin and a debridement of the medial
epicondyle.
In a progress report dated April 3, 2013, Dr. Christensen reviewed the December 2012
and January 2013 reports from Dr. Matteoni, noting that he was treating appellant for “a severely
symptomatic left medial epicondylitis….” He indicated that Dr. Matteoni was “treating her for a
work-related problem, and the problem we were treating her for was the same problem that
Dr. Matteoni was seeing her for.”3
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and OWCP referral
physician, performed an impairment evaluation on May 23, 2013 to determine the extent of any
permanent impairment of the right upper extremity. Based on his report, by decision dated
July 19, 2013, OWCP granted appellant a schedule award for one percent permanent impairment
of the right upper extremity.
On August 7, 2013 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
In an October 16, 2013 impairment evaluation, Dr. Michael E. Hebrard, a Board-certified
physiatrist, noted that appellant had a history of “cumulative trauma to her elbows, first the right
and then the left” as a result of performing her job duties. He advised that she also injured her
left elbow “in her kitchen while tipping a pan. She felt something ‘grip’ and burn in her elbow.”
Dr. Christensen also provided progress reports describing appellant’s surgical recovery on March 6 and
May 15, 2013.
3

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Dr. Hebrard diagnosed chronic right medial epicondylitis and status post left flexor tendon
exploratory surgery at the medial epicondyle region with continued symptoms. He attributed the
diagnosed conditions to appellant’s employment, noting that repetitive activities weakened “the
flexor tendon which controls the flexion of the wrists, resulting in scarring and edema. In the
course of her activities of daily living, [she] suffered an acute aggravation of this preexisting
condition that she acquired from her years working for the [employing establishment].”
Dr. Hebrard opined that appellant had two percent permanent impairment of the right upper
extremity due to medial epicondylitis. For the left upper extremity, he determined that she had
seven percent impairment due to a “painful injury.”
Following a January 15, 2014 telephone hearing, by decision dated March 26, 2014,
OWCP’s hearing representative vacated the July 19, 2013 decision. He found that the opinion of
Dr. Hebrard was sufficient to warrant further development regarding the extent of impairment of
the right arm. The hearing representative further determined that OWCP should evaluate
whether appellant’s left arm condition was employment related and, if so, whether any
impairment would warrant a schedule award.
By decision dated March 28, 2014, OWCP granted appellant a schedule award for an
additional one percent for right upper extremity permanent impairment.
In July 2014 letters, counsel requested that OWCP issue a schedule award for the left
arm. OWCP, in response, noted that after July 2011 she had not sought treatment for a left
shoulder condition until December 3, 2012, when she sustained a nonemployment-related injury.
It advised that the medical evidence was insufficient to demonstrate that appellant’s left elbow
injury occurred as a direct and natural consequence of her accepted injury. OWCP requested that
she submit additional factual and medical evidence, including a medical report addressing the
causal relationship between her current condition and the initial and intervening injury.
Dr. Christensen, in a January 29, 2013 progress report, received by OWCP on
January 26, 2015, discussed appellant’s history of bilateral tendinitis of the medial epicondyle,
noting that she had no further right elbow problems since she stopped work. He indicated that in
November 2012 she experienced a tearing sensation in her left elbow after lifting and twisting a
pan filled with spaghetti. Dr. Christensen advised that x-rays obtained on December 3, 2012
showed some mild left elbow arthritis. He diagnosed medial epicondylitis of the left elbow.
By decision dated March 17, 2016, OWCP denied appellant’s claim for a schedule award
for the left upper extremity. It found that the medical evidence then of record failed to establish
a permanent impairment of the left upper extremity due to her accepted work injury. OWCP
determined that appellant had not demonstrated that the October 2012 injury to her left elbow
was a consequence of the accepted employment injury.
On March 24, 2016 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. At the telephone hearing, held on November 15, 2016, she
related that in 2012, subsequent to her employment injury, she splintered the bone and detached
a tendon from her left elbow. Appellant maintained that the 2012 injury was to the same area of
the body as previously injured and alleged that the work injury had weakened her elbow. The
hearing representative informed her that her attending physician should explain whether the
additional injury would have occurred absent her employment injury.
3

In a report dated December 8, 2016, Dr. Christensen discussed appellant’s work history
and related:
“[Appellant] states that she had bilateral medial epicondylitis and that this was
work related, but I do not have any records that indicate it was or was not work
related. I saw her in February 2013 with chronic left medial elbow pain.
[Appellant] had been unresponsive to conservative measures. At one time, she
lifted a heavy pan at home and dropped it because of sharp medial elbow pain.”
Dr. Christensen indicated that he performed a debridement of the medial epicondyle and repair
of the flexor origin of the left elbow with good results. He advised:
“I do not have records that indicate whether or not that was part of a prior workrelated problem, and if it was, then I think her surgery should be covered under
her [w]orkers’ [c]ompensation, as it was a continuation of the medial
epicondylitis which, according to [appellant] had never resolved since she quit
working on disability.”
By decision dated January 27, 2017, OWCP’s hearing representative affirmed the
March 17, 2016 decision. She found that the medical evidence was insufficient to establish that
appellant’s left elbow condition after October 2012 was the direct and natural result of her work
injury. The hearing representative thus concluded that she had not established a left upper
extremity impairment causally related to her employment injury.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.4 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
medical opinion that supports a causal connection between her current condition and the
employment injury.5 The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.6
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.7
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
4

See Veronica Williams, 56 ECAB 367 (2005); Annette M. Dent, 44 ECAB 403 (1993).

5

Manuel Gill, 52 ECAB 282 (2001).

6

Yvonne R. McGinnis, 50 ECAB 272 (1999).

7

See C.L., Docket No. 16-1567 (issued May 19, 2017).

4

is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though not related to employment, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.8 A claimant bears
the burden of proof to establish a claim for a consequential injury through the submission of
rationalized medical evidence.9
ANALYSIS
OWCP accepted that appellant sustained bilateral medial epicondylitis as a result of
factors of her federal employment. She received wage-loss compensation from OWCP from
October 18, 2010 until she retired in August 2011. On November 16, 2011 appellant filed a
claim for a schedule award for the upper extremities. In October 2012 she injured her left elbow
pouring spaghetti sauce out of a pan at home.
OWCP had previously granted appellant schedule awards for a total of two percent
permanent impairment of the right upper extremity. In July 2014 counsel requested that OWCP
adjudicate whether appellant was also entitled to a schedule award for the left upper extremity.
Appellant alleged a consequential injury to her left elbow at home in either October or
November 2012 and that she had a permanent left arm impairment. As discussed, she has the
burden to establish an employment-related permanent impairment of her left upper extremity for
schedule award purposes.10 Appellant must submit rationalized medical evidence establishing a
diagnosed condition as a direct and natural result of the accepted work injury.11
In an October 16, 2013 impairment evaluation, Dr. Hebrard reviewed appellant’s history
of bilateral elbow trauma that arose from the performance of her work duties and a left elbow
injury that occurred when she tipped a pan in her kitchen. He diagnosed chronic right medial
epicondylitis and status post left elbow surgery at the medial epicondyle region. Dr. Hebrard
attributed the diagnosed conditions to appellant’s employment, advising that repetitive work
duties weakened and scarred the flexor tendon, and that performing daily living resulted in an
aggregation of the preexisting condition. He found that she had seven percent impairment of the
left upper extremity due to a “painful injury.” While Dr. Hebrard noted that appellant’s work
duties had weakened her tendon, he did not explain, with reference to the specific mechanism of
injury, how appellant’s left elbow pain after lifting a pan in October or November 2012 occurred
as a natural consequence of the earlier work injury as opposed to an injury that occurred
independently.12 As such, his opinion is thus insufficient to meet her burden of proof.
Dr. Christensen, in a January 29, 2013 evaluation, discussed appellant’s history of
bilateral tendinitis at the medial epicondyle and of feeling a tear in her left elbow in
8

See S.S., 59 ECAB 315 (2008); Debra L. Dillworth, 57 ECAB 516 (2006).

9

Charles W. Downey, 54 ECAB 421 (2003)

10

Id.

11

See S.S., supra note 8.

12

See M.K., Docket No. 09-2150 (issued August 3, 2010).

5

November 2012 after lifting and “twisting a pan of spaghetti.” He diagnosed medial
epicondylitis of the left elbow. As Dr. Christensen did not address whether the current condition
of left elbow medial epicondylitis resulted from the accepted work injury, his report is of
diminished probative value.13 Dr. Christensen performed a surgical repair of the flexor origin
and a medial epicondyle debridement on February 21, 2013. On April 3, 2013 he discussed
Dr. Matteoni’s treatment of appellant for a work injury, and advised that he was treating her for
the same condition. Dr. Christensen, however, did not evince a complete knowledge of her
employment injury or explain how or why her current left elbow condition was a consequence of
her accepted work injury, and thus his report is of little probative value.14 Such explanation is
particularly necessary as the record is devoid of evidence showing that appellant sought medical
treatment for her left elbow from July 2011 until December 2012.
Dr. Christensen, in a December 8, 2016 report, advised that appellant related that she
sustained employment-related bilateral medial epicondylitis and also experienced medial elbow
pain after lifting a pan at home. He noted that he did not have records supporting that she had a
work-related elbow condition. Dr. Christensen related that if she had an employment-related
elbow condition, her surgery should be covered by workers’ compensation as it was a
continuation of the condition of medial epicondylitis. His opinion that appellant’s left elbow
surgery should be covered by workers’ compensation, if appellant actually experienced a work
injury, is equivocal in nature and thus of diminished probative value.15 Dr. Christensen further
did not medically explain how her current left elbow condition was related to her employment
injury.16 Medical evidence which provides a conclusion, but not a reasoned medical explanation,
is of limited probative value.17
On December 3, 2012 Dr. Matteoni evaluated appellant after a long absence from
treatment for left elbow pain. He noted that she described an injury to her elbow about six weeks
earlier after pouring spaghetti sauce into a baggie. Dr. Matteoni diagnosed medial epicondylitis.
On January 13, 2013 he recommended surgery. Dr. Matteoni did not relate the diagnosed
condition of left elbow medial epicondylitis to the prior work injury. Thus, his opinion is
insufficient to meet appellant’s burden of proof.18
Appellant has not submitted evidence from a physician who, based on an accurate factual
history, found her left elbow condition subsequent to October 2012 was a consequence of her
accepted employment injury and supported the opinion with sound medical reasoning.19 She has

13

See C.L., Docket No. 17-0249 (issued June 22, 2017).

14

See D.E., Docket No. 16-1604 (issued February 1, 2017).

15

See D.D., 57 ECAB 734 (2006) (medical opinions that are speculative or equivocal in character are of
diminished probative value).
16

See Elba Vivas, Docket No. 99-0515 (issued March 26, 2001).

17

See M.A., Docket No. 15-1956 (issued February 3, 2017).

18

See C.B., Docket No. 09-2027 (issued May 12, 2010); A.D., 58 ECAB 149 (2006).

19

See W.M., Docket No. 16-1658 (issued May 3, 2017).

6

thus not met her burden of proof to show that she had an employment-related impairment of the
left upper extremity.20
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 appellant has not established that she sustained a permanent
impairment of the left upper extremity causally related to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2017 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: October 24, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

See B.W., Docket No. 13-0039 (issued February 7, 2013).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
William H. Brawner, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1540
Issued: August 21, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 26, 2016 appellant, through counsel, filed a timely appeal from a June 27, 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.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional condition
in the performance of duty.

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.

FACTUAL HISTORY
On June 18, 2014 appellant, then a 45-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that she developed depression, panic attacks,
generalized anxiety, post-traumatic stress disorder (PTSD), and reflex-esophagitis as a result of
harassment and stress at work. She first became aware of her claimed condition on November 23,
2009 and realized its relation to her federal employment on December 21, 2012. Appellant
stopped work on December 21, 2012. On the reverse side of the claim form T.P., appellant’s
supervisor, explained that appellant was upset at and very irate with her when she left work on
December 21, 2012, but appellant did not report an injury when she walked out of the office.
In a 14-page statement dated May 12, 2014, appellant related that she had worked for the
employing establishment since 1990 but she did not begin to experience anxiety and depression
until she became a customer service supervisor. She described two different occasions when H.O.,
the postmaster, yelled and screamed at her over the telephone because either the mail or the carriers
were late to arrive back at the employing establishment. Appellant asserted that she experienced
anxiety and chest pains. She noted that the postmaster instructed her once to deliver mail in 100
degree weather as retaliation because carriers had left the post office late. Appellant noted another
incident when H.O. requested a meeting with her and threatened to fire her if she failed to follow
instructions. She also related that the postmaster allowed other supervisors to transfer to other
positions within the employing establishment, but she had applied for five nonsupervisory jobs
and had not even gotten an interview. Appellant also explained that she sent a letter via certified
mail to the district manager to request reassignment to a totally different department with less
stress, but she never heard back from him personally. She believed that that postmaster was
retaliating against her and was behind district manager never receiving her requests.
Appellant also asserted that she experienced harassment from her supervisor, T.P. She
indicated that other carriers informed her that T.P. made fun of the way she dressed and complained
that appellant was “no good.” Appellant described in detail several other incidents where she
believed T.P. harassed her and tried to get her fired. She related that T.P. reprimanded her for not
greeting the employees one morning and for being too nonchalant when a customer complained
about her mail delivery. Appellant noted that, during a dental appointment, T.P. constantly called
and texted her on her cell telephone even though she had properly notified T.P. of her appointment.
When she returned to the post office after her appointment, the carriers were still in the building.
Appellant began to experience an anxiety attack because she knew that T.P. would blame her for
the carriers leaving late and returning to the station late. She reported that T.P. retaliated against
her and instructed her to take the late outgoing mail to the processing plant that night even though
that was not part of her job duties and the processing plant was 50 minutes away. Appellant also
mentioned another incident when the express mail arrived late and T.P. yelled loudly that appellant
needed to get over there and help them deliver the express mail.
Appellant further described situations wherein she believed T.P. was trying to set her up to
be fired. She reported that T.P. instructed her to hide mail in her office, falsify employees’ clock
rings, falsify e-mails, and lie to the postmaster and acting city manager that all the carriers were
off the street even though they were still out delivering mail. Appellant explained that T.P. once
asked her to falsely scan the hot case because it would appear that the mail in their unit was up on
time, even though the mail was not timely on that particular morning. She related another situation
when T.P. instructed her to discipline a clerk for an express mail failure. When appellant could
2

not pinpoint the clerk who handled the express mail that morning, T.P. threatened to give appellant
a letter of warning if she did not do what was asked. Appellant also indicated that one day she
was looking at her personnel file on-line and noticed a letter of warning that she never signed. She
asserted that the manager forged this letter and placed it in her personnel file. Appellant provided
a letter of warning dated September 23, 2009 which charged her with Improper Conduct (Failure
to Follow Instructions) for incidents that occurred on August 26 and 29, 2009.
Appellant described another incident when T.P. sent her an e-mail with a read receipt,
which asked appellant to adjust her usual work schedule of 8:00 a.m. to 5:00 p.m. to 10:00 a.m. to
7:00 p.m. that week because another supervisor had final examinations at school. She explained
when she told T.P. that she could not work that shift on December 26 because she had to take care
of her disabled son, T.P. yelled and threatened to write her up and personally remove her from the
employing establishment. Appellant related that they had a screaming match until she accused
T.P. of forging her signature. She noted that T.P. then stopped arguing and returned to her office.
Appellant explained that she was upset, crying, visibly shaking, her head started hurting, and she
vomited in the trash can. She sought medical treatment from her doctor who advised appellant not
to work until she was treated by a psychiatrist. Appellant described another occasion when T.P.
told her that the acting city manager had requested that she work the following Saturday even
though she was scheduled to not work. She explained that her schedule was in writing and that
she worked every other Saturday. T.P. told appellant that she was instructed to write appellant up
and issue a letter of warning if appellant did not work that Saturday. Appellant explained that she
did not work that Saturday because her schedule was in writing, but she experienced stress and
anxiety about returning to work on Monday. She provided a letter dated October 26, 2012 by T.P.,
which confirmed that appellant’s work hours were from 8:00 a.m. -- 5:00 p.m., Monday through
Friday, as needed with every other Saturday off. Appellant reported that days after this incident
she noticed that T.P.’s behavior changed towards her. She indicated that T.P. stopped sending her
e-mails and complained to her that her disabled son’s doctor’s appointments were excessive.
Appellant related that T.P. reprimanded her and informed her that the other supervisors were tired
of working around her schedule.
Appellant asserted that another individual who harassed and provoked her was the acting
city manager, L.H. She related an incident when L.H. called her to see if the outgoing mail had
made the evening dispatch truck. When appellant told him it had not and tried to explain what
happened, L.H. raised his voice and became very angry towards her. She indicated that they yelled
at each other back and forth until she finally hung up the telephone. Appellant noted that she was
shaking and crying and was so upset that she vomited. She called in sick the next day due to workrelated stress and sought medical treatment. Appellant reported that when she returned to work
one week later, she was told that L.H. was preparing to fire her. She explained that she could not
eat or sleep for a couple of days due to the anxiety she experienced regarding him trying to fire
her.
Appellant described another incident on a Saturday morning when the employing
establishment facility was busy and L.H. called to see how many routes she had left open. When
she told him that she still had seven routes open, L.H. informed her that he would send her two
carriers from another facility to help out. Appellant indicated that when no other carriers showed
up after a few hours, she called L.H. and he denied ever saying that he was going to send two
additional carriers. She became very upset and began to yell at him. Appellant noted that L.H.
eventually sent her one relief carrier. She mentioned another incident when L.H. called and
3

addressed her by another name. When appellant repeatedly corrected her name, he got mad and
used profanity so she hung up the telephone. Appellant noted that the next day T.P. told her that
she better be nice to L.H.
In addition to harassment from her supervisors, appellant asserted that she experienced
stress and anxiety when she was the only supervisor working and management blamed her for
things that went wrong. She explained that she was under a lot of stress to get the carriers back to
the post office on time so that the mail could make the outgoing dispatch truck. Appellant alleged
that, on a typical Saturday morning, she was the only supervisor working and was responsible for
sixty employees, two post offices, and one satellite post office. She related that she felt
overwhelmed and stressed because the mail was often late, carriers complained about not having
vehicles on their route, the telephones constantly rang, and the window clerks asked for help at the
customer service window because the service line was out the door. Appellant described one
incident when the express mail arrived 30 minutes before the commitment time of 12:00 p.m. and
she had to use her personal vehicle to deliver the express mail. She mentioned another occasion
when she got into an argument with a carrier about what time he should return from his route.
Appellant explained that while that carrier was on the street, she experienced chest pains and stress
about that carrier being late because the postmaster was going to yell at her and threaten to fire
her.
Appellant explained that she was still receiving medical care from her psychiatrist and had
not yet been released back to work. She indicated that she still experienced crying spells, anxiety,
and sleep deprivation when she thought about her current work situation. Appellant reported that
she recently learned from another employee that T.P. was trying to involve her in a case with the
Equal Employment Opportunity (EEO) Commission even though she had not worked since
December 21, 2012. She provided a written statement dated March 10, 2014 by T.M., a rural
carrier, who noted that she recently filed an EEO complaint against T.P. T.M. explained that the
complaint was about a letter of warning that T.P. issued to her because of an alleged note that
appellant forged. She stated that she did not know why T.P. brought up appellant’s name because
appellant had not worked at the employing establishment since December 2012.
Along with her detailed statement, appellant provided medical reports dated March 14 to
June 16, 2014 by Dr. David Israel, a clinical psychologist. He explained that based on
examination, appellant’s current levels of clinical anxiety and depression appeared related to an
extended history of on-the-job stress. Dr. Israel reported diagnoses of generalized anxiety
disorder, major depressive disorder, and post-traumatic stress disorder. In a handwritten attending
physician’s report, he noted a history of injury of a hostile work environment and parent/child
conflict.
Appellant was also treated by Dr. Prakash G. Ettigi, a Board-certified psychiatrist and
neurologist, who noted that appellant continued to have anxiety and depression with panic attacks
when she thought about returning to work due to the harassment and mistreatment she received by
supervisors and coworkers. Dr. Ettigi related that appellant described these incidents in great
details in the attached document. He reported that appellant suffered from PTSD with panic attacks
and was unable to work. Dr. Ettigi opined that the “stress and problems from her work has
contributed greatly to her condition.”

4

By letter dated July 3, 2014, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she respond to an attached questionnaire
regarding the factual element of her claim and provide a narrative medical report by her physician
which established that her diagnosed conditions of generalized anxiety disorder, major depressive
disorder, and PTSD were causally related to her federal employment. Appellant was afforded 30
days to submit the requested information. A similar letter requesting additional information was
also sent to the employing establishment.
A health and resource manager at the employing establishment, responded to OWCP in a
letter dated July 10, 2014. He related that appellant alleged several encounters about various postal
managers “yelling, screaming, retaliation, and harassment,” but did not submit any witness
statements or other proof to validate her claim. The health and resource manager noted that an
investigation was conducted regarding appellant’s allegations and the preponderance of evidence
demonstrated that none of the occurrences appellant described had any merit. He also pointed out
that appellant’s allegation did not surface until administrative action was taken against her for
failure to perform her duties. The health and resource manager provided an August 2, 2013 letter
to appellant’s Congressman, which explained the employing establishment’s investigation into
appellant’s complaints and their findings that appellant’s allegations did not have any merit.
In an undated statement, Supervisor T.P. expressed her disagreement with appellant’s
contentions. She explained that when appellant left her employment, the workload was being
shared among four employees at the employing establishment. T.P. reported that on most days
appellant’s workload was much less because she was absent due to Family and Medical Leave Act
(FMLA) leave for her son’s various medical appointments or for court. She noted that there were
no detrimental work factors or staffing shortages that appellant had to absorb. T.P. explained that
appellant’s duties did not vary from the official description and related that appellant performed
her duties as expected.
Appellant indicated in a letter dated July 24, 2014 that she previously filed an original
traumatic injury claim (OWCP File No. xxxxxx447) on January 28, 2013. She noted that T.P. had
a history of yelling, screaming, belittling employees, and using profanity. Appellant provided a
list of mail carriers that T.P. had yelled at, belittled, and disrespected and explained that they feared
retaliation if they gave a statement.
On August 8, 2014 OWCP received appellant’s signed and completed questionnaire form
dated July 15, 2014. Appellant explained that she felt like she was being retaliated against, and
set up. She noted that she witnessed other supervisors being set up and fired and asserted that T.P.,
H.O., and L.H. would have done that to her. Appellant related that after her doctor placed her off
work, she filed an EEO claim against T.P. for not paying her for almost three months even though
she was on FMLA leave and for forging her signature on the letter of warning. She indicated that
she was not under any outside stress, except for some stress in dealing with the inability to provide
for her son and pay bills and some family concerns over the care and well-being of her medically
disabled son. Appellant reported that she was not sure how her condition developed, but she was
diagnosed by her doctor in 2009. She described symptoms of anxiety, heart pounding, major
depression, panic attacks, PTSD, and reflex-esophagitis. Appellant noted that her condition flared
up during stressful times at work.

5

Appellant submitted a medical report dated September 13, 2012 by Dr. Theresa A.
Vannier, an internist, for treatment of reflux esophagitis and complaints of chest pain for the past
month. She also submitted various disability status notes which indicated that appellant was
receiving medical treatment from November 23 to December 3, 2009 and from July 9 to 12, 2010
for situational stress. Additional work excuse notes further demonstrated that appellant was unable
to work for the period August 26 to September 21, 2011. She also resubmitted her original 14page statement.
In an affidavit dated July 25, 2014, M.B., a supervisor at the Brook Road, Richmond, VA
post office, noted that the postmaster had a history of displaying abusive behavior on the job
towards his employees and management staff. She further stated that she had overheard the
postmaster speaking to appellant in a nonprofessional manner.
H.A., a letter carrier for the employing establishment, also provided an affidavit dated
July 31, 2014. He indicated that he had worked at the East End Post Office under T.P. for years
and reported that she constantly harassed, yelled, belittled, and threatened him at work in front of
his peers. H.A. described a specific incident that happened the previous year when T.P. yelled and
used profanity against him while he was on his route.
Appellant continued to seek medical treatment from Dr. Israel and provided reports dated
July 31 to December 22, 2014 for treatment for generalized anxiety disorder, major depressive
disorder, reflex-esophagitis, and PTSD.
By decision dated April 6, 2015, OWCP denied appellant’s emotional condition claim. It
determined that the employment factors which appellant alleged caused or contributed to her
emotional condition did not occur as alleged or were not considered compensable factors of
employment. OWCP found, therefore, that appellant had not established that her emotional
condition arose in the performance of duty as alleged.
On February 23, 2016 appellant, through counsel, requested reconsideration. Counsel
asserted that OWCP failed to develop appellant’s allegation that she was stressed because she was
the only supervisor at her work location and was blamed for everything that went wrong. He
further noted that although appellant complained about her supervisors’s wrongdoings, each of
these perceived wrongdoings pertained to an effort on her part to perform her job duties. Counsel
requested that OWCP shift its focus from appellant’s anger against management to the underlying
cause of her emotional problems: her failing efforts to meet the demands of her job. He asserted
that the evidence showed that appellant experienced debilitating emotional stress in carrying out
her employment duties, both due to the intensity of the assigned duties and her long, overtime
hours. Counsel submitted various paystubs, which indicated that appellant worked extensive
overtime.
Counsel also provided a September 26, 2013 letter
Inspector General, to appellant’s Congressman, which
substantiated appellant’s allegation that her signature on a
indicated that the report of investigation was forwarded to
action that they may deem to be appropriate.

6

from C.L., acting deputy assistant
explained that an investigation
letter of warning was forged. He
postal administrative personnel for

In an attached statement, appellant noted that she worked as a customer service supervisor
for the employing establishment from January 7, 2007 to December 21, 2012 and described her
duties. She explained that the normal duties of her job were difficult and exhausting and that over
time they had become emotionally overwhelming. Appellant alleged that her job duties seemed
to be beyond the ability of any one person to do alone. She reported that for years she was the
only supervisor on duty on Saturdays, which left her to manage 60 employees, two post offices,
and one satellite post office alone without any help.
Appellant alleged that her normal day was extremely long, hectic, and chaotic. She
described that a typical Saturday included the mail truck (which brought mail from elsewhere for
delivery in her area) always arriving late, sometimes two or more hours beyond the normal time.
Appellant explained that the late arrival time meant that she had mail carriers sitting around
without anything to do, resulting in considerable overtime for which she would be held accountable
for. She indicated that she felt overwhelmed and completely stressed out. Appellant reiterated the
incident when she had to deliver the express mail with her own personal car. She pointed out that
she worked more than 12 hours that day. Appellant explained that while she strongly felt that
management failed to adequately support her in her job, it was her normal duties that were too
overwhelming for her to handle that completely stressed her out.
By decision dated June 27, 2016, OWCP denied modification of its April 6, 2015 decision.
It determined that the evidence appellant submitted along with her reconsideration request,
including her statement and additional documents, only reiterated her prior allegations. OWCP
found that the evidence failed to demonstrate that appellant had established a compensable
employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.3 There are situations where an injury or illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation.4 In the case of Lillian Cutler,5 the Board explained that there
are distinctions as to the type of employment situations giving rise to a compensable emotional
condition under FECA. Where the injury or illness results from an employee’s emotional reaction
to his or her regular or specially assigned duties or to a requirement imposed by the employing
establishment or by the nature of the work, the injury or illness comes within the coverage of
FECA.6 On the other hand, when an injury or illness results from an employee’s feelings of job
insecurity per se, fear of a reduction-in-force or his or her frustration from not being permitted to
work in a particular environment or hold a particular position, unhappiness with doing work, or

3

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

4

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

5

28 ECAB 125 (1976).

6

Cutler, id.; see also Trudy A. Scott, 52 ECAB 309 (2001).

7

frustration in not given the work desired or hold a particular position, such injury or illness falls
outside FECA’s coverage because they are found not to have arisen out of employment.7
Allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim.8 Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.9 Personal perceptions alone are
insufficient to establish an employment-related emotional condition.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regularly or specially
assigned work duties of the employee and are not covered under FECA.11 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.12
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.13
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from the
employee’s performance of his or her regular duties, these could constitute employment factors.14
However, 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.15
An employee has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the condition for which he or she claims compensation was caused
or adversely affected by employment factors.16 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely

7

William E. Seare, 47 ECAB 663 (1996).

8

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

9

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

10

Roger Williams, 52 ECAB 468 (2001).

11
Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
12

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

13

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

14

David W. Shirey, 42 ECAB 783, 795-96 (1991).

15

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

16

Pamela R. Rice, 38 ECAB 838, 841 (1987).

8

affected a condition for which compensation is claimed and a rationalized medical opinion relating
the claimed condition to compensable employment factors.17
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
work 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 compensable factors of
employment and may not be considered.18 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. As a rule,
allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim. The claim must be supported by probative evidence.19 If a compensable factor
of employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence.20
ANALYSIS
Appellant alleged that she developed depression, panic attacks, generalized anxiety, PTSD,
and reflex-esophagitis as a result of stress from completing her normal duties as a customer service
supervisor and due to harassment by management.
That Board finds that as appellant has alleged that she sustained an emotional reaction due
to her specific job duties, the Board notes that she has named a compensable work factor under
Cutler.21
Specifically, appellant asserted that she felt emotionally overwhelmed because her job
duties were difficult and exhausting as they were beyond the ability of one person to do alone. She
indicated that for many years she was the only supervisor on duty when she worked on Saturdays
and had to manage 60 employees, two post offices, and one satellite post office without any help.
Appellant related that she felt overwhelmed and stressed because the mail was often late, carriers
complained about not having vehicles on their route, the teletelephones constantly rang, and the
window clerks asked for help at the customer service window because the service line was out the
door. She stated: “it was the ordinary, day-to-day stress of my assigned job duties that ultimately
led to my emotional difficulties.”
In C.S.,22 the Board found that a claimant had alleged a credible employment factors when
she attributed her emotional condition and resultant physical conditions to the fact that she was
required to supervise between 50 and 70 nurses, ensure credentials were current, and engage in
17

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

18

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

19

Charles E. McAndrews, 55 ECAB 711 (2004).

20

Norma L. Blank, 43 ECAB 384, 389-90 (1992).

21

See supra note 5.

22

Docket No. 10-2266 (issued September 30, 2011).

9

case management. The Board noted that the claimant had related her emotional condition to
specific aspects of her job under Cutler. Similarly, in this case, appellant alleged and counsel
continued to allege on appeal that appellant experienced stress and anxiety as a result of
supervising 60 employees, 2 post offices, and 1 satellite post office on Saturdays when she was
the only supervisor working and working excessively long hours. The Board finds that appellant’s
allegations are credible and were never directed controverted by the employing establishment.23
Counsel provided various paystubs, which indicated that on average she worked more than
40 hours per week. Evidence corroborating that an employee working overtime establishes a
compensable factor of employment as the employee’s emotional reaction arises from her regular
or specially assigned duties or to an imposed employment requirement, and thus comes within the
coverage of FECA.24 Thus, the Board finds that appellant has attributed her emotional reaction to
her regular or specially assigned work duties or to a requirement imposed by the employing
establishment and has established a factual foundation for her claim.
Appellant has also alleged that she experienced an emotional reaction because she was the
victim of harassment by her supervisors. She alleged that T.P. acted abusively in forging her
signature in a letter of warning and including it in her personnel file. Appellant provided a letter
of warning dated September 23, 2009 which charged her with Improper Conduct (Failure to
Follow Instructions) for incidents that occurred on August 26 and 29, 2009. If she alleges a
compensable factor due to a personnel or administrative action it must be shown that the employing
establishment erred or acted abusively in such action.25 On the other hand, 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 or personnel matter, coverage will be afforded.26
In this case, the record contains a September 26, 2013 letter from the Office of the Inspector
General, which noted that an investigation substantiated appellant’s allegation that her signature
on a letter of warning was forged. However, the Board finds the evidence of record insufficient to
establish that the forgery was done by her supervisor. Although appellant believed that her
signature was forged by T.P., the investigative report promulgated by the OIG due to her complaint
made no findings as to who forged her name and whether it was a supervisor or employee.27 As
such appellant has not established that the alleged forgery was error or abuse on the part of the
employing establishment.
Many of appellant’s other allegations of wrongdoing by her supervisor pertain to changes
to her work schedule and the assignment of her duties. The Board has held that assignment of
work duties and changing of work schedules are administrative functions of the employing

23

See id.

24

See L.D., Docket No. 15-1831 (issued September 21, 2016).

25

Supra note 11.

26

Supra note 12.

27

Supra note 9.

10

establishment.28 Accordingly, the employee must submit evidence that management has erred or
acted abusively.29
The Board finds that appellant has not submitted any evidence to demonstrate that her
changes to the work schedule and assignment of duties rose to the level of abuse or error.
Appellant asserted that T.P. wanted to adjust her work schedule to 10:00 a.m. to 7:00 p.m. and also
asked her to work on a Saturday when she was not originally scheduled to work. She further
alleged that T.P. assigned her duties that were outside of her job description and that were not
allowed in attempts to get her fired. Appellant did not, however, provide any evidence to establish
that T.P.’s actions rose to the level of error or abuse on the part of the employing establishment.
Mere disagreement or dislike of actions taken by a supervisor will not be compensable absent
evidence establishing error or abuse.30 An employee’s reaction to an administrative or personnel
matter is not covered by FECA, unless there is evidence that the employing establishment acted
unreasonably.31 Because appellant has not presented sufficient evidence to establish that T.P.
acted unreasonably or that the employing establishment engaged in error or abuse, she has failed
to identify a compensable work factor.
Along with T.P., appellant further alleged that the postmaster retaliated against her because
he did not grant her any interviews for nonsupervisory job positions. The Board has held that
denials by an employing establishment of a request for a different job, promotion, or transfer are
not compensable factors of employment as they do not involve the employee’s ability to perform
his or her regular or specially assigned work duties, but rather constitute a desire to work in a
different position.32
Appellant has also alleged harassment from various management officials. As noted
above, 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.33 Appellant reported several
instances when the postmaster yelled and screamed at her over the telephone because her carriers
returned late to the post office. She related that he made her deliver mail in 100 degree heat in
retaliation and also threatened to fire her if she failed to follow instructions. Appellant further
alleged that the postmaster made sure that the district manager did not receive her requests for
reassignment.
The Board notes that appellant did not provide any evidence, such as witness statements,
to corroborate her allegations of the postmaster’s threatening and abusive behavior. M.B. provided
28

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

29

L.S., 58 ECAB 249 (2006).

30

Linda Edwards-Delgado, 55 ECAB 401 (2004).

31

See Alfred Arts, 45 ECAB 530 (1994).

32

Donald W. Bottles, 40 ECAB 349, 353 (1988). See Robert Breeden, 57 ECAB 622 (2006) (an employee’s
dissatisfaction with being transferred constitutes frustration from not being permitted to work in a particular
environment or to hold a particular position and is not compensable).
33

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

11

an affidavit which stated that she overheard the postmaster speak to appellant in a nonprofessional
manner, she did not provide any other specific details which can corroborate appellant’s
allegations. Furthermore, while M.B. noted that the postmaster had a history of displaying abusive
behavior on the job, such generalized statements are insufficient to establish a hostile work
environment. Not every verbal interaction in the workplace is compensable simply because a
claimant takes issue with the tone of voice used by speaker.34 The Board has generally held that
being addressed in a raised or harsh voice does not in and of itself constitute verbal abuse or
harassment.35 In the absence of evidence to show verbal abuse or harassment by the postmaster in
specific conversations with appellant, she has failed to establish a compensable work factor.
Likewise, appellant also did not submit any evidence to corroborate her allegations that
L.H. raised his voice and became very angry at her when the outgoing mail was late and had not
made the evening dispatch truck, when appellant still had several routes out for delivery, and when
appellant repeatedly corrected her name. She further asserted that she heard threats that L.H. was
making preparations to fire her. Appellant also described a situation wherein L.H. lied about
sending her relief carriers when she still had seven routes open on a Saturday morning. Without
any evidence to support these allegations, however, the Board finds that they also do not constitute
a compensable factor of employment.
Appellant also alleged harassment and discrimination from T.P. She related that in general
she heard that T.P. made fun of the way she dressed. Appellant described situations when T.P.
reprimanded her for not greeting employees, being too nonchalant for a customer complaint,
calling and texting her at a dental appointment, and yelling loudly at her if the mail or carriers were
late. To support her claims of T.P.’s harassment, appellant provided a list of mail carriers that T.P.
had yelled at and explained that they feared retaliation if they gave a statement. She also provided
an affidavit dated July 31, 2014 by H.A. who reported that T.P. constantly harassed, yelled,
belittled, and threatened him at work in front of his peers. The Board notes, however, that H.A.
described T.P.’s behavior towards himself. He did not provide any corroboration or support for
the specific instances which appellant alleged that T.P. harassed her.36 The Board notes that
without any corroboration or verification from witnesses that harassment or discrimination did, in
fact, occur appellant has not established a compensable factor of employment with respect to T.P.’s
behavior.
The Board finds that the facts of the case do not support that the various specific incidents
of verbal abuse or threats occurred in the performance of duty. Appellant provided no
corroborating evidence or witness statement to support that any verbal interaction or written
communication with appellant by L.H., the postmaster, or T.P. rose to the level of a compensable
employment factor.37 She has not submitted any evidence to show a persistent disturbance,

34

Michael Iovino, Docket No. 02-0945 (issued March 9, 2003).

35

E.M., Docket No. 12-1238 (issued April 1, 2013).

36

See M.R., Docket No. 11-0980 (issued August 15, 2012).

37

See D.S., Docket No. 15-0411 (issued September 10, 2015); Judy L. Kahn, 53 ECAB 321 (2002).

12

torment or persecution, i.e., mistreatment by employing establishment management.38
Accordingly, appellant did not establish a factual basis for her claim for harassment.
As noted above, the Board finds that appellant has established a compensable employment
factor with regard to her claim of increased overtime leading to overwork. Accordingly, OWCP
must analyze the medical evidence to determine whether appellant sustained an emotional
condition as a result of this compensable employment factor. The case will be remanded to OWCP
for this purpose. After such further development as deemed necessary, OWCP should issue an
appropriate decision on this claim.
CONCLUSION
The Board finds that appellant has established a compensable employment factor with
regard to her claim of increased overtime leading to overwork. The Board further finds that
appellant has not established any other compensable employment factors as alleged.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2016 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
proceedings consistent with this opinion of the Board.39
Issued: August 21, 2018
Washington, DC

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

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

38

See S.S., Docket No. 14-1454 (issued December 15, 2014); Beverly R. Jones, 55 ECAB 411 (2004).

39
Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective
December 11, 2017.

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DELIVERY CENTER, New
York, NY, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 10-1666
Issued: May 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
On June 8, 2010 appellant filed an application for review of a February 17, 2010 merit
decision of the Office of Workers’ Compensation Programs. The appeal was docketed as 101666.1
The Board notes that the Office, in an August 5, 2004 decision, found that appellant’s
employment in a full-time modified mail processor position casing letters, effective September 1,
2002, fairly and reasonably represented his wage-earning capacity and that he had no loss of
wage-earning capacity.2 He stopped work August 3, 2007 and did not return. On September 7,
2007 he filed a claim for a recurrence of disability beginning August 7, 2007 attributable to the
March 11, 2002 work injury.
On January 17, 2008 the Office accepted appellant’s claim for a recurrence beginning
August 3, 2007. However, on March 23, 2009 the Office vacated the January 17, 2008 decision.
During a video hearing held November 18, 2009, appellant testified regarding the onset of
significant low back and right leg pain while lifting a mail tray on August 3, 2007. He also
1

On June 8, 2010 appellant also appealed a February 17, 2010 Office decision denying his claim for an August 3,
2007 injury. This appeal was docketed as number 10-1667 and will proceed separately.
2

The Office referred to the job as that of a letter carrier but the record indicates that he was a mail processor.

testified regarding increased symptoms and disability. He submitted medical evidence from his
physician which found that appellant’s lumbosacral radiculitis was causally related to his work
injury and he was totally disabled. By decision dated February 17, 2010, an Office hearing
representative affirmed the March 23, 2009 decision. She denied appellant’s claim for a
recurrence of disability finding that there was no rationalized medical evidence to support the
claimed recurrence was causally related to the accepted work injury.
In this case, the Office developed the evidence and determined that the issue presented
was whether appellant had established the claimed recurrence of disability on and after August 3,
2007 was due to the accepted work injury. Under the circumstances of this case, the Board finds
that the Office should have developed the issue of whether the August 5, 2004 wage-earning
capacity determination should be modified. Appellant stopped work on August 3, 2007 and
submitted evidence which indicated that he was totally disabled beginning August 3, 2007 due to
his employment injury. It is clear that the claim in this case was that appellant could not work in
the modified position for which the Office had rated him for the foreseeable future. The Board
has held that, when a wage-earning capacity determination has been issued and appellant submits
evidence with respect to disability for work, the Office must evaluate the evidence to determine
if modification of wage-earning capacity is warranted.3
The Office’s procedure manual4 directs the claims examiner to consider the criteria for
modification when the claimant requests a resumption of compensation for total wage loss. This
section of the procedure manual covers the situation when a claimant has stopped working, but
the principle is equally applicable to a claim of increased disability. If there is a claim for
increased disability which would prevent a claimant from performing the position that was the
basis for a wage-earning capacity decision, then clearly there is an issue of whether modification
is appropriate. In this case, appellant submitted evidence of disability that prevented him from
working in the modified position. While the Office hearing representative found the medical
evidence was insufficient to support that appellant sustained a recurrence of disability, she never
squarely addressed the issue of whether the August 5, 2004 wage-earning capacity determination
should be modified. The Board finds that the Office should have considered the issue of
modification of the wage-earning capacity determination.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Sharon C. Clement, 55 ECAB 552 (2004); see also Katherine T. Kreger,
55 ECAB 633 (2004).
4

See id.

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 17, 2010 is set aside and the case remanded for further action consistent
with this order of the Board.
Issued: May 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

3