United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WESTERN NEW YORK HEALTHCARE
SYSTEM, Buffalo, NY, Employer
__________________________________________

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Appearances:
James E. Carney, for the appellant
Office of Solicitor, for the Director

Docket No. 13-267
Issued: November 15, 2013

Case Submitted on the Record

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

JURISDICTION
On November 15, 2012 appellant, through her representative, timely appealed the July 23
and November 9, 2012 merit decisions 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 the claim.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty on or about June 1, 2010; and (2) whether OWCP properly denied
appellant’s August 8, 2012 request for reconsideration.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 26, 2012 appellant, then a 45-year-old medical supply technician, filed a
claim for work-related stress (Form CA-2) which allegedly arose on or about June 1, 2010. She
attributed her condition to hostile and aggressive attitudes from both coworkers and her
supervisor. Appellant also alleged that a coworker shoulder-butted her. Additionally, she
claimed that coworkers often left their work for her to do. When appellant reported the
incidents, her supervisor allegedly responded with a hand gesture and/or a condescending,
aggressive attitude.
The record indicates that the employing establishment hired appellant in March 2010 and
assigned her to sterile processing services (SPS) where she worked 3:00 p.m. to 11:30 p.m.,
Monday to Friday. SPS was organized into two eight-hour shifts and work was assigned on a
rotating basis in accordance SPS’s primary functions:
decontamination and
preparation/packaging. Kathleen Hoelzl supervised appellant. Erian Felder was the coworker
who allegedly shoulder-butted appellant on November 15, 2011. Appellant also allegedly had
strained relations with five other coworkers: Jennear Quarles, Sherri Collins, Wade Garner,
Marisela Daniels and Shannon Cross.
In a January 30, 2012 statement, appellant provided a chronology of employment
incidents dating back to May 2010. The first reported incident involved Ms. Quarles who was
assigned to train appellant.2 Around the latter part of May 2010, appellant informed Ms. Hoelzl
that she was having problems with Ms. Quarles. Appellant claimed that Ms. Quarles had trained
her to do something one way and then would subsequently give her “attitude” for doing things
incorrectly. Ms. Quarles reportedly denied appellant’s accusations and allegedly addressed her
in a “nasty tone….” Appellant also alleged that Ms. Quarles started “flipping” out on her
because staff had not been doing their assigned work. She and another coworker were reportedly
in tears as a result of Ms. Quarles’ early morning criticism. Appellant decided to stay away from
Ms. Quarles.
On an unspecified day in early June 2010, appellant reportedly left the decontamination
section and went to preparation/packaging to help out. When she arrived, Mr. Felder told her
that she had to return to decontamination because Ms. Quarles and Ms. Collins had complained
about her being in preparation/packaging. Apart from the fact that someone had complained,
Mr. Felder was unaware of the particular issue. When appellant returned to decontamination,
Ms. Quarles, Ms. Collins and two other individuals were just standing at the door. Ms. Quarles
reportedly had a “smerky” (sic) grin on her face and Ms. Collins was laughing. Appellant
indicated that she broke down in tears because she did not understand why this happened.3
Ms. Hoelzl subsequently offered appellant the option of switching to another shift (12:30 p.m. to

2

During her initial training appellant had been assigned to work day shift (6:00 a.m. to 2:30 p.m.).

3

Appellant stated that she later learned that Ms. Quarles’ and Ms. Collins’ problems with her stemmed from her
friendship with Larry Owens, who is “black.” Appellant identified herself as “white.”

2

9:00 p.m.) to complete orientation and training with someone other than Ms. Quarles. Appellant
accepted the offer and changed shifts/trainers effective June 21, 2010.4
On August 12, 2010 Ms. Hoelzl reportedly spoke with appellant regarding concerns
raised by Mr. Garner, who allegedly complained that every time he came into decontamination at
the beginning of their shift, appellant would leave and go to preparation/packaging. Appellant
stated that she explained to Ms. Hoelzl that when the work was done in decontamination she
would go to preparation/packaging to help out. She saw no need in standing around with
Mr. Garner in decontamination when all the work to be completed was elsewhere. Ms. Hoelzl
reportedly accepted appellant’s explanation. Appellant expressed feelings of harassment and
Ms. Hoelzl provided the option of switching to the evening shift (3:00 p.m. to 11:30 p.m.) which
appellant accepted.
During an August 16, 2010 staff meeting, appellant reportedly voiced her concerns to
Mr. Garner about having complained to Ms. Hoelzl. She also expressed concerns about another
conversation the two had where Mr. Garner allegedly implied that she had lied about him having
left blood and tissue on the table in decontamination. Additionally, appellant reportedly
criticized Mr. Garner for his “attitude” and “condescending” tone when addressing Mr. Felder.
In September 2010, Ms. Collins reportedly complained to appellant about work the day
shift did not do. Appellant stated that she told Ms. Collins she did not appreciate what she was
doing and was tired of Ms. Collins jumping down her throat the minute she arrived at work. She
accused the day shift of dumping their work on the evening shift. Ms. Collins reportedly
became irate and posted some nasty things on facebook®. Appellant indicated that she reported
the incident to Ms. Hoelzl who offered to bring in a mediator and arrange a sit-down. However,
she declined mediation, fearing it would only make matters worse for her.
In late-February or early-March 2011, while Ms. Hoelzl was on vacation, Ms. Quarles
posted a description of the lead technician’s duties on the scheduling/agenda board.5 Appellant
thought it “childish and inappropriate” and reported the incident to Ms. Hoelzl upon her return,
but by then someone had removed the document.
On March 10, 2011 appellant and Mr. Felder were in decontamination doing their work
and discussing nonwork-related issues. Ms. Collins reportedly emerged from the ladies room
and stated to them “let’s take this outside.” Appellant had no idea what Ms. Collins was talking
about or whether the comment was directed to her or Mr. Felder. She felt the remark was
completely inappropriate and uncalled for. Appellant also stated that she felt “threatened” and
was not sure if Ms. Collins had a weapon or something to really cause harm.

4

In a February 16, 2012 statement, Ms. Hoelzl indicated that she interpreted appellant’s June 2010 concerns as
being of a “personality conflict nature.” She also stated that at no time did appellant’s trainer offer negative
feedback regarding her performance or her ability to learn the job. Ms. Hoelzl acknowledged reassigning appellant
because of expressed concerns about how she and her trainer were “verbally interacting.” She further noted that
appellant successfully completed her orientation in October 2010.
5

A copy had also reportedly been pasted on Mr. Felder’s locker.

3

On March 17, 2011 appellant learned that Ms. Quarles informed Ms. Hoelzl that the night
shift had been leaving early. She was upset by the accusation and felt her livelihood was being
threatened. Appellant reportedly told Ms. Hoelzl that things were getting out of hand and it was
now affecting her family. Ms. Hoelzl did not understand what appellant meant, but nonetheless
reassured her that she had nothing to worry about and would not lose her job.
Appellant accused Ms. Quarles and Ms. Collins of removing work-related information
from the SPS agenda board on March 24, 2011. She also questioned why Ms. Collins had only
sterilized half the hand towels that she and others had folded the previous evening and left on the
sterilization cart. An acting supervisor informed appellant that the towels had not been properly
labeled and, therefore, were removed from the cart. Appellant then questioned why the day shift
staff could not just simply label the towels and sterilize them.
On March 30, 2011 at approximately 8:00 p.m., Mr. Felder telephoned Mr. Garner
inquiring as to his whereabouts. He reportedly told Mr. Garner that he hoped he had not left the
building, otherwise he would have to inform Ms. Hoelzl. Appellant and Ms. Cross witnessed the
incident. Mr. Garner reportedly showed up 10 minutes later without offering any explanation.
The next day, appellant overheard Mr. Garner and Ms. Cross using profanity in the
decontamination area. Mr. Felder was not in that day and Mr. Garner reportedly threatened to
put a fist through the back of his head.
Appellant’s January 30, 2012 statement also included numerous dates between March
and November 2011 where she compiled information on which coworkers took lengthy breaks or
were otherwise unaccounted for during the workday. She also documented a sterilization
procedure performed by Ms. Collins that was reportedly contrary to SPS protocol. Additionally,
appellant identified days when some coworkers worked in pairs/groups while she was left to
perform other tasks by herself. Also, she identified various tasks that Mr. Felder and/or
Ms. Daniels left for her to perform which appellant believed could have and should have been
done by others.
On November 14, 2011 Ms. Hoelzl reportedly spoke with appellant regarding a work
assignment given her by Mr. Felder. Appellant had not carried out the task and she told
Ms. Hoelzl she did not do it because she does everything else. She also advised Ms. Hoelzl that
she wanted a union steward present. Ms. Hoelzl stated that she would offer a steward for
Mr. Felder as well, but the discussion would have to be postponed for now.
On November 29, 2011 Ms. Hoelzl allegedly asked appellant who was supposed to be in
decontamination. Appellant replied that Ms. Daniels was scheduled, but she had not put in an
eight-hour shift in decontamination since she arrived. Ms. Hoelzl reportedly got upset and
waved appellant off and stated that she would just go check the schedule herself. Appellant also
reported that Ms. Daniels did some work while talking on her telephone for over an hour.
On December 6, 2011 appellant advised Ms. Hoelzl that certain equipment needed repair.
She also told Ms. Hoelzl that she had similarly advised Ms. Daniels of the problem, but
Ms. Daniels ignored her advice and proceeded to utilize the broken sterilization equipment.
Appellant alleged that Ms. Hoelzl snottily asked, “Anything else you need to tell me?”

4

On December 8, 2011 Ms. Hoelzl reportedly called some day shift employees into her
office to inquire about whether they heard anyone use foul language. Appellant indicated that
Ms. Hoelzl never called her in to ask what, if anything, she may have heard.
Between December 14, 2011 and January 19, 2012, appellant documented specific
times/dates when Ms. Daniels and/or Ms. Cross either left the facility or took extended breaks.
On January 9, 2012 Ms. Hoelzl reportedly advised appellant that she needed to let a
supervisor know the next time she left early. Appellant had advised Ms. Cross of her early
departure and questioned the need to inform a supervisor. She indicated that Ms. Hoelzl
immediately got cocky.
On January 19, 2012 appellant observed Mr. Felder working in decontamination without
the appropriate personal protective equipment (PPE). Ms. Hoelzl reportedly observed this
breach of SPS protocol, but did not say anything to Mr. Felder about his missing PPE.
On January 23, 2012 Ms. Daniels allegedly replied “F... you” in response to a question
appellant asked. She ignored Ms. Daniels’ response and kept working. Appellant also reported
that Ms. Daniels was not properly clothed while working in decontamination on
January 24, 2012.
OWCP also received a copy of a January 6, 2012 e-mail to Patricia Morrison wherein
appellant questioned the need for documenting her January 3, 2012 work activities. She
wondered why the day shift, which had the majority of staff, did not have to document why they
left so much work for the evening shift. Appellant also took exception to Ms. Hoelzl’s allocation
of resources among the day and evening shifts.
Appellant’s May 2010 to January 2012 chronology did not reference the alleged
shoulder-butting incident. However, in a February 29, 2012 statement, she noted that Mr. Felder
shoulder-butted her at approximately 5:30 p.m. on November 15, 2011. Appellant’s supervisor
was not on duty at the time. Appellant reported the incident to the employing establishment
police on November 15, 2011, and the agency threat assessment team (TAT) investigated the
matter.
The employing establishment did not provide a statement from the accused (Mr. Felder)
or submit a copy of the TAT findings. However, Ms. Hoelzl’s February 16, 2012 statement
revealed that the TAT found only 1 of 12 risk factors present which represented a low-level
threat according to the TAT coordinator. She also reported there were no witnesses to the
alleged incident. Additionally, Ms. Hoelzl indicated that, while the matter was under
investigation, the accused was assigned to another shift. She further stated that appellant and the
accused were provided access to the employee assistance program (EAP) and alternative dispute
resolution (ADR). Both parties reportedly declined ADR.
OWCP also received various treatment notes and reports from Dr. David D. Stahl, a
Board-certified internist, covering the period January 26 to June 7, 2012. He first examined
appellant on January 26, 2012 and diagnosed anxiety/stress and depression. In a February 3,
2012 narrative report, Dr. Stahl noted that appellant reported having had conflicts with at least
two coworkers on her shift which evolved over the past few months. They were reportedly rude
5

to appellant which made the work environment not very congenial. Dr. Stahl also noted that
appellant had approached her supervisor about this conflict, but nothing had been done to resolve
the issue and things had not changed. He further indicated that appellant presented to EAP
which had been helpful. There were no unusual stressors outside work. Dr. Stahl prescribed
Zoloft and excused appellant from work for a two-week period. He subsequently increased
appellant’s Zoloft dosage and extended the period of disability through March 2012. Dr. Stahl
advised that appellant could return to work effective April 2, 2012 with one particular
accommodation: avoidance of coworker(s) who caused the stress issue.6
The employing establishment did not immediately authorize the requested
accommodation. Therefore, on April 2, 2012 Dr. Stahl extended the period of disability until the
accommodation was fulfilled. He also provided a June 7, 2012 work capacity evaluation
(psychiatric/psychological conditions (OWCP-5a)). Dr. Stahl explained that, due to coworkerrelated issues, appellant could not perform her previous job with same coworkers/hours.
However, she could return to work with an accommodation: “not same job [with] same
coworkers….”
By decision dated July 23, 2012, OWCP denied appellant’s emotional condition claim.
Appellant had not demonstrated a compensable employment factor. The alleged shoulderbutting incident was not factually established. Consequently, OWCP denied the claim without
reviewing the medical evidence of record.
On August 8, 2012 appellant requested reconsideration. She submitted the appeal request
form that accompanied the July 23, 2012 decision. Appellant’s representative followed up with
an August 27, 2012 letter requesting that OWCP reconsider the claim and vacate the original
denial. He noted that the employing establishment had twice denied appellant’s request for an
accommodation. While appellant was willing to return to work, the employing establishment
unreasonably expected her to go against her physician’s orders. Her representative argued that
forcing her to return to the hostile work environment that initially caused the injury would likely
worsen appellant’s condition.
In support of the request for reconsideration, appellant’s representative submitted various
medical records from Dr. Stahl, including his latest report dated August 27, 2012. OWCP also
received a June 8, 2012 formal denial of appellant’s request for reasonable accommodation under
the Americans with Disabilities Act (ADA). The employing establishment also denied
reconsideration.
Appellant’s representative submitted copies of her June 14, 2012
reconsideration request, as well as the employing establishment’s July 2, 2012 denial of
reconsideration. There was also an August 8, 2012 notice of appellant’s intent to pursue the
ADA accommodation issue before Equal Employment Opportunity Commission (EEOC).
In his August 27, 2012 report, Dr. Stahl noted that appellant returned for follow-up on her
anxiety/depression and panic disorder that stemmed from a work-related matter at the Buffalo
Veterans Administration Hospital. He explained that, over a period of more than two years,
there was increasing conflict within SPS involving appellant’s supervisor, Ms. Hoelzl, and
fellow coworkers Mr. Felder, Ms. Daniels and Ms. Cross. Because she had been off work
6

The proposed accommodation had been a topic of discussion as early as February 15, 2012.

6

several months now without any interaction with her supervisor or coworkers, appellant was
reportedly doing well from a depression/anxiety standpoint. Dr. Stahl stated that, while appellant
could resume work, she was not to return to her former position in SPS and was to avoid direct
contact with the above-named individuals. He indicated that should appellant relapse, signs or
symptoms would include a worsening of her depression/anxiety, an inability to sleep or feel
rested, decreased appetite, mood changes, weight changes and poor ability to focus on her work
tasks, as well as other facets of her life. In conclusion, Dr. Stahl reiterated that appellant may
return to work, but not to her previous department and that she should not have direct interaction
with the previously identified four coworkers.
In a November 9, 2012 decision, OWCP denied appellant’s request for reconsideration
and did not revisit the merits of the claim.
Appellant’s November 15, 2012 application for review (AB-1) identified the
November 9, 2012 nonmerit decision as the subject of the current appeal. Although the appeal
was filed within 180 days of OWCP’s July 23, 2012 merit decision, neither she nor her
representative specifically requested review of OWCP’s July 23, 2012 decision.7 Nonetheless,
the Board will review both the merit and nonmerit decisions.
LEGAL PRECEDENT -- ISSUE 1
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.9 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.10
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.11 Although related to the employment, administrative and personnel
7

See 20 C.F.R. § 501.3(c)(4).

8

See Kathleen D. Walker, 42 ECAB 603 (1991).

9

Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

10

Lillian Cutler, id.

11

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

7

matters are functions of the employer rather than the regular or specially assigned duties of the
employee.12 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities,
such action will be considered a compensable employment factor.13
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting his or her allegations with
probative and reliable evidence.14 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter, OWCP must base its
decision on an analysis of the medical evidence.15
ANALYSIS -- ISSUE 1
On her January 26, 2012 Form CA-2, appellant attributed her claimed emotional
condition to hostile and aggressive attitudes from both coworkers and her supervisor. She
specifically alleged that a coworker shoulder-butted her. Appellant also claimed that coworkers
often left their work for her to complete. When she approached her supervisor about her
concerns, Ms. Hoelzl allegedly responded with a hand gesture and/or a condescending,
aggressive attitude. Appellant provided a January 30, 2012 chronology of more than three dozen
employment incidents that allegedly occurred between late-May 2010 and January 25, 2012.
Initially, the Board finds there are no Cutler allegations. Appellant did not specifically
attribute her claimed emotional condition to her regular or specially assigned work duties or a
requirement imposed by the employment. Although she reportedly performed work she believed
should have been done by other coworkers, she did not claim that performing any of the assigned
tasks caused an emotional reaction. Additionally, appellant has not submitted any evidence in
support of her allegation that Mr. Felder shoulder-butted her on November 15, 2011. There were
no reported witnesses to the alleged incident. Also, the actual findings from the TAT
investigation have not been made a part of the record.16
A large part of what appellant reported in her January 30, 2012 chronology is
unsubstantiated. But even if fully substantiated, the relevance of most of the included
information is unclear. It is evident that appellant closely monitored her coworker’s activities,
particularly the time spent on breaks and what she considered lengthy and unexcused absences.
However, it is not readily apparent how these reported incidents either caused or contributed to
appellant’s claimed emotional condition. It is also unclear how appellant was adversely affected
12

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

13

Id.

14

Kathleen D. Walker, supra note 8.

15

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
16

Appellant purportedly submitted a copy of the November 25, 2011 TAT summary along with her February 29,
2012 statement. However, the Board is unable to locate the referenced TAT summary.

8

by Ms. Collins’ failure to abide by SPS sterilization protocol or Ms. Daniels’ and Mr. Felder’s
failure to wear appropriate clothing/PPE. While appellant depicted her colleagues as perhaps
less diligent and less conscientious than herself, the reported incidents do not demonstrate a
“hostile and aggressive attitude” as appellant alleged in her claim.
Appellant also failed to substantiate her allegation that Ms. Hoelzl responded to her
complaints with a hand gesture and/or a condescending, aggressive attitude. In fact, the
January 30, 2012 chronology included several instances where Ms. Hoelzl was very
accommodating in response to various complaints appellant raised. In June 2010 when appellant
complained about Ms. Quarles, Ms. Hoelzl allowed her to switch shifts and trainers. She also
reportedly accommodated appellant in August 2010 when she switched her to the evening shift
after Mr. Garner complained about appellant’s performance. In September 2010, Ms. Hoelzl
reportedly offered to bring in a mediator to address appellant’s concerns regarding Ms. Collins,
but appellant declined the offer of mediation. Appellant also noted that she approached her
supervisor in March 2011 regarding accusations about the night shift leaving early, and
Ms. Hoelzl reportedly reassured appellant there was nothing to worry about and that she would
not lose her job. These specific instances outlined by appellant in her January 30, 2012
statement belie her general allegation on Form CA-2 that Ms. Hoelzl responded to complaints
with a hand gesture and/or a condescending, aggressive attitude.
Appellant claimed to have felt threatened by a remark Ms. Collins allegedly made on
March 10, 2011. At the time, she and Mr. Felder were reportedly discussing nonwork-related
issues when Ms. Collins emerged from the ladies room and allegedly stated to them “let’s take
this outside.” Appellant indicated that she and Mr. Felder looked at each other “confused and
had no idea what [Ms. Collins] was talking about.” She was also unsure if the comment was
directed to her or Mr. Felder. But despite all the admitted uncertainty surrounding this remark,
appellant stated that she felt “threatened.” According to appellant, this was an example of a
hostile work environment and she claimed to have been unsure if Ms. Collins had a weapon or
something to really cause harm.
Verbal altercations and difficult relationships with coworkers and supervisors/managers,
when sufficiently detailed and supported by the record, may constitute compensable factors of
employment.17 However, this does not imply that every ostensibly abusive or threatening
statement uttered in the workplace will give rise to coverage under FECA.18 For appellant to
prevail on her claim, she must support her allegations with probative and reliable evidence.19
It is not clear as to why appellant could feel threatened by Ms. Collins’ ostensibly benign
remark “let’s take this outside.” It is even more difficult to bridge the gap between the substance
of the alleged remark and appellant’s stated concern that Ms. Collins might somehow be armed
with a weapon after departing the ladies room.

17

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

18

Fred Faber, 52 ECAB 107, 109 (2000).

19

See Kathleen D. Walker, supra note 8.

9

Appellant also reported several alleged incidents with Ms. Hoelzl between November 29,
2011 and January 9, 2012. In one incident, Ms. Hoelzl reportedly got upset with appellant and
waved her off after appellant commented about an absent coworker. On December 6, 2011 after
reporting a coworker’s use of broken equipment, Ms. Hoelzl “snottily” asked appellant,
“Anything else you need to tell me?” In another incident, appellant reportedly questioned
Ms. Hoelzl’s instructions regarding a time and attendance issue and Ms. Hoelzl immediately got
“cocky.”20 Although she characterized these events in unfavorable terms, appellant has not
provided sufficient detail that might otherwise warrant further consideration of the alleged
incidents as possible verbal abuse.
On January 23, 2012 another coworker, Ms. Daniels, allegedly stated “F... you” to
appellant in response to a question appellant asked. By her own account, appellant provoked
Ms. Daniels. Despite provocation, the alleged response would be unprofessional and
inappropriate for the workplace. However, appellant stated that she ignored Ms. Daniels’
response and kept working. Thus, even if substantiated, appellant admittedly was not adversely
affected by Ms. Daniels’ alleged remark.
The Board finds that appellant has not established a single incident of compensable
verbal abuse by either a coworker or a supervisor/manager.
Appellant identified several incidents where she took exception to either her thentrainer’s or supervisor’s oversight. In May and June 2010, she complained about Ms. Quarles,
who had been assigned to train her. Ms. Hoelzl eventually reassigned appellant because of what
she identified as a “personality conflict.” She did not otherwise assess blame on either appellant
or Ms. Quarles. Another incident involving Ms. Hoelzl allegedly occurred on November 14,
2011 when she questioned appellant about an assignment from Mr. Felder she had not
completed. Appellant indicated that she told Ms. Hoelzl she did not complete the assignment
because she does everything else. Subsequently, she complained about having to document her
January 3, 2012 work activities for management. Additionally, appellant took exception to
Ms. Hoelzl’s allocation of resources among the day and evening shifts.
Assigning work and monitoring performance are administrative functions of a
supervisor.21 The manner in which a supervisor exercises his/her discretion falls outside FECA’s
coverage. This principle recognizes that supervisors must be allowed to perform their duties, and
at times employees will disagree with their supervisor’s actions. Mere dislike or disagreement
with certain supervisory actions will not be compensable absent error or abuse on the part of the
supervisor.22 With respect to the above-noted incidents involving Ms. Quarles and Ms. Hoelzl,
appellant has not demonstrated error or abuse on the part of her employer with respect to work
assignments, allocation of resources and monitoring of work activities.
20

Time and attendance issues are generally not compensable absent evidence of error or abuse on the part of the
employing establishment in discharging its administrative responsibilities. See C.S., 58 ECAB 137, 145 (2006);
T.G., 58 ECAB 189, 197 (2006); Joe M. Hagewood, 56 ECAB 479, 488 (2005).
21

Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D.
Edwards, 55 ECAB 258, 270 (2004).
22

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

10

Because she failed to establish a compensable factor of employment, OWCP properly
denied appellant’s claim without addressing the medical evidence of record.23
LEGAL PRECEDENT -- ISSUE 2
OWCP has the discretion to reopen a case for review on the merits.24 An application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.25
When an application for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.26
ANALYSIS -- ISSUE 2
Appellant’s August 8, 2012 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. She also did not advance a
relevant legal argument not previously considered by OWCP. Appellant submitted the appeal
request form that accompanied the July 23, 2012 decision. She indicated that she was seeking
reconsideration, but did not otherwise elaborate. Appellant’s representative submitted an
August 27, 2012 letter similarly requesting that OWCP reconsider the claim. However, he did
not present any argument relevant to the issue on reconsideration. Instead, appellant’s
representative focused on the employing establishment’s denial of her request for an
accommodation under ADA. The issue on reconsideration was whether appellant established a
compensable employment factor. Neither appellant nor her representative addressed this
particular issue. Therefore, appellant is not entitled to a review of the merits based on the first
and second requirements under section 10.606(b)(2).27
Appellant also failed to submit any “relevant and pertinent new evidence” with her
request for reconsideration. The additional medical evidence submitted was not relevant to the
issue on reconsideration.
Similarly, the documentation regarding the denied ADA
accommodation was not relevant to the issue of whether appellant established a compensable
employment factor. Because appellant and her representative did not provide any new evidence
that might arguably impact the prior decision, appellant is not entitled to a review of the merits
based on the third requirement under section 10.606(b)(2).28
23

Garry M. Carlo, supra note 15.

24

5 U.S.C. § 8128(a).

25

20 C.F.R. § 10.606(b)(2).

26

Id. at § 10.608(b).

27

Id. at § 10.606(b)(2)(i) and (ii).

28

Id. at § 10.606(b)(2)(iii).

11

CONCLUSION
Absent a compensable employment factor, appellant has not established that she
sustained an emotional condition in the performance of duty on or about June 1, 2010. The
Board also finds that OWCP properly denied her August 8, 2012 request for reconsideration.29
ORDER
IT IS HEREBY ORDERED THAT the November 9 and July 23, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 15, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

29

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within
one year of this latest merit decision. See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., claiming as the representative of the estate
of M.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Brockton, MA,
Employer
__________________________________________

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Appearances:
Kenneth J. Goldberg, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0059
Issued: February 23, 2022

Case Submitted on the Record

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

JURISDICTION
On October 13, 2020 appellant, through counsel, filed a timely appeal from May 5, 2020
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether the employee received an overpayment of compensation in the
amount of $14,490.48 for the period October 29, 2005 through March 2, 2019, for which he was
not at fault, because postretirement basic life insurance (PRBLI) premiums were not deducted from
his FECA compensation; (2) whether the employee received an overpayment of compensation in
the amount of $12,697.61 for the period April 28, 2015 through March 2, 2019, for which he was
not at fault, because optional life insurance (OLI) premiums were not deducted from his FECA
compensation; and (3) whether OWCP properly denied waiver of recovery of the overpayments.
FACTUAL HISTORY
OWCP accepted that on March 23, 2000 the employee, then a 49-year-old mail processor,
sustained cervical strain, disc herniation at C5-6, cervical spondylosis with myelopathy, and
cervical intervertebral disc with myelopathy as a result of pushing a cart while in the performance
of duty. The employee stopped work on the date of injury and did not return.3 OWCP paid the
employee wage-loss compensation on the supplemental and periodic rolls.
On April 17, 2019 OWCP received a death certificate dated April 3, 2019 indicating that
the employee had passed away on March 24, 2019. In a May 6, 2019 letter, the employee’s widow
notified OWCP that she was the employee’s named beneficiary of his estate.
On July 18, 2019 the Division of Federal Employees’ Compensation (DFEC) National
Office advised OWCP that according to the Office of Personnel Management (OPM), at retirement
the employee elected no reduction of his five multiples of OLI options B and C coverage, effective
April 28, 2015, and no reduction to his PRBLI coverage, effective October 29, 2005. It stopped
premium deductions for the employee’s OLI coverage when he turned 65 and did not deduct
PRBLI premiums. It was noted that the employee passed away in March 2019. OWCP was
advised to take action as applicable, to collect the overpayment attributed to under-deducted OLI
and PRBLI premiums from the survivor(s)/estate.
On July 26, 2019 OWCP notified OPM that an overpayment in the amount of $12,697.61
had been created because it had failed to deduct OLI premiums from the employee ’s compensation
during the period April 28, 2015 through March 24, 2019. It further notified OPM that an
overpayment of $14,490.48 had been created because it had failed to deduct PRBLI premiums
from the employee’s compensation during the period October 29, 2005 through March 2, 2019.
OWCP noted that the total overpayment was $27,188.09. It requested that OPM provide whether
benefits were paid to the employee at the time of his death that may be administratively offset.
In a preliminary overpayment determination of July 26, 2019, OWCP notified the
employee’s widow that the employee had received an overpayment of compensation in the amount
of $14,490.48 because PRBLI premiums had not been properly deducted from the employee’s
FECA compensation for the period October 29, 2005 through March 2, 2019. It also notified her
that the employee had received an overpayment of compensation in the amount of $12,697.61
because BLI premiums had not been properly deducted from the employee’s FECA compensation
for the period April 28, 2015 through March 2, 2019. OWCP calculated the amount of the
3

The employee was separated from the employing establishment due to his disability, effective June 25, 2004.

2

overpayments by adding the amount of the PRBLI premiums that should have been deducted from
the employee’s compensation to find a total overpayment of $14,490.48 and adding the amount of
the OLI premiums that should have been deducted from the employee’s compensation to find a
total overpayment of $12,697.61. It further advised the employee’s widow of its preliminary
overpayment determination that the employee was not at fault in the creation of the overpayment
and requested that she complete an overpayment action request form and an overpayment recovery
questionnaire (Form OWCP-20). Additionally, OWCP notified her that, within 30 days of the date
of the letter, she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing.
In a letter of even date issued to the employee’s widow as personal representative of the
employee’s estate, OWCP referenced its overpayment determination and advised of its intention
to make a claim against the estate for the amount of the overpayment. It requested the name and
address of the executor of the estate and the probate court handling the estate. OWCP further
advised that the estate had the right to inspect OWCP debt records related to the overpayment and
to request waiver of the overpayment and a prerecoupment hearing.
On August 29, 2019 OWCP received an overpayment action request fo rm, dated
August 22, 2019, in which the employee’s widow requested a waiver and a prerecoupment hearing
by telephone. The employee’s widow submitted a completed Form OWCP-20 of even date,
wherein she indicated that her total monthly income was $1,573.00 a nd that her total monthly
expenses were $5,297.00. She further indicated that she had assets of $231,538.00.
In an August 22, 2019 letter, counsel, on behalf of the employee’s widow, requested a
waiver of recovery of the overpayment because her monthly expenses exceeded her income,
funeral expenses were excessive as the employee died in Florida and had to be transported to
Massachusetts, and she had to purchase a new vehicle costing $23,350.00 because she could not
operate the employee’s leased vehicle. Additionally, he contended that she suffered from severe
anxiety, depression, and grief for which she was on medication. Counsel asserted that the
employee’s widow was unable to manage her finances and unemployable. He further asserted that
a stable financial future was critical for preventing further deterioration of her mental health.
Counsel concluded that the employee’s widow would suffer undue hardship, be deprived of basic
income, and recovery of the debt would be against equity and good conscience.
Counsel submitted an August 21, 2019 letter from Dr. Jane Yu, a Board-certified family
practitioner. Dr. Yu noted that the employee’s widow had been under her care for the treatment
of severe anxiety, for which the employee’s widow was on prescription medication. She advised
that, due to the employee’s widow mental health condition, the employee’s widow was unable to
manage her ﬁnances independently and was also unable to maintain employment. Dr. Yu related
that the employee’s widow was grieving the recent death of her spouse and needed ﬁnancial
support in the form of her spouse’s life insurance beneﬁts to maintain her stable mental health and
avoid a worsening of her anxiety and depressive symptoms.
The prerecoupment hearing was held on January 8, 2020. Appellant testified about the
mental condition and inability to handle finances of her mother, the employee’s widow, following
the death of her father, the employee. She noted that her father paid all of the bills, gave her mother
money. Appellant further testified, among other things, that her mother feared losing her health
insurance if she did not repay the overpayment and having to sell her home.
3

Following the prerecoupment hearing, in a February 28, 2020 letter, counsel noted that
OWCP’s preliminary overpayment determination was addressed to the employee’s widow and not
to the employee’s estate, which had not been probated. He contended that unless there was a law
or statute under which a widow or heirs of a deceased employee could be personally responsible
for an overpayment created during the employee’s lifetime, then the claim against the employee’s
widow should be dismissed.
By decision dated March 24, 2020, an OWCP hearing representative set aside the July 26,
2019 preliminary overpayment determination and remanded the case to OWCP to reissue the
preliminary overpayment determination to the estate of the employee in care of the employee’s
widow. He found that OWCP failed to follow its procedures as outlined in Chapter 6.500.15
regarding collection of a deceased debtor’s estate.4
On April 1, 2020 OWCP issued a new preliminary overpayment determination, addressed
to the employee’s estate, finding that an overpayment of compensation in the amount of
$14,490.48 had been created because PRBLI premiums had not been properly deducted from the
employee’s FECA compensation for the period October 29, 2005 through March 2, 2019. It
determined that the employee’s estate was not at fault in the creation of the overpayment and
requested that the employee’s estate should complete an overpayment action request f orm and a
Form OWCP-20. Also, OWCP notified the employee’s estate that, within 30 days of the date of
the letter, it could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing.
A separate new preliminary overpayment determination of even date was issued by OWCP,
addressed to the employee’s estate, finding that an overpayment of compensation in the amount of
$12,697.61 because OLI premiums had not been properly deducted from the employee’s FECA
compensation for the period April 28, 2015 through March 2, 2019. It further advised the
employee’s estate of its preliminary determination that the employee’s estate was not at fault in
the creation of the overpayment and requested that the employee’s estate complete an overpayment
action request form and a Form OWCP-20. Also, OWCP notified the employee’s estate that,
within 30 days of the date of the letter, it could request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing.
In an April 17, 2020 letter, counsel advised that the employee’s estate had not been
probated and was anticipated that it had no assets. He requested direction on how to proceed with
waiver of recovery of the overpayment. Alternatively, counsel requested an extension to respond
to the preliminary overpayment determinations until such time when the employee’s estate had
been probated and its assets had been determined.
By decision dated May 5, 2020, addressed to the employee’s estate, OWCP finalized that
the preliminary overpayment determination that the employee had received an overpayment of
compensation in the amount of $14,490.48 for the period October 29, 2005 through March 2, 2019,
as it failed to deduct PRBLI premiums from his compensation payments. It denied waiver of
recovery of the overpayment as no financial evidence had been submitted in response to the

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.15
(September 2018).

4

preliminary overpayment determination, as requested.
overpayment in full within 30 days.

OWCP directed recovery of the

In a separate decision of even date, addressed to the employee’s estate, OWCP finalized
that the preliminary overpayment determination that the employee had received an overpayment
of compensation in the amount of $12,697.61 for the period April 28, 2015 through March 2, 2019,
as it failed to deduct OLI premiums f rom his compensation payments. It denied waiver of recovery
of the overpayment as no financial evidence had been submitted in response to the preliminary
overpayment determination, as requested. OWCP directed recovery of the overpayment in full
within 30 days.
LEGAL PRECEDENT -- ISSUES 1 and 2
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his or her duty. 5
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled. 6
Under the FEGLI program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance (BLI) and one or more of the options.7 The coverage for BLI
is effective unless waived 8 and premiums for BLI and OLI coverage are withheld from the
employee’s pay.9 Upon retirement or upon separation from the employing establishment or being
placed on the periodic FECA compensation rolls, an employee may choose to continue BLI and
OLI coverage in which case the schedule of deductions made will be used to withhold premiums
from his annuity or compensation payments. 10 BLI coverage shall be continued without cost to an
employee who retired or began receiving compensation on or before December 31, 1989;11
however, the employee is responsible for payment of premiums for optional life insurance
coverage, which is accomplished by authorizing withholdings from his compensation. 12

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8702(a).

8

Id. at § 8702(b).

9

Id. at § 8707.

10

Id. at § 8706.

11

Id. at § 8707(b)(2).

12
Id. at § 8706(b)(3)(B); see Edward J. Shea, 43 ECAB 1022 (1992) (the Board found that the claimant received
an overpayment of compensation where he elected PRBLI with no reduction and no premiums had been deducted
from his compensation from January 3, 1988 to May 6, 1989); see also Glen B. Cox, 42 ECAB 703 (1991) (the Board
found that an overpayment was created due to no deduction of premiums for optional life insurance for the periods
July 1983 through November 1989).

5

A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation so
that his or her life insurance coverage could be continued without reduction. Regulations at 5
C.F.R. § 870.701 (December 5, 1980) provided that an eligible employee had the option of
choosing no life insurance, Option A -- basic coverage (at no additional cost) subject to continuous
withholdings from compensation payments that would be reduced by 2 percent a month after age
65 with a maximum reduction of 75 percent, Option B -- basic coverage (at an additional premium)
subject to continuous withholdings from compensation payments that would be reduced by 1
percent a month after age 65 with a maximum reduction of 50 percent, or Option C -- basic
coverage subject to continuous withholdings from compensation payments with no reductions after
age 65 (at a greater premium). 13
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible, unless, during earlier
employment, he or she filed an election or waiver that remained in effect. 14 An employee who
does not file a life insurance election form with his or her employing office, in a manner designated
by OPM, specifically electing any type of optional insurance, is considered to have waived it and
does not have that type of optional insurance.15
When an under withholding of life insurance premiums occurs, the entire amount is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.16
OWCP’s procedures for recovery from a deceased debtor’s estate provide that, if the
claimant recently passed away, it should take prompt action because creditors who have not
properly asserted a claim before the estate is closed are generally precluded from any recovery. 17
Thus, it should refer the debt to the financial management system (FMS) for offset of the deceased
claimant’s last federal tax refund under the Treasury’s Offset Program (TOP). 18 OWCP has a
special profile with FMS under TOP for the collection of these specific estate debts. The claims
examiner should follow the referral procedures set forth in Chapter 6.500.12, 19 including sending
the complete referral package to the national office for final review and forwarding to the FMS. 20

13

See D.H., Docket No. 19-0384 (issued August 12, 2019); see V.H., Docket No. 18-1124 (issued
January 16, 2019). See S.P., Docket No. 17-1888 (issued July 18, 2018).
14

5 C.F.R. § 870.504(a)(1).

15

Id. at § 870.504(b).

16

Id. at § 8707(d); see also D.H. and S.P., supra note 13; Keith H. Mapes, 56 ECAB 130 (2004).

17

Supra note 4.

18
31 C.F.R. § 285.2; supra note 4 at Chapter 6.500.15(g)(1)-(7) (September 2018). See also D.U., Docket No. 200594 (issued June 4, 2021); R.B. (J.B.), Docket No. 19-0700 (issued March 16, 2021); W.J. (E.J.), Docket No. 18-1035
(issued July 9, 2019).
19

Supra note 4 at Chapter 6.500.12 (September 2018).

20

Id. at Chapter 6.500.15(e) (September 2018).

6

ANALYSIS -- ISSUES 1 and 2
The Board finds that this case is not in posture for decision.
In a March 24, 2020 decision, OWCP’s hearing representative set aside OWCP’s July 26,
2019 preliminary overpayment determination, notifying the employee’s widow that the employee
had received an overpayment of compensation in the amou nt of $14,490.48 for the period
October 29, 2005 through March 2, 2019, for which he was not at fault, because PRBLI premiums
were not deducted from his FECA compensation, and he had received an overpayment of
compensation in the amount of $12,697.61 for the period April 28, 2015 through March 2, 2019,
for which he was not at fault, because OLI premiums were not deducted from his FECA
compensation. The hearing representative remanded the case to OWCP to reissue the preliminary
overpayment determination to the estate of the employee in care of the employee ’s widow pursuant
to OWCP’s procedures under Chapter 6.500.15, which provide for recovery from a deceased
debtor’s estate.
On remand, OWCP, on April 1, 2020, issued two new preliminary overpayment
determinations to the employee’s estate, but again failed to fully follow its procedures outlined in
Chapter 6.500.15. The procedures specifically require that, if the claimant recently passed away,
OWCP should refer the debt to the FMS for offset of the deceased claimant’s last federal tax refund
under the TOP. 21 OWCP has a special profile with FMS under TOP for the collection of these
specific estate debts. The claims examiner should follow the referral procedures set forth in
Chapter 6.500.12, 22 including sending the complete referral package to the national office for final
review and forwarding to the FMS. 23
The evidence of record does not substantiate that actions OWCP has taken to recover the
overpayment debt include referral to FMS for appropriate offset under the TOP prior to taking
overpayment actions against the employee’s estate. Although OWCP has demanded repayment
of the overpayment in full, the Board cannot make an informed decision regarding the amount of
overpayment to be collected against the estate. 24 The case shall therefore be remanded to OWCP
to follow all procedures as outlined in Chapter 6.500.15 of its procedures. 25 Following this and
any other further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

21

Supra note 18.

22

Supra note 20.

23

Supra note 19.

24

See D.U., R.B. (J.B.), and W.J. (E.J.), supra note 18.

25

Supra note 4.

7

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2020 decisions of the Office of Workers’
Compensation Programs are set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, CARDISS COLLINS
POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 19-0878
Issued: September 12, 2019

Case Submitted on the Record

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

JURISDICTION
On April 18, 2019 appellant filed a timely appeal from a December 11, 2018 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 to
consider the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a bilateral foot condition
causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 11, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 25, 2018 appellant, then a 58-year-old mail processer, filed an occupational
disease claim (Form CA-2) for a bilateral foot condition, which she attributed to continuous
standing, walking, lifting, and pulling on concrete floors while in the performance of duty. She
first became aware of her condition on June 26, 2017 and first realized the condition was caused
or aggravated by factors of her federal employment on September 20, 2018.
In a September 20, 2018 narrative report, Dr. Tomasz Szmyd, a podiatrist, noted that he
had seen appellant for follow up regarding her bilateral plantar fasciitis. Appellant related that she
was still having pain after periods of prolonged walking. On physical examination there were no
open lesions or acute signs of infection, no erythema or edema, and appellant’s neurological
sensation was grossly intact. Dr. Szmyd also noted evidence of pain on palpation of the medial
calcaneal tubercle, bilaterally and pain with lateral compression of the left calcaneus, but no lower
extremity pain on range of motion, bilaterally. He diagnosed bilateral plantar fasciitis and bilateral
foot bursitis. Dr. Szmyd noted having discussed various treatment options, including surgery;
however, appellant elected to continue with conservative care. He advised appellant to avoid
walking barefoot and to wear supportive shoes, such as gym shoes, as often as possible. Dr. Szmyd
recommend light duty at work to prevent aggravation of appellant’s bilateral foot pain.
Dr. Szmyd also provided a September 20, 2018 attending physician’s report (Form CA20). He reported that he first examined appellant on June 26, 2017 and, subsequently, treated her
on July 26, 2017 and September 20, 2018. The Form CA-20 noted a September 20, 2018 date of
injury and included a diagnosis of bilateral plantar fasciitis. Dr. Szmyd checked the box marked
“yes” indicating his belief that appellant’s condition was caused or aggravated by her employment.
He also indicated that appellant could perform light-duty work as of September 21, 2018 with no
prolonged standing or walking.
OWCP also received an October 8, 2018 duty status report (Form CA-17) from Dr. Szmyd,
which included a diagnosis of plantar fasciitis and identified various work restrictions.
In a November 7, 2018 development letter, OWCP informed appellant that additional
factual and medical evidence was required in support of her claim. It noted that the medical
evidence did not substantiate that her plantar fasciitis was caused or aggravated by the work injury.
OWCP afforded appellant 30 days to submit the requested factual and medical evidence.3 No
additional evidence was received by OWCP.
By decision dated December 11, 2018, OWCP denied appellant’s claim, finding that the
medical evidence of record failed to establish a causal relationship between her diagnosed
condition and the accepted factors of her federal employment.

3

The record indicates (CA-110 notes) that appellant contacted OWCP on December 6 and 7, 2018 requesting an
extension to submit additional medical evidence. During the latter conversation, appellant represented to OWCP that
she could get the medical evidence from her doctor “tomorrow” and would mail it in. OWCP agreed to the requested
extension.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her bilateral
foot condition was causally related to the accepted factors of her federal employment.

4

Supra note 1.

5
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

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

3

In support of her claim, appellant submitted a September 20, 2018 narrative report from
Dr. Szmyd who noted, regarding his follow-up treatment of appellant for plantar fasciitis, that she
reported “still having pain after periods of prolonged walking.” Dr. Szmyd diagnosed bilateral
plantar fasciitis and bilateral foot bursitis. In his September 20, 2018 narrative report, he did not
specifically mention appellant’s duties as a mail processor or otherwise attribute her bilateral foot
condition to her employment. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.12
Dr. Szmyd also provided a September 20, 2018 attending physician’s report (Form CA-20)
and an October 8, 2018 duty status report (Form CA-17). On the Form CA-20 he diagnosed plantar
fasciitis and checked a box marked “yes” in response to the question of whether he believed that
appellant’s condition was caused or aggravated by an employment activity. When a physician’s
opinion on causal relationship consists only of checking a box “yes” in response to a form question,
without explanation or rationale, that opinion has limited probative value and is insufficient to
establish a claim.13 On the Form CA-17 Dr. Szmyd indicated that appellant suffered from heel
pain and included a diagnosis of plantar fasciitis, but did not provide an opinion on causation. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.14 This report,
therefore, is insufficient to establish appellant’s claim.
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between appellant’s bilateral foot condition and the accepted factors of her federal
employment. Thus, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a bilateral foot
condition causally related to the accepted factors of her federal employment.

12

C.C., Docket No. 19-0442 (issued July 22, 2019).

13

K.R., Docket No. 19-0375 (issued July 3, 2019).

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the December 11, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 11-210
Issued: September 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2010 appellant, through his attorney, filed a timely appeal from a
September 30, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision
denying his claim for an employment-related injury. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that his back and leg
condition is causally related to a December 21, 2009 employment incident, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 30, 2010 OWCP decision and on appeal,
appellant submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP
at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant’s attorney contends that the September 30, 2010 OWCP decision
was contrary to fact and law.
FACTUAL HISTORY
On December 21, 2009 appellant, then a 43-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on December 21, 2009 he sustained a leg and back injury
while lifting a 70-pound military trunk in the performance of duty. He was released to full-duty
work on December 28, 2009 by an emergency room physician. In a December 28, 2009 work
excuse note, Dr. Frank P. Matrone, a Board-certified family practitioner, advised appellant to
return to work on January 4, 2010.
In a January 1 and 4, 2010 work capacity evaluation report, Dr. Matrone opined that
appellant was not capable of performing his usual job due to low back pain and placed
restrictions on him until he was evaluated and cleared by a back specialist. In a January 4, 2010
medical report, he reported a history of fibromyalgia and diagnosed persistent low back pain.
In a January 11, 2010 report, Dr. Rajesh Rai, a radiologist, indicated that an x-ray of the
lumbar spine revealed no evidence of significant disc disease or joint disease and no
spondylolysis or spondylolisthesis.
In a January 11, 2010 report, Dr. Nancy K. Spangler, an internist, diagnosed lumbago
upon review of an x-ray of the lumbar spine and noted that there was no definite acute fracture.
She advised appellant not to return to work until the next appointment.
On January 22, 2010 Dr. Rai compared radiographs dated January 11, 2010 to a magnetic
resonance imaging (MRI) scan of the lumbar spine and diagnosed slight central degeneration and
partial annular tear at L5-S1 without evidence for significant spinal stenosis or foraminal stenosis
and annular bulging of the L4-5 disc.
In a January 26, 2010 work excuse note, Dr. Spangler advised appellant not to return to
work until the next appointment.
In a February 3, 2010 medical report, Dr. Robert Wilson, Board-certified in pain
medicine and anesthesiology, diagnosed back and leg pain secondary to L4-5 disc bulge with L5S1 disc protrusion and administered epidural steroid injection.
By letter dated February 12, 2010, OWCP requested additional factual and medical
information from appellant. It allotted appellant 30 days to submit additional evidence and
respond to its inquiries.
Appellant submitted a January 26, 2010 report, from Dr. Spangler who diagnosed
lumbago and thoracic or lumbosacral neuritis or radiculitis, unspecified. On February 15, 2010
Dr. Spangler reiterated her diagnoses and recommended bilateral electromyograms (EMGs). In a
February 10 and 15, 2010 work excuse note, she advised appellant not to return to work until the
next appointment.

2

In a February 19, 2010 progress report, Dr. Wilson reiterated his diagnoses and
administered another epidural steroid injection.
Appellant submitted an October 8, 2008 Department of Veterans Affairs rating decision
granting him service connection for lumbar myositis, degenerative disc disease at L5-S1 and
cervical myositis, small central protrusion of C3-4.
In a May 22, 2008 report, Dr. Manuel R. Prats, a Board-certified radiologist, reviewed an
MRI scan of the lumbosacral spine and diagnosed discogenic disease with associated narrowing
present at the L5-S1 disc with a small centrally protruded.
On March 1, 2005 Dr. Fernando Zalduondo, a Board-certified radiologist, reviewed an
MRI scan of the lumbar spine and diagnosed no focal soft disc herniation, small posterior L5-S1
disc bulge and mild degenerative disc disease without nerve root impingement or spinal stenosis
and mild anterior wedging compression fracture deformity of the superior endplate of T12
without retropulsion.
In a March 1, 2010 report, Dr. Thomas C. Hurlbutt, a Board-certified neurologist,
performed an EMG and nerve conduction study of the lower extremities and indicated that they
were both normal. He reported that it failed to reveal electrodiagnostic evidence to suggest
neuropathy or radiculopathy.
On March 11, 2010 Dr. Spangler reiterated her diagnoses and indicated that the MRI scan
and EMG were negative. She did not recommend any more epidural steroid injections,
recommended physical therapy and released appellant to light-duty sedentary work, with the
following restrictions: no lifting over 10 pounds, mostly sitting while changing positions,
standing as needed for comfort and no work on days of physical therapy.
By decision dated March 29, 2010, OWCP denied appellant’s claim finding that the
medical evidence was insufficient to establish fact of injury. It found that the December 21,
2009 lifting incident occurred as alleged, but the medical evidence did not establish causal
relationship.
On April 6, 2010 appellant, through his attorney, requested an oral hearing and submitted
additional evidence. He submitted physical therapy notes by Annie Verghese, a physical
therapist, and Milina D. Slavejkov, a physical therapist assistant.
In an April 1, 2010 medical report, Dr. Spangler reiterated her diagnoses and reported
that appellant showed no improvement with physical therapy. She noted that no light-duty work
was available and recommended a surgical evaluation.
In an April 8, 2010 report, Dr. Stephen P. Falatyn, a Board-certified orthopedic surgeon,
found inconsistencies on appellant’s physical examination, markedly positive Waddell testing
and pain complaints that were far out of proportion to the MRI scan findings, which in the
physician’s opinion were normal. He opined that appellant was not disabled and saw no reason
why he should not return to work at his regular job as it was unclear if any significant injury was
sustained. Dr. Falatyn concluded that the only diagnosis for appellant’s low back pain was
lumbar strain and that surgery was not an option for his lumbar spine.
3

In an April 23, 2010 progress report, Dr. Spangler indicated that appellant was
embellishing his physical examination and his multiple complaints could not be explained by his
rather minor findings on his MRI scan. She opined that she could no longer justify keeping him
out of work based on his reported work injury and released him to full-duty work with no
restrictions on April 23, 2010.
Appellant submitted a Social Security Administration notice of award for disability
benefits effective June 2010.
On July 12, 2010 a telephonic hearing was held before OWCP’s hearing representative.
Appellant testified that Drs. Waldman and Goldbery could provide a firm diagnosis and
rationalized medical opinion evidence establishing causal relationship between the December 21,
2009 employment incident and his condition. However, he did not submit any medical evidence
from Dr. Waldman or Dr. Goldbery.
By decision dated September 30, 2010, OWCP’s hearing representative affirmed the
March 29, 2010 decision, finding that appellant did not submit sufficient rationalized medical
opinion evidence addressing how his back condition was related to the December 21, 2009
employment incident. It found that the medical evidence did not provide a diagnosis that was
causally related to the employment incident.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury5 was sustained in the performance of duty, as alleged
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
3

Appellant filed claims for compensation (Form CA-7) for the periods February 5 to 12 and 18 to 26,
February 27 to March 12 and March 13 to 26, 2010. OWCP notified appellant that his claims would remain under
development until his traumatic injury claim was adjudicated.
4

5 U.S.C. §§ 8101-8193.

5

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
6

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

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

4

evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
OWCP has accepted that the employment incident of December 21, 2009 occurred at the
time, place and in the manner alleged. The issue is whether appellant’s back and leg injury
resulted from the December 21, 2009 employment incident. The Board finds that appellant did
not meet his burden of proof to establish a causal relationship between the condition for which
compensation is claimed and the December 21, 2009 employment incident.
In an April 8, 2010 medical report, Dr. Falatyn indicated that he found inconsistencies on
his physical examination, markedly positive Waddell testing and pain complaints that were far
out of proportion to the normal MRI scan findings. He stated that it was unclear if any
significant injury was sustained, but diagnosed lumbar strain. Dr. Falatyn opined that appellant
was not disabled and released him to work at his regular job. In a January 11, 2010 medical
report, Dr. Spangler diagnosed lumbago. In a January 26, 2010 medical report, she diagnosed
thoracic or lumbosacral neuritis or radiculitis, unspecified. On March 11 and April 1, 2010
medical reports, Dr. Spangler released appellant to light-duty sedentary work. In an April 23,
2010 progress report, she indicated that appellant was embellishing his physical examination and
his multiple complaints could not be explained by his rather minor findings on his MRI scan.
Dr. Spangler opined that she could no longer justify keeping appellant out of work based on his
reported work injury and released appellant to full-duty work with no restrictions on
April 23, 2010. Although Drs. Falatyn and Spangler provided firm diagnoses, they failed to
directly address the issue of causal relationship as they did not explain how the mechanism of the
December 21, 2009 employment incident caused or aggravated appellant’s back and leg
condition. Therefore, appellant did not meet his burden of proof as Drs. Falatyn and Spangler’s
reports are not sufficient to establish that he sustained an employment-related injury on
December 21, 2009.
In a January 4, 2010 medical report, Dr. Matrone reported a history of fibromyalgia and
diagnosed persistent low back pain. In a January 11, 2010 medical report, Dr. Rai indicated that
an x-ray of the lumbar spine revealed no evidence of significant disc disease or joint disease and
7

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

8

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

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no spondylolysis or spondylolisthesis. On January 22, 2010 he diagnosed slight central
degeneration and partial annular tear at L5-S1 and annular bulging of the L4-5 disc. On
February 3 and 19, 2010 Dr. Wilson diagnosed back and leg pain secondary to L4-5 disc bulge
with L5-S1 disc protrusion. In a March 1, 2005 medical report, Dr. Zalduondo diagnosed small
posterior L5-S1 disc bulge, mild degenerative disc disease and mild anterior wedging
compression fracture deformity of the superior endplate of T12. In a March 1, 2010 medical
report, Dr. Hurlbutt reported that an EMG and nerve conduction study of the lower extremities
was normal and failed to suggest neuropathy or radiculopathy. In a May 22, 2008 medical
report, Dr. Prats diagnosed discogenic disease with associated narrowing present at the L5-S1
disc with a small centrally protruded. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.9 The medical reports of Drs. Matrone, Rai, Wilson, Zalduondo,
Hurlbutt and Prats do not provide a firm diagnosis or medical rationale explaining how
appellant’s back and leg condition was caused or aggravated by the December 21, 2009
employment incident. Lacking thorough medical rationale on the issue of causal relationship,
the reports are of limited probative value and not sufficient to establish that appellant sustained
an employment-related injury in the performance of duty on December 21, 2009.
The physical therapy notes from Ms. Verghese, a physical therapist, and Ms. Slavejkov, a
physical therapist assistant, are of no probative value as they are not physicians under FECA.10
Additionally, the October 8, 2008 Department of Veterans Affairs rating decision and the
June 2010 Social Security Administration disability benefits award are not probative as they do
not constitute medical opinion evidence on the issue of causal relationship from a physician.
Moreover, the Board notes that determinations of other administrative agencies are not binding
on OWCP or this Board regarding questions arising under FECA. In this case, the rating and
award are not relevant to the issue of whether appellant sustained an employment-related
injury.11 As such, the Board finds that he did not meet his burden of proof with these
submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the indicated employment factors, he has
failed to meet his burden of proof.
On appeal, appellant’s attorney contends that the September 30, 2010 OWCP decision
was contrary to fact and law. For the reasons stated above, the Board finds the attorney’s
argument to be without merit.

9

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

10

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
11

See also James E. Norris, 52 ECAB 93 (2000); see S.S., Docket No. 10-42 (issued December 17, 2010).

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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 submitted sufficient rationalized medical opinion
evidence to establish that the December 21, 2009 employment incident was causally related to
the back and leg condition. Therefore, appellant failed to meet his burden of proof to establish a
claim.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN J. PERSHING VA MEDICAL CENTER,
Poplar Bluff, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0008
Issued: March 4, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On October 2, 2019 appellant filed a timely appeal from a May 16, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-0008.
On January 17, 2019 appellant, then a 47-year-old medical technologist, filed a traumatic
injury claim (Form CA-1) alleging that on January 14, 2019 he had difficulty breathing and
experienced swelling of the brain and body when he was exposed to mold at work while in the
performance of duty. He stopped work on the date of the claimed injury. In support of his claim,
appellant submitted medical evidence. OWCP assigned this claim OWCP File No. xxxxxx215.
Following development of the evidence, OWCP, by decision dated March 1, 2019, denied
appellant’s traumatic injury claim on the factual component because the evidence of record did
not support that the January 14, 2019 exposure occurred as alleged. It concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA. Additionally, OWCP
noted that appellant had filed a prior occupational disease claim (Form CA-2) in OWCP File No.
xxxxxx158 for an injury caused by workplace mold exposure, which would be addressed in a
separate decision. It noted that the alleged employment-related mold exposure in the claim in

OWCP File No. xxxxxx158 and the current claim in OWCP File No. xxxxxx215 occurred over a
period much longer than one shift
On March 19, 2019 appellant requested reconsideration and submitted additional evidence.
He contended that he submitted test results, photographs, and witness statements that were
sufficient to establish that he was exposed to mold at work, as well as medical evidence sufficient
to establish that he had an asthmatic reaction after being exposed to mold.
By decision dated May 16, 2019, under OWCP File No. xxxxxx215, OWCP denied
modification of its March 1, 2019 decision. It again referenced appellant’s claim for mold
exposure under OWCP File No. xxxxx158.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. OWCP’s procedures provide that cases should be administratively combined when
a new injury is reported for an employee who previously filed a claim for a similar injury and
further indicates that the cases should be administratively combined as soon as the need to do so
becomes apparent. 1 The record reflects that appellant filed an occupational disease claim in
OWCP File No. xxxxxx158 and, thereafter, filed the current traumatic injury claim for the same
condition. As both claims involve an asthmatic reaction to the exposure of mold, the claims must
be administratively combined for a full and fair adjudication of appellant’s present claim. This
will allow OWCP to consider all relevant claim files and accompanying evide nce in developing
appellant’s current traumatic injury claim.
The case shall therefore be remanded for OWCP to administratively combine OWCP File
Nos. xxxxxx215 and xxxxxx158. Following this and other such further development as deemed
necessary, it shall issue a de novo decision.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000);
see R.R., Docket No. 20-0911 (issued October 30, 2020); T.M., Docket Nos. 09-1090 and 09-2226 (issued
March 8, 2010).

2

IT IS HEREBY ORDERED THAT the May 16, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 4, 2022
Washington, DC

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

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

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

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