United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 14-1191
Issued: September 2, 2014

Case Submitted on the Record

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

JURISDICTION
On April 29, 2014 appellant filed a timely appeal from the November 20, 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.
ISSUES
The issue are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective June 1, 2012 on the grounds that she had no
residuals of her December 21, 2011 work injury after that date; and (2) whether appellant met
her burden of proof to establish that she had residuals of her December 21, 2011 work injury
after June 1, 2012.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 4, 2012 appellant, then a 71-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injury on December 21, 2011 in a motor vehicle
accident at work. She stopped work on December 21, 2011.2 Appellant’s claim form did not
specify the nature of the injury sustained.
In a January 6, 2012 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim.
Appellant submitted a statement in which she noted that on December 21, 2011 her mail
delivery vehicle was stopped at a mailbox when another motor vehicle struck her vehicle from
behind. She was propelled forward due to the impact.
In a February 10, 2012 decision, OWCP denied appellant’s claim. It found that she did
not submit sufficient medical evidence to establish that she sustained an injury in the
performance of duty on December 21, 2011.
In a February 8, 2012 report, Dr. Neil R. Schultz, an attending Board-certified physical
medicine and rehabilitation physician, described the December 21, 2011 motor vehicle accident.
He indicated that appellant sustained several conditions, including cervical sprain/strain, lumbar
sprain/strain and left knee contusion, due to the work incident.3 On range of cervical motion
testing, appellant had 45 degrees of extension, 40 degrees of extension, 45 degrees of right
rotation and 45 degrees of left rotation. On range of lumbar motion testing, she had 45 degrees
of extension, 15 degrees of extension, 20 degrees of right lateral flexion and 15 degrees of left
lateral flexion. Dr. Schultz noted that appellant exhibited tenderness/spasms in the right and left
cervical facets, thoracic paraspinals and right and left lumbar facets and that testing for the
cervical and lumbar facets on extension caused pain. In another February 8, 2012 report, he
indicated that she had various work restrictions, including lifting no more than 15 pounds and
intermittently sitting for no more than two hours.4
In an April 5, 2012 report, Dr. Schultz diagnosed cervical sprain/strain, lumbar strain and
left knee contusion. On range of cervical motion testing, appellant had 45 degrees of extension,
50 degrees of extension, 65 degrees of right rotation and 65 degrees of left rotation. On range of
lumbar motion testing, she had 70 degrees of extension, 25 degrees of extension, 30 degrees of
right lateral flexion and 30 degrees of left lateral flexion. Dr. Schultz advised that appellant
exhibited tenderness/spasms in the right cervical and right lumbar facets and that testing for the
cervical and lumbar facets on extension caused pain. He recommended work restrictions.

2

Appellant returned to limited-duty work on January 3, 2012 but stopped work shortly thereafter. She received
disability compensation on the daily rolls.
3

Appellant also submitted a brief report of emergency hospital treatment she received on December 21, 2011.

4

Appellant’s rural carrier position required her to lift up to 45 pounds and to intermittently sit for up to five
hours. The record also contains a Form CA-16 (Authorization for Examination and/or Treatment) completed by
Dr. Schultz on January 25, 2012.

2

In an April 30, 2012 decision, OWCP vacated the February 13, 2012 decision. It
accepted her claim for a neck sprain, lumbar sprain and left knee contusion due to the
December 21, 2011 work incident.
In a May 3, 2012 report, Dr. Schultz diagnosed several conditions, including cervical
sprain/strain, lumbar strain and left knee contusion. He provided findings for range of cervical
motion and range of lumbar motion testing and stated that appellant exhibited tenderness/spasms
in the right cervical and right lumbar facets. Testing for the lumbar facet on extension caused
pain. In another May 3, 2012 report, Dr. Schultz indicated that appellant had various work
restrictions, including lifting no more than 15 pounds and intermittently sitting for no more than
two hours.
On May 23, 2012 OWCP assigned appellant a field nurse to help her achieve full
recovery and a return to work. The nurse asked Dr. Schultz to provide information about
appellant’s work-related condition and ability to work. She provided Dr. Schultz with a form
that asked questions about such matters as appellant’s diagnosis, prognosis, treatment plans, date
of maximum medical improvement, permanent impairment and anticipated date of return to full
duty.
In a May 31, 2012 report, Dr. Schultz diagnosed cervical sprain/strain, lumbar strain and
thoracic strain. On range of cervical motion testing, appellant had 55 degrees of extension, 55
degrees of extension, 65 degrees of right rotation and 70 degrees of left rotation. On range of
lumbar motion testing, she had 75 degrees of extension, 30 degrees of extension, 30 degrees of
right lateral flexion and 30 degrees of left lateral flexion. Dr. Schultz noted that appellant
exhibited tenderness/spasms in the right lumbar facet.
On May 31, 2012 Dr. Schultz completed the form provided by the field nurse, noting that
appellant’s diagnoses were cervical and lumbar strains, her prognosis was good, her treatment
plans involved physical therapy and pain medication as needed, her date of maximum medical
improvement was May 31, 2012 and her anticipated date of return to full duty was
May 31, 2012.5
In a June 13, 2012 letter, OWCP requested that Dr. Schultz address whether appellant’s
accepted conditions (neck sprain, lumbar sprain and left knee contusion) had resolved. On
June 15, 2012 Dr. Schultz replied “yes” that appellant’s December 21, 2011 work injuries had
resolved. He did not provide any further explanation for his statement.
In a June 27, 2012 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits because she ceased to have residuals of her
December 21, 2011 work injuries. The proposed termination action was based on the May 31
and June 15, 2012 reports of Dr. Schultz. OWCP provided appellant 30 days to submit evidence
and argument challenging the proposed termination action.
Appellant submitted a June 29, 2012 statement in which she asserted that she had not
fully recovered from her December 21, 2011 work injuries. She submitted physical therapy
5

Dr. Schultz indicated that he did not anticipate that appellant would have a permanent impairment rating.

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reports and disability certificates signed by nurse practitioners for periods in early June and early
July 2012. In an August 27, 2012 statement, appellant advised that she returned to her full-time
regular work on July 25, 2012. She asserted that she had not been ready to return to work prior
to that date.
In an October 17, 2012 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 1, 2012. The termination action was based on the opinion of
Dr. Schultz. OWCP noted that appellant did not submit evidence showing that she had workrelated residuals after June 1, 2012.
Appellant requested a hearing with an OWCP hearing representative regarding the
termination of her wage-loss compensation and medical benefits. During the February 13, 2013
hearing, she testified that she continued to have residuals of her December 21, 2011 work
injuries after June 1, 2012 and asserted that she should receive compensation up through the time
that she returned to full duty on July 25, 2012. Appellant contended that she believed that
Dr. Schultz prematurely ended the treatment for her work injuries.
Appellant submitted a November 12, 2012 note from Dr. Jerry Williams, an attending
family practitioner, who stated that she could only perform limited-duty work between June 9
and July 24, 2012 and was released to full duty on July 24, 2012. In a November 14, 2012
report, Dr. Williams listed dates in June and July 2012 when he treated appellant for ongoing
cervical/lumbar strain that started December 2011 following a motor vehicle accident. He
advised that appellant was referred for physical therapy to treat her condition and noted that she
was released to full duty on August 28, 2012. When Dr. Williams’ office examined appellant on
November 12, 2012, she exhibited no evidence of cervical or lumbar strain.
In a decision dated May 1, 2013, the hearing representative affirmed the October 17,
2012 termination decision. She found that the termination action was justified based on the
reports of Dr. Schultz. Appellant did not submit medical evidence to establish that she had
work-related residuals after June 1, 2012.
In an August 15, 2013 letter, appellant requested reconsideration of her claim. She
submitted a number of documents relating to her work requirements.
In a November 20, 2013 decision, OWCP affirmed the May 1, 2013 decision. It found
that Dr. Schultz supported the termination of wage-loss compensation and medical benefits as of
June 1, 2013.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.6 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7

6

J.M., 58 ECAB 478 (2007); Charles E. Minniss, 40 ECAB 708 (1989).

7

Id.

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Its’ burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.8
OWCP procedures provide that a request for medical information from the attending
physician may be the most efficient and expeditious means to obtain a medical status update and
address any unresolved medical issues. Its’ claims examiner must ensure, however, that the
attending physician’s reply is well reasoned and responsive to the questions asked. OWCP
procedures further indicates that if reports from the attending physician lack needed details and
opinion, or if the subjective complaints and time loss from work appear inconsistent with the
objective findings and the claimant’s diagnosis, the claims examiner can write back to the
physician, clearly state what is needed and request a supplemental report.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a neck sprain, lumbar sprain and left knee
contusion due to a December 21, 2011 motor vehicle accident at work and paid her wage-loss
compensation and medical benefits. It terminated her wage-loss compensation and medical
benefits effective June 1, 2012 based on the opinion of Dr. Schultz, an attending Board-certified
physical medicine and rehabilitation physician.
The Board finds that the opinion of Dr. Schultz is not sufficiently well rationalized to
justify the termination of appellant’s wage-loss compensation and medical benefits effective
June 1, 2012.
On May 31, 2012 Dr. Schultz completed a form provided by a field nurse who was
assigned to the case by OWCP noting that appellant’s diagnoses were cervical and lumbar
strains, her prognosis was good, her treatment plans involved physical therapy and pain
medication as needed, her date of maximum medical improvement was May 31, 2012 and her
anticipated date of return to full duty was May 31, 2012.10 In a June 13, 2012 letter, OWCP
requested that Dr. Schultz further addressed whether appellant’s accepted conditions (neck
sprain, lumbar sprain and left knee contusion) had resolved. On June 15, 2012 Dr. Schultz
replied “yes” to indicate that appellant’s December 21, 2011 work injuries had resolved.
The Board notes that despite providing an opinion that appellant’s December 21, 2011
work injuries had resolved and that she could return to full duty on May 31, 2012, Dr. Schultz
did not provide any explanation for his opinion. The Board has held that a medical opinion
which is not fortified by medical rationale is of limited probative value on a given medical
8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988). After termination or modification of compensation benefits,
clearly warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.
In order to prevail, appellant must establish by the weight of the reliable, probative and substantial evidence that he
or she had an employment-related disability which continued after termination of compensation benefits.
Wentworth M. Murray, 7 ECAB 570, 572 (1955).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7 (September 2010).
10

Dr. Schultz indicated that he did not anticipate that appellant would have a permanent impairment rating.

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issue.11 In a May 31, 2012 report, Dr. Schultz diagnosed cervical sprain/strain, lumbar strain and
thoracic strain. He indicated that, on examination, appellant exhibited tenderness/spasms in the
right lumbar facet. In his May 31, 2012 response to the field nurse, Dr. Schultz noted that
appellant’s diagnoses were cervical and lumbar strains and that her treatment plans involved
physical therapy and pain medication. These reports do not fully support Dr. Schultz’ statement
that appellant’s December 21, 2011 work injuries had resolved. He did not adequately explain
his opinion that appellant ceased to have residuals of his December 21, 2011 work injuries,
which included a neck sprain and lumbar sprain. Moreover, these is no indication that OWCP
attempted to obtain clarification of Dr. Schultz’ opinion on continuing work-related residuals
after receiving his May 31 and June 15, 2012 reports.12
For these reasons, OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective June 1, 2012.13
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective June 1, 2012 on the grounds that she had
no residuals of her December 21, 2011 work injury after that date.

11

See George Randolph Taylor, 6 ECAB 986 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
12

See supra note 9 with respect to OWCP procedure for obtaining supplemental information from attending
physicians. In addition, the record contains reports of Dr. Williams, an attending family practitioner, which suggest
that appellant had residuals of her December 21, 2011 injuries for a period after June 1, 2012.
13

Given the Board’s disposition of the first issue of this case, it is not necessary for it to consider the second
issue. The Board notes that the record contains a Form CA-16 (Authorization for Examination and/or Treatment)
completed by Dr. Schultz on January 25, 2012. The Board notes that where an employing establishment properly
executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim for an employmentrelated injury, the Form CA-16 form creates a contractual obligation, which does not involve the employee directly,
to pay for the cost of the examination or treatment regardless of the action taken on the claim. See Tracy P.
Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c). The record is silent as to
whether OWCP paid for the cost of appellant’s examination or treatment for the period noted on the form.

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ORDER
IT IS HEREBY ORDERED THAT the November 20, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 2, 2014
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
McCLELLAN AIR FORCE BASE, CA,
Employer
__________________________________________

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

Docket No. 09-989
Issued: December 16, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant filed a timely appeal from a May 9, 2008 merit decision of
the Office of Workers’ Compensation Programs terminating his wage-loss compensation.
Pursuant to 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 the Office properly terminated appellant’s wage-loss compensation
effective May 11, 2008.

FACTUAL HISTORY
This case was previously before the Board. The Office accepted appellant’s occupational
disease claim for left carpal tunnel syndrome on February 23, 1993 and right carpal tunnel
syndrome on September 13, 1993.1 It placed him on the periodic rolls for wage loss on
April 4, 2000. By decision dated April 26, 2001, the Office reduced appellant’s compensation
benefits to zero based on his refusal to participate in vocational rehabilitation. The Board
reversed this determination by decision dated July 1, 2002.2 The facts and circumstances of the
case as set out in the Board’s prior decision are incorporated herein by reference.
On March 23, 2007 the Office referred appellant to Dr. Matthew Mitchell, a Boardcertified orthopedic surgeon, for a second opinion evaluation. On April 20, 2007 Dr. Mitchell
reviewed appellant’s history of injury, medical treatment and performed a physical examination.
He found full elbow range of motion, bilateral negative Tinel’s sign in the elbow cubital tunnel,
negative Phalen’s test, negative carpal tunnel compression test and full range of motion of both
wrists. Dr. Mitchell diagnosed bilateral carpal tunnel syndrome by history and positive nerve
conduction studies. He found that appellant had signs of very mild right thenar atrophy. In an
attached work capacity evaluation form, Dr. Mitchell advised that appellant could work at his
usual job with restrictions, with repetitive and/or wrist motions and reaching above the shoulder
limited to four hours.
In a March 21, 2007 report, Dr. Dennis J. Sullivan, an attending Board-certified
orthopedic surgeon with a subspecialty in hand surgery, diagnosed right carpal tunnel syndrome.
Physical examination revealed full bilateral elbow, forearm, wrist and finger motion.
Dr. Sullivan found a positive Tinel’s sign over the median nerve at the right wrist, but negative
over the median nerve at the left wrist and negative at both elbow ulnar nerves. He concluded
that appellant was capable of performing his usual duties from a hand standpoint. In an attached
work capacity evaluation form, Dr. Sullivan indicated appellant was capable of working without
restrictions.
The Office found a conflict in medical opinion between Dr. Mitchell and Dr. Sullivan
regarding appellant’s work capacity. It referred him to Dr. Howard Sturtz, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a report dated January 16, 2008,
Dr. Sturtz reviewed the statement of accepted facts and the medical records. He performed a
physical examination and diagnosed bilateral carpal tunnel syndrome. Dr. Sturtz found normal
wrist and elbow range of motion. He noted that appellant had negative bilateral Phalen’s and
Durkan’s tests, a slightly positive left wrist Tinel’s sign and negative right wrist Tinel’s sign.
Dr. Sturtz advised that there was no electrodiagnostic change between 1992 and January 2001.
1

The Office assigned claim number xxxxxx242. It also accepted a claim for binaural hearing loss and tinnitus
under claim number xxxxxx960. The Office accepted that appellant sustained bladder cancer under claim number
xxxxxx270. It terminated appellant’s wage-loss compensation, by decision dated October 5, 1999, on the basis that
he no longer suffered from bladder cancer.
2

Docket No. 01-1695 (issued July 2, 2002). The Office accepted that appellant, an aircraft electrician equipment
technician, sustained bilateral carpal tunnel syndrome causally related to factors of his federal employment. On
March 25, 2000 the Office issued schedule awards for a 10 percent impairment of each arm. By letter dated April 4,
2000, the Office placed appellant on the periodic rolls.

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He stated that he agreed with Dr. Sullivan that appellant was capable of performing his date-ofinjury position as an aircraft electrician equipment technician without restrictions. Dr. Sturtz
stated that appellant “has only mild carpal tunnel syndrome and Dr. Mitchell’s examination
[was] basically unremarkable.”
On March 13, 2008 the Office proposed to terminate appellant’s compensation benefits
based on Dr. Sturtz’s report.
In a March 25, 2008 letter, appellant disagreed with the proposed termination.
requested that he be referred for vocational rehabilitation.

He

By decision dated May 9, 2008, the Office terminated the proposed termination of
appellant’s wage-loss compensation effective May 11, 2008.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
If there is disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.6 It is well established that, when a case is referred to an impartial medical
specialist for the purpose of resolving a conflict, the opinion of such specialist, if sufficiently
well rationalized and based on proper factual and medical background must be given special
weight.7
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. The issue to
be determined is whether the Office has met its burden of proof to establish that appellant had no
remaining disability due to his accepted injury.

3

S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L.
Stewart, 54 ECAB 824 (2003).
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Del K. Rykert, 40 ECAB 284 (1988).

6

5 U.S.C. § 8123(a); see T.C., 60 ECAB ___ (Docket No. 08-2112, issued June 12, 2009); Y.A., 59 ECAB ___
(Docket No. 08-254, issued September 9, 2008).
7

B.K., 60 ECAB ___ (Docket No. 08-2002, issued June 16, 2009); J.M., supra note 5.

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The Office referred appellant for a second opinion evaluation with Dr. Mitchell, a Boardcertified orthopedic surgeon, who found that appellant was capable of working with restrictions
on his wrists and shoulders. Appellant’s attending physician, Dr. Sullivan, a Board-certified
orthopedic surgeon, concluded that appellant was capable of working with no restrictions from a
hand standpoint. The Office properly found a conflict of medical opinion evidence between
Drs. Mitchell and Sullivan and referred appellant for an impartial medical evaluation with
Dr. Sturtz, a Board-certified orthopedic surgeon, to resolve this conflict.
In a January 16, 2008 report, Dr. Sturtz reviewed the statement of accepted facts, the
medical records and performed a physical examination. He diagnosed work-related bilateral
carpal tunnel syndrome. Dr. Sturtz reported appellant had negative normal wrist and elbow
range of motion, a negative bilateral Phalen’s and Durkan’s tests, a slightly positive left wrist
Tinel’s sign and negative right wrist Tinel’s sign. He also reported that there was no
electrodiagnostic change between 1992 and January 2001. Dr. Sturtz stated that he agreed with
Dr. Sullivan that appellant was capable of performing his date-of-injury position of an aircraft
electrician equipment technician with no restrictions from his accepted bilateral carpal tunnel
syndrome. His rationale for this conclusion was the fact that appellant “has only mild carpal
tunnel syndrome and Dr. Mitchell’s examination [was] basically unremarkable.”
As the impartial medical examiner, Dr. Sturtz’s report is entitled to the special weight of
the medical evidence. He based his conclusions on a proper factual background and provided
medical reasoning for concluding that appellant was capable of returning to his date-of-injury
position. Dr. Sturtz noted that appellant had no objective findings of disability due to his
accepted employment-related condition and, thus, concluded that he was capable of returning to
his date-of-injury job with no restrictions. The Board finds that the Office met its burden of
proof to terminate appellant’s wage-loss compensation benefits.
Appellant submitted a letter with his appeal contending the Office should have
consolidated his claims for cancer under claim number xxxxxx270, tinnitus/bilateral hearing loss
under claim number xxxxxx960 and vertigo under claim number xxxxxx212 with his bilateral
carpal tunnel syndrome under claim number xxxxxx242 in order for the Office to accurately
determine his work capability. As case numbers xxxxxx270 (cancer), tinnitus/bilateral hearing
loss under claim number xxxxxx960 and vertigo under claim number xxxxxx212 involved either
a hearing injury or bladder injury and this case involves a hand injury, the cases involve separate
injuries and are appropriately addressed in separate decisions. Therefore, the sole issue on
appeal is whether the Office properly terminated appellant’s wage-loss compensation benefits
effective May 11, 2008 as he no longer had any disability due to his accepted bilateral carpal
tunnel syndrome. Therefore, appellant’s contentions regarding his other claims on appeal are not
relevant to the issue currently before the Board.8 He contends that Dr. Sturtz is not impartial
based on his observation of the physician’s manner and attitude on entering Dr. Sturtz’s office.
However, the Board notes that appellant has submitted no evidence supporting his contention of
bias on the part of Dr. Sturtz. The impartial medical examiner found that appellant no longer had
8

Appellant noted that the Office erred in terminating his benefits for his accepted cancer claim in 1992 as his
cancer was not cured and referenced a Board’s decision in this case, which was Docket No. 00-2056. He contends
that his medical restrictions from his other claims preclude him from returning to his date-of-injury position.

4

any disability from his accepted bilateral carpal tunnel syndrome. The Office properly accorded
Dr. Sturtz’s report special weight and terminated appellant’s benefits as of May 11, 2008.
On appeal appellant also contended that the Office should have referred him to vocational
rehabilitation and combined all his claims to determine his medical disabilities. It is clear from
the Act and its implementing regulations that vocational rehabilitation is provided and
administered as a discretionary component of the federal compensation program and is not an
entitlement. Section 8104(a) of the Act provides, in pertinent part, that the “Secretary of Labor
may direct a permanently disabled individual whose disability is compensable under this
subchapter to undergo vocational rehabilitation. The Secretary shall provide for furnishing the
vocational rehabilitation services.”9 Section 10.518(a) of the Office’s implementing regulations
provides, in pertinent part, that the Office “may, in its discretion, provide vocational
rehabilitation services as authorized by 5 U.S.C. § 8104.”10
Because appellant had no residual disability due to his accepted employment injury,
vocational rehabilitation services are not appropriate.11 As previously stated, the purpose of
vocational rehabilitation is to assist a disabled employee unable to return to his date-of-injury
job. The Board, therefore, finds that, as appellant had no employment-related disability, the
Office did not abuse its discretion in denying his request for continuing vocational rehabilitation
services.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation effective May 11, 2008 on the grounds that he no longer had any disability due to
his accepted bilateral carpal tunnel syndrome.

9

5 U.S.C. § 8104(a); see also R.H., 58 ECAB ___ (Docket No. 07-74, issued August 16, 2007); S.F., 59 ECAB
___ (Docket No. 08-426, issued July 16, 2008).
10

20 C.F.R. § 10.518(a).

11

Id. See Roniva Brown, 38 ECAB 338, 343-44 (1987) (finding that the claimant was not entitled to vocational
rehabilitation benefits because the medical evidence established that the claimant was able to return to his date-ofinjury position). When an employee is no longer disabled within the meaning of the Act and there is no loss of
wage-earning capacity, there is no entitlement to vocational rehabilitation benefits under the Act.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 9, 2008 be affirmed.
Issued: December 16, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, DETROIT
PERFORMANCE CLUSTER, Detroit, MI,
Employer
__________________________________________

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1674
Issued: September 17, 2012

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 July 13, 2011 appellant, through her attorney, filed a timely appeal from the July 5,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for modification of a wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that modification of
OWCP’s August 17, 2005 wage-earning capacity decision was warranted.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on August 11, 2003 appellant, then a 39-year-old part-time flexible
city carrier, sustained left knee and leg sprains and a torn medial meniscus of her left knee due to
a fall on stairs at work.2 On September 13, 2004 she underwent a partial synovectomy of her left
leg which was authorized by OWCP. Appellant stopped working at the time of her surgery and
returned to limited-duty work on a part-time basis on November 1, 2004. She increased to fulltime limited-duty work on January 5, 2005 with walking and standing limited to two hours per
day.
On March 3, 2005 the employing establishment offered appellant a job as a modified
part-time flexible city carrier to be effective March 19, 2005.3 The position’s duties included
casing mail (which involved sorting mail to a letter case with multiple pigeonholes and
destination cells); collecting mail from street letter boxes (which involved, on an as needed basis,
intermittently withdrawing collection mail from street letter boxes for delivery back to the
employing establishment and further processing); delivering express mail (which involved, on an
as needed basis, intermittently delivering, via a postal vehicle, individual and/or multiple pieces
of express mail to the designated postal customers); and processing damaged and undeliverable
mail and checking mail returned by carriers for accurate change of address and annotating the
mail for rerouting. The physical requirements of the position included intermittently lifting and
pushing up to 35 pounds for one to eight hours per day; intermittently sitting for one to eight
hours per day, intermittently standing and walking for one to two hours per day and
intermittently driving for one to four hours per day.4
Appellant accepted the modified part-time flexible city carrier job under protest on
March 8, 2005 and began working in the job on March 19, 2005.
In an August 17, 2005 decision, OWCP found that appellant’s actual earnings in the
limited-duty position of modified part-time flexible city carrier fairly and reasonably represented
her wage-earning capacity with no loss of wage-earning capacity when compared to her date-ofinjury salary.
Effective February 13, 2010, the employing establishment withdrew appellant’s job as a
modified part-time flexible city carrier under the National Reassessment Process (NRP). It
offered her a position, starting February 13, 2010, as a modified letter carrier with duties of
setting up a mail route for one hour per day, five days per week. Appellant began working in
this position on February 13, 2010.5
2

On days that appellant worked, her work schedule was from 8:30 a.m. to 5:00 p.m.

3

The job involved working an average of 38 hours per week.

4

On March 14, 2005 Dr. Fred Nelson, an attending Board-certified orthopedic surgeon, indicated that appellant
could work for eight hours per day for five days per week. He recommended restrictions including no carrying,
lifting, pushing or pulling more than 20 pounds, no walking for more than two hours per day and no standing for
more than two hours per day.
5

Appellant later began working in a limited-duty position for four hours per day, five days per week.

2

On February 25, 2010 appellant filed a Form CA-7 claiming wage-loss compensation
beginning February 13, 2010, because the employer withdrew her limited-duty assignment under
NRP and drastically reduced her work hours. She later filed other CA-7 forms for additional
periods of claimed wage-loss compensation.
OWCP initially paid appellant wage-loss compensation from February 13 to May 21,
2010 but later notified her in a July 22, 2010 letter that, because of the August 17, 2005 wageearning capacity decision, she had to establish that this prior decision should be modified in
order to receive additional wage-loss compensation after May 21, 2010.
In a December 8, 2010 decision, OWCP denied modification of its August 17, 2005
wage-earning capacity decision and denied wage-loss compensation beginning May 22, 2010. It
found that the evidence did not establish that appellant sustained a material change in her
condition, that she was retrained or vocationally rehabilitated or that the original wage-earning
capacity decision was erroneous.
Appellant requested a telephone hearing that was held on April 13, 2011. At the hearing,
she appeared with her representative and indicated that she sought to modify the prior wageearning capacity determination because the job upon which it was based was makeshift and
therefore the prior wage-earning capacity decision was erroneous. Appellant’s representative
asserted that the March 3, 2005 job offer was comprised of work assembled from both the carrier
craft and the clerk craft and was developed to accommodate her medical restrictions. Appellant
indicated that two of the duties in the March 3, 2005 job offer (delivering express mail and
collecting mail from letter boxes) were too arduous for her condition and were later withdrawn
as part of her duties and replaced with more clerical duties.
Following the hearing, OWCP received a May 5, 2011 letter from appellant’s
representative along with additional medical evidence. Appellant’s representative asserted that
appellant’s current injury-related knee condition was worsening and causing her to be totally
disabled for work beginning in April 2011.
In an April 29, 2011 report, Dr. Nelson stated that he examined appellant on that date.
He noted that he had followed appellant for degenerative arthritis of her knees and indicated that
she had the more typical form of arthritis where the cartilage surface of the bone was wearing
out. Dr. Nelson stated that, based on appellant’s clinical course and physical findings over the
past five years, she had reached a point where she could no longer work more than one hour in a
seated job or more than one hour of standing work in the field. Appellant also could not work in
a job that required using steps. She submitted other reports of Dr. Nelson indicating that her
knee condition had declined. In an April 14, 2011 report, Dr. Nelson indicated that appellant
was totally disabled beginning April 11, 2011.
In a July 5, 2011 decision, an OWCP hearing representative affirmed OWCP’s
December 8, 2010 decision. He indicated that the job offered to appellant was not makeshift in
nature and found that she did not show that OWCP’s August 17, 2005 wage-earning capacity
determination was erroneous. The hearing representative stated that, following the April 13,

3

2011 telephone hearing, appellant submitted new medical evidence indicating that she became
totally disabled beginning April 11, 2011 due to a knee condition. He stated:
“However, the case fails to contain sufficient medical evidence which establishes
that the earlier claimed wage loss beginning May 22, 2010 was due to a material
change in the nature and extent of the injury-related condition. The medical
evidence submitted following the hearing indicating that appellant’s left knee
osteoarthritis worsened causing her to become totally disabled for work beginning
April 11, 2011 will have to be further developed by the [d]istrict Office but this
does not establish that the [d]istrict Office’s prior decision of December 8, 2010
was incorrect as the change in the condition referenced by this medical evidence
occurred after OWCP’s prior decision.”
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.6 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.7 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.8
Modification of a standing wage-earning capacity 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
erroneous.9 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.10
FECA Bulletin No. 09-05 outlines OWCP procedures when limited-duty positions are
withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning capacity decision
has been issued, OWCP must develop the evidence to determine whether a modification of that
decision is appropriate.11

6

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
7

K.R., supra note 6; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
8

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

9

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

10

Selden H. Swartz, 55 ECAB 272, 278 (2004).

11

FECA Bulletin No. 09-05 (issued August 18, 2009).

4

ANALYSIS
OWCP accepted that on August 11, 2003 appellant sustained left knee and leg sprains
and a torn medial meniscus of her left knee. She began working as a modified part-time flexible
city carrier on March 19, 2005 and, in an August 17, 2005 wage-earning capacity decision,
OWCP found that her actual earnings as a modified part-time flexible city carrier fairly and
reasonably represented her wage-earning capacity with no loss of wage-earning capacity. The
employing establishment withdrew appellant’s limited-duty position under NRP effective
February 13, 2010. Appellant sought modification of the August 17, 2005 wage-earning
capacity determination on the grounds that the prior decision was erroneous because the position
upon which the decision was based was makeshift and made to accommodate her medical
restrictions.12
OWCP analyzed this case under the customary criteria for modifying a loss of wageearning capacity determination, but did not acknowledge FECA Bulletin No. 09-05 or fully
follow the procedures outlined therein for claims, such as this, in which limited-duty positions
are withdrawn pursuant to NRP.13
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No.
09-05 requires OWCP to develop the evidence to determine whether a modification of the
decision is appropriate.14 To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the
file contains documentary evidence supporting that the position was an actual bona fide position.
It requires OWCP to review whether a current medical report supports work-related disability
and establishes that the current need for limited duty or medical treatment is a result of injuryrelated residuals, and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.15
Further FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position.16
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside OWCP’s July 5, 2011 decision and remand the case for further consideration. After proper

12

Appellant was paid for loss of wage-earning capacity through May 21, 2010 and effectively claimed
entitlement to compensation for loss of wage-earning capacity beginning May 22, 2010.
13

See M.A., Docket No. 12-316 (issued July 24, 2012).

14

FECA Bulletin No. 09-05, supra note 11.

15

Id. at §§ I.A.1-2.

16

Id. at § I.A.3.

5

compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate de novo
decision on appellant’s entitlement to wage-loss compensation beginning May 22, 2010.17
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s August 17, 2005 loss of wage-earning capacity determination is appropriate. Further
action by OWCP is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 5, 2011 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action.
Issued: September 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

See M.A., supra note 13; M.E., Docket No. 11-1416 (issued May 17, 2012).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Islip, NY, Employer
__________________________________________
Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-163
Issued: September 15, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 20, 2010 appellant filed a timely application for review of the Office of
Workers’ Compensation Programs’ (OWCP) July 15, 2010 merit decision in File No. xxxxxx626
denying his request for authorization of total knee replacement surgery.1 The Board finds this
case is not in posture for a decision.
Appellant’s August 17, 2005 traumatic injury claim was accepted for bilateral
sprain/strain of the knee/leg, unspecified and sprain/strain of the lumbosacral spine. On
January 20, 2009 he requested authorization for a total right knee replacement. In order to
resolve a conflict in medical opinion as to the medical necessity of the requested surgery, OWCP
referred appellant to an impartial medical specialist, Dr. David Benatar, a Board-certified
orthopedic surgeon. On June 16, 2009 Dr. Benatar opined that the knee replacement surgery was
reasonable, but that the current knee condition was not causally related to the 2005 injury, but
rather to treatment for preexisting arthritis stemming from a June 29, 1995 injury. In a
February 12, 2009 report, Dr. Frank R. De Maio, a Board-certified internist, diagnosed posttraumatic arthritis of the right knee, with varus alignment, flexion contracture and arthrofibrosis,
which he opined was caused directly by appellant’s June 29, 1995 right knee injury and was
exacerbated by the accepted 2005 injury. By decision dated July 13, 2009, OWCP denied
authorization for total knee replacement surgery, finding that it was not medically necessary for
1

The record reflects that appellant filed a traumatic injury claim for right knee injuries sustained on
June 29, 1995.

the accepted work injury. In a July 15, 2010 decision, OWCP denied modification of the
July 13, 2009 decision.2
The record does not contain any evidence relating to the development of appellant’s
June 29, 1995 claim in File No. xxxxxx366. The Board notes that both the referee physician and
appellant’s treating physician in File No. xxxxxx626 opined that appellant’s current right knee
condition was causally related to the 1995 injury. As the subject of the requested surgery
involves appellant’s right knee, which sustained injury in both cases, evidence contained in File
No. xxxxxx366 will necessarily bear directly on appellant’s request for surgery authorization in
File No. xxxxxx626.
Because it is essential for the Board to review the record in file number xxxxxxx366 in
order to render a full and fair adjudication of the present appeal, this case will be remanded for
the Office to consolidate case files xxxxxx626 and xxxxxx366. Reconstruction of the record will
be followed by a de novo decision on the merits of the claim, in order to protect appellant’s
appeal rights.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 15, 2010 decision be set aside and the case is remanded for further development consistent
with this order.
Issued: September 15, 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

2

The Board notes that, in a separate decision dated July 15, 2010, OWCP vacated a March 31, 2010 decision
terminating appellant’s compensation and medical benefits and expanded appellant’s claim to include temporary
aggravation of preexisting end-stage bilateral knee arthritis (which had since reached status quo) and lumbar
radiculopathy.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Dallas, TX, Employer
__________________________________________

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

Docket No. 12-1238
Issued: April 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 15, 2012 appellant filed a timely appeal of an April 2, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
in the performance of duty.
On appeal, appellant contends that the instant claim under OWCP File No. xxxxxx901 is
the same claim filed under OWCP File No. xxxxxx703. These cases were split by OWCP.
1

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus, the Board
has decided the appeal on the record.
2

5 U.S.C. § 8101 et seq.

Appellant contends that she did not sustain an injury on October 6, 2010. She returned to work
on that date.
FACTUAL HISTORY
On November 26, 2010 appellant, then a 34-year-old human resources compensation
specialist, filed an occupational disease claim (Form CA-2) alleging that on October 6, 2010 she
first realized that her chronic and toxic stress, constant anxiety, migraine headaches, inability to
sleep at night and entire body ache and pain were caused by an immediate, and continuous toxic
and hostile work environment and harassment by Denise Flores, a supervisor, and Deborah
Hollins, a senior analyst.3 She asked the employing establishment administration for help and
was told not to e-mail or contact upper management again about her allegations.
On the claim form, Ms. Flores stated that she was not aware of the conditions alleged by
appellant who had worked intermittently since her return to work in October 2010 after an
extended absence which began in June 2010.
By letter dated December 13, 2010, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. Appellant was advised about the medical and
factual evidence to submit and given 30 days to provide the requested information. On
December 13, 2010 OWCP also requested that the employing establishment respond to her
allegations.
In a November 4, 2011 narrative statement, appellant contended that, despite all the work
she performed from 2008 to 2009, she received “needs to improve” and “meets performance”
ratings from Ms. Flores. On May 15, 2009 she was asked by Ms. Flores to submit a leave slip
because she took more than 30 minutes for a lunch break while other employees including,
Ms. Hollins took lunch breaks longer than 30 minutes on a daily basis. During training in San
Francisco, California, from June 8 to 12, 2009, Ms. Hollins became angry and acted mean
toward appellant because she asked Shirley Ebbeson, an employee, too many questions about a
survey process. Appellant contended that from May 2009 to the present she received hateful and
unnecessary e-mails from Ms. Flores and Ms. Hollins. When she returned to work on July 6,
2009 she was harassed by these employees.
On July 7, 2009 Ms. Flores informed appellant that she would have to meet with her and
Ms. Hollins twice daily until 90 percent of her work was completed with no substantial errors
and her work product reflected an efficient use of her time based on the nature and complexity of
each assignment. Appellant contended that Ms. Hollins snatched papers from her and hollered at
her on July 8, 2009. Ms. Flores took no action in response. On July 9 and 28, 2009 Theresa
Brandon, appellant’s union representative, received no response from Ms. Flores regarding the
filing of appellant’s grievance alleging harassment. On July 15, 2009 Ms. Flores denied
appellant’s request to stop meeting with Ms. Hollins following the snatching incident. On
3

In a prior claim, filed under OWCP File No. xxxxxx954, the Board, in a January 12, 2012 decision, affirmed a
December 27, 2010 OWCP decision, denying appellant’s emotional condition claim on the grounds that she failed to
establish a compensable factor of her employment. Docket No. 11-796 (issued January 12, 2012). The instant claim
was combined with File No. xxxxxx954, which serves as the master file.

2

July 30, 2009 appellant asked Ms. Hollins to place her assignment in her box instead of
slamming it down on her desk or on her keyboard. She contended that Ms. Flores and
Ms. Hollins treated Denise Clark, a 15-year employee, so badly that she requested a transfer out
of the section. On August 20, 2009 Ms. Hollins hollered at appellant for failing to follow
instructions. Appellant immediately informed the union and administration about this incident.
On August 28, 2009 Ms. Flores instructed appellant to tell her about union meetings. She and
Ms. Hollins retaliated against appellant from September 1 through 4, 2009 after Ms. Brandon
met with management. On September 2, 2009 Ms. Flores advised appellant that they would no
longer have daily meetings but, she failed to tell her whether her goal had been met. On
September 17, 2009 Ms. Flores asked appellant to look for a file in an employee’s area and
cabinet. On October 20, 2009 appellant was not notified about changes related to a work
assignment. She filed an Equal Employment Opportunity (EEO) complaint alleging a hostile
work environment due to the above-noted incidents.
In e-mails dated February 1 to March 29, 2010, appellant alleged several incidents of
harassment by the employing establishment. On February 1, December 1 and 7, 2010 Yolanda
Hargraves, a program analyst, requested that she submit medical documentation from an
attending psychiatrist in support of her workers’ compensation claim. On March 26 and 29,
2010 Ms. Flores requested that appellant amend her timesheet to accurately reflect the hours she
worked on that date, noting the procedure for signing in and out of work and requesting leave.
On March 10, May 26 and June 14, 2010 appellant discussed the filing of claims with the EEO
and Merit Systems Protection Board (MSPB) alleging a hostile work environment due to
harassment by Ms. Flores and Ms. Hollins. On May 26, 2010 she alleged that Ms. Flores
stopped her within-grade increase that she was due to receive in August 2010. On November 19
and 22, 2010 Ms. Hargraves addressed appellant’s inability to access an electronic “SHIMS”
system for filing a claim and determined that her account was revoked.
In an undated narrative statement and a February 1, 2010 e-mail, Teleah Hayes, a data
entry clerk, informed appellant that she overheard a conversation in which Ms. Hollins discussed
appellant’s work ethics with another employee. Ms. Hollins stated that on January 28, 2010
appellant sat at her desk and did nothing. Appellant only submitted a small stack of files when
she should have turned in more work. Ms. Hollins stated that Rachel Guerrero and LaDonna
Vick, employees, could perform all the work that needed to be performed in the office.
Ms. Hayes noted that she was treated differently and feared for her job after she warned
appellant about this conversation. Ms. Flores suggested to her that it was best that she stay to
herself since everyone was on edge at work. Ms. Hayes subsequently heard Ms. Flores yelling at
appellant.
In a February 24, 2010 memorandum, Betty A. Lopez, an EEO program manager, stated
that she reviewed interviews of appellant, Ms. Hollins, Ms. Flores and other employees which
were conducted by James E. Varsalone, an EEO investigator, in response to appellant’s
September 10, 2009 harassment complaint filed against Ms. Hollins. Ms. Lopez determined that
the evidence did not demonstrate that Ms. Hollins violated the employing establishment’s
harassment policy.
In a June 7, 2010 letter, Ms. Clark stated that she transferred to another section in the
employing establishment as a result of the hostile treatment she received from Ms. Flores and

3

Ms. Hollins. She also witnessed these women harass appellant on several occasions. They had
daily meetings with only her. Ms. Hollins disclosed confidential information about the work
performance of appellant and other employees. Ms. Clark heard Ms. Hollins and/or Ms. Flores
talk loudly or yell at appellant about her work performance. She believed that they did not like
her and punished her in any possible manner.
In a June 9, 2010 letter, Rhonda L. Pettitt, an employee, stated that on at least three
occasions appellant vented to Ms. Pettitt about being harassed at work. In one incident appellant
was reduced to tears and had to go to the restroom to pull herself together before talking to a
union representative. Other times appellant was on the verge of tears, but was able to calm down
and return to her desk.
In a December 23, 2010 memorandum, Ms. Flores contended that appellant was not
subjected to a hostile work environment or harassment. Appellant did not work from June 16 to
October 5, 2010 due to an alleged occupational illness for which she filed a claim under OWCP
File No. xxxxxx954. Ms. Flores stated that upon her return to work on October 6, 2010
appellant was given updated due dates for previously assigned work and an explanation
regarding her work assignments. An investigation of appellant’s September 3, 2009 grievance
which alleged a hostile work environment determined that no law, regulation or policy regarding
harassment was violated and that her allegation was false. Ms. Flores stated that since 2009
appellant was unable to perform her required duties in accordance with expectations and
performance standards. She had difficulty understanding the Davis-Bacon survey program and
consequently, had difficulty in performing her assigned duties. In October 2009, appellant
received a “minimally satisfactory” performance rating based on deficiencies in her work. Her
work assignments were regularly returned to her due to repetitive errors and errors in matters of
substance. A senior wage analyst and a more experienced GS-11 wage analyst were assigned to
appellant to provide additional training and to improve her work performance. Ms. Flores stated
that, even with this additional training and assistance, she was not able to complete her work
correctly or in a timely manner. On November 12, 2010 appellant was placed on a Performance
Improvement Plan (PIP). She continued to have conduct problems and was counseled on several
occasions regarding abuse of leave and inappropriate use of the Internet during work hours.
Appellant has not worked since November 12, 2010.
Medical records dated November 24, 2010 to March 2, 2011 stated that appellant had
several conditions including, chronic pain syndrome and work-related major depressive disorder.
This evidence also addressed her work capacity.
In an April 26, 2011 decision, OWCP denied appellant’s claim. It found that the factual
evidence was insufficient to establish that the claimed incidents occurred as alleged. OWCP
further found that, since appellant did not establish a compensable employment factor, it was not
necessary to review the medical evidence of record.
On April 29, 2011 appellant requested reconsideration.
A March 24, 2011 memorandum from the employing establishment’s Civil Rights Center
noted the amendment of appellant’s EEO complaint to include her allegation that on or around

4

February 17, 2011 a management official placed her on a PIP which she believed was based on
untrue and incorrectly documented information.
In an undated summary of the union investigation, based on interviews of employees,
Ms. Brandon determined there was a hostile work environment at the employing establishment.
Her summary noted that Ms. Hollins shared information about staff performance, including
appellant’s work performance, with others which created embarrassment and tension in the unit.
Ms. Hollins and Ms. Flores had meetings only with appellant to discuss her performance.
Appellant did not receive any positive feedback during these meetings. On August 20, 2009 the
voices of Ms. Hollins and Ms. Flores were raised while talking to appellant during their meeting.
Ms. Brandon stated that Ms. Hollins assigned work, reviewed staff work and conducted training
while it was management’s responsibility to perform these duties. A witness stated that
Ms. Hollins did not hide her emotions and could be difficult to work with if she did not like you,
noting the firing of a former employee who splashed water on Ms. Hollins. On October 6, 2009
Ms. Brandon received an e-mail from appellant stating that she overheard Ms. Hollins talking to
someone about appellant’s confidential interview with Ms. Brandon.
An April 4, 2011 medical record reiterated the diagnosis of depression.
In e-mails dated April 28, May 12 and 20, 2011, appellant inquired about the status of her
request for an approved medical reassignment and addressed the employing establishment’s
request for medical documentation in support of her request and emotional condition claim.
In a May 26, 2011 decision, OWCP denied appellant’s request for reconsideration, on the
grounds that she did not show that it erroneously applied or interpreted a point of law, did not
advance a point of law not previously considered and did not submit pertinent new and relevant
evidence.
On June 7, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
In a June 8, 2011 decision, OWCP’s Branch of Hearings and Review denied appellant’s
hearing request on the grounds that she had previously requested reconsideration and received a
decision on her reconsideration request on May 26 2011. The Branch of Hearings and Review
stated that under these circumstances appellant was not entitled to a hearing on the same issue as
a matter of right. It exercised its discretion and determined that the issue in the case could be
equally well addressed through a reconsideration request and the submission of new evidence.
On June 8, 2011 appellant requested a review of the written record.
In e-mails dated June 8 to July 19, 2011, appellant alleged several incidents of
harassment by the employing establishment. On June 8, 2011 the employing establishment
denied her request for reasonable accommodation. On June 21, July 13 and 14, 2011 appellant
requested administrative leave until her appeal of this decision. On June 23, 2011 she contended
that Ms. Hollins incorrectly told her coworkers that she was placed on absence-without-leave
(AWOL) status since she did not return to work on June 20, 2011. On July 13, 2011 Ms. Hollins
noted her prior e-mails dated June 21 and 23, 2011 which provided instructions regarding the use
of leave and submission of medical documentation, respectively. Appellant was charged with
5

leave without pay (LWOP) from June 27 to July 1, 2011 because she had exhausted all of her
leave. She would also be charged with LWOP until July 20, 2011 and instructed to submit
medical documentation if she could not return to work on July 21, 2011. On July 19, 2011
appellant contended that she received a threatening memorandum from Ms. Hollins stating that
she would no longer be granted LWOP.
In a June 7, 2011 memorandum, Ms. Hollins denied appellant’s March 3, 2011 request
for reasonable accommodation and reassignment because appellant’s attending physicians had
not responded to the employing establishment’s request for information regarding her work
capacity and there was no available suitable accommodation in appellant’s current position or
vacant funded position for which she was qualified to perform.
Medical records dated November 24, 2010 to August 21, 2011 reiterated the diagnoses of
chronic pain syndrome and major depressive disorder and addressed appellant’s work-related
physical conditions and work capacity.
In a September 15, 2011 decision, OWCP denied modification of its prior decision. It
again found that appellant had not established a compensable factor of employment and, thus, it
was not necessary to review the medical evidence of record.
On September 20, 2011 appellant requested reconsideration.
In a September 9, 2011 letter, a physician from the United States Department of Health
and Human Services denied appellant’s request for reasonable accommodation and
reassignment. The additional medical evidence she submitted in support of her request did not
contain any rationale explaining how a transfer out of her current position would allow her to
perform in an alternate position. The severity and duration of appellant’s symptoms suggested
that she would experience difficulty concentrating and performing complex tasks required of her
position or similar position due to her chronic pain syndrome.
Medical records dated June 14 to February 3, 2012 reiterated the diagnoses of major
depressive disorder and chronic pain, stated that appellant had work-related chronic posttraumatic stress disorder and anxiety and addressed her work capacity.
In a February 15, 2012 decision, OWCP denied appellant’s request for reconsideration on
the grounds that she did not show that OWCP erroneously applied or interpreted a point of law,
did not advance a point of law not previously considered and did not submit pertinent new and
relevant evidence.
By letter dated February 8, 2012, appellant requested reconsideration.
In a February 21, 2012 e-mail, Ms. Hollins indicated receipt of notice from appellant’s
physician stating that she would not be able to return to work until March 15, 2012. She
informed appellant to return to work by February 27, 2012 or be placed on AWOL status.
Ms. Hollins explained that appellant had no more leave and the employing establishment could
not extend any further leave as it had already provided every possible leave opportunity to
facilitate her return to work.

6

A February 15, 2012 report addressed appellant’s physical conditions and stress. She
was unable to work.
In an April 2, 2012 decision, OWCP denied modification of its prior decision, again
finding that appellant failed to establish a compensable employment factor.
LEGAL PRECEDENT
A claimant has the burden of establishing 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 factors of his or her federal employment.4 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.6 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA8 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.9
In determining whether the employing establishment has erred or acted abusively, the Board will

4

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

5

See Donna Faye Cardwell, 41 ECAB 730 (1990).

6

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

7

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

8

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
9

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

7

examine the factual evidence of record to determine whether the employing establishment acted
reasonably.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.12
ANALYSIS
The Board notes that appellant’s allegations do not pertain to her regularly or specially
assigned duties under Cutler.13 Rather appellant has alleged harassment and unfair treatment or
error and abuse by her supervisors in administrative matters. She alleged that she sustained an
emotional condition due to several incidents at the employing establishment. Primarily,
appellant alleged instances of harassment and unfair treatment by her supervisor, Ms. Flores, and
senior analyst, Ms. Hollins. OWCP denied appellant’s emotional condition claim on the grounds
that she had not established any compensable employment factors. The Board must, therefore,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA.
Appellant contended that Ms. Flores and Ms. Hollins created a hostile work environment
by subjecting her to harassment and verbal abuse. She contended that they sent her unnecessary,
hateful and rude e-mails commencing May 2009 regarding her work performance. Appellant
also contended that Ms. Hollins snatched papers from her hands and yelled at her on
July 8, 2009. On July 15, 2009 her request to stop meeting with Ms. Hollins following this
incident was denied by Ms. Flores. On August 20, 2009 Ms. Hollins again yelled at appellant for
failing to follow instructions. Appellant alleged that on August 28, 2009 Ms. Flores instructed
her to tell her about union meetings. She further alleged that on September 17, 2009 Ms. Flores
asked her to look for a file in an employee’s area and cabinet. Appellant asserted that
Ms. Hollins slapped her work down on her keyboard. She also asserted that during training in
San Francisco, California from June 8 through 12, 2009, Ms. Hollins reacted angrily and mean
towards her when she questioned Ms. Ebbeson about a survey process. On May 15, 2009
Ms. Flores unfairly instructed appellant to submit a leave slip for an extended lunch break while
no other employees in the same situation were asked to submit a leave slip. Appellant contended
10

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

11

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

12

Id.

13

Cutler, supra note 6.

8

that Ms. Hollins and Ms. Flores unjustifiably reviewed her work twice a day from July 7 to
September 2, 2009 until 90 percent of her work did not contain any errors. She also contended
that on September 2, 2009 Ms. Flores never responded to her question about whether she had
met her goal upon completion of the review period. Appellant asserted that from September 1
through 4, 2009 Ms. Flores and Ms. Hollins retaliated against her after Ms. Brandon met with
management. She also asserted that on October 20, 2009 she was not notified about changes in
her work assignment. On February 1 and December 1 and 7, 2010 Ms. Hargraves instructed
appellant to submit medical documentation in support of her workers’ compensation claim and
request for reasonable accommodation. On March 26 and 29, 2010 Ms. Flores requested that she
amend her timesheet to accurately reflect the hours she worked on that date. On May 26, 2010
she stopped her upcoming August 2010 within-grade increase. On August 30, 2010 management
suggested that appellant resign or be placed on a PIP. On June 8, 2011 the employing
establishment denied appellant’s request for reasonable accommodation. On November 22, 2010
her access to “SHIMS” was revoked. Appellant’s request for administrative leave was denied
and on July 19, 2011 she received a threatening e-mail from Ms. Hollins stating that she was
being charged with LWOP from June 27 to July 20, 2011. On June 23, 2011 Ms. Hollins
incorrectly told coworkers that she was placed on LWOP because she did not return to work on
June 20, 2011. On February 21, 2012 she ordered appellant to return to work by February 27,
2012 or be placed on AWOL status. Appellant filed EEO and MSPB complaints alleging
harassment and retaliation by Ms. Hollins and Ms. Flores.
Appellant’s contentions regarding the request for a leave slip and medical
documentation,14 the assignment15 and monitoring of her work,16 the denial of her requests for
leave17 and a different job,18 time and attendance19 and pay raise issues and filing of an EEO
complaint alleging harassment20 are administrative matters and not compensable absent a
showing of error or abuse on the part of the employing establishment. Although she has alleged
error or abuse by her coworkers, she did not submit any probative evidence establishing error or
abuse regarding the above-noted administrative matters. Ms. Hollins explained that appellant’s
request for reasonable accommodation and reassignment was denied because her physicians had
not responded to a request for information regarding her work capacity. She further explained
that there was no suitable accommodation in her current position or another available position for
which she was qualified to perform. Ms. Flores explained that since 2009 appellant’s work
performance was monitored because it did not meet management’s expectations and her
performance standards. She related that appellant had difficulty performing surveys under the
Davis-Bacon program. Ms. Flores also related that appellant incorrectly performed her work
14

James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

15

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

16

See Lori A. Facey, 55 ECAB 217, 224 (2004).

17

T.G., 58 ECAB 189 (2006).

18

Ernest J. Malagrida, 51 ECAB 287 (2000).

19

T.G., supra note 17; Joe M. Hagewood, 56 ECAB 479, 488 (2005).

20

Michael A. Salvato, 53 ECAB 666, 668 (2002).

9

assignments which were regularly returned to her due to repetitive errors and she completed her
assignments in an untimely manner even with additional training and assistance. She counseled
appellant on several occasions for abusing leave and inappropriately using the Internet during
work hours. In October 2009 Ms. Flores rated appellant’s performance as minimally satisfactory
due to deficiencies in her work performance. She eventually placed appellant on a PIP on
November 12, 2010 due to her poor work performance. The Board finds that the counseling
sessions,21 performance appraisal22 and disciplinary actions23 are administrative matters and
appellant has not submitted any probative evidence establishing error or abuse regarding these
matters. Ms. Flores and Ms. Lopez related that the investigation of appellant’s September 3,
2009 harassment complaint by the employing establishment’s EEO office revealed that there was
no violation of law, regulations, policy or union by the employing establishment. Appellant did
not submit a final EEO decision. The Board finds, therefore, that appellant has failed to establish
a compensable employment factor with regard to the above-noted administrative and personnel
matters.
To the extent that incidents alleged as constituting harassment by a coworker are
established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors. However, for harassment to give rise to a compensable
disability under FECA, there must be evidence that harassment or discrimination did, in fact,
occur. Mere perceptions or feelings of harassment do not constitute a compensable factor of
employment.24 An employee’s charges that he or she was harassed or discriminated against, is
not determinative of whether or not harassment or discrimination occurred.25 To establish
entitlement to benefits, a claimant must establish a factual basis for the claim by supporting his
or her allegations with probative and reliable evidence.26 The Board finds that the factual
evidence fails to support appellant’s claim for harassment. The record does not support her
allegations of harassment. Appellant did not submit any witness statements from individuals
describing the July 8 and October 6, 2009 incidents and retaliation by Ms. Flores and
Ms. Hollins from September 1 to 4, 2009 as alleged. While Ms. Pettitt noted incidents involving
appellant’s reaction to being harassed at work, she failed to provide any specific details and dates
of these incidents. Similarly, the statements of Ms. Clark and Ms. Hayes that they overheard
negative comments made by Ms. Hollins to an employee regarding appellant’s work
performance are of a general nature and, therefore, are insufficient to establish harassment on the
part of the employing establishment. Ms. Flores denied that appellant was subjected to a hostile
work environment based on the finding of the employing establishment EEO office that no
harassment law, regulations or policy had been violated and her allegations were false. The

21

Barbara E. Hamm, 45 ECAB 843 (1994); Barbara J. Nicholson, 45 ECAB 803 (1994).

22

David C. Lindsey, Jr., 56 ECAB 263, 271-72 (2005).

23

Robert Breeden, 57 ECAB 622 (2006); Larry D. Passalacqua, 32 ECAB 1859 (1981).

24

Lorraine E. Schroeder, 44 ECAB 323 (1992).

25

See William P. George, 43 ECAB 1159 (1992).

26

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

10

summary of the unions investigation by Ms. Brandon similarly does not provide the specific
statements upon which she relied to make her summary findings.
Regarding appellant’s allegation that she was verbally abused by Ms. Hollins, the Board
has generally held that being addressed in a raised or harsh voice does not of itself constitute
verbal abuse or harassment.27 In the instances she described above, the Board notes the fact that
Ms. Hollins yelled at her on July 8 and August 20, 2009 regarding her poor work performance in
a raised tone of voice is insufficient, by itself, to warrant a finding that her actions amounted to
verbal abuse as she did not show how such a response would rise to the level of verbal abuse or
otherwise fall within the coverage of FECA.28 Although appellant contended that she was in
tears following the August 20, 2009 incident and talked to Ms. Clark and another employee
about the incident, the record does not contain any statement from these witnesses corroborating
her version of this incident. Ms. Clark stated in a June 7, 2010 letter, that she heard Ms. Hollins
and Ms. Flores talk loudly or yell at appellant about her work performance. She also stated that
she observed these women harass appellant on several occasions. The Board finds, however,
that these statements are insufficient as they are general perceptions made by Ms. Clark without
describing in detail specific incidents. Her statements merely note that she has witnessed the
described behavior by Ms. Hollins and Ms. Flores. Ms. Clark did not mention when or where
appellant was allegedly subjected to this behavior. Further, appellant’s allegation that Ms. Clark
transferred to another section due to hostile behavior of Ms. Flores and Ms. Hollins does not
establish that appellant was subjected to the same harassment and hostile behavior. The Board
finds that appellant has not met her burden of proof to establish verbal abuse.
On appeal, appellant contended that the instant claim under OWCP File No. xxxxxx901
is the same claim filed under OWCP File No. xxxxxx703 which were split by OWCP. The claim
under OWCP File No. xxxxxx703 is not currently before the Board on appeal. Appellant’s AB-1
Form specifically indicated that she was appealing the claim under File No. xxxxxx901. As
noted, this claim was combined with the claim under File No. xxxxxx954 which serves as the
master file.
Appellant further contended that she did not sustain an injury on October 6, 2010. She
explained that she returned to work at the employing establishment on that date. The Board
finds, however, that this is harmless error since appellant alleged an injury that occurred over a
period longer than a single workday or shift, which is consistent with the occupational disease
claim she filed on November 26, 2010.29
Since appellant has not substantiated a compensable factor of employment as the cause of
her emotional condition, the Board will not address the medical evidence.30

27

T.G., supra note 17.

28

Peter D. Butt, Jr., 56 ECAB 117 (2004).

29

20 C.F.R. § 10.5(q) (2011).

30

Karen K. Levene, 54 ECAB 671 (2003).

11

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 2 and February 15, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 1, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

12


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

)
)
)
)
)
)
)
)

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

Docket No. 09-488
Issued: September 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 9, 2008 appellant filed a timely appeal from a September 9, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
that denied his request for an oral hearing as untimely. The Board also has jurisdiction over the
February 20, 2008 merit decision of the Office that denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
December 6, 2007; and (2) whether the Office properly denied his request for an oral hearing as
untimely.
FACTUAL HISTORY
On January 2, 2008 appellant, a 55-year-old limited city carrier, filed a traumatic injury
claim (Form CA-1) for back and neck injuries. He attributed his injuries to a December 6, 2007

incident when, after returning to the workroom floor after a break, he experienced pain and fell
to the floor.1
Appellant submitted a December 6, 2007 UMB Medical Center West emergency nursing
record, which indicated that he was examined on that day for neck spasms.
On December 6, 2007 Dr. Keith Chesser, a radiologist, reported that lateral and
swimmers views of appellant’s cervical spine revealed no definite evidence of fracture or
listhesis. A December 6, 2007 report from Dr. David P. Denney, Board-certified in emergency
medicine, reported that x-rays of the cervical spine revealed a fusion of the vertebral bodies C4-6
and spondylosis at the C3-4 and C6-7 levels. Dr. Denney noted degenerative changes with
multilevel foraminal stenosis and reversal of lordosis with otherwise normal alignment. There
was no definitive evidence of fracture or suspicious listhesis. Dr. Denney also noted ossification
of the stylohyoid ligaments.
In a December 6, 2007 note, Dr. Denney diagnosed acute chronic neck pain and reported
that appellant could return to work on December 7, 2007.
By decision dated February 20, 2008, the Office denied appellant’s claim because the
evidence of record was insufficient to establish that appellant’s alleged medical condition was
related to the established employment event.
By request postmarked April 25, 2008, appellant requested an oral hearing. He continued
to submit medical evidence.
By decision dated September 9, 2008, the Office’s Branch of Hearings and Review
denied appellant’s request for an oral hearing as untimely. The Office exercised its discretion
and advised him that his claim could be equally well addressed by requesting reconsideration and
submitting additional evidence or, in the alternative, by appealing to the Board.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of appellant’s claim by the weight of the
evidence,3 including that he sustained an injury in the performance of duty and that any specific
condition or disability for work for which he claims compensation is causally related to that
employment injury.4 As part of his burden, the employee must submit rationalized medical
1

The Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless of the action taken
on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 form issued to appellant authorized
examination and necessary conservative treatment and was therefore properly executed.
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).

2

opinion evidence based on a complete factual and medical background showing causal
relationship.5 The weight of medical evidence is determined by its reliability, its probative value,
its convincing quality, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
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.9
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained back and neck injuries in the performance of duty that
he attributed to a December 6, 2007 employment incident when he fell on a workroom floor. His
burden was to establish, through production of probative medical evidence, that his back and
neck injuries were causally related to the December 6, 2007 employment incident. The Board
finds the medical evidence of record insufficient to satisfy appellant’s burden, and therefore the
Office properly denied his traumatic injury claim.
As of February 20, 2008, the date the Office conducted the merit review of this case, the
relevant evidence of record consisted of an emergency room report from a nurse and reports and
notes from Drs. Chesser and Denney. A report may not be considered probative medical
evidence unless it can be established that the person completing the report is a “physician” as

5

G.T., supra note 4; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

defined in 5 U.S.C. § 8101(2).10 The nurse’s report is therefore not probative medical evidence
in this case.
None of the reports from Drs. Chesser and Denney are sufficient to establish appellant’s
claim in this case because none of these reports contain a history of the incident and or opinion
causally relating appellant’s diagnosed conditions to this incident. The Office has accepted that
appellant was working on the date in question and that he has alleged that he experienced pain
following which he fell to the floor. The medical reports appellant submitted prior to
February 20, 2008 noted diagnostic test findings, but offered no opinion regarding the cause of
appellant’s condition. As noted above, 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 that 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 Board has held that medical reports
lacking an opinion on causal relationship are of limited probative value.11 As none of the reports
and notes from Drs. Chesser and Denney contained an opinion on causal relationship, they are of
limited probative value and are insufficient to satisfy appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.12
The Board has held that the fact that a condition manifests itself or worsens during a
period of employment13 or that work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between a claimed condition and
employment factors.
As there is no probative medical evidence of record, appellant has not satisfied his burden
of proof and, therefore, the Office properly denied his traumatic injury claim.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted in writing, within 30 days of the date
10

Thomas L. Agee, 56 ECAB 465 (2005).

11

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52
ECAB 457 (2001).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

13

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
14

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

of the decision for which a hearing is sought. If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.15 The Board has held that the Office, in its broad
discretionary authority in the administration of the Act,16 has the power to hold hearings in
certain circumstances where no legal provision was made for such hearings and that the Office
must exercise this discretionary authority in deciding whether to grant a hearing.17 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.
ANALYSIS -- ISSUE 2
The Office issued a merit decision denying appellant’s claim on February 20, 2008.
Appellant’s request for an oral hearing was postmarked April 25, 2008. As this was over 30
days after February 20, 2008, the Board finds that he was not entitled to an oral hearing before a
hearing representative as a matter of right.18
The Office exercised its discretion in this case and found that appellant’s claim could
equally well be addressed by requesting reconsideration and submitting additional evidence or by
appealing to the Board. The only limitation on the Office’s authority is reasonableness.19 Abuse
of discretion is generally shown through proof of manifest error, a clearly unreasonable exercise
of judgment or actions taken which are contrary to logic and deductions of known facts.20 There
is no evidence of record that the Office abused its discretion in denying appellant’s request for a
hearing under these circumstances.
Thus, the Board finds that the Office did not abuse its discretion in denying appellant’s
request for an oral hearing before a hearing representative.
CONCLUSION
The Board finds appellant did not establish that he sustained an injury in the performance
of duty on December 6, 2007. The Board also finds the Office’s Branch of Hearings and Review
properly denied his request for an oral hearing as untimely.

15

Claudio Vazquez, 52 ECAB 496 (2001).

16

5 U.S.C. §§ 8101-8193.

17

Marilyn F. Wilson, 52 ECAB 347 (2001).

18

See Angel M. Lebron, Jr., 51 ECAB 488 (2000) (the date of the event from which the designated period of time
begins to run shall not be included when computing the time period). See 20 C.F.R. § 10.616(a) (the hearing request
must be sent within 30 days as determined by postmark or other carrier’s date marking).
19

Linda J. Reeves, 48 ECAB 373 (1997).

20

See Daniel J. Perea, 42 ECAB 214 (1990).

5

ORDER
IT IS HEREBY ORDERED THAT the September 9 and February 20, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 8, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6