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

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

Docket No. 08-2178
Issued: May 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On August 4, 2008 appellant filed a timely appeal from the January 16, 2008 merit
decision of the Office of Workers’ Compensation Programs terminating compensation benefits
and the July 22, 2008 nonmerit decision denying merit review. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s medical and
wage-loss compensation benefits effective January 16, 2008; and (2) whether the Office properly
denied her request for reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 2, 2005 appellant, then a 50-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that on October 28, 2005 she realized that she sustained a
shoulder injury due to repetitive motions at work, which worsened after she began working on
the delivery bar code sorting. In an April 17, 2006 report, Dr. Kim L. Stearns, a Board-certified
orthopedic surgeon, reported that appellant performed repetitive work, pushing, pulling, lifting

and sorting, using her right arm. After noting that a magnetic resonance imaging scan revealed
superior labrum from anterior to posterior (SLAP) lesion/labral tear, he concluded that it was
employment related. Dr. Stearns explained that given her work history and “the lack of any
other physical activity in her life,” the repetition of her employment duties caused the condition.
The Office accepted the claim for SLAP lesion and labral tear of the right shoulder.1
On September 8, 2006 appellant underwent an authorized right shoulder arthroscopy,
debridement of SLAP tear and arthroscopic subacrominal decompression. She continued
working until the date of the surgery.
In a report dated November 13, 2006, Dr. Stearns stated that appellant was two months
postoperative and was doing quite well with an improved range of motion and diminished pain.
In a work capacity evaluation (Form OWCP-5c) dated November 9, 2006, he advised that
appellant could return to an eight-hour workday on December 1, 2006 with limitations on
reaching, twisting, pushing, pulling and lifting. Dr. Stearns noted that appellant had not reached
maximum medical improvement.
Appellant returned to limited duty on December 8, 2006 within the restrictions provided
by Dr. Stearns.2 On January 31, 2007 she met all her therapy goals and was discharged from
physical therapy.
On March 8, 2007 the Office referred appellant, together with the case file and a
statement of accepted facts, to Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon, for
a second opinion examination to determine the extent of any residuals of her work-related
condition.
In a medical report dated April 9, 2007, Dr. Ghanma discussed appellant’s previous
medical and employment history. Physical examination revealed decreased range of motion in
the right shoulder and a clunking and grinding sensation during the range of motion tests.
Dr. Ghanma diagnosed degenerative changes of the right shoulder involving multiple areas
including the supraspinatus, infraspinatus and subscapularis muscles, the acromioclavicular (AC)
joint, glenoid laburm and associated synovitis. He opined that the current diagnoses related
solely to degenerative changes and arthritis and not to her work injury. Dr. Ghanma further
stated that the SLAP lesion improved due to surgery and that appellant had returned to baseline
with regard to that condition. He provided work restrictions, noting that her limitations were due
to the preexisting shoulder arthritis and that appellant did not continue to experience any workrelated disability.
By letter dated May 3, 2007, the Office requested that Dr. Stearns review Dr. Ghanma’s
report and provide a response.
1

The Office initially denied the claim for fact of injury by decision dated March 31, 2006. In a decision dated
June 2, 2006, a hearing representative reversed the denial on a preliminary review and returned the case to the Office
for acceptance.
2

During the period October 17 through December 11, 2006, appellant filed several claims for compensation
(Form CA-7) for wage loss and leave buyback compensation for the period September 8 through December 3, 2006.

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In a work capacity evaluation report (Form OWCP-5c) dated June 16, 2007, Dr. Stearns
provided additional work restrictions and indicated that maximum medical improvement had
been reached.
The Office determined that a conflict in medical opinion arose between Drs. Stearns and
Ghanma as to whether appellant had residuals of her employment injury, requiring her to work
limited duty. It referred appellant, along with her case file and a statement of accepted facts, to
Dr. Kenneth Chapman, a Board-certified orthopedic surgeon, for an impartial medical
examination.
By medical report dated November 4, 2007, Dr. Chapman detailed the medical and
factual history of appellant’s right shoulder injury. Physical examination revealed a limited
range of motion of the right shoulder with grating and grinding and some discomfort.
Dr. Chapman diagnosed degenerative arthritis of the right shoulder and degenerative arthritis of
the AC joint, noting that these conditions were not work related. He stated that the accepted
labral tear appeared to be resolved by the successful surgery performed by Dr. Stearns and that
there was no evidence that the original condition was still active. Dr. Chapman stated that there
was no doubt that appellant had preexisting arthritis and this diagnosis was stated in Dr. Stearns’
first medical note when discussing appellant’s x-rays. He noted that the arthritic changes could
not have developed in the short time between the injury and the x-rays. Dr. Chapman agreed
with Dr. Ghanma’s findings on examination that appellant’s SLAP lesion had healed and that all
present limitations were due to preexisting degenerative arthritis in the shoulder. He provided
work restrictions, noting that the restrictions were solely due to appellant’s nonwork-related
arthritis.
On December 14, 2007 the Office notified appellant of the proposed termination of her
compensation and medical benefits. It gave special weight to Dr. Chapman’s medical opinion,
due to his status as an impartial medical examiner and found that it established that appellant was
no longer experiencing residuals of her accepted work injury or any continuing work-related
disability. The Office invited appellant to submit additional evidence within 30 days if she
disagreed with the proposed termination. Appellant did not respond.
By decision dated January 16, 2008, the Office terminated appellant’s disability
compensation benefits and medical benefits effective that day. It found that the November 4,
2007 medical report from Dr. Chapman was entitled to special weight and established that
appellant did not continue to experience any residuals of the accepted conditions or any
additional work-related disability.
In a February 16, 2008 letter to the Office, appellant requested a second opinion. The
Office responded in a March 27, 2008 letter that her benefits were terminated on January 16,
2008 and that it would not be responsible for any medical costs she incurred.3

3

From June 10 through July 9, 2008, appellant submitted several forms for wage-loss compensation (Form CA-7)
for the period May 24 through July 4, 2008. By letter dated June 12, 2008, the Office reminded appellant that her
benefits were terminated on January 16, 2008 and that neither her nor her counsel had appealed or requested
reconsideration.

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On June 25, 2008 appellant, through counsel, filed a request for reconsideration. Counsel
resubmitted Dr. Stearns’ April 17, 2006 report. Appellant also submitted duty status reports
from Dr. Stearns dated December 12, 2007 and May 28, 2008. Dr. Streans provided work
restrictions and a medical certification noting that he treated appellant for a SLAP tear of the
right shoulder and that she was disabled during the period September 8, 2006 through
January 8, 2007.
By decision dated July 22, 2008, the Office denied appellant’s request for reconsideration
on the basis that the additional evidence was either duplicative in nature or did not address the
relevant issue of disputing the impartial medical examiner’s findings.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.5 To terminate
authorization for medical treatment, the Office must establish that an employee no longer has
residuals of an employment-related condition, which require further medical treatment.6 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.7
The Federal Employees’ Compensation Act provide that if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee the Secretary of Labor shall appoint a third physician who shall make an examination.8
The implementing regulations states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a SLAP lesion and labral tear of the right
shoulder due to her employment and authorized medical and disability compensation. On
September 8, 2006 appellant underwent a successful right shoulder arthroscopy, debridement and

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
5

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Anna M. Blaine, 26 ECAB 351 (1975).

6

T.P., 58 ECAB ____ (Docket No. 07-60, issued May 10, 2007); Furman G. Peake, 41 ECAB 361, 364 (1990).

7

See T.P., supra note 6; Larry Warner, 43 ECAB 1027 (1992).

8

5 U.S.C. §§ 8101-8193, 8123.

9

20 C.F.R. § 10.321.

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subacrominal decompression by Dr. Stearns, who returned her to full-time work with medical
restrictions due to residuals of her accepted condition.
The Office referred appellant to Dr. Ghanma, a Board-certified orthopedic surgeon, for a
second opinion evaluation addressing the extent of any residuals or disability from the accepted
condition. In an April 9, 2007 medical report, Dr. Ghanma found that the accepted labral tear
had healed and that appellant’s remaining disability related solely to her preexisting right
shoulder arthritis. In response to the Office’s request for comments on Dr. Ghanma’s medical
report, Dr. Stearns provided additional work-related restrictions.
The Office properly determined that a conflict of medical opinion arose with regard to the
extent of the residuals of the accepted condition and appellant’s work-related disability. It
referred her, together with the medical records and a statement of accepted facts, to
Dr. Chapman, a Board-certified orthopedic surgeon, for an impartial medical examination.10
In a November 4, 2007 medical report, Dr. Chapman found that appellant did not
currently have any residuals from her accepted conditions. He attributed any remaining
disability to her preexisting right shoulder arthritis. Dr. Chapman stated that the SLAP lesion
was resolved by the successful surgery and there was no evidence that the original condition was
active. Citing to Dr. Stearns’ original treatment notes interpreting an x-ray, he opined that
appellant’s arthritis preexisted her injury, as the degenerative changes could not have taken place
in the short time between the injury and the x-ray. Dr. Chapman further found that the arthritis
was the sole cause of her remaining disability.
The Board finds that the Office properly relied on Dr. Chapman’s medical opinion,
finding that appellant did not have any remaining residuals or disability from her work-related
condition, in terminating her compensation benefits. Dr. Chapman provided a well-rationalized
opinion, which was based on a proper factual background.11 Thus, his opinion is entitled to the
special weight provided an impartial medical examiner.12
The Office properly provided appellant 30 days notice of the proposed termination of
benefits, by letter dated December 14, 2007 and invited her to submit additional evidence.13
Appellant did not respond. Therefore, the Board finds that the Office properly terminated
medical and wage-loss benefits, effective January 16, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act14 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
10

See J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

11

See I.J., supra note 4.

12

See Kathryn Haggerty, 45 ECAB 383, 389 (1994).

13

See 20 C.F.R. § 10.540(a). See also E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

14

5 U.S.C. §§ 8101-8193.

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whether it will review an award for or against compensation.15 It, through regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a).16
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.18 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.19 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.20
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ANALYSIS -- ISSUE 2
Appellant did not argue that the Office erroneously applied a point of law, nor did she
advance a previously unconsidered legal argument. Thus, the issue is whether she submitted
relevant and pertinent new evidence.
In support of her request for reconsideration, appellant resubmitted an April 17, 2006
report of Dr. Stearns, accompanied by two additional work restriction reports, dated
December 12, 2007 and May 28, 2008 and a medical certification noting her period of disability
from September 8, 2006 through January 8, 2007.21
As the April 17, 2006 report was previously of record and reviewed by the Office, the
Board finds that it is insufficient to warrant further merit review of the case. The Board has held
that evidence which is repetitious or duplicative of that already in the case record is of no
evidentiary value in establishing a claim and does not constitute a basis for reopening a case.22

15

5 U.S.C. § 8128(a).

16

Annette Louise, 54 ECAB 783, 789-90 (2003).

17

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

20

Id. at § 10.608(b).

21

The Board notes that appellant’s representative stated that the basis of the reconsideration request was an
April 17, 2006 medical report from Dr. Stearns, however, the report was not included with the request. The record
does contain an April 17, 2006 medical report from Dr. Stearns, however, this report was previously considered by
the Office and fails to address the relevant issue of disability after January 16, 2008.
22

Eugene F. Butler, 36 ECAB 393 (1984).

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The Office terminated appellant’s compensation on January 16, 2008. Thus, the relevant
issue is appellant’s work-related residuals and disability after January 16, 2008. Because the
medical certification and December 12, 2007 report address periods prior to the January 16, 2008
date, they are irrelevant to the present issue. Moreover, in the May 28, 2008 status report,
Dr. Stearns does not address the cause of appellant’s disability. The pertinent issue is whether
she has residuals of disability related to the employment injury. As Dr. Stearns did not address
the reason for providing the work restrictions, the May 28, 2008 status report does not constitute
relevant and pertinent new evidence.
Therefore, the Board finds that the Office properly denied appellant’s request for
reconsideration because she did not provide relevant and pertinent new evidence.
CONCLUSION
The Board finds that the Office properly terminated appellant’s medical and
compensation benefits effective January 16, 2008. The Board also finds that the Office properly
denied her request for reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 22 and January 16, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 4, 2009
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENTOF VETERANS AFFAIRS,
ROBLEY REX VETERANS ADMINISTRATION
MEDICAL CENTER, Louisville, KY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1016
Issued: September 19, 2018

Case Submitted on the Record

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

JURISDICTION
On April 10, 2017 appellant, through counsel, filed a timely appeal from a February 2,
2017 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On July 21, 2015 appellant, then a 52-year-old registered nurse (RN), filed an occupational
disease claim (Form CA-2) alleging that he developed severe anxiety, depression, and panic
attacks with sweating, heart palpitations, chest pain, insomnia, an inability to focus, and difficulty
concentrating and recalling information due to repeated and ongoing harassment and a hostile and
retaliatory work environment. He stopped work on July 13, 2015.
In a July 13, 2015 narrative statement, appellant identified employment incidents to which
he attributed his emotional condition. He explained that, in November 2013, a new manager pulled
him from his department, took his peripherally inserted central catheter (PICC) program from him,
and moved him to another work area. Appellant was required to perform work duties that caused
repeated torque to his back and resulted in an accepted work-related herniated disc with acute
nerve compression.3 He related that he was given a limited-duty position as a van driver, a position
he found to be humiliating. Appellant noted that his pay was not cut, but he was humiliated on a
daily basis as he was forced to shuttle colleagues, coworkers, and administrative staff with whom
he had worked closely. He explained that he applied for a nurse position after the employing
establishment decided to restart the PICC program. Appellant claimed that although he had started
the PICC program and was the most qualified for the position, he did not get the job. Six months
later appellant was investigated by the employing establishment’s Administrative Investigation
Board (AIB) because he had interviewed for the PICC nurse position. He was accused of lying
about his disability to obtain his limited-duty position. The investigation found, however, that
appellant did not lie or mislead anyone about his physical condition or limitations.
In an August 13, 2015 letter, counsel provided an addendum to appellant’s formal
complaint of discrimination and retaliation. This addendum alleged additional incidents that
occurred at work. In a June 29, 2015 letter, Y.T., an employing establishment federal workers’
compensation specialist, advised OWCP that appellant was the subject of an investigation initiated
by the AIB. Counsel contended that Y.T.’s letter violated appellant’s privacy/confidentiality under
provisions of the employing establishment’s directive and handbook. It was also noted that the
AIB’s May 6, 2015 investigative report concluded that the allegations made against appellant in
the report of contact (ROC) were unsubstantiated. In a memorandum decision dated May 6, 2015,
the AIB recommended that the allegation regarding appellant’s light-duty assignment should be
dismissed with no further action. It found that he followed established procedures in filing his
Form CA-1. On July 24, 2015 the employing establishment offered appellant a limited-duty
position back in Medical Procedures Unit (MPU) under the supervision of T.W., a manager, and
A.S., associate chief of nurses, who he had named in his original complaint as key management
officials that discriminated against him for the past one and one-half years. On July 30, 2015 A.S.
3
Appellant has four prior claims, including an occupational disease claim (Form CA-2) in which OWCP accepted
that he sustained a herniated disc right at L4-5 on January 15, 2014. OWCP assigned that claim File No. xxxxxx827.

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informed appellant that she expected him to report to MPU on the following day. At that time, his
treating physician had placed him off work as a result of his ongoing medical issues.
In an August 31, 2015 letter, appellant claimed that harassment and retaliation by his
supervisors had not stopped. He asserted that his request for leave under the Family and Medical
Leave Act (FMLA) was denied and he was charged absent without leave (AWOL) and reassigned
back to the direct work area of two supervisors against whom he had previously filed an Equal
Employment Opportunity (EEO) complaint.
OWCP, by development letter dated October 8, 2015, notified appellant of the deficiencies
in his claim. It afforded him 30 days to respond to its questionnaire and submit additional medical
evidence. In a separate letter dated October 8, 2015, OWCP requested that the employing
establishment respond to appellant’s allegations.
In a November 3, 2015 response, Y.T. noted that Interventional Radiology (IR) nurses,
including appellant, were realigned under “Medicine Service” on November 17, 2013. Y.T. noted,
however, that appellant remained in IR to orient an MPU nurse to the radiology department. On
December 6, 2013 appellant began orienting the MPU/Endoscopy department. Y.T. indicated that
appellant and the other IR nurses were removed from IR and PICC line insertions at the request of
upper management as they failed to complete nurse documentation and did not properly give
moderate sedation to patients. The IR nurses were placed in orientation in MPU to ensure that
they received proper training on moderate sedation. Y.T. contended that appellant’s reaction to
the reorganization or procedural changes was not in the performance of duty.
Y.T. denied that false ROC were placed in appellant’s file. She noted that he had been
reprimanded and written up. Y.T. indicated that the ROC were statements from interview panel
members that included their recollections about statements appellant made during an interview
regarding his work-related limitations due to his accepted back condition under OWCP File No.
xxxxxx827. She noted the determination that there was no wrongdoing or abuse by either appellant
or the employing establishment. Y.T. further noted that appellant was reprimanded for failure to
follow instructions and habitual tardiness. Appellant was instructed not to insert any more PICC
lines or peripheral IVs for the in-patient side of the hospital because he failed to keep up with his
RN competencies. However, he inserted an extend dwell IV catheter. After receiving complaints
that he failed to provide moderate sedation to patients, appellant was placed in orientation in the
MPU to receive proper training on this matter. He filed a complaint requesting that he be placed
back into rotation in IR, be allowed to rotate on-call duties with other employees, and be made
whole, but he subsequently withdrew the complaint before a decision was made because he filed
an EEO complaint.
Y.T. maintained that appellant was offered a limited-duty assignment to drive a shuttle van
in transportation service because his supervisor had difficulty assigning him a position within his
physical limitations in the employing service. She noted that his position and pay were not affected
by this assignment and that he responded favorably when his supervisor offered him this
assignment. Appellant later sent an e-mail to his supervisor requesting that she follow up about
the job offer. Y.T. contended that the job offer met appellant’s physical limitations during his
recovery from a work-related injury. She related that he had not been given a permanent job offer

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as the medical evidence provided did not indicate that he had permanent limitations or that he had
reached maximum medical improvement.
Y.T. asserted that the information contained in the investigative report and submission of
the report to OWCP did not violate appellant’s privacy as determined by an employing
establishment privacy officer. She maintained that the released information related to his work
capacity in his claim assigned File No. xxxxxx827. In addition, Y.T. maintained that OWCP
federal regulations required the employing establishment to submit all relevant and probative
factual and medical evidence in its possession. She noted that on June 23, 2015 appellant provided
her with the AIB investigative report and specifically requested that she place the report in his file
and send it to OWCP.
Y.T. claimed that while appellant’s allegations of discrimination, retaliation, and
harassment were accepted for investigation by the Equal Employment Opportunity Commission
(EEOC), it had not issued a supportive decision. In addition, she claimed that the medical evidence
submitted was insufficient to establish an emotional condition and resultant total disability causally
related to his employment.
On November 8, 2015 OWCP received appellant’s October 28, 2015 response to its
development questionnaire. Appellant described additional incidents of discrimination and
retaliation by the employing establishment. Specifically, on October 22, 2015 T.W. notified
appellant that his FMLA leave had expired and that he had to return to work. A.S. informed him
on October 23, 2015 that he was AWOL because he had not returned to work. Appellant
maintained that he was under his physician’s care and that on October 16, 2015 he faxed a
physician’s note, which held him off work through November 23, 2015. He indicated that receipt
of the fax was confirmed, yet T.W. and A.S. requested that he return to work on the above-noted
dates. Appellant alleged that other employees under a physician’s care were not required to return
to work. On October 22, 2015 the employing establishment human resources office advised him
about the procedure to follow since he no longer had remaining FMLA leave hours. Appellant
related that he had been off work for more than two months as a result of continued harassment
and retaliation at work. He requested a hearing concerning his EEO complaint of which an
investigation had been completed. Appellant indicated that there were no situations in his personal
life that contributed to or caused his current condition. He listed his hobbies and maintained that
he had no prior emotional conditions or treatment, including medications, hospitalizations, or
counseling.
Appellant submitted a letter dated November 8, 2015 from his wife. His wife noted that
she had retired from the employing establishment in November 2014. She attributed appellant’s
emotional condition to incidents of discrimination, harassment, and retaliation at work.
Appellant also submitted an April 23, 2014 proficiency report which indicated that he
received a highly satisfactory rating, an October 29, 2015 accommodation request determination
form in which A.S. denied his request for accommodation as the medical documentation submitted
did not support his request, and a September 25, 2015 letter in which the employing establishment
advised him of his rights concerning an EEO complaint.

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Medical reports dated March 30, 2014 through November 6, 2015 again indicated that
appellant had stress, panic disorder, major depressive disorder, and anxiety and addressed his work
capacity and restrictions.
On November 13, 2015 T.W. responded to OWCP’s development questionnaire. She
provided a timeline of events. On November 17, 2013 IR nurses, including appellant, were
reassigned to medicine service. Appellant worked in IR through December 3, 2013. On
December 6, 2013 he began orienting to the MPU/Endoscopy department. Appellant was
subsequently removed from IR & PICC line insertions based on direct orders from the chief of
staff due to numerous complaints/concerns that he did not correctly complete RN documentation
procedures or provide moderate sedation correctly to patients. Appellant arrived late to work on
multiple occasions from December 6, 2013 through January 6, 2014. On March 5, 2014 appellant
was 20 minutes late for work and was marked AWOL based on earlier counseling. On March 14,
2014 T.W. received a report that appellant was not engaged in a procedure room. He did not
anticipate the needs of a physician and had to be asked to do things such as putting a grounding
pad on a patient. In addition, appellant barely spoke to the patient. After bringing patients to post
operation, he returned to the procedure room and sat down instead of bringing the next patient into
the operating room. A team leader told appellant that this was unacceptable and that he needed to
be more proactive on getting the next case into the room. On two different occasions appellant
told a team leader that he could not take care of a patient because he knew the patient. When this
occurred a second time, the team leader asked the patient whether he or she was uncomfortable
with appellant participating in his or her care. The patient responded that it was fine. On March 25,
2014 the employing establishment proposed to issue appellant a reprimand. On April 16, 2014 the
employing establishment issued another letter of proposed reprimand.
Medical reports dated August 13 to September 17, 2015 reiterated appellant’s diagnoses of
depression and anxiety and his work capacity and restrictions.
On December 3, 2015 appellant notified OWCP that although he had returned to work, he
had been charged AWOL. He contended that his current supervisor and human resources office
failed to accommodate his physician’s restrictions.
By letter dated January 7, 2016, OWCP requested that appellant review the employing
establishment’s November 3, 2015 statement and provide comments. In a separate letter dated
January 7, 2016, it requested that the employing establishment review appellant’s October 28,
2015 statement and provide comments. OWCP afforded both appellant and the employing
establishment 20 days in which to respond.
An additional letter dated January 10, 2016 from appellant’s wife was received. She again
noted that the employing establishment refused to accommodate appellant’s physical restriction of
being placed under different supervision upon his return to work on November 24, 2015. She
contended that appellant was harassed by T.W. and A.S. on a daily basis for two weeks.
By letter dated January 20, 2016, Y.T. responded to OWCP’s January 7, 2016 letter.
Regarding appellant’s allegation that being notified on October 22 and 23, 2015 that his FMLA
leave had expired and told to report to work was discriminatory and retaliatory in nature, Y.T.
related that FMLA policy was followed for appellant and other employees. She noted that all

5

employees were required to submit documentation to support FMLA and there was a standard
number of hours allowed for employees eligible for FMLA. Y.T. maintained that appellant’s
FMLA leave had expired and he was appropriately notified. She indicated that appellant did not
call in or report for duty as instructed and he was sent an AWOL e-mail on October 23, 2015. On
October 26, 2015 his supervisor sent an e-mail advising him to disregard the October 23, 2015
e-mail as he had submitted paperwork and was approved for leave without pay (LWOP) until
November 23, 2015. Y.T. related that the AWOL charges were removed immediately, without
delay. She also related that the employing establishment had no knowledge of his wife’s letter
and, therefore, it was unable to comment on the statements contained in that letter. Regarding
appellant’s EEO complaints, Y.T. alleged that he complained of harassment by his supervisor
whenever he had an attendance issue, such as overuse of his allotment of FMLA leave or his duty
status notes expired. She submitted copies of the October 23 and 26, 2015 e-mails from A.S.
regarding appellant’s placement and removal from AWOL status.
By letter dated January 23, 2016, appellant responded to Y.T.’s November 3, 2015 letter.
Appellant claimed that Y.T.’s reasons why he and D.L., a RN, were reassigned from IR to MPU
were false. He maintained that the reassignment occurred because D.L. had a personal relationship
with D.B., radiology department manager. Appellant also claimed that Y.T.’s statements
regarding the ROC dated January 14 and 16 and February 14, 2014, authored by A.S. and T.W.,
and used as the basis for issuance of the April 16, 2014 proposed reprimand letter were inaccurate.
He asserted that the ROC were not presented to him for review and signature as required by the
union agreement. Regarding issuance the April 16, 2014 proposed reprimand letter, appellant
maintained that there was no national certification for placing PICC lines, he had the credentials
and competencies to place such lines, and he had not seen any documentation relating a complaint
that he did not provide moderate sedation to patients. Regarding being charged AWOL on
January 21 and 29 and March 5, 2014, appellant contended that he produced telephone records
indicating that he was going to be late for work. He claimed that he had compensatory time to
cover his late arrivals. Appellant again contended that being assigned to work as a shuttle van
driver was a form of punishment and harassment by management as he requested accommodation
for his back condition. Appellant disagreed with Y.T.’s statement that he was transferred from
transportation service back to the MPU because transportation service could no longer use him.
He maintained that he could still be used in transportation service and that his reassignment back
to the MPU was in retaliation for filing an EEO complaint and his work-related back injury.
Appellant further maintained that he did not object to Y.T. providing documentation to OWCP,
but he claimed that she withheld the AIB findings associated with the ROC in her June 29, 2015
letter to OWCP.
Appellant submitted statements from several coworkers, dated March 30, 2014,
January 23, 25, 26, 2016, which addressed his RN work duties in MPU and IR, ability to
successfully perform these duties, and his humiliation while working as a shuttle van driver. These
included a January 23, 2016 letter from D.L. who noted that she and appellant always kept up with
current rules, complied with hospital policy, wrote polices of their own for the department,
maintained current credentials, and completed their competencies to provide critical care for all
patients including Intensive Care Unit (ICU), Surgical Intensive Care Unit (SICU), and Emergency
Room (ER) patients. She asserted that there were no complaints that she and appellant refused to
sedate patients. In addition, they were never reprimanded for refusing to sedate patients. D.L.
related that she and appellant went to the MPU due to a conflict of interest for IR management.
6

The radiology manager felt that it was better to have a nurse manager over D.L. and appellant.
D.L. understood that appellant was going to return to IR following completion of his orientation
to MPU. In a January 25, 2016 e-mail, K.B. related his belief that appellant was being crossedtrained in MPU and then he would return to his IR position. In a January 22, 2015 letter, D.J., who
worked in the transportation department, assured appellant that his department did not request
appellant’s reassignment and that appellant could still be used as a shuttle van driver due to a lack
of support from volunteer drivers. He noted that appellant worked in the department from
September 2014 to July 22, 2015.
E-mails dated July 14, 29, 2015 between appellant and Manager T.W. indicated that
appellant’s request for LWOP while awaiting a response regarding his OWCP claim was denied
and that he was charged AWOL. T.W. explained that she had not received authorization from
OWCP for his absences. She advised appellant to immediately notify her if he had a serious
medical condition/illness that may qualify his absence under FMLA.
OWCP also received a January 16, 2014 ROC, which referred to a discussion wherein A.S.
and T.W. informed appellant that his competency and certification for PICC lines had expired. He
was instructed to not perform PICC line or IV insertions. The February 14, 2014 ROC referred to
a discussion wherein T.W. indicated that appellant started an extended length catheter in a patient
on that day after he had been removed from performing this task as of January 16, 2014.
By decision dated March 24, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that his alleged emotional condition occurred in
the performance of duty. Specifically, it found that he had not established compensable factors of
employment.
By letter dated April 15, 2016, appellant, through counsel, requested a telephone hearing
before an OWCP hearing representative regarding the March 24, 2016 decision.
Several letters were received from the employing establishment. In a February 9, 2016
letter, the employing establishment proposed to discharge appellant from employment as a RN due
to his unauthorized AWOL from November 24 through December 7, 2015, insubordination, and
conduct unbecoming of a federal employee.
By letter dated December 22, 2016, Y.T. reviewed the hearing transcript from the
December 7, 2016 telephone hearing and related that, contrary to counsel’s assertion that appellant
feared or had a perception that he was unable to properly perform his job, appellant had never
related such fear. Y.T. asserted that there was no evidence to support counsel’s subjective
contention that it was not uncommon for the employing establishment to retaliate against people
who seemed to rock the boat. She denied that appellant’s reassignment to a van driver position
was a retaliatory action. Y.T. explained that he was reassigned to this position to accommodate
his work restrictions and meet the employing establishment’s needs. She noted that although a
manager had the right to assign duties, she asked appellant if he would be interested in the position
and he responded that he was interested. Y.T. noted that he even initiated an e-mail to his manager
reminding her to follow up on the position.

7

By decision dated February 2, 2017, an OWCP hearing representative affirmed the
March 24, 2016 decision. She found that appellant had not established any compensable
employment factors.
LEGAL PRECEDENT
A claimant has the burden of proof to establish by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.4 To establish 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 condition; (2) medical
evidence establishing an emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the identified compensable employment factors are causally related to
the diagnosed 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 reduction-in-force or
his 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 examine the
factual evidence of record to determine whether the employing establishment acted reasonably.10

4

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

5

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

6

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).

10

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

8

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 finds that appellant has not established an emotional condition in the
performance of duty.
Appellant alleged that he sustained an emotional condition as a result of several
employment incidents and factors. OWCP denied the emotional condition claim, finding that he
had not established compensable employment factors. The Board must initially review whether
these alleged incidents and conditions of employment are compensable employment factors under
FECA. The Board notes that appellant’s allegations do not pertain to his regular or specially
assigned duties under Cutler.13 Rather, appellant has alleged error and abuse in administrative
matters and discrimination, retaliation, and harassment on the part of his supervisors. In
Thomas D. McEuen,14 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relationship to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel action
established error or abuse by employing establishment superiors in dealing with the claimant.
Absent evidence of such error or abuse, the resulting emotional condition must be considered selfgenerated, and not employment generated. In determining whether the employing establishment
erred or acted abusively, the Board has examined whether the employing establishment acted
reasonably.15
Appellant has attributed his emotional condition to actions of the employing establishment,
including that in November 2013 he was removed from his department and the PICC program he
had created was taken away from him, he was wrongly reassigned to the MPU department in
11

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

12

Id.

13

See supra note 6. Appellant has not alleged that he was unable to perform the duties of his assigned positions,
he submitted an April 23, 2014 proficiency report which indicated he had received a highly satisfactory rating. He
also continued to claim that he was removed or reassigned from positions for which he was highly qualified.
14

Supra note 8.

15

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

9

January 2014, then to the transportation department from September 2014 to July 22, 2015, and
back to MPU on July 24, 2015. The Board has long held that disputes regarding reassignment,16
the assignment of work,17 frustration from not being permitted to work in a particular environment
or to hold a particular position,18 are administrative or personnel matters and can only be
considered compensable work factors if there is probative evidence of error or abuse.19
Regarding appellant’s reassignment to MPU, Y.T. and T.W. explained that appellant and
other IR nurses were reassigned from IR to MPU and removed from PICC line insertions because
they failed to complete nurse documentation to give moderate sedation to patients. She noted that
IR nurses were placed in MPU to ensure that they received proper training on moderate sedation.
While D.L., in a January 23, 2016 letter related that she and appellant, among other things,
maintained their current credentials and completed their competencies to provide critical care for
all patients including ICU, SICU and ER patients, she did not submit documents related to
appellant’s credentials and completed competencies. Regarding appellant’s reassignment to the
transportation department as a shuttle van driver, Y.T. indicated that his supervisor had difficulty
assigning him a position within his physical limitations. She noted that appellant accepted the
position and later sent her an e-mail asking her to follow-up on the job offer. In a January 22, 2015
letter, D.J., appellant’s coworker from the transportation department, merely advised that his
department did not request appellant’s reassignment to MPU and that appellant could still be used
as a shuttle van driver due to a lack of support from volunteer drivers. This evidence does not
establish error or abuse on the part of the employing establishment in reassigning appellant back
to MPU. Regarding the assignment of work, statements from appellant’s coworkers merely
described appellant’s work duties and his successful completion of these duties. This evidence did
not indicate error or abuse by the employing establishment in assigning appellant’s employment
duties. The Board therefore finds that the evidence of record is insufficient to substantiate error
or abuse on behalf of the employing establishment in assigning and reassigning appellant’s
employment duties.20
Appellant alleged that he was investigated by the AIB due to an allegation that he had lied
about his disability to obtain a limited-duty position. The employing establishment retains the
right to investigate an employee if wrongdoing is suspected or as part of the evaluation process.21
Regarding this investigation, AIB, in a May 6, 2015 decision found that appellant did not make
conflicting statements to justify obtaining a light-duty assignment and recommended that all
allegations regarding this matter should be dismissed with no further action. It found that he
followed established procedures in filing his Form CA-1, his physician had not released him to
return to full-duty work, and he freely admitted to informing interview panel members during an
16

James W. Griffin, 45 ECAB 774 (1994).

17

J.M., Docket No. 17-0284 (issued February 7, 2018); Beverly R. Jones, 55 ECAB 411, 416 (2004).

18

Michael Thomas Plante, 44 ECAB 510, 515 (1993).

19

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

20

See supra note 18.

21

Jeral R. Gray, 57 ECAB 611 (2006).

10

interview process that he was currently on limited-duty assignment and that he would ask his
physician about the timeframe for the removal of his restrictions. Appellant has not established
error or abuse in this investigation.22
Regarding disciplinary actions taken against appellant, Y.T. noted that the ROC placed in
appellant’s file were statements from the interview panel containing their recollections of
statements made during the AIB investigation. She further noted that the letters of reprimand were
issued after appellant inserted PICC lines or peripheral IVS for the in-patient side of the hospital
while he was instructed not to do so. T.W. noted that another disciplinary action was initiated
because appellant was not fully engaged in the procedure room, he did not properly anticipate the
needs of the physician and had to be asked to perform certain duties. In addition, he barely spoke
to a patient, failed to bring a patient out of the operating room, and refused to care for a patient on
two occasions. The Board has previously explained that coverage under FECA would attach if the
facts surrounding the disciplinary actions established error or abuse by employing establishment
superiors in dealing with the claimant. Absent evidence of such error or abuse, the resulting
emotional condition must be considered self-generated and not employment generated.23 Again,
appellant has not submitted any evidence of error or abuse in these disciplinary actions.
Appellant has also alleged harassment regarding leave issues. He related that he was
charged AWOL for being late for work and failing to report to work. Appellant contended that he
submitted telephone records indicating that he was going to be late for work on January 21 and 29
and March 5, 2014, but this evidence is not contained the record. Although the employing
establishment charged appellant AWOL on October 23, 2015, this error was corrected on
October 26, 2015 after appellant submitted the paperwork and was approved for LWOP. Y.T.
related that the AWOL charge was removed immediately, without delay. Appellant has not
established error or abuse regarding these leave issues.24
While appellant also alleged that FMLA leave was improperly denied, Y.T. indicated that
appellant’s request for FMLA leave was denied because he did not submit supportive medical
documentation. Y.T. maintained that procedures regarding this matter were properly followed and
that appellant was notified that his FMLA leave had expired. Appellant has presented no
corroborating evidence to support that the employing establishment erred or acted abusively in this
matter.25
Regarding the dissemination of appellant’s private information to OWCP, Y.T. maintained
that OWCP regulations required the employing establishment to submit all relevant and probative
factual and medical evidence in its possession. She also maintained that on June 23, 2015 appellant
requested that she place the AIB investigative report in her file and send a copy of the report to

22

F.M., Docket No. 16-1504 (issued June 26, 2017); G.S., Docket No. 09-0764 (issued December 18, 2009).

23

See S.S., Docket No. 17-0959 (issued June 26 2018).

24

E.M., Docket No. 16, 1695 (issued July 27, 2017); Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

25

See E.A., Docket No. 08-051 (issued May 20, 2008).

11

OWCP. Appellant has therefore not established error or abuse in the dissemination of private
information.26
Appellant further attributed his emotional condition to discrimination, retaliation, and
harassment by T.W. and Y.T. with regard to the previously described administrative matters as
well as appellant’s filing of an EEO complaint. He asserted that after he filed his EEO complaint,
management repeatedly harassed and retaliated against him. However, for harassment to give rise
to a compensable disability under FECA, there must be evidence that harassment did in fact occur.
A claimant must establish a factual basis for his or her allegations that discrimination occurred
with probative and reliable evidence.27 Mere perceptions of harassment are not compensable under
FECA.28 EEOC complaints in and of themselves do not establish harassment, discrimination or
retaliation.29 The Board finds that appellant has not established a compensable factor of
employment under FECA.
As appellant failed to establish a compensable employment factor, the Board need not
address the medical evidence of record.30
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty.

26

See G.R., Docket No. 15-0052 (issued September 22, 2017).

27

See G.S., Docket No. 09-0764 (issued December 18, 2009).

28

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
29

K.B., Docket No. 17-0277 (issued March 16, 2018).

30

A.K., 58 ECAB 119 (2006).

12

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 19, 2018
Washington, DC

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

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

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

13