United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
U.S. POSTAL SERVICE, BIG RAPIDS POST
OFFICE, Big Rapids, MI, Employer
__________________________________________

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

Docket No. 09-424
Issued: November 6, 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 November 28, 2008 appellant filed a timely appeal of the August 28, 2008 merit
decision of the Office of Workers’ Compensation Programs, finding that she did not sustain an
emotional condition in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), 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.
FACTUAL HISTORY
On June 14, 2005 appellant, then a 51-year-old general clerk, filed an occupational
disease claim. On March 17, 2005 she first became aware of an increase in her symptoms
related to her accepted June 11, 1990 employment-related postconcussion syndrome.1 On
1

Appellant’s claim for the June 11, 1990 employment injury was assigned file number xxxxxx308.

March 25, 2005 appellant first realized that her symptoms were caused by her federal
employment. She was unable to interpret conversations, made errors in her work and took more
time to perform simple tasks. Appellant stated that her employment-related condition was
exacerbated by an anticipation of a change in her work conditions and harassment and
intimidation by the new officer-in-charge (OIC) and post office operations manager (POOM).
She stopped work on March 25, 2005.
Undated statements from Blair McNamara, Kelly Stoll, Steven Roberts, Patricia
VanWagner, Henry E. Karnes and Daryl Pyles, appellant’s coworkers, Dennis Drotar, a
manager, and Postmaster Brian Haremski related that several incidents occurred between
appellant and a new OIC from February 18 to April 14, 2005. Mr. Karnes stated that the new
OIC always wanted to change appellant’s work duties.
In an April 25, 2005 medical report, Glen Johnson, Ph.D., a clinical neuropsychologist,
stated that appellant had a cognitive disorder not otherwise specified, postconcussional and
major depressive disorders, traumatic brain injury, headaches and vertigo.
By letter dated June 28, 2005, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the additional factual and medical evidence
she needed to submit to support her claim.
In an undated narrative statement, appellant related that the OIC’s plan to change her
work location and assignments ignored her work restrictions. She stated that, from February to
March 2005, the OIC harassed her and created a hostile work environment, which caused her
emotional condition and high blood pressure.
Medical records dated July 28, 2000 to June 3, 2005 from Dr. D. Eugene Wiley, a Boardcertified neurologist, Dr. Peter S. VanDeMark, a Board-certified internist, and Dr. Johnson
advised that appellant was treated for postconcussion syndrome, anxiety/stress, depression and
hypertension. Appellant was disabled for work from June 7 to July 5, 2005.
In a July 25, 2005 letter, appellant stated that beginning in 1991 she was assigned
limited-duty work in the marketing department of the Grand Rapids district. She worked in a
quiet, out-of-the way office at the employing establishment. Appellant was not considered to be
an employee of the employing establishment. She contended that new managers at the
employing establishment wanted her to perform work that was complex and outside her job
description and limitations. They also wanted appellant to have fewer restrictions. The
managers allegedly questioned her job offer and restrictions and intimidated, harassed and
verbally assaulted her. On February 24, 2005 appellant was informed by the OIC that her office
would be moved the next day and that her job restrictions were to be reviewed. During the prior
three years, she was required to generate many reports. Appellant experienced difficulty with
answering telephone calls because she could not interpret them or verbally communicate with the
caller. She suffered from severely diminished short-term memory. Appellant could not keep up
with documents and was easily distracted and unable to get back on track. She lost the ability to
perform simple routine math. Appellant experienced severely diminished capacity to
comprehend her work and difficulty with computer data entry work. She was directed by the
OIC to see an attending physician to update her restrictions.

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The employing establishment’s August 19, 1991 job offer for a part-time limited-duty
general clerk position was accepted by appellant on August 20, 1991. The position required her
to initially work three hours per day, 3 days per week and after 30 days she was required to work
5 days per week. It also required assembling express mail kits, fulfillment of retail mail orders
and packaging, labeling and mailing of retail items shipped to the employing establishment for
disbursement. The position required sorting and bundling direct mail pieces to specified carrier
routes or post office boxes. It involved the telemarketing of the employing establishment’s
service and products and computer data input of direct mail leads, retail orders, mailing list
updates and inventory control. The physical requirements included intermittent standing,
walking, lifting and carrying up to 10 pounds, climbing, kneeling, squatting, crawling and
twisting, continuous sitting for three hours and driving for only seven miles. There were no
restrictions for reaching and use of foot controls. Restrictions for pushing, pulling and bending
were not applicable.
In a June 27, 2004 work capacity evaluation (Form OWCP-5), Dr. Robert R. Yoder, a
Board-certified psychiatrist, stated that appellant could work three hours per day as of July 15,
1991 with restrictions which included, continuous sitting for three hours and intermittent
walking, lifting up to 10 pounds, bending, squatting, climbing, kneeling, twisting and standing.
Appellant was not restricted from pushing, pulling or reaching above the shoulder.
Appellant submitted narrative statements dated May 18 to July 18, 2005 from Donald J.
Rennick, Linda Randall, Ronald Ketchum, Avery Happy, Linda Lough, Ila M. Sieffert, her
coworkers, Ms. VanWagner and Mr. Karnes stated that appellant was verbally abused and
harassed by Lori Layne, a POOM, Lori Boes, a former postmaster, Mike Halbrooks, a
supervisor, Anita Billingsley, a POOM, Postmaster Charlie Johnson and Lori Holmes, a
supervisor. Ms. Layne was crude and rude to appellant and obtained her files without her
consent. She tore a small poster off a cabinet in appellant’s office because she was offended by
it.
Management kept misplacing appellant’s personnel file.
Ms. Layne performed
management’s job and received the credit and promotions for appellant’s work. Appellant
locked her office door as a result of being harassed by Postmaster Johnson. Her coworkers
performed work that she could not perform due to a 1992 work injury. Postmaster Johnson and
Ms. Holmes required appellant to perform her marketing duties, as well as other duties with
extended hours.
In letters dated September 2, 15 and 20, 2005, Mr. Drotar, Ms. Boes and Teresa M.
Miller, an injury compensation specialist, stated that appellant performed her job well. The
employing establishment accommodated her limitations since 1990 and provided her with a
rehabilitation position. Appellant primarily worked in the limited-duty position of vending
operations coordinator for the Greater Michigan District. The position did not require her to
work outside her limitations. There were no staffing shortages. The relocation of appellant’s
office from the second floor to the first floor did not constitute harassment. There were no
reasons to keep her isolated on the second floor. Appellant did not provide a reasonable
explanation for refusing to move to the main floor. Ms. Boes’ receipt of a $2,000.00 electric bill
prompted the relocation of all the second floor offices, including appellant’s office, to the first
floor to conserve energy. She stated that appellant’s office was also being relocated in response
to her concern about her safety as she related that customers would wander onto the second floor
on occasion. Ms. Boes stated that appellant would not have to navigate any stairs to get to the

3

new office, which was also much larger, brighter and safer. It was in a quiet out-of-the way
location and had a private restroom. The move was neither immediate nor being arranged
without appellant’s input. Ms. Boes had three conversations with her about the impending move.
She also contacted the injury compensation office to make sure that she was working within
appellant’s limitations. Ms. Boes stated that Ms. VanWagner witnessed appellant threaten to get
Ms. Boes if she tried to move her office.
By decision dated December 6, 2005, the Office denied appellant’s claim, finding that
she did not sustain an emotional condition in the performance of duty. Appellant failed to
establish a compensable factor of her employment.
On December 23, 2005 appellant requested an oral hearing before an Office hearing
representative.
In a January 13, 2006 report, Dr. Johnson stated that the employing establishment’s lack
of accommodations for appellant caused significant stress which exacerbated her June 11, 1990
employment injury.
In a July 28, 2000 Form OWCP-5, Dr. Joseph M. Wolschleger, a Board-certified
internist, advised that appellant was disabled for work. He restricted her from walking on ramps,
rapid twisting, pushing, pulling, lifting, squatting, bending and climbing ramps and stairs. In an
April 6, 2006 report, Dr. VanDeMark stated that appellant’s anxiety, insomnia, depression,
tachycardia and exacerbation of hypertension were a manifestation of changes in her work
environment. He stated that she was harassed by her new supervisors who insisted on reviewing,
questioning and disregarding her long-standing work restrictions and assigned her new work
duties. Dr. VanDeMark opined that appellant suffered from ongoing neurological manifestations
of her June 11, 1990 employment injury, which were aggravated by her work conditions.
Narrative statements dated January 24, 2006 to March 15, 2007 from Mary Jo Waldron,
Lyle Carlson and Barbara Lodholtz, appellant’s coworkers, Ms. Randall, Mr. Rennick,
Mr. Karnes, Ms. VanWagner, Ms. Randall, Mr. Ketchum and Mr. Pyles related that appellant
was required to work beyond her job description and restrictions by management. The
employing establishment had staff shortages which prompted management to ask her to perform
additional work duties. Appellant’s coworkers helped her perform work that should have been
performed by other employees. She performed vending data entry which was not part of her
original work duties. Appellant carried boxes of documents from the second floor to the main
floor on a weekly basis and more frequently at the end of each quarter. She moved mail
directories weighing between 50 and 70 pounds. Appellant emptied hampers filled with bulk
mailings, second class materials and magazines which involved lifting, sorting turning, bending,
stacking, carrying, reaching and handling. It was not unusual for her to take work home and to
receive help from her husband and son to keep up with her duties and meet deadlines. Initially,
appellant believed that her computer duties were complex but later she believed that they became
impossible to perform. Her son came to work several times to help her figure out computer
program changes. Postmaster Fred Farage and Ms. Holmes required appellant to run down three
flights of stairs to answer telephones and deliver messages. Mr. Rogers and Ms. Boes required
her to work eight hours per day and two extra hours for the employing establishment while she
was only scheduled to work six hours per day. Mr. Rogers became angry and stated that maybe

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he did not want appellant to work for him anymore when she expressed concern about the
change in her work hours.
During the Christmas holiday season appellant helped
Ms. VanWagner with the mail volume although Ms. VanWagner knew this task was not within
her job description. Postmaster Johnson planned to give appellant a window drawer to serve
customers. Ms. Holmes required appellant to pull “hold-outs” which involved constant standing,
bending, reaching and lifting of bulky mail bundles for approximately 40 minutes.
Regarding the relocation of appellant’s office, Postmaster Farage, Ms. Billingsley,
Ms. Layne, Postmaster Johnson, Sylvia Taylor, a POOM, Darrel Kordie, an OIC, Roger
Schlehuber, an OIC, Postmaster Don Patterson and Ms. Boes either moved or made an attempt to
move her office during the period February 1993 to March 2005 without consulting her or the
Office’s rehabilitation counselor. Postmaster Johnson threatened to physically move her if she
did not move voluntarily. As a result, appellant put chain and bolt locks on her office door until
her retirement in 2000. She found the new office was not better for her as it was very noisy due
to traffic in the lobby and outside the building. Three service windows were located in the front
door of the office. The office provided public access to a bathroom. The room had three
windows and three doors which did not provide enough space for all of appellant’s work and
equipment. The lighting was inadequate which made reading difficult. The room was never
remodeled as planned by Ms. Boes. All of the offices on the second floor were not relocated to
the first floor as employees including, Postmaster Johnson used an office on the second floor
from October 2000 to May 2005. The relocation of appellant’s office was not based on the
employing establishment’s receipt of a high electric bill as the employing establishment was
heated with natural gas which was still in use upstairs. Appellant received only one day’s notice
about the move. Ms. VanWagner did not hear appellant threaten Ms. Boes and she was not
present during their conversation to calm her.
In a March 12, 2007 narrative statement, Mr. Ketchum related that on April 12, 1999 he
was forced to leave a meeting between appellant, a postal inspector and management regarding
an investigation of Postmaster Johnson’s actions. He stated that, from January 1995 to
October 2000, over 63 grievances alleging harassment had been filed against Postmaster Johnson
and Ms. Holmes.
On March 30, 2007 appellant stated that all of her work would not fit into the new office.
She also stated that the office was near three service windows and it did not have a door.
By decision dated July 24, 2007, an Office hearing representative affirmed the
December 6, 2005 decision, finding that the evidence failed to establish a compensable factor of
appellant’s employment. In a July 1, 2007 letter, she requested reconsideration.
In reports dated October 22, 2007 and May 16, 2008, Dr. Johnson and
Dr. Richard Feldstein, a Board-certified psychiatrist, stated that appellant’s depression and
anxiety disorder were caused by the filing of a claim for benefits, lack of accommodation by the
employing establishment and a hostile workplace.
In a July 24, 2007 narrative statement, appellant related that she had not refused to move.
She denied threatening Ms. Boes. Appellant contended that her computer-related work was
outside her physical limitations. She stated that she did not receive any training for such work.

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Appellant further stated that, from August 1991 to March 2005, 39 managers at the employing
establishment wanted her to work for them.
By decision dated August 28, 2008, the Office denied modification of the July 24, 2007
decision. It found that appellant failed to establish a compensable factor of her federal
employment.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.2 To establish that 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 her
condition; (2) medical evidence establishing that she has an emotional or psychiatric disorder;
and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.5
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 under the Act.6 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.7
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 under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, 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
2

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

3

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

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

7

Lillian Cutler, supra note 4.

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factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.9
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 the Act. 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 her frustration from not being
permitted to work in a particular environment or to hold a particular position.10 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.11
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.12
ANALYSIS
Appellant attributed her emotional condition, with a consequential aggravation of her
accepted June 11, 1990 employment-related postconcussion syndrome, to being harassed and
verbally abused at the employing establishment. She alleged a one-day notice that her office was
being relocated from the second floor to the main floor. Appellant stated that she did not refuse
to move but rather questioned the wisdom of it. She stated that, unlike her second floor office,
the new office was not quiet or private as it was located near three service windows and it did not
have a door. Appellant further stated that all of her work would not fit into the new office. She
contended that she was overworked and required to perform duties that were outside her physical
restrictions. Appellant stated that new managers at the employing establishment, of which she
was not an employee, continually ignored her work restrictions and job description. They
required her to perform complex computer data entry work without providing any training, to
generate many reports and to answer telephones. Appellant stated that her managers requested
that she provide updated medical information to reduce her restrictions. The Board notes that
verbal abuse or harassment may give rise to coverage under the Act. However, there must be
evidence that the implicated acts of harassment did, in fact, occur. A claimant must substantiate
a factual basis for her allegation with probative and reliable evidence.13
8

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

9

Id.

10

Lillian Cutler, supra note 4.

11

Michael L. Malone, 46 ECAB 957 (1995).

12

Joel Parker, Sr., 43 ECAB 220, 225 (1991); see Faye Cardwell, supra note 3 (for harassment to give rise to a
compensable disability, there must be some evidence that harassment or discrimination did in fact occur); see
Pamela R. Rice, supra note 2 (claimant failed to establish that the incidents or actions which she characterized as
harassment actually occurred). Charles D. Edwards, 55 ECAB 258 (2004).
13

See Ronald K. Jablanski, 56 ECAB 616 (2005).

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The Board finds that appellant’s allegations regarding the office relocation14 her
frustration from not being able to work in a particular environment,15 provision of training16 and
the request for medical documentation17 relate to noncompensable administrative or personnel
matters. However, error or abuse by the employing establishment in an administrative or
personnel matter may afford coverage.18 The statements from appellant’s coworkers generally
related disagreement with management’s actions concerning the office move. The Board finds
that appellant has not submitted sufficient evidence to establish that the employing establishment
erred or acted abusively in relocating her office. Ms. Boes stated that the relocation of
appellant’s office was also based on her own concern for her safety. Appellant related to
Ms. Boes that customers would wander up to her second floor office on occasion. Ms. Boes
stated that, unlike getting to her second floor office, appellant would not have to navigate any
stairs. The Board finds that the statements of Ms. Boes provide reasonable explanations for
relocating appellant’s office. Therefore, appellant has failed to establish that the employing
establishment committed error or abuse in relocating her office. Further, her unsupported
allegation that she did not receive any computer training alone is insufficient to establish a
factual basis for this incident as Mr. Drotar, Ms. Boes and Ms. Miller stated that she performed
her work well with limited supervision. Moreover, appellant has not established that the
employing establishment erred or acted abusively in requesting medical documentation. She did
not submit any statements from witnesses to substantiate her allegation.
Regarding appellant’s allegation that she was overworked, the Board has held that while
overwork may be a compensable factor of employment it must be established on a factual basis
to be a compensable employment factor.19
Statements from Mr. Happy, Ms. Lough,
Ms. Sieffert, Ms. VanWagner, Ms. Lodholtz and Mr. Karnes generally related that appellant
performed management’s work while it received the credit and promotions and that she was
assigned to additional duties and worked more hours due to staff shortages, answered the
telephones and delivered messages, and regularly took work home to meet deadlines. These
statements did not identify the nature of any additional work duties. Further, contrary to
Mr. Karnes’ statement that appellant was not originally required to perform vending data entry,
the employing establishment’s August 19, 1991 job offer stated that appellant’s limited-duty
clerk position included computer data entry related to vending matters. Moreover, Mr. Drotar,
Ms. Boes and Ms. Miller denied any staffing shortages that affected appellant’s workload. They
related that she performed her work well with limited supervision. Based on the statements of
Mr. Drotar, Ms. Boes and Ms. Miller and the employing establishment’s job offer, the Board

14

Barbara J. Nicholson, 45 ECAB 803 (1994).

15

See Lillian Cutler, supra note 4.

16

Brian H. Derrick, 51 ECAB 417 (2000).

17

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

18

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
19

Sherry L. McFall, 51 ECAB 436 (2000).

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finds that appellant has failed to establish that she was overworked and, thus, she has not
established a compensable employment factor.20
Regarding appellant’s allegations that she was made to work outside her restrictions, the
Board has held that being required to work beyond one’s physical limitations could constitute a
compensable employment factor if the record substantiated such activity.21 Her limited-duty
general clerk position did restrict her from lifting more than 10 pounds. Although appellant’s
coworkers stated generally that she moved boxes of mail directories weighing between 50 and 70
pounds, they did not state with specificity any examples. Further, the statements that she lifted
and carried heavy items including, bulk mailings, second class materials and magazines are
vague as they do not specifically state that she lifted and carried more than her 10-pound
restriction. Also, the statements that appellant worked outside her restrictions by going up and
down stairs to deliver telephone messages has not been established. Dr. Yoder’s Form OWCP-5
permitted intermittent climbing. Further, Mr. Drotar and Ms. Miller stated that appellant’s
limitations had been accommodated since 1990 along with a rehabilitation position that was not
outside her restrictions. The Board finds that appellant has failed to establish that she worked
outside her restrictions and, thus, she has not established a compensable employment factor of
her employment.
The Board further finds that the coworkers statements which generally alleged that
appellant was harassed by her managers including, Postmaster Johnson are not sufficient to
establish harassment. They do not provide a detailed description of the specific actions taken by
the managers towards appellant which would support a finding of harassment. The Board finds
that appellant has not established that she was verbally abused and harassed by her managers.22
The Board finds that management’s handling of appellant’s personnel files and Ms. Layne’s
removal of her poster relate to administrative matters. The evidence of record does not establish
that Ms. Layne or any other manager erred or acted abusively towards appellant in handling
these administrative and personnel matters. None of the statements submitted by appellant
indicated that her coworkers witnessed these incidents. Therefore, the Board finds that appellant
has failed to establish that the employing establishment committed error or abuse in the handling
of her personnel file and removal of her poster. Accordingly, appellant has not established a
compensable factor of employment.23
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty.

20

Bonnie Goodman, 50 ECAB 139 (1998).

21

Diane C. Bernard, 45 ECAB 223, 227 (1993).

22

See David S. Lee, 56 ECAB 602 (2005).

23

As appellant has not substantiated a compensable factor of employment as the cause of her emotional
condition, the medical evidence regarding her emotional condition need not be addressed. Karen K. Levene, 54
ECAB 671 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the August 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 15-1609
Issued: December 3, 2015

Case Submitted on the Record

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

JURISDICTION
On July 23, 2015 appellant filed a timely appeal of a June 22, 2015 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision, dated March 15, 1991, and the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal appellant argues that OWCP erred in finding that he failed to file a timely
request for reconsideration. He also argues that OWCP has not handled his recurrence claim or
its development appropriately or in an impartial manner.
FACTUAL HISTORY
Appellant’s claim has previously been before the Board. The history of this case is set
forth in the Board’s prior decisions and is incorporated herein by reference.2 The relevant facts
are hereinafter set forth. On July 25, 1988 appellant, then a 38-year-old computer operator, filed
a traumatic injury claim (Form CA-1) alleging that on July 14, 1988 he injured his back when he
tripped and fell over a box. OWCP accepted the claim for a low back strain.
Appellant filed a claim alleging a recurrence of disability on July 3, 1989 as a result of
his July 14, 1988 employment injury. OWCP denied this claim on January 16, 1990, finding that
he had failed to submit sufficient evidence to establish that his back condition was causally
related to his July 14, 1988 employment injury.
On November 19, 1990 appellant made a timely request for reconsideration. On
March 15, 1991, OWCP granted his request, reviewed the merits of his claim, and denied
modification of the prior decision. It found that the medical evidence failed to demonstrate that
the claimed condition or disability for work was causally related to appellant’s accepted
employment injury.
2

Docket No. 94-544 (issued July 19, 1995) (the Board affirmed a November 9, 1993 nonmerit OWCP decision
denying reconsideration of a March 15, 1991 OWCP decision); Docket No. 01-798 (issued October 9, 2001) (the
Board affirmed a November 27, 2000 decision denying appellant’s reconsideration request as it was untimely filed
and failed to establish clear evidence of error); Docket No. 03-887 (issued June 5, 2003) (the Board affirmed a
February 11, 2003 OWCP decision denying appellant’s reconsideration request as it was untimely filed and failed to
establish clear evidence of error); Docket No. 03-905 (issued January 21, 2004) (the Board issued an order
remanding the case for reconstruction of the record); Docket No. 04-64 (issued August 9, 2005) (the Board affirmed
OWCP’s October 7, 2003 decision denying appellant’s request for reconsideration as it was untimely filed and failed
to establish clear evidence of error); Docket No. 06-875 (issued September 8, 2006 (the Board affirmed OWCP’s
January 23, 2006 nonmerit decision denying appellant’s request for reconsideration of the March 15, 1991 decision
as it was untimely and failed to establish clear evidence of error); Docket No. 07-55 (issued March 27, 2007) (the
Board affirmed OWCP’s September 29, 2006 nonmerit decision denying appellant’s request for reconsideration of
the March 15, 1991 decision as it was untimely and failed to establish clear evidence of error); Docket No. 07-1907
(issued January 15, 2008) (the Board issued an order dismissing appellant’s appeal as he had not appealed a final
decision of OWCP); Docket No. 08-1121 (issued November 3, 2008) (the Board affirmed OWCP’s February 28,
2008 nonmerit decision denying appellant’s request for reconsideration of the March 15, 1991 decision as it was
untimely and failed to establish clear evidence of error); Docket No. 10-334 (issued August 4, 2010) (the Board
issued an order dismissing appellant’s appeal as he had failed to file a timely appeal of OWCP’s May 15, 2009
nonmerit decision; Docket No 11-1626 (issued February 14, 2012) the Board affirmed a June 21, 2011 nonmerit
decision denying appellant’s request for reconsideration of the March 15, 1991 decision as it was untimely filed and
failed to establish clear evidence of error), Erratum Docket No. 11-1626 (issued April 26, 2012), petition for recon.
denied Docket No. 11-1626 (issued July 26, 2012). By decision dated September 10, 2013, the Board affirmed an
OWCP nonmerit decision dated February 1, 2013 denying his request for reconsideration as untimely filed and
failed to establish clear evidence of error. Docket No. 13-734 (issued September 10, 2013), petition for recon.
denied, Docket No. 13-734 (issued May 2, 2014). On August 14, 2014 the Board issued an order dismissing
appellant’s December 26, 2013 petition for reconsideration due to the Board’s lack of jurisdiction as the request for
reconsideration was not filed within 30 days of the Board’s September 10, 2013 decision.

2

The March 15, 1991 decision was the last decision on the merits of appellant’s claim of
recurrence issued by OWCP. The statement of appeal rights accompanying OWCP’s March 15,
1991 merit decision notified appellant that any further request for reconsideration must be made
within one year of the date of the decision, i.e., within one year of March 15, 1991.
In a letter dated June 5, 2015, appellant requested reconsideration and submitted a CA-1
form. He explained that the only reason he returned to work in January 1989 was because he
was told by the employing establishment that he would be fired if he did not return to work.
Prior to being allegedly forced to return to work appellant noted that he was paid compensation
under FECA from July 14, 1988 until his return to work in January 1989. At the time of his
return to work, he stated that he was still ill from his employment injury and under a doctor’s
care. Appellant contended that his back injury has never healed and OWCP has been negligent
in failing to provide him compensation for his injury. He stated that OWCP was aware of his
condition at the time of his return to work in January 1989 and was kept informed by his treating
physician as to his condition. As a result of his back injury, appellant contended that he
developed a consequential crippling arthritis from the cold air working in a computer room. He
argues that both OWCP and the employing establishment were negligent in the handling of his
claim, failing to pay medical bills incurred as a result of the injury, and not referring him to a
doctor for a second opinion evaluation. Appellant requested OWCP to have his medical files
reviewed by an expert Board-certified referral physician.
Appellant submitted an October 24, 1988 attending physician’s report (Form CA-20)
from Dr. Peter Holliday, appellant’s attending neurosurgeon, which diagnosed low back
strain/spasms and recurring headaches and reported leg weakness and severe low back pain. He
noted an injury date of July 14, 1988 and period of total disability as October 10 to 23, 1988.
By decision dated June 22, 2015, OWCP found that appellant’s request for
reconsideration was untimely filed and failed to show clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.3 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.4
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.5
Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding
3

Supra note 1. The Board has found that the imposition of the one-year limitation does not constitute an abuse of
the discretionary authority granted OWCP under section 8128(a) of FECA. See J.S., Docket No. 10-385 (issued
September 15, 2010); Andrew Fullman, 57 ECAB 574 (2006); Adell Allen (Melvin L. Allen), 55 ECAB 390 (2004).
4

20 C.F.R. § 10.607; see also E.R., Docket No. 09-1655 (issued March 18, 2010); Debra McDavid, 57 ECAB
149 (2005); Alan G. Williams, 52 ECAB 180 (2000).
5

B.W., Docket No. 10-323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007) Leon J. Modrowski, 55
ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).

3

the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for
review shows “clear evidence of error” on the part of OWCP.6 In this regard, OWCP will limit
its focus to a review of how the newly submitted evidence bears on the prior evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.13 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.14
ANALYSIS
Appellant seeks reconsideration of a March 15, 1991 merit decision denying modification
of his claim for recurrence of disability on July 3, 1989 as a result of his accepted July 14, 1988
employment injury. In his reconsideration request of June 5, 2015 he continues to disagree with
the denial of his claim and filed his request for reconsideration in a letter dated June 5, 2015.
Because appellant filed his request more than one year after OWCP’s March 15, 1991 merit
6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous.” 20
C.F.R. § 10.607(b).
7

See Nelson T. Thompson, 43 ECAB 919 (1992).

8

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

9

See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

10

See Leon J. Modrowski, supra note 5; Jesus D. Sanchez, supra note 5.

11

See Leona N. Travis, supra note 9.

12

See supra note 7.

13

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

14

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon.
denied, 41 ECAB 458 (1990).

4

decision, the Board finds that his request for reconsideration was untimely filed. Thus, he must
demonstrate clear evidence of error on the part of OWCP in denying his claim.15
The Board further finds that appellant’s request for reconsideration fails to demonstrate
clear evidence of error. The request does not show on its face that OWCP’s denial of
compensation was erroneous. In support of his request, appellant submitted an October 24, 1988
report of Dr. Holliday. Dr. Holliday’s report is irrelevant to the issue of whether appellant
sustained a recurrence on July 3, 1989. It only discussed disability from October 10 to 23, 1998.
The evidence submitted by appellant does not establish any error in OWCP’s denial of his
recurrence claim.
Appellant argues that he never healed from his original injury, that OWCP mishandled
his claim, and that the medical evidence is sufficient to establish his claim. He also argues that
OWCP mishandled his claim and that it was aware that the injury he sustained was a lifetime
injury. Appellant’s June 5, 2015 request for reconsideration fails to establish that OWCP’s
March 15, 1991 decision was erroneous. The arguments of error are unsubstantiated. The Board
will, therefore, affirm the June 22, 2015 decision denying appellant’s request.
CONCLUSION
OWCP properly refused to reopen appellant’s claim for reconsideration on the merits as
his request for reconsideration was untimely filed and failed to demonstrate clear evidence of
error.

15

20 C.F.R. § 10.607(b). See S.D., 58 ECAB 713 (2007); Jack D. Johnson, 57 ECAB 593 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2015 is affirmed.
Issued: December 3, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Hampton, NY, Employer
__________________________________________

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

Docket No. 10-2336
Issued: September 28, 2011

Oral Argument September 7, 2011

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

JURISDICTION
On September 20, 2010 appellant filed a timely appeal from a June 10, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration
without further merit review. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision. Because
more than 180 days elapsed from March 8, 2010, the date of the most recent OWCP merit
decision, to the filing of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 10, 2009 appellant, then a 49-year-old former letter carrier, filed an occupational
disease claim alleging that he sustained post-traumatic stress disorder on the job. He became
aware of his condition and its relationship to his employment on June 22, 2006. Appellant
resigned effective April 14, 2006.
A May 7, 2009 letter from a physician’s assistant noted that appellant was arrested at
work sometime in mid-March 2006 and thereafter experienced anxiety. He opined that the arrest
was “certainly the precipitating factor for [appellant’s] anxiety.”2
The employing establishment controverted the claim in a May 28, 2009 letter, arguing
inter alia that it was filed more than three years after the alleged work incident and that appellant
did not submit sufficient medical evidence.
OWCP informed appellant in a June 1, 2009 letter that the evidence was insufficient to
establish his claim. It gave him 30 days to submit a factual statement describing the March 2006
employment incident and a comprehensive report from a psychiatrist or clinical psychologist
explaining how the purported incident contributed to his emotional condition.
Appellant specified in a June 24, 2009 statement that he was arrested on March 2006 for
damaging the vehicle of Adil Chohan, a coworker and union steward. He attached his April 7,
2006 letter of resignation. Which explained that appellant had told his supervisor of the “anguish
and anxiety that [he] was feeling physically and mentally ... due to the incident. Appellant
advised that he experienced anguish, anxiety, nausea and other symptoms due to Mr. Chohan’s
false accusation and the arrest and was prescribed antidepressant medication. He noted that he
was resigning after exhausting his annual and sick leave to cope with his worsening condition
and when the postmaster refused to grant additional leave or transfer Mr. Chohan.
By decision dated November 5, 2009, OWCP denied appellant’s claim, finding the
evidence insufficient to establish that the March 2006 employment incident occurred as alleged.
Appellant requested reconsideration on December 10, 2009 and furnished additional
evidence. In a March 12, 2009 statement, he detailed that he had loaded his postal truck with
mail and was ready to proceed with deliveries on the morning of March 17, 2006 when he was
told by Mr. Chohan that the postmaster wanted to speak with him. Two hours later, appellant
returned from his route and met with the postmaster, two supervisors and police officers. He was
then informed that Mr. Chohan accused him of slamming a mail cart into his personal vehicle.
Although appellant denied the charge and his supervisors found that the cart did not line up with
the dents and scratches on Mr. Chohan’s vehicle,3 he was arrested, fingerprinted and
photographed. He notified a supervisor who picked him up at the police station that he did not
2

Appellant also submitted a May 7, 2009 letter from a licensed master social worker who commented that an
“unfortunate occurrence” in 2006 resulted in his post-traumatic stress disorder.
3

The employing establishment also conceded in its May 28, 2009 letter of controversion that a consensus of
eyewitnesses established that appellant did not commit the act.

2

want to return to work on account of illness and was allowed to go home. The following day,
appellant visited a family practitioner and presented mental anguish, anxiety and depression. He
asked the postmaster to transfer Mr. Chohan, who had less seniority or grant additional leave
time. As both requests were denied, appellant resigned.
In an October 19, 2009 report, Dr. Mary Ann Juliano, a clinical psychologist,
summarized the events of March 17, 2006 and diagnosed post-traumatic stress disorder. She
opined that appellant’s condition arose from his arrest and persisted for several years, noting
symptoms such as a rapid heart rate, nausea, sweating, stomach problems and breathlessness.
By decision dated March 8, 2010, OWCP modified the November 5, 2009 decision to
find that appellant did not file a timely claim.
Appellant requested reconsideration on March 29, 2010 and argued that the employing
establishment “knew that I was ill due to the arrest” and asked for time off before resigning. He
further contended that he was unaware that he sustained post-traumatic stress disorder until he
was diagnosed in June 2006.4
By decision dated June 10, 2010, OWCP denied appellant’s request for reconsideration,
finding that he did not present new evidence or raise legal contentions warranting further merit
review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 Where the request for
reconsideration fails to meet at least one of these standards, the OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.7
ANALYSIS
The Board finds that appellant showed on reconsideration of the November 5, 2009 merit
decision that OWCP erroneously applied or interpreted a specific point of law.8

4

In addition, appellant submitted a copy of his March 12, 2009 statement.

5

5 U.S.C. § 8128(a).

6

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

7

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

8

See Charles A. Jackson, 53 ECAB 671 (2002).

3

Section 8122(a) of FECA provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.9 If the claim is not filed within
three years, compensation may still be allowed if notice of injury was given within 30 days or the
employer had actual knowledge of the injury or death within 30 days after occurrence. This
knowledge may consist of written records or verbal notification. An entry into an employee’s
medical record may also satisfy this requirement if it is sufficient to place the employer on notice
of a possible work-related injury or disease.10
OWCP found that the claim was untimely filed by decision dated March 8, 2010. On
reconsideration, appellant asserted that the employing establishment had knowledge of his
emotional condition stemming from the March 17, 2006 arrest before he resigned on April 14,
2006, a period of time encompassing less than 30 days. Nonetheless, OWCP issued a June 10,
2010 decision improperly concluding that he did not raise any legal contentions warranting
further merit review.
The standard for reopening a claim for merit review does not require the claimant to
submit all evidence that may be necessary to discharge his burden of proof.11 Furthermore, a
request for reconsideration predicated on a legal premise need only contain an assertion of an
adequate legal premise having some reasonable color of validity.12 In this case, appellant raised
a valid argument that OWCP erroneously applied or interpreted section 8122(a) of FECA as well
as the accompanying regulations as he stated that OWCP knew of his work-related injury and it
was obligated to conduct a merit review of the claim. He had not previously raised this assertion
with regards to whether his claim was timely filed. Therefore, the case shall be remanded to
OWCP to conduct a merit review of the entire record. After such further development as is
deemed necessary, OWCP shall issue an appropriate merit decision.13
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

9

5 U.S.C. § 8122(a).

10

20 C.F.R. § 10.100(b)(1). See also 5 U.S.C. § 8122(a).

11

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

12

See Daniel O’Toole, 1 ECAB 107 (1948).

13

The Board notes appellant’s contention on oral argument that he did not file a claim for more than three years
because he did not know that an emotional condition was compensable and the employing establishment did not
provide guidance on the matter. The Board has held that ignorance of the law does not excuse failure to file a timely
claim. See, e.g., Fred L. Ingram, 30 ECAB 959 (1979); John Santak, 16 ECAB 440 (1965).

4

ORDER
IT IS HEREBY ORDERED THAT the June 10, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further merit review.
Issued: September 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 10-731
Issued: December 14, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant filed a timely appeal from the December 29, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied her claim for an
increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant had more than 10 percent impairment of her right upper
extremity and 5 percent impairment of her left upper extremity, for which she received schedule
awards.
On appeal, appellant contends: (1) that the Statement of Accepted Facts was improper as
it contained the percentages of the prior ratings; (2) that the report of the impartial medical
examiner was reviewed by the Office medical adviser thereby invalidating the report; and
(3) that the Office improperly applied the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2009).

FACTUAL HISTORY
This case has been before this Board before. The relevant facts are briefly set forth. On
June 4, 1993 appellant, then a 33-year-old senior claims examiner, filed an occupational disease
claim alleging that she suffered left and right carpal tunnel syndrome and tendinitis as a result of
repetitive typing, keying and grasping movements required by her federal employment. Right
carpal tunnel release was performed on May 7, 1993. The Office accepted her claim for bilateral
carpal tunnel syndrome. On November 29, 1994 it issued a schedule award for 10 percent
impairment of appellant’s right upper extremity. In a letter dated November 9, 2006, appellant
requested an increase in her schedule award. In a decision dated June 26, 2007, the Office, based
on the opinion of an Office medical adviser, found that there was no basis to increase the
impairment to her right upper extremity and further found that she was not entitled to a schedule
award for her left upper extremity. In a January 29, 2008 decision, the Board found a conflict in
medical opinion between Dr. Pedro A. Murati, an attending physiatrist, and an Office medical
adviser as to the extent of impairment to appellant’s right upper extremity and returned the case
to the Office to resolve the conflict.1 On May 30, 2008 based on the opinion of Dr. Robert T.
Tenny, a Board-certified neurosurgeon appointed by the Office to serve as the impartial medical
specialist, the Office denied appellant’s request for an additional schedule award for the right
upper extremity. On June 12, 2008 the Office issued a schedule award based upon five percent
impairment of the left upper extremity. Appellant appealed and on August 5, 2009 the Board
issued an Order Remanding Case. In this order, the Board found that the Office did not comply
with its procedures in selecting Dr. Tenny as the impartial medical specialist. The Board further
found that there was an unresolved conflict between appellant’s attending physician, Dr. Murati,
and the second opinion physician with regard to her impairment to her left upper extremity.
Accordingly, the Board remanded the case for referral to a properly selected impartial medical
examiner to resolve the conflict in the medical opinion evidence.2
On remand, the Office referred appellant to Dr. Joseph Huston, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a medical opinion dated October 6,
2009, Dr. Huston applied the sixth edition of the A.M.A., Guides and determined that she had
four percent rating of each upper extremity secondary to carpal tunnel syndrome. In reaching
this conclusion, he stated that he applied the A.M.A., Guides page 449, Table 15-23 and, using a
Grade Modifier 2 and a mild functional scale, appellant had 4 percent impairment rating of the
right upper extremity secondary to right carpal tunnel problem, which he noted was less than the
10 percent she had previously been awarded. With regard to the left upper extremity, Dr. Huston
noted that electromyograph and nerve conduction study reported mild evidence of carpal tunnel
syndrome. He then used a Grade Modifier 2 with a mild functional scale and concluded that
appellant had an impairment of four percent of the left upper extremity due to carpal tunnel
syndrome.
On November 4, 2009 the Office referred the case to the Office medical adviser for his
opinion with regard to permanent impairment. In a reply dated November 14, 2009, the medical
adviser concurred with the rating given by Dr. Huston, who noted that appellant complained of
an intermittent numbness and tingling in the right arm after the carpal tunnel release with
1

Docket No. 07-2097 (issued January 29, 2008).

2

Docket No. 08-2134 (issued August 5, 2009).

2

symptoms aggravated by successive use of the hand, which was thought to be in all five digits.
The Office medical adviser noted that, on the left side, there was some numbness and tingling in
what was thought to be all five digits and pain on a daily basis. He indicated that appellant stated
that the left sided symptoms were mainly at night and woke her up at night. The Office medical
adviser also noted some locking of the right long finger at night as well as over two weeks prior
to the evaluation. With regard to objective tests, he noted that neurodiagnostic studies on
April 26, 2006 to May 18, 2007 showed mild left carpal tunnel syndrome. The Office medical
adviser noted Dr. Huston’s physical examination showed positive Tinel’s sign over the median
nerve bilaterally and range of motion, sensation to pinprick and strength of the hand were all
described as fairly normal. The medical adviser concluded that, based on Dr. Huston’s report
and Table 15-23 of the A.M.A., Guides, he concurred with Dr. Huston’s assessment of four
percent impairment for each upper extremity.
By decision dated December 29, 2009, the Office denied appellant’s claim for an
increased schedule award for impairment to her left and right upper extremities.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act3 provide
compensation to employees sustaining impairment from loss or loss of use of specified member
of the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.4 Effective May 1,
2009 the Office began using the sixth edition of the A.M.A., Guides to calculate schedule
awards.5
For evaluating impairment related to dysfunction of the median nerves, the sixth edition
of the A.M.A., Guides (6th ed. 2009) contains Appendix 15-B (Electrodiagnostic Evaluation of
Entrapment Syndromes). It provides that the criteria for carpal tunnel syndrome include distal
motor latency longer than 4.5 milliseconds for an 8-centimeter (cm) study; distal peak sensory
latency longer than 4.0 cm for a 14-cm distance; and distal peak compound nerve latency of
longer than 2.4 milliseconds for a transcarpal or midpalmar study of 8 cm. If different distances
were used in testing, correction to the above-stated distances could be accomplished by assuming
each 1 cm of distance required 0.2 milliseconds.6

3

5 U.S.C. §§ 8101-8193.

4

Bernard A. Babcock, Jr., 542 ECAB 143 (2000).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides, 487, Appendix 15-B.

3

If carpal tunnel syndrome is found under the standards of Appendix 15-B, impairment is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.7 In Table 15-23, grade modifiers are described for
test findings, history and physical findings. A survey completed by a given claimant, known by
the name QuickDASH, is used to further modify the grade and to choose the appropriate
numerical impairment rating.8 If carpal tunnel syndrome is not found under the standards of
Appendix 15-B, impairment due to median nerve dysfunction is evaluated under the scheme
found in Table 15-21 (Peripheral Nerve Impairment: Upper Extremity Impairments).9 Under
Table 15-21, observed conditions are placed into classes (ranging from Class 0 to Class 4) based
on diagnosis and the severity of the condition. After the class is identified, the precise degree of
the impairment can be modified by various factors, including functional history, physical
examination and clinical studies.10
Proceedings under the Act are not adversary in nature nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. The Office has the obligation to see
that justice is done.11
ANALYSIS
The Office accepted appellant’s claim for carpal tunnel syndrome and granted her
schedule awards for 10 percent impairment of the right upper extremity and 5 percent
impairment of the left upper extremity. Appellant contends that she is entitled to a greater
award. The impartial medical examiner, Dr. Huston, found that, under the sixth edition of the
A.M.A, Guides, she was entitled to four percent impairment to each upper extremity and the
Office medical adviser agreed with Dr. Huston’s conclusion. Accordingly, the Office denied
appellant’s claim for a greater schedule award.
The Board finds that the impairment rating made by Dr. Huston and reviewed with
approval by the Office medical adviser is incomplete and requires further clarification. As noted,
with respect to evaluating impairment related to dysfunction of the median nerves, Appendix
15-B (Electrodiagnostic Evaluation of Entrapment Syndromes) contain criteria for evaluating
whether carpal tunnel syndrome is present. If carpal tunnel syndrome is found under the
standards of Appendix 15-B, impairment is evaluated under the schedule found in Table 15-23.
If carpal tunnel syndrome is not found under the standards of Appendix 15-B, impairment due to
median nerve dysfunction is evaluated under the scheme found in Table 15-21. There is no
indication that either Dr. Huston or the Office medical adviser made reference to Appendix 15-B
or sufficiently explained why they applied Table 15-23 in making their evaluation. Furthermore,
Dr. Huston and the Office Medical Officer stated that under Table 15-23, using a Grade Modifier
7

See id., at 449, Table 15-23.

8

Id. at 448.

9

Id. at 437-40, Table 15-21 (portion relating to median nerves).

10

Id. at 406-09.

11

Russell F. Polhemus, 32 ECAB 1066 (1981).

4

2 with a mild function scale, appellant had four percent impairment. However, neither physician
provided any evaluation of the grade modifiers that applied to appellant’s case. As noted, grade
modifiers should be considered for functional history, physical examination and clinical studies
and these grade modifiers can change the extent of a given impairment rating.12
For these reasons, the impairment rating of Dr. Huston needs clarification.13 Dr. Huston
should further address the medical evidence consistent with the sixth edition of the A.M.A.,
Guides. After such development as it deems necessary, the Office shall issue an appropriate
decision on her claim for a schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 29, 2009 is set aside. The case is remanded to the
Office for proceedings consistent with this decision of the Board.
Issued: December 14, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Id. at 448-450.

13

See R.D., Docket No. 10-152 (issued July 20, 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PUGET SOUND HEALTH CARE SYSTEM,
Seattle, WA, Employer
__________________________________________

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

Docket No. 19-0968
Issued: October 9, 2019

Case Submitted on the Record

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

JURISDICTION
On April 4, 2019 appellant, through counsel, filed a timely appeal from a January 30, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 her burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 4, 2017 appellant, then a 38-year-old dental hygienist, filed an occupational
disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome causally related to
factors of her federal employment. She performed modified work duties effective January 4, 2017.
In a development letter dated January 18, 2017, OWCP advised appellant of the
deficiencies of her claim and requested additional factual and medical evidence. It provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
Thereafter, OWCP received a November 23, 2016 report from Dr. Wren V. McCallister, a
Board-certified orthopedic surgeon. Dr. McCallister evaluated appellant for tingling and
numbness in her hands bilaterally and noted that she intended to file a workers’ compensation
claim. He indicated that an x-ray revealed cervical spondylosis. Dr. McCallister diagnosed
numbness and tingling of the bilateral upper extremities that may “have elements of carpal tunnel
syndrome, thoracic outlet [syndrome], and possible cervicalgia.”
A December 16, 2016 nerve conduction velocity study and electromyogram revealed right
carpal tunnel syndrome with a moderate conduction delay, left carpal tunnel syndrome with a mild
motor conduction delay and no evidence of right cervical radiculopathy or ulnar neuropathy.
Appellant further submitted a December 23, 2016 report by Dr. Matthew C. Keifer, a
Board-certified internist. Dr. Keifer reviewed her history of bilateral numbness, weakness, and
tingling in her hands and forearms, worse on the left, for the past three months, and diagnosed
carpal tunnel syndrome. He noted that appellant attributed her symptoms to her employment
activities as a dental hygienist.
On January 4, 2017 Dr. Keifer again discussed appellant’s history of numbness, weakness,
and tingling in both hands, worse on the left, for the past three months. He diagnosed carpal tunnel
syndrome and provided work restrictions. Dr. Keifer advised that appellant believed that her
symptoms were aggravated by her employment duties as a dental hygienist.

3

Docket No. 18-0509 (issued October 3, 2018).

2

In a statement dated January 11, 2017, appellant described the duties required of her
position as a dental hygienist. She advised that prior to working for the employing establishment
she had worked part time as a dental hygienist without problems. 4
In a report dated January 26, 2017, Dr. McCallister evaluated appellant for continued
complaints of upper extremity numbness. He reviewed the results of electrodiagnostic studies and
found a positive Durkan’s compression test bilaterally on examination. Dr. McCallister diagnosed
numbness and tingling of the right upper extremity suspected to be “secondary to a combination
of carpal tunnel syndrome and likely, thoracic outlet syndrome.” He noted that appellant had
significant delay on electrodiagnostic tests, but that her symptoms were not completely consistent
with carpal tunnel syndrome. Dr. McCallister reviewed OWCP’s January 18, 2017 development
letter and advised that he would defer an opinion on the cause of her condition to an independent
examiner.
By decision dated April 3, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish an injury or medical condition causally related to
the accepted factors of her federal employment.
On April 18, 2017 appellant requested an oral hearing before a representative of OWCP ’s
Branch of Hearings and Review. On October 2, 2017 OWCP scheduled a telephonic hearing for
October 20, 2017 and also provided her with the time, telephone number, and required passcode.
By decision dated October 31, 2017, OWCP determined that appellant had abandoned her
request for a telephonic hearing before a representative of its Branch of Hearings and Review. It
found that she had received written notice of the telephonic hearing 30 days prior to the scheduled
hearing, but that she had failed to attend or contact the Branch of Hearings and Review either
before or after the scheduled hearing to explain her absence.
Appellant appealed to the Board. By decision dated October 3, 2018, the Board set aside
the October 31, 2017 OWCP decision.5 The Board found that OWCP had improperly determined
that appellant abandoned her request for a telephonic hearing as it failed to provide her with 30
days written notice of the time of the scheduled telephonic hearing. The Board remanded the case
for OWCP to schedule another hearing.
On remand OWCP’s Branch of Hearings and Review held a telephonic hearing on
November 16, 2018. During the hearing, appellant described her employment duties. OWCP’s
hearing representative advised her to submit evidence addressing the relationship between her
condition and employment factors.
By decision dated January 30, 2019, OWCP’s hearing representative affirmed the April 3,
2017 decision.

4

On February 3, 2017 the employing establishment advised that appellant’s statement was accurate.

5

See supra note 3.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation period of FECA,6 that an injury was sustained while in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is causally
related to the employment injury. 7 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease. 8
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for
which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the
employee.9
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.
In a report dated November 23, 2016, Dr. McCallister described appellant’s symptoms of
bilaterally tingling and numbness of the hands. He noted that she intended to pursue obtaining
workers’ compensation benefits. Dr. McCallister reviewed an x-ray finding cervical spondylosis.
He diagnosed elements of carpal tunnel syndrome, thoracic outlet syndrome, and possible
cervicalgia. While Dr. McCallister provided a diagnosis, he failed to offer an opinion on causal
6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

R.M., Docket No. 18-0976 (issued January 3, 2019); P.D., Docket No. 17-1885 (issued September 17, 2018).

10

H.B., Docket No. 18-0781 (issued September 5, 2018).

4

relationship. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship. 11
On December 27, 2016 and January 4, 2017 Dr. Keifer discussed appellant’s three-month
history of tingling, numbness, and weakness of the hands. He diagnosed carpal tunnel syndrome
and noted that she believed that her work as a dental hygienist contributed to her condition.
Dr. Keifer did not, however, render an independent finding relative to causation. A physician’s
report is of little probative value when it is based on a claimant’s belief rather than a physician’s
independent judgment.12
Without providing an independent opinion explaining how
physiologically the accepted employment factors caused or contributed to the diagnosed condition,
Dr. Keifer’s opinion is of limited probative value. 13
In a January 26, 2017 report, Dr. McCallister attributed appellant’s upper extremity
numbness and tingling to a combination of carpal tunnel syndrome and possible thoracic outlet
syndrome. He advised that electrodiagnostic studies showed a significant delay. Dr. McCallister
deferred a finding on the cause of the diagnosed condition to another examiner. As he declined to
address causation, his opinion is of no probative value on the issue. 14
As the evidence of record does not include rationalized medical evidence sufficient to
establish causal relationship, the Board finds that appellant has not met her burden of proof.
On appeal counsel argues that OWCP failed to adjudicate the claim in accordance with the
proper standard of causation and failed to give due deference to the findings of the attending
physician. As discussed, however, appellant has not provided rationalized medical evidence
sufficient to establish that she sustained carpal tunnel syndrome causally related to factors of her
federal employment. 15 She has, therefore, not met her burden of proof to establish a claim for
compensation.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.

11

S.C., Docket No. 18-1242 (issued March 13, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

12

T.S., Docket No. 18-1501 (issued March 4, 2019).

13

A.B., Docket No. 18-0577 (issued October 10, 2018).

14

See supra note 11.

15

See N.C., Docket No. 19-0299 (issued June 24, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, LAKE FOREST POST
OFFICE, Jacksonville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0563
Issued: March 22, 2022

Case Submitted on the Record

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

On March 8, 2022 appellant filed an appeal from a July 15, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0563.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 15, 2020 decision was January 11, 2021. As appellant
did not file an appeal with the Board until March 8, 2022, more than 180 days after the July 1 5 ,
2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0563 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not explain ed her failure to
timely file an appeal with supporting documentation sufficient to establish compelling
circumstances. Because there is no final adverse decision issued by OWCP within 180 days of
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

the filing of the instant appeal, the Board concludes that the appeal docketed as No. 22 -0563,
must be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0563 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, El Paso, TX, Employer
__________________________________________

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

Docket No. 09-99
Issued: July 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 15, 2005 appellant, through counsel, filed a timely appeal from a
September 23, 2008 decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed the denial of her emotional condition claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant sustained a psychiatric condition in the performance of
duty.
FACTUAL HISTORY
On February 27, 2007 appellant, then a 50-year-old immigration enforcement agent, filed
an occupational disease claim alleging that on January 31, 2007 she sustained an emotional
condition when her supervisor advised that she could no longer be accommodated in her lightduty position and that she would be required to repay authorized uncontrollable overtime (AUO)

she had worked since 2005. She alleged that she was told to go home as there was no work
available for her within her restrictions. Appellant stopped work on January 31, 2007. On
February 8, 2007 she first realized her emotional condition was employment related.
By letter dated April 4, 2007, the Office informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised to submit additional evidence to
support her claim.
In a February 8, 2007 letter, the employing establishment informed appellant that it no
longer had any light-duty positions available to accommodate her physical restrictions. It also
noted that the Union contract regarding light-duty provided that such work was assigned on a
temporary basis based upon availability and necessity to qualified employees. The employing
establishment provided appellant with the options available to her as it no longer had any lightduty positions available to accommodate her restrictions.
On April 30, 2007 Dr. Jose Luis Porras, a treating physician, diagnosed anxiety attacks
which he opined seemed to be related to her work problems and a fear of losing her job.
In a May 1, 2007 letter, Qasem M. Al-Ali, chief immigration enforcement agent, stated
that he advised appellant on January 31, 2007 that there were no positions available for light
duty. He stated that he advised appellant to contact the Office to discuss her options. Mr. Al-Ali
related that appellant was not performing work as an immigration enforcement agent, but doing
administrative work. Appellant would receive a bill for the AUO hours for which she had been
paid but at the same time, the AUO hours worked would be converted to overtime hours for
which she would receive a check.
On May 29, 2007 the Office received a September 6, 2005 e-mail from Steven E. Lino,
who stated that appellant and other people on light duty were “allowed to work [c]ontrol, to
include on AUO, if they are needed.”
By decision dated September 28, 2007, the Office denied appellant’s claim.
By letter dated October 4, 2007, appellant’s counsel requested a telephonic hearing
before an Office hearing representative.
In a decision dated November 19, 2007, the Office hearing representative set aside the
October 4, 2007 decision and remanded the use for development of the evidence regarding
whether the employing establishment’s actions in withdrawing her light-duty job constituted a
compensable factor of employment. The hearing representative determined that the claim was a
traumatic injury rather then an occupational disease as it had occurred during one day.
On December 31, 2007 the employing establishment responded to the Office’s request
for additional information. It noted that the withdrawal of light duty affected all light-duty
personnel. The employing establishment stated that the action taken was a withdrawal of light
duty.

2

By decision dated March 14, 2008, the Office denied appellant’s claim. It found that the
employing establishment’s withdrawal of light-duty was not a compensable factor of
employment.
By letter dated March 21, 2008 appellant’s counsel requested a telephonic hearing before
an Office hearing representative, which was held on July 15, 2008.
By decision dated September 23, 2008, the Office hearing representative affirmed the
denial of appellant’s claim.1 The representative found appellant failed to establish that the
employing establishment acted erroneously in withdrawing her light-duty job.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.2 To establish her claim that she
sustained an emotional condition in the performance of duty, an employee must submit:
(1) factual evidence identifying employment factors or incidents alleged to have caused or
contributed to her condition; (2) medical evidence establishing that she has an emotional
condition or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to her emotional condition.3
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 her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.4 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 her frustration from not being permitted to work in a
particular environment or to hold a particular position.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
1

The hearing representative noted in a footnote that the Office accepted that appellant developed bilateral carpal
tunnel syndrome under claim number xxxxxx432 as of August 5, 1999. She also noted that a January 25, 2008 letter
advised appellant that her claim had been accepted for a recurrence of disability for the period February 1 to
June 3, 2007.
2

Edward C. Heinz, 51 ECAB 652 (2000); Martha L. Street, 48 ECAB 641 (1997).

3

Judy L. Kahn, 53 ECAB 321 (2002); Ray E. Shotwell, Jr., 51 ECAB 656 (2000); Donna Faye Cardwell, 41
ECAB 730 (1990).
4

5 U.S.C. §§ 8101-8193.

5

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976)

3

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.6 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.7
As a general rule, an employee’s emotional reaction to administrative or personnel
actions taken by the employing establishment is not covered because such matters pertain to
procedures and requirements of the employer and are not directly related to the work required of
the employee.8 An administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.9
An employee’s frustration from not being permitted to work in a particular environment or to
hold a particular position is not compensable.10
ANALYSIS
Appellant alleged that she sustained an emotional reaction on January 31, 2007 when
advised that her light-duty job was to be terminated and that she would be required to repay the
AUO she had worked since 2005. These allegations involve administrative or personnel actions
that are generally not compensable under the Act absent evidence of error or abuse
Appellant contends that the employing establishment improperly withdrew her light-duty
job and that she would have to repay AUO she had worked from 2005. These are administrative
or personnel matters unrelated to appellant’s regular or specially assigned work duties. Although
the assignment of work duties are generally related to the employment, they are administrative
functions of the employer and not duties of the employee.11 However, the Board has held that an
administrative or personnel matter will be considered to be an employment factor where the
evidence discloses error or abuse on the part of the employing establishment.12 In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
it acted reasonably.13 Appellant contended that the Office’s acceptance of a recurrence of
6

See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993).

7

Lori A. Facey, 55 ECAB 217 (2004); Norma L. Blank, supra note 6.

8

Felix Flecha, 52 ECAB 268 (2001).

9

James E. Norris, 52 ECAB 93 (2000).

10

Barbara J. Latham, 53 ECAB 316 (2002).

11

V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007); see Janet I. Jones, 47 ECAB 345,
347 (1996).
12

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

13

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007).

4

disability under claim number xxxxxx432 due to the withdrawal of her light-duty work supports
a finding of error or abuse on the part of the employing establishment. Contrary to appellant’s
contention, the fact that a recurrence claim was accepted based on the withdrawal of light-duty
work does not, in and of itself, establish error or abuse. In accepting a recurrence of disability
under claim number xxxxxx432, the Office followed both the procedure manual and Board
precedent which defines a recurrence of disability to include the withdrawal of light-duty work.14
The employing establishment noted that the withdrawal of appellant’s light-duty impacted not
only her but all employees working light duty. Appellant has not submitted evidence to establish
her allegation that she and one other person were the only ones singled out for withdrawal of
light-duty.15 The Board finds that she submitted insufficient evidence to establish that the
employing establishment erred or acted abusively with regard to the withdrawal of her light-duty
position.
Appellant also alleged that she sustained an emotional reaction as a result of being
informed that she would have to repay AUO she had worked from 2005. The record shows that
appellant was advised that an audit would be conducted regarding AUO she had worked since
2005, as she had been performing administrative duties rather than immigration enforcement
agent work. Any AUO she had worked would be converted to overtime and she would receive a
check for that work. The record contains an e-mail from a Mr. Lino who stated that appellant
and any people working light-duty were permitted to work AUO. However, the status of
Mr. Lino, with the employing establishment is not identified in the e-mail. Appellant was also
informed by Mr. Al-Ali that she would be required to repay AUO for administrative work she
had performed since 2005 but that she would receive a check for those hours as they would be
converted to overtime. There is no evidence to establish that she was incorrectly advised of the
amounts due or, any improper pay adjustment was made as a result of the conversion of the AUO
hours to overtime, that the record is devoid of any evidence of error or abuse on the part of the
employing establishment with respect to the repayment of AUO work performed by appellant
since 2005. Appellant has not established a compensable employment factor under the Act with
respect to these administrative matters.
As appellant failed to establish any compensable factors of employment, the Office
properly denied her claim.16
14

The Office’s procedure manual defines recurrence of disability to include withdrawal of a light-duty
assignment made specifically to accommodate the claimant’s condition due to the work-related injury. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(1)(c) (May 1997). The procedure
manual also indicates that, to constitute recurrence of disability, the withdrawal of a light-duty position must have
occurred for reasons other than misconduct or nonperformance of job duties. Id. The Board has held that a
claimant’s showing that light-duty work was unavailable constitutes a change in the nature or extent of light-duty
requirements sufficient to establish a recurrence of disability. See J.F., 58 ECAB ___ (Docket No. 06-186, issued
October 17, 2006).
15

See generally Barbara Ambrose, Docket No. 00-324 (issued June 14, 2001) (the Board found appellant failed to
establish that the failure of the employing establishment erred or acted abusively in failing to provide her with lightduty work).
16

As appellant did not establish a compensable employment factor, the Board need not address the medical
evidence of record. See D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006); Kathleen A. Donati,
54 ECAB 759 (2003).

5

CONCLUSION
For the foregoing reasons, as appellant has not established any compensable employment
factors under the Act, she has not met her burden of proof in establishing that she sustained an
emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated September 23, 2008 and the Office’s
decision dated March 14, 2008 are affirmed.
Issued: July 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6