United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN FRANCISCO VETERANS AFFAIRS
MEDICAL CENTER, San Francisco, CA,
Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1310
Issued: July 21, 2020

Case Submitted on the Record

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

JURISDICTION
On May 24, 2019 appellant, through counsel, filed a timely appeal from a January 9, 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 his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On October 6, 2017 appellant, then a 50-year-old supervisory supply manager, filed an
occupational disease claim (Form CA-2) alleging that he sustained stress, anxiety, and insomnia
after the police notified him of a “potential threat of violence by an employee.” He noted that he
first became aware of his condition and realized its relation to his federal employment on
September 29, 2017. Appellant stopped work on September 30, 2017 and returned to work on
October 2, 2017.
In a development letter dated October 20, 2017, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed to
establish his claim and provided a questionnaire for his completion. OWCP afforded appellant 30
days to provide the necessary evidence.
In a November 15, 2017 statement, appellant indicated that a female engineering employee
had informed him on September 20, 2017 that she had been sexually harassed by R.F., one of his
employees. He noted that R.F. had been “going through the progressive disciplinary process for
many years. At the time of this incident [R.F.] was on a last chance employment agreement. No
contact letters were issued to both [R.F.] and the female engineering employee. [R.F.] became
incensed as a result of this action and left work.” On September 26, 2017 an employing
establishment police officer notified appellant that he was investigating a violent threat that R.F.
made against appellant. The officer informed appellant that R.F. had been hospitalized and made
threats against appellant in front of his health care provider. Appellant notified his superiors and
the labor relations representative of the situation and sought their advice. He indicated that he was
unable to sleep and that his hands were shaking after he learned of the threat made against him.
On September 27, 2017 appellant met with the department head, S.R., and acting associate
director, J.L. J.L. informed appellant that R.F. had been “admitted to the locked psychiatric ward”
of a medical center because he had threatened appellant in front of one of his health care providers.
Appellant thereafter took sick leave for the rest of the week due to stress. When he returned to
work from October 2 to 4, 2017, he could not concentrate and sought assistance from a counselor
with the Employee Assistance Program. On November 3, 2017 management informed appellant
that R.F. was returning to work, but that R.F. would be reassigned to another location. On
November 15, 2017 appellant’s supervisor, R.J., told appellant that R.F. had not returned to work
and could not be located, and advised appellant to “stay off the radar” until they better understood
the situation. Appellant asserted that management had not ensured his safety except for changing
R.F.’s work location.
In an e-mail dated September 27, 2017, appellant requested information regarding the
specifics of the threat, noting that a police officer had told him that it was serious. In an e-mail to
R.J., dated October 30, 2017, he questioned whether the employing establishment was taking
sufficient action regarding the situation with R.F. and requested relocation.

2

In a development letter dated November 29, 2017, OWCP requested that the employing
establishment provide comments from a knowledgeable supervisor, such as R.J., and from any
other individuals with knowledge regarding the accuracy of appellant’s statements. It further
requested copies of all official incident or investigation reports. OWCP afforded the employing
establishment 30 days to respond.
Appellant submitted medical records from the employing establishment and reports from
Dr. Sandra Mucia, a psychologist.
In a March 16, 2018 development letter, OWCP requested that appellant provide
statements from anyone who had witnessed R.F. threaten him, or could verify that R.F. made the
threats. It also asked whether he had a relationship with R.F. outside of the office.
On April 13, 2018 in response to OWCP’s March 16, 2018 development letter, appellant
indicated that he was unable to obtain witness or police statements documenting the threat against
him due to privacy issues. He noted that the police officer told him that he could not provide
specific details about the threat. Appellant e-mailed his chain of command to learn more
information about the threat and why it involved the police. He indicated that because the
interaction was “between the employee and a treating health care provider (that admitted him
because of this threat) this information is restricted under [the Health Insurance Portability and
Accountability Act of 1996 (HIPAA)]/privacy laws.” Appellant indicated that the employing
establishment should have a copy of the police report. He also noted that a report was filed with
the employing establishment’s reporting system for disruptive behavior. Appellant asserted that,
as R.F.’s supervisor, he had reprimanded and suspended him several times for sexual harassment.
He noted, “As his supervisor I was responsible for taking disciplinary action against him and I was
the one to issue him letters and suspend him. I was also the person to whom the female engineering
employee reported the alleged sexual harassment on September 20, 2017 requiring me to take
appropriate disciplinary action against him in response to this allegation.” Appellant noted that he
had no relationship or interaction with R.F. or the female engineering employee who had reported
the harassment outside of work.
By decision dated April 18, 2018, OWCP denied appellant’s emotional condition claim
finding that the evidence of record was insufficient to establish a compensable employment factor.
It concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On September 26, 2018 appellant, through counsel, requested reconsideration.
In support of his request for reconsideration, appellant submitted additional evidence,
including a March 3, 2017 notice of proposed removal issued by the employing establishment to
R.F. for unacceptable behavior toward female coworkers. On May 30, 2017 the employing
establishment removed R.F. from employment, but, on the same date, it entered into a last chance
agreement and held R.F.’s removal date in abeyance for a period of not more than two years.
In a report of contact statement dated September 20, 2017, C.W. advised that R.F. had
behaved in an unacceptable manner.

3

In a fact finding interview of C.W. conducted on September 25, 2017 by the employing
establishment, she described the September 21, 2017 encounter with R.F. that had resulted in her
complaint of sexual harassment. OWCP also received an undated statement from C.W. regarding
the incident.
In a report dated October 2, 2017, L.N., an employing establishment police officer, advised
that he had interviewed R.F., who maintained that he did not want to hurt anyone, but himself and
his supervisor, who was “the person that is causing him the most grief….” R.F. stated, however,
that he no longer felt that way. Officer L.N. informed the nurse who had reported the incident that
he did not have enough evidence to charge R.F. with making “terrorist threats.” He notified
appellant that one of his employees was in the emergency room under suicide watch and had “felt
distressed and mentioned involving a nonspecific supervisor in his plans. I told [appellant] that he
was not specifically mentioned” and that no other actions would be taken. Officer L.N. advised
that no credible threat had been found.
On October 10, 2017 the employing establishment issued letters to R.F. and appellant
prohibiting contact.
In a July 16, 2018 statement, J.V., one of R.F.’s supervisors, asserted that R.F. was
“disrespectful, rude, verbally aggressive, and was a serial sexual harasser.” He noted that he had
been suspended at least two times during his time as cosupervisor. J.V. advised that R.F. got angry
and blamed others when he was disciplined and that he was apparently “threatening to physically
hurt [appellant].” He noted that management gave him a letter prohibiting contact. J.V. explained:
“The [employing establishment] police were notified of the threats and in turn they
informed [appellant]. The entire chain of command was notified all the way up to
the director’s office. For days nothing was done to ensure [his] safety. [Appellant]
was visually distraught and he had to take stress leave for several weeks. Finally,
someone decided to move [him] to [another location], however, by that time he had
used up a great deal of his sick leave. For a short period, it seemed like no one
wanted, or did [not] know what direction to take.”
By decision dated January 9, 2019, OWCP denied modification of the April 18, 2018
decision. It again found that appellant had not established a compensable employment factor.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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, 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

3

Id.

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employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.7 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.8
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.9 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular

4

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

5

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
6

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
7
A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
8

See Lillian Cutler, id.

9

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., Docket No. 18-0359 (issued August 7, 2019).

10

Id.

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or specially assigned work duties of the employee and are not covered under FECA.11 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.12 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.13
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.14
ANALYSIS
The Board finds that the case is not in posture for decision.
The Board finds that appellant has met his burden of proof to establish as compensable
employment factors that he was the subject of a threat of physical violence made by R.F., his
subordinate, and that the employing establishment erred in failing to take adequate measures to
protect appellant following the threat.
Appellant attributed his stress-related condition to a threat of violence made by R.F. after
he issued appellant a no contact letter. He noted that on September 20, 2017 a female employee
informed him that R.F. had sexually harassed her. Appellant also noted that as R.F.’s supervisor
he was responsible for issuing the disciplinary action and indicated that he had previously
suspended R.F. for sexual harassment. He advised that he had no interactions with R.F. or the
employee who had accused R.F. of sexual harassment outside the workplace. Appellant indicated
that on September 26, 2017 a police officer notified him that he was investigating a threat made
against him by one of his employees to his health care provider. He informed appellant that the
employee had been hospitalized because of threats that he had made against a supervisor. The
officer advised that appellant was not in danger while R.F. was hospitalized.
In an October 2, 2017 report, Officer L.N. indicated that he had interviewed R.F. in the
hospital, and that he had told him that he only wanted to hurt himself and his supervisor, the person
who had caused him the most problems.

11

C.V., Docket No. 18-0580 (issued September 17, 2018); Charles D. Edwards, 55 ECAB 258 (2004).

12

C.V., id.; Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon,
42 ECAB 566 (1991).
13

M.R., Docket No. 18-0305 (issued October 18, 2018); Roger Williams, 52 ECAB 468 9(2001).

14

R.L., Docket No. 17-0883 (issued May 21, 2018).

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The Board has held that, with regard to a claim that bodily harm was threatened, the
evidence of record must support a finding that a specific threat occurred.15 It is appellant’s burden
of proof to submit evidence to establish that a threat of violence occurred such that it affected the
conditions of employment.16 The record in this case supports that R.F. made a threat against
appellant and that the threat was investigated by the police. The threat was made after appellant
had issued a disciplinary action to R.F. in his capacity as his supervisor based on a complaint that
his subordinate, R.F., had sexually harassed a coworker.
As previously noted, when disability results from an emotional reaction to regular or
specially assigned work duties or a requirement imposed due to the employment, the disability is
deemed compensable.17 The Board finds that the evidence of record is sufficient to establish that
appellant was in the performance of his regular duties when he was subject to a threat made by his
subordinate, R.F.18
Appellant also attributed his emotional condition to the employing establishment’s failure
to take adequate steps to protect his safety following notification of the threat made against him
by R.F. He advised that management initially told him that R.F. would be reassigned, but
subsequently notified him that R.F. had disappeared and told him to stay “off the radar” given the
situation. In Thomas D. McEuen,19 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employing
establishment and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under FECA would attach if the facts surrounding the administrative
or personnel action established error or abuse by employing establishment superiors in dealing
with the claimant. Absent evidence of such error or abuse, the resulting emotional condition must
be considered self-generated and not employment generated. In determining whether the
employing establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.20
The Board finds that the employing establishment committed error by failing to properly
protect appellant following the threat made against him. Appellant submitted a statement from
J.V., another of R.F.’s supervisors, who noted that R.F. had threatened to physically harm
appellant. J.V. advised that the chain of command at the employing establishment had been
notified of the threat, but had taken no action for weeks to make sure that he was safe. The
employing establishment additionally issued appellant a no contact letter as if he was the one
15

M.R., Docket No. 17-1803 (issued February 8, 2019); M.F., Docket No. 17-1649 (issued July 20, 2018); see also
J.C., 58 ECAB 594 (2007).
16

See M.F., id.; J.C., id.; Dorothy J. Williams, 32 ECAB 665 (1981).

17
D.H., Docket No. 17-1529 (issued February 14, 2018); Penelope C. Owens, 54 ECAB 684 (2003); Lillian Cutler
supra note 7.
18

M.R., supra note 15.

19

Supra note 12.

20

See Y.B., Docket No. 16-0193 (issued July 23, 2018).

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receiving disciplinary action for the incident. Its lack of action to protect him constituted error.21
As such, appellant has met his burden of proof to establish a second compensable factor of
employment.
As appellant has established two compensable factors of employment, OWCP must base
its decision on an analysis of the medical evidence. The case will, therefore, be remanded to
OWCP to analyze and develop the medical evidence of record.22 After this and other such further
development as deemed necessary, OWCP shall issue a de novo decision on the merits of this
claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 21, 2020
Washington, DC

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

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

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

21

M.R., supra note 15.

22

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, SAN BERNARDINO
PROCESSING & DISTRIBUTION CENTER,
San Bernardino, CA, Employer
__________________________________________

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

Docket No. 07-1669
Issued: December 13, 2007

Case Submitted on the Record

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

JURISDICTION
On June 5, 2007 appellant filed a timely appeal from a decision of the Office of Workers’
Compensation Programs dated March 15, 2007, which denied her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition causally related to her federal employment.
FACTUAL HISTORY
On December 21, 2001 appellant, then a 51-year-old clerk, filed a Form CA-1,
occupational disease claim, alleging that she suffered stress on December 18, 2001 when she was
called into an interview with postal inspectors. She stopped work that day. Appellant submitted

form treatment notes from Kaiser Permanente dated December 18 to 26, 2001 that diagnosed
anxiety and stress and advised that she could not work.1
A December 21, 2001 postal inspection service investigative memorandum advised that
appellant was interviewed on December 18, 2001 after it received information concerning the
misuse of postal envelopes by appellant. She was advised of her Miranda right which she
acknowledged, but she declined to sign a waiver form. At the interview, appellant stated that her
supervisor, William Sterling, addressed envelopes on his computer and mailed copies of a
previous Office decision to employing establishment management. Mr. Sterling was also
interviewed and he confirmed appellant’s statement. Signed statements from appellant and
Mr. Sterling attesting to these facts were attached. In an undated statement, Mary Brunkhorst,
manager of distribution operations, advised that on December 18, 2001 she approached appellant
and told her that two gentlemen wanted to see her and directed appellant to them. After
appellant’s interview, Mr. Sterling was interviewed and acknowledged that he addressed the
envelopes, not appellant. Ms. Brunkhorst stated that on December 20, 2001 she was informed by
the union that appellant was upset about how the interview had been handled.
By letter dated January 25, 2002, the Office advised appellant of the evidence needed to
support her claim. In a February 22, 2002 response, appellant stated that when the postal
inspectors called her in for the interview, she asked if she needed union representation and was
told to wait and see. Appellant became upset because the inspectors would not tell her why she
was there. When the postal inspectors read her rights, which she would not sign, she became
more frightened. Appellant stated that she was questioned forcefully about her family and
regarding personal use of postal envelopes. She explained that Mr. Sterling had addressed the
envelopes to forward Office correspondence to employing establishment management regarding
a prior claim. Appellant was very nervous and crying when she left the interview and went to
the ladies room. Several hours later, Mr. Sterling told appellant that he explained to the postal
inspectors that he used the envelopes. Appellant then went to see a union steward who told her
she should have had representation at the interview. She went home and rested but later went to
the hospital where she was put on bed rest for several hours. Appellant filed both a grievance
and an Equal Employment Opportunity (EEO) claim and was seeing a physician, taking
medication and attending a stress release class.
In a January 7, 2002 report, Dr. Maria Villarosa, a psychiatrist, noted an episode of
depression that began with work issues when appellant became humiliated after being accused of
improperly using postal equipment and products. She listed as stressors a case filed against the
employing establishment and a discrimination lawsuit and diagnosed major depression, single
episode without psychosis. In a duty status report dated January 7, 2002, Dr. Villarosa advised
that appellant could not work. On January 28, 2002 she reiterated her diagnosis. Appellant also
submitted additional form reports from Kaiser Permanente dating from January 7 to 28, 2002.2
Dr. Paul Hsiang, Board-certified in family medicine, noted a history that appellant was
humiliated at work and was depressed due to work stress.

1

The signatures on the reports are illegible.

2

Several reports were signed by Dr. Villarosa. The signatures on the other reports are illegible.

2

By decision dated March 5, 2002, the Office denied appellant’s claim on the grounds that
she had not established a compensable factor of employment.
On April 3, 2002 she requested a hearing and submitted additional Kaiser Permanente
reports from February 14 to April 2, 2002.3 In an April 9, 2002 report, Dr. Villarosa diagnosed
major depression and advised that appellant could return to her usual restricted duty on
April 16, 2002. Appellant also submitted statements from coworkers Linda D. Beckton, Dawana
Vaugnbaker and Elaine Roberson who attested that they had seen appellant after the interview on
December 18, 2001 and she was very upset. Fabiola Dominguez, a union representative, advised
that she had filed a grievance on behalf of appellant regarding the lack of union representation at
the interview. A June 9, 2002 grievance settlement found that, at the December 18, 2001
interview, the postal inspectors should have asked appellant if she wanted union representation
there. At the hearing, held on October 30, 2002, appellant’s representative argued that at the
December 18, 2001 interview, appellant was advised improperly regarding union representation.
Appellant testified that she was harassed during the interview and that she remained off work for
four and a half months.
In a February 14, 2003 decision, an Office hearing representative modified the March 5,
2002 decision, finding that, although the December 18, 2001 interview was not compensable, the
fact that appellant was not afforded union representation was a compensable factor of
employment. The hearing representative denied the claim on the grounds that the medical
evidence did not establish that her emotional condition was caused by the compensable
employment factor.
On January 19, 2004 appellant requested reconsideration and submitted duplicates of
evidence previously of record and treatment notes from social workers dating from January 17 to
April 11, 2002. In a May 14, 2002 treatment note, Dr. Villarosa diagnosed major depression in
partial remission. On February 24, 2005 appellant again requested reconsideration. She attached
a decision dated March 8, 2004 regarding an accepted lumbar strain, adjudicated by the Office
under file number 131141171. She stated that an Office claims examiner inadvertently mixed
the instant emotional condition claim, file number 132044440, with that of 131141171.
Appellant attached a copy of the January 19, 2004 reconsideration request which stated that she
was requesting reconsideration of file number 132044440.
By decision dated May 18, 2005, the Office denied appellant’s reconsideration request on
the grounds that she failed to establish clear evidence of error. On August 10, 2005 appellant
filed an appeal with the Board on both Office file numbers. By decision dated September 13,
2005, the Office set aside the May 18, 2005 decision and, in a merit decision, denied
modification of the February 14, 2003 decision. In an order dated February 15, 2006, the Board
remanded the case to the Office finding that, as appellant had timely requested reconsideration of
file number 132044440 on January 19, 2004 and because the record forwarded to the Board did
not contain file number 131141171, an informed adjudication by the Board was not possible. On
remand the Office was to obtain Office file number 131141171, to be followed by an appropriate
decision and/or decisions regarding appellant’s reconsideration request dated February 25, 2004.4
3

The signatures were either illegible or were by a social worker.

4

Docket No. 05-1733 (issued February 24, 2004).

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On March 9, 2006 the Office resent the September 13, 2005 decision and advised appellant to
follow the appeal rights contained therein.
On August 29, 2006 appellant requested reconsideration and submitted a June 29, 2006
report from James F. Skalicky, Ph.D., who noted seeing appellant on June 6, 2006 for
psychological evaluation and testing. Dr. Skalicky stated that during the interview appellant
became distressed and reported physical, emotional and mental symptoms and that she had
retired on disability on April 19, 2004. Appellant provided a history of work-related traumatic
injuries to her lower back and shoulders. During an interview on December 18, 2001, the postal
inspectors failed to properly advise her that she could have a union representative present.
Dr. Skalicky diagnosed mixed adjustment disorder and acute anxiety disorder due to medical
conditions and opined that appellant’s “coping mechanism was overwhelmed and she found
herself unable to deal with the stressors in the workplace.” He stated that the failure to advise
appellant that she could have union representation during the December 18, 2001 interview
violated her rights which caused her to become agitated and extremely emotional, stating that
“the variables and alleged harassment and factors associated with the emotional trauma did bring
about a harmful state to the patient” and these were considered the cause of her psychiatric
problems. Dr. Skalicky opined that, “because of the inappropriate and disrespectful manner in
which she was treated, she found herself in a situation that became traumatic and more painful in
terms of unfairness and lack of professionalism” which increased her depression and anxiety.
Appellant stated that, because she was unable to predict or control the situation, this caused an
increase in distress, opining that “the incidents and stressors were a threat to her career and her
well being. Clearly she needs psychological treatment, and it was all a result of the job-related
injury.” Dr. Skalicky concluded that, “based on the history given to me by [appellant], the
medical evidence, psychological testing and [her] psychiatric symptomatology, I believe that
[her] psychological diagnosed condition is directly related to the December 18, 2001 incident”
arising from her federal employment. He also provided testing results.
By decision dated March 15, 2007, the Office denied modification of the prior decisions.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.5 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.6 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

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

4

truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.7
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,8 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.9
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.10 When an employee experiences
emotional stress in carrying out his or her employment duties, and the medical evidence
establishes that the disability resulted from an 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 his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.11 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.13 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.14
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.15
With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
7

Id.

8

28 ECAB 125 (1976).

9

5 U.S.C. §§ 8101-8193.

10

See Robert W. Johns, 51 ECAB 137 (1999).

11

Lillian Cutler, supra note 8.

12

Roger Williams, 52 ECAB 468 (2001).

13

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

14

Kim Nguyen, 53 ECAB 127 (2001).

15

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

5

as the Equal Employment Opportunity Commission, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under the Act, the term “harassment” is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by co-employees or workers.
Mere perceptions and feelings of harassment will not support an award of compensation.16
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
factors of employment and may not be considered.17 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.18
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.19 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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.20 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.21
ANALYSIS
In the present case, appellant has not attributed her emotional condition to the
performance of her regular duties as a mail processor or to any special work requirement arising
from her employment duties under the Cutler standard. Rather, her claim pertains to an
investigative interview that was held on December 18, 2001. The Office accepted that the failure

16

Beverly R. Jones, 55 ECAB 411 (2004).

17

Dennis J. Balogh, supra note 6.

18

Id.

19

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

20

Leslie C. Moore, supra note 5; Gary L. Fowler, 45 ECAB 365 (1994).

21

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

6

of the postal inspectors to inform appellant that she could have union representation at the
interview was a compensable factor of employment.22
Appellant contended that the investigation itself was abusive. Investigations are
considered to be an administrative function of the employer as they are not related to an
employee’s day-to-day duties or specially assigned duties or to a requirement of the employment.
The employing establishment retains the right to investigate an employee if wrongdoing is
suspected. An employee’s fear of being investigated is not covered under the Act, absent a
showing of error or abuse on the part of the employing establishment.23 In this case, the
evidence of record does not establish that the employing establishment committed error or abuse
in scheduling the interview which concerned the misuse of postal property. The interview itself
is not a compensable factor of employment.
Appellant alleged that she was harassed at the December 18, 2001 interview. While she
submitted statements from coworkers and a union representative who confirmed that she was
upset following the interview, the evidence does not provide substantive support that she was
harassed during the interview. None of the individuals were present during the interview.
Appellant has not submitted sufficient evidence to establish that the postal inspectors or any
other employing establishment official harassed her during the course of the investigation.24 The
Board finds that the record is not sufficient to establish harassment but constitutes her perception
that she was harassed. As appellant did not establish as factual a basis for her allegation of
harassment, she did not establish that harassment and/or discrimination occurred.25 The evidence
instead suggests that the employee’s feelings were self-generated and thus not compensable
under the Act.26
As the record supports a compensable factor of employment, that appellant was
improperly advised about union representation in an investigative interview on December 18,
2001, the medical evidence must be analyzed.27 The Board finds, however, that appellant has
not submitted sufficient medical evidence to establish her claim. Appellant submitted a number
of form reports from Kaiser Permanente, a number of which had illegible signatures and
therefore do not constitute competent medical evidence. Other form reports were signed by
social workers. However, a social worker is not a “physician” as defined by section 8101(2) of
the Act.28 These reports also do not constitute competent medical evidence. The few form
reports that were signed by Dr. Villarosa merely noted a diagnosis of stress and advised that
appellant could not work. None contained an opinion regarding the cause of appellant’s
22

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

23

Jeral R. Gray, 57 ECAB ____ (Docket No. 05-1851, issued June 8, 2006).

24

Id.

25

Id.

26

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

27

See Dennis J. Balogh, supra note 6.

28

5 U.S.C. § 8102(2); see Phillip L. Barnes, 55 ECAB 426 (2004).

7

condition. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.29 In a
January 7, 2002 report, Dr. Villarosa noted that appellant became humiliated at work when she
was improperly accused of misusing postal property and listed as stressors that appellant filed a
case and a discrimination lawsuit against the employing establishment. Dr. Villarosa, however,
did not relate appellant’s diagnosed condition to the employment factor accepted in this case.
Her opinion is therefore insufficient to establish causal relationship.30 While Dr. Hsiang advised
that appellant had been humiliated at work and was depressed due to work stress, he did not
opine that appellant’s condition was caused by the accepted work factor. His report is also
insufficient to establish causal relationship.31
The Board also finds Dr. Skalicky’s June 29, 2006 report insufficient to meet appellant’s
burden of proof to establish that her emotional condition was caused by the accepted factor of
employment. While he suggested a causal relationship between appellant’s condition and the
accepted employment factor, his reports did not contain adequate medical rationale explaining
the basis for his stated conclusion.32 Rather, Dr. Skalicky merely noted that not having union
representation at the December 18, 2001 interview was unfair and couched his conclusion
regarding causal relationship in general terms. He did not explain from a medical perspective the
nature of the relationship between appellant’s diagnosed condition and the established
employment factor. Dr. Skalicky’s report is of diminished probative value as he did not support
his opinion with sufficient medical reasoning to demonstrate that the conclusion reached was
sound, logical and rational.33
In assessing medical evidence, the number of physicians supporting one position or
another is not controlling. The weight of such evidence is determined by its reliability, its
probative value and its convincing quality. The factors that comprise the evaluation of medical
evidence include the opportunity for and the thoroughness of physical examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.34
The opinion of a physician must be of reasonable medical certainty and must be supported by
medical rationale explaining causal relationship.35

29

Willie M. Miller, 53 ECAB 697 (2002).

30

See Beverly R. Jones, supra note 16.

31

Id.

32

See David Apgar, 57 ECAB ____ (Docket No. 05-1249, issued October 13, 2005).

33

See John W. Montoya, 54 ECAB 306 (2003).

34

Anna M. Delaney, 53 ECAB 384 (2002).

35

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

8

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an employment-related emotional condition causally related to the accepted
employment factor.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 15, 2007 be affirmed.
Issued: December 13, 2007
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 14-521
Issued: October 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 31, 2013 appellant, through his attorney, filed a timely appeal from a
September 26, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $5,172.30 because he received duplicate reimbursements for nursing services between
November 1, 2011 and April 1, 2012; and (2) whether OWCP properly found him at fault in the
creation of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 4, 2004 appellant, then a 48-year-old work study student, filed a traumatic
injury claim, alleging that he injured his back while lifting boxes on October 28, 2004. On
November 30, 2005 OWCP accepted the claim for lumbar strain with radiculopathy. In 2006,
appellant was placed on the periodic compensation rolls and attendant care for two hours a day
was authorized in September 2008.
In October 2008, he was referred to vocational
rehabilitation. In accordance with the provisions of sections 8113(b) and 8104 of FECA, by
decision dated April 22, 2010, OWCP adjusted appellant’s monetary compensation to zero
because he failed, without good cause, to cooperate with vocational rehabilitation efforts. On
February 16, 2011 appellant was granted a schedule award for 16 percent impairment of the left
lower extremity and 16 percent impairment on the right.2 In a merit decision dated
June 17, 2011, OWCP denied modification of the April 22, 2010 decision. Appellant requested
reconsideration on June 13, 2012. In an April 15, 2013 decision, OWCP denied his request,
finding that the reconsideration request was untimely filed and did not establish clear evidence of
error.3
On July 29, 2013 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $5,172.30 because he received duplicate
reimbursements for nursing services between November 1, 2011 and April 1, 2012. It found him
at fault because he submitted two claims for reimbursement for the same period. Appellant was
provided an overpayment action request form and an overpayment questionnaire.4
The record includes a claim for medical reimbursement submitted by appellant dated
August 8, 2012 that indicated that he was claiming reimbursement totaling $8,830.64 for services
of Barbara Dupree for the period November 1, 2011 through April 30, 2012. On a second form
that is undated, he also claimed reimbursement totaling $8,830.64 for services by Ms. Dupree
during the same period. Copies of receipts from Ms. Dupree for this period are found in the
record. Remittance vouchers dated September 15 and October 27, 2012 show that OWCP paid
appellant two checks of $2,586.15 for services beginning on November 1, 2011, for a total of
$5,172.30. A third remittance voucher dated November 17, 2012 shows that he was paid
$8,830.64 for this same period. Copies of checks, endorsed by appellant, dated September 20
and November 1, 2012 for $2,586.15 each and a third check for $8,830.64 dated
November 23, 2012 are found in the record.

2

The record indicates that appellant is also in receipt of Veterans Affairs benefits for paranoid schizophrenia.

3

In a December 2, 2013 order remanding case, the Board set aside the April 15, 2013 OWCP decision finding
that the reconsideration request was timely filed. The Board remanded the case to OWCP for application of the
standard for reviewing a timely request for reconsideration as set forth in 20 C.F.R. § 10.606(b)(2). Docket No. 131350 (issued December 2, 2013).
4

An OWCP fiscal officer initially sent an overpayment letter on January 8, 2013 with supporting documentation.
On July 29, 2013 OWCP informed appellant that he was sent the overpayment letter in error, noting that it was the
type sent to medical providers and had limited appeal rights.

2

On an overpayment action request dated August 21, 2013, appellant requested waiver,
stating that he did not know there was an overpayment. The record also contains overpayment
questionnaires completed by him on April 24 and August 21, 2013.
On September 26, 2013 OWCP finalized the July 29, 2013 preliminary overpayment
decision, finding that appellant was at fault in creating the $5,172.30 overpayment because he
knew or should have known that he was not entitled to a check for $8,830.64, the full amount of
his request for reimbursement of Ms. Dupree’s services, when he had already received two
checks of $2,586.16 each, for a total of $5,172.30. It explained that he was only entitled to a
further payment of $3,658.29 rather than the full amount requested ($8,830.64), which yielded an
overpayment of compensation of $5,172.30. OWCP directed appellant to forward monthly
payments of $50.00.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.5 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.6 In interpreting section
8103(a) of FECA, the Board has recognized that OWCP has broad discretion in approving
services provided under FECA to ensure that an employee recovers from his or her injury to the
fullest extent possible in the shortest amount of time. OWCP has administrative discretion in
choosing the means to achieve this goal and the only limitation on OWCP’s authority is that of
reasonableness.7
Section 8111 of FECA provides that the Secretary of Labor may pay an employee who
has been awarded compensation an additional sum of not more than $1,500.00 a month, as the
Secretary considers necessary, when the Secretary finds that the service of an attendant is
necessary constantly because the employee is totally blind or has lost the use of both hands or
both feet or is paralyzed and unable to walk or because of other disability resulting from the
injury making him or her so helpless as to require constant attendance.8
5

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

6

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

7

R.L., Docket No. 08-855 (issued October 6, 2008).

8

5 U.S.C. § 8111. OWCP procedures allows payment for services of an attendant where it is medically
documented that the claimant requires assistance to care for personal needs such as bathing, dressing, eating, etc.
Such services are paid as a medical expense directly to the provider of services under 5 U.S.C. § 8103. Prior to the
January 1999 revision to the Federal Regulations, an attendant allowance was paid directly to the claimant. Any
such allowance approved prior to January 1999 continued to be paid to the claimant until the need for the attendant
ceased. Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.21 (September 2010).

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When a claimant receives a duplicate reimbursement payment for a period that he or she
has already received reimbursement, an overpayment of compensation is created.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,172.30 because he received duplicate reimbursements for
nursing services between November 1, 2011 and April 1, 2012. The record reflects that
appellant submitted a claim for medical reimbursement on August 8, 2012 which indicated that
he was claiming reimbursement for services of Ms. Dupree for the period November 1, 2011
through April 30, 2012, totaling $8,830.64. On a second form that is undated, he also claimed
reimbursement for services by Ms. Dupree for the same period, also totaling $8,830.64. Copies
of receipts from Ms. Dupree for this period are in the record. Remittance vouchers dated
September 15 and October 27, 2012 show that OWCP paid appellant $2,586.15 on two occasions
for services beginning on November 1, 2011, for a total of $5,172.30. A third remittance
voucher dated November 17, 2012 shows that he was paid $8,830.64 for this same period.
Copies of checks endorsed by appellant, dated September 20 and November 1, 2012 for
$2,586.15 each and a third check for $8,830.64 dated November 23, 2012 are found in the
record.
As appellant was only entitled to reimbursement of $8,830.64, an overpayment of
compensation in the amount of $5,172.30 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”10
Section 10.433(a) of OWCP regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or

9

See generally C.W., Docket No. 10-263 (issued September 14, 2010).

10

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

4

(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”11
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.12
ANALYSIS -- ISSUE 2
OWCP found that appellant accepted a payment he knew or should have known was
incorrect. As explained above, appellant submitted two reimbursement claims for services for
the same period. Each claim was for a total of $8,830.64. Remittance vouchers dated
September 15 and October 27, 2012 show that OWCP paid appellant a total of $5,172.30 in two
checks of $2,586.15 and a third remittance voucher of $8,830.64 for the same services. Copies
of the two checks, endorsed by appellant, dated September 20 and November 1, 2012 for
$2,586.15 and the third check for $8,830.64 dated November 23, 2012 are found in the record.
Appellant’s wage-loss compensation was reduced to zero on April 22, 2010 because he
had failed to cooperate with rehabilitative efforts. On February 16, 2011 he was granted a
schedule award for 16 percent impairment of the left lower extremity and 16 percent impairment
on the right. The period of the award was August 24, 2010 to May 30, 2012. At the expiration
of the schedule award on May 30, 2012, appellant was not entitled to any monetary
compensation and therefore had no expectation of reimbursement from OWCP other than further
request reimbursement of $8,830.64 for the services of Ms. Dupree for the period
November 1, 2011 and April 1, 2012.
Under these circumstances, the Board finds that appellant knew or should have known he
was not entitled to reimbursements for Ms. Dupree’s services for the period November 1, 2011
and April 1, 2012 totaling $14,002.94, when he had requested reimbursement of $8,830.64.
OWCP, therefore, properly found him at fault.13 As appellant was at fault in the creation of the
overpayment he was not entitled to waiver.14

11

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

12

Id. at 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

13

The Board notes that it is unclear why OWCP was paying appellant directly for Ms. Dupree’s services since, in
accordance with OWCP procedures, care authorized after 1999 is paid directly to the provider. Federal (FECA)
Procedure Manual, supra note 8. In this case attendant care was authorized in September 2008.
14

The Board notes that its jurisdiction is limited to reviewing those cases where OWCP seeks recovery from
continuing compensation benefits under FECA. Where, as here, a claimant is no longer receiving wage-loss
compensation benefits, the Board does not have jurisdiction with respect to OWCP’s recovery of the overpayment
under the Debt Collection Act. Albert Pineiro, 51 ECAB 310 (2000).

5

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,1762.30 and that, as he was at fault, he was not entitled to
waiver.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
DEPARTMENT OF THE NAVY, HUMAN
RESOURCES SERVICE CENTER -SOUTHWEST, San Diego, CA, Employer
__________________________________________

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

Docket No. 12-1034
Issued: October 9, 2012

Case Submitted on the Record

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

JURISDICTION
On April 17, 2012 appellant, through her attorney, timely appealed the February 29, 2012
merit decision of the Office of Workers’ Compensation Programs (OWCP) which determined
her loss of wage-earning capacity. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether OWCP properly determined that appellant’s part-time, limited-duty
assignment as a clerk fairly and reasonably represented her wage-earning capacity as of
May 9, 2011.
1
2

5 U.S.C. §§ 8101-8193.

The record includes evidence received after the February 29, 2012 decision. As this evidence was not part of
the record when the Branch of Hearings and Review issued the February 29, 2012 decision, the Board is precluded
from considering it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 5, 2000 appellant, then a 47-year-old full-time administrative support
assistant, injured her back lifting boxes in the performance of duty. OWCP accepted her claim
for herniated lumbosacral disc. Between March 2002 and June 2006 appellant underwent three
OWCP-approved lumbar surgical procedures. OWCP subsequently accepted postlaminectomy
syndrome and lumbosacral intervertebral disc disorder/spondylosis. Appellant received wageloss compensation for temporary total disability.3
On May 9, 2011 appellant returned to work in a part-time, limited-duty capacity as a
clerk.4 She worked 4 hours per day, 20 hours per week, with weekly wages of $260.00.5
In a September 13, 2011 decision, OWCP determined that appellant’s current weekly
wages as a part-time clerk fairly and reasonably represented her wage-earning capacity as of
May 9, 2011. Appellant demonstrated her ability to perform the part-time clerk duties for at least
two months and it was considered suitable to her partially disabled condition. Appellant
currently earned $260.00 a week as of May 9, 2011. Had she been able to continue performing
her prior full-time position, appellant would have currently earned $742.49 per week. The
difference represented a 65 percent loss in wage-earning capacity.
Appellant requested a hearing which was held on December 14, 2011. She testified that
the employing establishment sent her home on October 3, 2011 and placed her on leave without
pay status. Appellant also noted that the clerk position required lifting in excess of 25 pounds.
The employing establishment disputed her claim that she was required to lift 25 pounds or more.
By decision dated February 29, 2012, the hearing representative affirmed the
September 13, 2011 LWEC determination.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.6 An
employee’s actual earnings generally best reflect his or her wage-earning capacity.7 Absent
3

The employing establishment discharged appellant effective June 10, 2001 because of her medical inability to
perform essential job functions.
4

OWCP had previously advised appellant that it considered the clerk position suitable because it was in
accordance with the January 17, 2011 limitations recommended by her treating physician, Dr. Jean-Jacques Abitbol,
a Board-certified orthopedic surgeon, who found that appellant was able to work 4 hours per day with a 25-pound,
30-minute lifting restriction. Appellant could also sit for 4 hours and walk and stand for 30 minutes each.
Dr. Abitbol precluded all twisting and he limited appellant to 10 minutes of kneeling and climbing.
5

On June 2, 2011 OWCP advised appellant that it was reducing her wage-loss compensation based on her actual
earnings as a part-time clerk effective May 9, 2011.
6

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

7

Hayden C. Ross, 55 ECAB 455, 460 (2004).

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evidence that actual earnings do not fairly and reasonably represent the employee’s wage-earning
capacity, such earnings must be accepted as representative of the individual’s wage-earning
capacity.8 Compensation payments are based on the wage-earning capacity determination, and it
remains undisturbed until properly modified.9
Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour
of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part-time
(unless the claimant was a part-time worker at the time of injury) or sporadic in nature;
(3) whether the job is seasonal in an area where year-round employment is available; and
(4) whether the job is temporary where the claimant’s previous job was permanent.10
Assuming the position is both vocationally and medically suitable and conforms to the
above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after he or she has successfully performed the required duties for at least 60
days.11
ANALYSIS
The record establishes that prior to her September 5, 2000 accepted employment injury,
appellant worked full time as an administrative support assistant. The September 13, 2011 wageearning capacity determination was based on part-time employment. The Board finds that
OWCP failed to adhere to its procedure manual as it erroneously relied on appellant’s part-time
reemployment as a basis for finding that her earnings beginning May 9, 2011 fairly and
reasonably represented her wage-earning capacity. The procedure manual provides that the
reemployment may not be considered suitable when the job is part-time, unless the claimant was
a part-time worker at the time of injury.12 Because appellant was a full-time employee when
injured in September 2000, her part-time reemployment in May 2011 is not an appropriate
measure of her wage-earning capacity. The Board finds that OWCP abused its discretion in
determining that appellant’s actual earnings in part-time reemployment fairly and reasonably
represented her wage-earning capacity.
Accordingly, the September 13, 2011 LWEC
13
determination was issued in error.
8

Id.

9

See Katherine T. Kreger, 55 ECAB 633, 635 (2004). Modification of an LWEC determination is unwarranted
unless there is a material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was erroneous. Tamra McCauley, 51
ECAB 375, 377 (2000). The burden of proof is on the party seeking modification of the wage-earning capacity
determination. Id.
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a (October 2009).
11

Id. at Chapter 2.814.7c(1).

12

Id. at Chapter 2.814.7(a).

13

See E.F., Docket No. 11-2056 (issued May 14, 2012); O.V., Docket No. 11-98 (issued September 30, 2011).

3

CONCLUSION
OWCP erred in finding that appellant’s part-time, limited-duty clerk position fairly and
reasonably represented her wage-earning capacity as of May 9, 2011.
ORDER
IT IS HEREBY ORDERED THAT the February 29, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 9, 2012
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Island Park, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1812
Issued: February 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 4, 2012 appellant, through her attorney, filed a timely appeal of a
March 13, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease while in the performance of duty.
FACTUAL HISTORY
On September 18, 2009 appellant, then a 49-year-old distribution clerk, filed an
occupational disease claim alleging that she sustained right foot pain due to sorting mail,
carrying heavy bundles and parcels and pushing hampers and skids, which entailed standing for
1

5 U.S.C. § 8101 et seq.

up to six hours a day.2 The employing establishment controverted her claim, asserting that she
was simply displeased with her work assignment.
OWCP informed appellant in an October 6, 2009 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a medical report from a qualified
physician explaining how a diagnosed foot condition resulted from federal employment activity.
In an October 22, 2009 report, Dr. John Tsouris, a podiatrist, examined appellant and
observed bilateral cavus foot with residual metatarsus adductus, hammer toe deformities,
metatarsal-cuneiform and metatarsal-cuboid joint discomfort and 10-degree ankle dorsiflexion.
He also found evidence of right second metatarsal head resection and subluxation of the third,
fourth and fifth metatarsal-phalangeal joints. Dr. Tsouris remarked:
“The chronic pain is most probably due to an injury the patient claims to have
sustained 15 years prior while a letter carrier. [Appellant] claims to have
sustained fractures from which she has never recovered from in totality. This
office has no record of this event. [Appellant’s] foot deformities (cavus foot type
with residual metatarsus adductus) coupled with obesity lend themselves to poor
shock absorption, and subsequent development of osteoarthritis with arthrosis.”
By decision dated December 24, 2009, OWCP denied appellant’s claim, finding the
medical evidence insufficient to establish that the accepted job duties aggravated a preexisting
foot condition.
Appellant requested reconsideration on August 25, 2010 and submitted new evidence. In
a June 1, 2010 report, Dr. Howard D. Zaiff, a podiatrist, related that she experienced a traumatic
episode at work on May 4, 1994, resulting in chronic right foot pain rendering her unable to
stand for prolonged periods. Radiographic findings exhibited apropulsive right foot with
evidence of second metatarsal head resection and second and third metatarsal shaft stress
fractures. Dr. Zaiff also noted subluxation and hammertoe deformities of the third, fourth and
fifth metatarsal-phalangeal joints, cavus-foot type and midtarsal joint arthritis.
On November 23, 2010 OWCP denied modification of the December 24, 2009 decision.
Counsel requested reconsideration on November 16, 2011 and submitted new evidence.
In an October 31, 2011 report, Dr. Zaiff remarked that appellant sustained chronic lesser
metatarsalgia of the right foot on the job in May 1994. Following surgery, appellant developed
avascular necrosis of the second metatarsal head, which necessitated partial resection. On
examination, Dr. Zaiff observed limited range of motion (ROM), decreased epicritic sensation,
and motor and sensory deficits. He diagnosed traumatic osteoarthritis/degenerative joint disease
of the right second metatarsophalangeal joint, apropulsive gait and lesser metatarsalgia.
Dr. Zaiff opined that appellant was permanently disabled.
On March 13, 2012 OWCP denied modification of the November 23, 2010 decision.
2

Appellant originally filed a notice of recurrence, which OWCP administratively converted to a new occupational
disease claim.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (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.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.7
ANALYSIS
The case record supports that appellant sorted mail, carried heavy bundles and parcels,
pushed hampers and skids and routinely stood for up to six hours a day at work. Appellant was
also diagnosed with preexisting traumatic osteoarthritis/degenerative joint disease of the right
second metatarsophalangeal joint, apropulsive gait and lesser metatarsalgia. Nonetheless, the
Board finds that she did not establish her occupational disease claim because the medical
evidence did not sufficiently demonstrate that these accepted employment activities aggravated
her right foot condition.
In an October 22, 2009 report, Dr. Touris examined appellant and commented that her
chronic right foot pain was due to a work injury that occurred approximately 15 years earlier.
Likewise, Dr. Zaiff stated in June 1, 2010 and October 31, 2011 reports that she experienced a
traumatic incident on the job on May 4, 1994. However, neither physician addressed whether
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

See S.P., 59 ECAB 184, 188 (2007).

6

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

7

I.J., 59 ECAB 408 (2008); Woodhams, supra note 4.

3

appellant’s job duties, namely sorting and carrying mail, pushing hampers and standing for
prolonged periods, aggravated her preexisting right foot condition. A physician’s opinion must
discuss whether the employment factors described by the claimant were causally related to the
diagnosed medical condition.8 Because Dr. Touris and Dr. Zaiff failed to do so, their reports
were of diminished probative value on the issue of causal relationship. In the absence of
rationalized medical opinion evidence, appellant failed to meet her burden of proof.
Counsel contends on appeal that the evidence of record unequivocally established that
appellant sustained disabling injuries causally related to her federal employment. The Board has
already addressed the deficiencies of the claim.
Appellant may submit new evidence or argument as part of a formal 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 did not establish that she sustained an occupational disease
while in the performance of duty.

8

John W. Montoya, 54 ECAB 306, 309 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the March 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 8, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Inglewood, CA, Employer
__________________________________________

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)
)

Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1251
Issued: March 8, 2022

Case Submitted on the Record

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

JURISDICTION
On August 18, 2021 appellant, through counsel, filed a timely appeal from a March 4, 2021
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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective January 13, 2020 as she had no further disability or
residuals causally related to her accepted employment injury; and (2) whether appellant has met
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.

her burden of proof to establish continuing disability or residuals on or after January 13, 2020 due
to her accepted employment injury.
FACTUAL HISTORY
On September 25, 1995 appellant, then a 27-year-old part-time flexible letter carrier, filed
an occupational disease claim (Form CA-2) alleging that she sustained bilateral heel pain causally
related to factors of her federal employment, including casing mail and walking. OWCP accepted
the claim for bilateral plantar fibromatosis and a right calcaneal spur. It paid appellant wageintermittent wage-loss compensation for periods of total and partial disability.
By decision dated August 15, 2012, OWCP reduced appellant’s wage-loss compensation,
effective that date, based on its finding that she had the capacity to earn wages in the selected
position of receptionist.
In a report dated March 26, 2014, Dr. Joseph M. Page, an orthopedic surgeon, advised that
he was treating appellant for bilateral plantar fasciitis and planovalgus feet. On examination he
found ligamentous laxity and pain over the plantar fascia. Dr. Page recommended new shoes and
noted that appellant had a collapsed arch. He instructed her to return as needed.
On April 19, 2019 OWCP referred appellant to Dr. Richard A. Rogachefsky, a Boardcertified orthopedic surgeon, for a second opinion examination. In the accompanying statement
of accepted facts (SOAF), it advised that appellant had an episode of bilateral plantar fasciitis
walking on her route and that it had accepted her claim for plantar fibromatosis and calcaneal spur.
In a report dated May 2, 2019, Dr. Rogachefsky discussed appellant’s history of injury and
provided his review of the evidence of record. On examination he found intact sensation and full
strength of the right foot and ankle, mild tenderness of the right heel, negative varus and valgus
stress tests, and a negative anterior drawer test of the right ankle. Dr. Rogachefsky further found
intact sensation and full strength with mild tenderness to palpation of the left foot and plantar heel,
but no swelling, erythema, or ecchymosis. He found a mild pes planus deformity of the bilateral
feet. Dr. Rogachefsky diagnosed bilateral plantar fibromatosis and calcaneal spurs. He indicated
that appellant had objective findings of a “well-healed scar in the right heel and very mild pes
planus deformity on the right and left feet. Subjective findings are mild pain and tenderness in the
right and left plantar heel regions.” Dr. Rogachefsky opined that the accepted employment-related
condition had resolved, noting that appellant had “minimal tenderness to palpation, minimal
discomfort, and minimal subjective complaints and objective findings.” He found that she required
no further medical treatment and could return to her usual employment as a letter carrier without
restrictions.
On December 9, 2019 OWCP notified appellant of its proposed termination of her
compensation as the weight of the evidence established that she no longer had any employmentrelated disability or residuals due to her accepted employment injury. It afforded her 30 days to
submit additional evidence or argument if she disagreed with the proposed termination.
By decision dated January 13, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. It found that Dr. Rogachefsky’s opinion

2

represented the weight of the evidence and established that she had no further disability or residuals
of her accepted employment injury.
In a report dated October 28, 2020, Dr. John B. Dorsey, a Board-certified orthopedic
surgeon, reviewed appellant’s history of injury and noted that she had last worked for the
employing establishment in 2010. He discussed her complaints of bilateral foot pain with
numbness and tingling radiating into the right lower leg and left ankle. On examination Dr. Dorsey
found bilateral pes planus deformity or flat feet, worse on the right. He found tenderness to
palpation bilaterally from the bottom of the foot to the heels and noted that appellant had gait
difficulty because of pain. Dr. Dorsey further found hypersensitivity to pinprick and touch on the
right heel. He noted that x-rays from 2010 revealed bilateral heel spurs and a hallux valgus
deformity. Dr. Dorsey diagnosed bilateral plantar fibromatosis and a right calcaneal spur. He
requested that OWCP expand the acceptance of the claim to include neuropathy of the medial
calcaneus nerve and anxiety and depression as a consequential injury. Dr. Dorsey indicated that
appellant received medication from a psychiatrist, but had not received treatment for her physical
symptoms in four years. He opined that her employment-related conditions had not resolved.
Dr. Dorsey related:
“Over and above that, [appellant] continues to have anxiety and depression related
to the pain in her medial heel, which is a hypersensitivity/neuropathy, which
continues to the present time. There is evidence of hypersensitivity from the
posteromedial heel to the medial malleolus to pinprick and touch as well as pes
planus of both feet, right worse than left. [Appellant] continues to have an unusual
gait (a steppage/neuropathic gait without true foot drop) in which she tries to avoid
striking her heels, and she has a great deal of difficulty trying to squat due to pain
in her heels and in her posterior plantar feet.”
Dr. Dorsey recommended continued treatment. He found that appellant was disabled from
her usual employment, but could work as a clerk.
On December 9, 2020 appellant requested reconsideration.
By decision dated March 4, 2021, OWCP denied modification of its January 13, 2020
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

3

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

3

the employment. 4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment. 7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury.
The Board finds that OWCP properly accorded the weight of the evidence to
Dr. Rogachefsky, who provided a second opinion examination on May 2, 2019. Dr. Rogachefsky
discussed appellant’s history of injury and provided examination findings showing no loss of
sensation or strength and findings of mild tenderness to palpation in the feet and a bilateral mild
pes planus deformity. He diagnosed bilateral plantar fibromatosis and calcaneal spur.
Dr. Rogachefsky asserted that appellant had no residuals of the accepted employment injury based
on the minimal examination findings. He opined that she could resume he r regular employment
duties without restrictions and required no further medical treatment.
Dr. Rogachefsky based his opinion on a proper factual and medical history and findings on
physical examination. He provided medical rationale for his opinion by explaining that the
minimal findings on examination failed to support continued residuals or disability due to the
accepted employment conditions.8 Moreover, there is no contemporaneous medical evidence
demonstrating continued disability or residuals. The Board, therefore, finds that OWCP properly
relied upon the reports of Dr. Rogachefsky in terminating appellant’s wage-loss compensation and
medical benefits.9
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 10 To establish causal relationship between the condition as well as any
4

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

5

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

6

E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

7

A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

8

See E.J., supra note 6.

9

See L.S., Docket No. 20-1204 (issued October 4, 2021); L.B., Docket No. 19-1380 (issued February 11, 2020).

10

See S.M., Docket No. 18-0673 (issued January 25, 2019); Manuel Gill, 52 ECAB 282 (2001).

4

attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such causal
relationship.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 12 This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case. 13
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
Subsequent to the termination of appellant’s compensation, appellant submitted a report
dated October 28, 2020 from Dr. Dorsey. Dr. Dorsey reviewed the history of injury and her
complaints of bilateral foot pain and numbness. He found a ples planus deformity bilaterally and
hypersensitivity to pinprick on the right heel. Dr. Dorsey diagnosed bilateral plantar fibromatosis
and a right calcaneal spur. He further diagnosed as related to the accepted employment injury
neuropathy of the medial calcaneus nerve and anxiety and depression as a consequential injury.
Dr. Dorsey found that appellant had objective findings of a neuropathic gait and hypersensitivity
in the medial heel. He opined that she was disabled from her usual employment, but could work
as a clerk. Dr. Dorsey advised that appellant required further medical treatment.
Dr. Rogachefsky, the second opinion examiner, found that appellant had no residuals of
her left shoulder condition. Both Dr. Dorsey and Dr. Rogachefsky provided rationale for their
respective opinions based on their review of the medical evidence and findings on examination.
The Board, therefore, finds that a conflict in medical opinion exists regarding whether ap pellant
has established continuing employment-related disability or residuals on or after
January 13, 2020.14
OWCP’s regulations provide that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of a second opinion physician, OWCP shall appoint
a third physician to make an examination. 15 The Board will, thus, remand the case for OWCP to
refer appellant to an impartial medical specialist, pursuant to 5 U.S.C. § 8123(a), to determine
whether she has met her burden of proof to establish continuing employment-related disability or
residuals on or after January 13, 2020 due to her accepted employment injury. The specialist
should further address whether the acceptance of appellant’s claim should be expanded to include
any additional conditions. Additionally, on remand OWCP shall update the SOAF to clarify that
11

Id.

12

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
13

20 C.F.R. § 10.321.

14

See B.C., Docket No. 16-0978 (issued November 21, 2016).

15

5 U.S.C. § 8123(a); G.K., Docket No. 16-1119 (issued March 16, 2018).

5

it has accepted a calcaneal spur on the right side instead of bilaterally. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury. The Board further finds that the case is not in posture
for decision on the issue of whether appellant has met her burden of proof to establish continuing
employment-related disability or residuals on or after January 13, 2020 due to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: March 8, 2022
Washington, DC

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

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

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

6