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

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Appearances:
Dean T. Albrecht, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1473
Issued: May 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 20, 2007 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ merit decisions dated June 20 and November 8, 2006 and April 11, 2007. Under 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 his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 51-year-old postal supervisor, filed a Form CA-2 claim for benefits based on
an emotional condition on December 1, 2005. He stated that his supervisor subjected him to a
pattern of harassment, unreasonable expectations, unfair working conditions and discriminatory

treatment; this led to his being hospitalized with chest pains, major depression and a generalized
anxiety disorder.1
The Office controverted appellant’s claim and submitted a December 9, 2005 statement
from Sam Ezem, appellant’s supervisor, who stated:
“On July 29, 2005 I met with [appellant] and went over his job responsibilities. I
advised him that his responsibility is to supervise and hold his employees
accountable. That he is also responsible [for] clearing his operation on time.
“On October 4, 2005 at 3:45 p.m. [appellant] called me and stated that he [would
be] late to work that day. I asked [him] how late? [Appellant] replied [he] would
be in around 6:00 p.m. I said okay.
“That same day at 6:35 p.m., I received a call from [appellant], again he informed
me that he would be out for six weeks. I asked [him] if everything was all right
with him? [Appellant] replied ‘my doctor put me out for six weeks.’ I then advised
[him] that I need[ed] medical documentation from him when he returns back to
work.
“On December 8, 2005 I received a CA-2 from [appellant] alleging depression and
anxiety disorder because I gave him unreasonable expectations. Whereas, I met
with [him] on July 29, 2005 and he called in on October 4, 2005, [stating] that he
[would] be out for six weeks. [Appellant] did not file a Form CA-2 since July 29,
2005 when I met with him to evaluate his job performance until December 8, 2005.
He also was aware that he had this disease or illness since March 5, 1997.
“The evidence is clear that this claim is bogus and should be dismissed.
Management has the right to direct employees of [the employing establishment] in
the performance of official duties.”
On January 9, 2006 appellant filed a second Form CA-2 claim for benefits based on an
emotional condition. He stated that he was having a conflict with Mr. Ezem, his supervisor and
the unit manager, which led to chest pain and emergency treatment. Appellant asserted that he
had recently been required to clear dispatches before ending his tour. He also alleged that
Mr. Ezem made errors in composing the holiday schedule which affected him and his employees.
In addition, appellant stated that Mr. Ezem pressured him to organize his staff for the weekend,
which Mr. Ezem also mishandled, thereby creating additional managerial difficulties for
appellant. He asserted that he showed Mr. Ezem another manager’s guidelines for arranging
schedules, but Mr. Ezem claimed that he did not see them. Appellant stated that the schedule he
prepared for a Friday during December 2003 was questioned in an investigative interview
pertaining to his duties on Monday, December 19, 2005. He stated that in 2000 while inputting
data he became confused and hesitant at the computer and had to leave work. Appellant
indicated that he submitted leave for this period. He further indicated that, due to his latest

1

The Office previously accepted a claim by appellant for depression on October 15, 1997.

2

episode of his chronic, recurring emotional condition he had been out of work since
December 23, 2005.
In a January 13, 2006 statement, Mr. Ezem rebutted appellant’s allegations. He stated:
“On Monday, December 19, 2005, at approximately [4:45 p.m.,] the [d]istrict
[m]anager, Jordan Small [a]nd [the] [m]anager, [p]lant operations Paul Sands,
[a]pproached the [manager of district operations,] Don Shandor, and informed him
that [appellant] [was] in the union cage drinking coffee. When [Mr. Shandor]
approached him, he asked [appellant] if he was on break. [Appellant] responded
‘no.’ [Mr. Shandor] also asked him if he was discussing any labor issues with the
union. [Appellant] responded ‘no.’ [Mr. Shandor] then instructed [appellant] to go
back to his operation.
“On December 23, 2005 at approximately [7:50 p.m.,] I conducted an investigative
interview with [appellant]. I asked him what he was doing in the union cage on
Monday[,] [December] 19, 2005. He responded, ‘I went to the general clerk to ask
her for service talk.’ I reminded him that the union cage has nothing to do with the
general clerk office. I asked him did Mr. Shandor approach you on Monday,
[December] 19, 2005 and asked him what he was doing in the union cage, he
responded ‘I went there to talk to [the general clerk] about [my] schedule.’ He also
stated that he did not recall [Mr.] Shandor asking him any question. I asked him
did he recall [Mr. Shandor] instructing him to go back to his operation? He
responded yes. After the investigative interview [appellant] left his operation and
went home. Without informing me. He willfully abandons his operation and
[went] AWOL [absent without leave].
“[Appellant has] not call[ed] me since he abandoned his operation. His action on
December 23, 2005 cited above [has] demonstrated his inability to conduct himself
in compliance with the [employing establishment] code of conduct. As a postal
employee, he has the responsibility to discharge his assigned duties conscientiously
and effectively. He is to conduct himself in a manner that reflects favorably upon
[the employing establishment]. The evidence is clear that this claim is bogus and
should be dismissed. Management has the right to direct employees of [the
employing establishment] in the performance of official duties.”
In a report dated January 6, 2005, Dr. Evelyn Lopez-Brignoni, appellant’s treating
psychiatrist, stated:
“[Appellant] has been under my care since March 10, 1997, for the treatment of
major depression and general anxiety disorder. He is suffering from an episode of
sever and debilitating depression, brought on by stress at work, and exacerbated by
his supervisor, and has been unable to work since December 23, 2005. He is
presently not a threat to himself or any other individual, including family members.

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“[Appellant] continues to be monitored by me with medication management and
individual therapy, and his status will be reevaluated at his next appointment of
January 25, 2006.”
By letter dated February 6, 2006, the Office advised appellant that he needed to submit
additional information in support of his claim. The Office asked appellant to describe in detail the
employment-related conditions or incidents which he believed contributed to his emotional
condition, and to provide specific descriptions of all practices, incidents, etc., which he believed
affected his condition.
In a February 14, 2006 report, Dr. Huberto Merayo, Board-certified in psychiatry and
neurology, noted that appellant was hospitalized from February 8 to 14, 2006. He diagnosed
recurrent major depression.
In a statement dated February 18, 2006, appellant stated:
“The first occasion of my emotional condition was a direct result with a supervisor
occurred on March 5, 1997 and is well documented (062155980). Two years ago a
supervisor intentionally bumped into me twice and almost a third time. It was a
credible threat report with Mr. Shandor. Management began giving me extra work,
longer hours and harassment. I was injured on October 5, 2005, December 23,
2005, and February 6, 2006 once again, requiring hospitalization, and for which I
am still off from work.... I believe increased longer work hours, continued
harassment from Mr. Ezem, and expectations of me that are discriminatory.”
Appellant stated that the actions of Mr. Ezem and other supervisors cited above had been
detrimental to his health.
In response to the Office’s February 6, 2006 developmental letter/questionnaire, appellant
submitted a March 10, 2006 statement which provided a chronology of the alleged incidents of
harassment and other compensable acts on the part of management. The incidents related by
appellant were:
October 5, 2005 -- Conflict with Mr. Ezem who became angry with appellant for
asking him how to pay for his court leave. He claimed he was not allowed to leave
early, that he was given overtime and was unable to leave early. Appellant claimed
that Mr. Ezem gave him unreasonable expectations that he did not give to other
supervisors, and having his dispatches cleared before going home. He claimed that
Mr. Ezem asked him, “what are you going to do, party?”;
December 23, 2005 -- Discussed in prior statement;
January 3, 2006 -- Mr. Ezem sent him a notice to report despite the fact that he had
already informed [Ben] Jones that he would be out for 45 days on continuation of
pay;

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January 9, 2006 -- Conflict with Mr. Ezem pertaining to investigative interview
regarding his duties on December 19, 2005 on December 23, 2005. He stated that
he became confused and hesitant at his computer;
January 9, 2006 -- Appellant attempted to give a Form CA-2 to Mr. Ezem but he
refused to take it, saying he was going home and never gave him a receipt;
January 19, 2006 -- Increased conflict at his job site led to acute exacerbation of his
depression;
February 2, 2006 -- Appellant returned from illness. Mr. Ezem stated that no one
knew where he was, that he did not turn in the proper paperwork to the proper
people, therefore, he charged appellant with being AWOL for one week and stated
that he had abandoned his position. Appellant felt confused, had heart palpitations,
suicidal thoughts and major work-related depression.
In addition, Dr. Brignoni, appellant’s treating psychiatrist, submitted a handwritten,
annotated response to the Office’s request for an explanation of how exposure or incidents in
appellant’s federal employment contributed to his condition. He stated:
“[Appellant] has been followed for nine years for management of major depression, which
has been compounded by work situation.... Every major exacerbation has been precipitated
by conflict at the job site. He has a rather rigid perfectionist personality that tends to react
to criticism/review in a rather idiosyncratic manner[,] becoming profoundly depressed and
self[-]destructive.”
In a March 13, 2006 statement, appellant indicated that he had been on various forms of
medication, continuously, since the first, accepted, work-related incident of March 5, 1997.
Appellant submitted a February 7, 2006 statement from his coworker, Rolando Beckford.
He stated:
“I [a]m writing this statement on behalf of [appellant]. I recalled [that] on
December 24, 2005 I was the general clerk on duty. [Appellant] called before
4:00 p.m. to talk to Mr. Jones who was the MDO. I [put the] call through to the
MDO. I have no knowledge of what transpired.
“Also on ... Monday[,] December 26, [2005] [appellant] called to speak to the
MDO, the MDO at the time was Mrs. Anderson. I do not exactly know what
happened.... Mrs. Anderson refused the call. [Appellant told] me to let MDO Jones
know that he was calling in [sick] for continuation of pay for 45 days. I notified the
MDO when he came in.”
Mr. Jones submitted a February 6, 2006 statement:
“This is to confirm that [appellant] called in the office and talked to me on
Saturday, December 24, 2005. As I was MDO. He called to inform me that he is
calling in continuation of pay for 45 days.”

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By decision dated June 30, 2006, the Office denied appellant’s claim on the basis that he
failed to establish any compensable factor of employment and thus fact of injury was not
established.
On July 26, 2006 appellant requested a review of the written record.
In a statement dated July 26, 2006, appellant stated:
“The one compensable factor of employment of excessive and increased hours of
overtime that I was required to perform is well documented in the form of my
official pay stubs ... and clock rings for the missing pay stubs … included from
the years 2003 to 2006 inclusive. I have created a form … that shows the
overtime record for each pay period and each year. It is evident that this extra
work increased dramatically after a work incident that occurred on April 15, 2004.
As you can see, the form shows that the amount of overtime hours worked have
more than doubled since the year 2003. The disparity in work hours had
increased two fold since I agreed in protected activities in early 2004.
“MDO Ezem began having me work longer hours [15.46 hours on Saturday,
August 6, 2005] than other supervisors at the SPBS clearing dispatches and
restricting me from leaving the operation even though all other supervisors were
permitted to move about as necessary.
“I filed a grievance … on MDO Ezem … for an AWOL … charge. I won a
grievance and received a pay adjustment … on MDO Ezem for his erroneous …
and abusive charge of AWOL against me the week of Christmas. This was
another example of the harassment and abusive treatment of retaliation against
me.”
***
“On June 20, 2005 Mr. Ezem began placing restrictions on me that prevented me
from moving freely through the building and began increasing my job
responsibilities. This action made it difficult for me to conduct my daily
responsibilities. It became difficult to access the mail volumes that I was required
to be aware of to adequately perform my job. It slowed down some forms of
communications that were necessary between supervisors and/or employees
which needed face to face transactions in order to iron out particular problems.
Conversations of a private nature were necessary to protect an employees’
confidentiality. I was tasked with identifying containers of mail that were coming
to the platform from the stations. I was given the additional responsibility of
dating and initialing each label…. This was extremely difficult because of the
tremendous volume of containers that were coming in and at the high rate of
entrance onto the entire length of the platform. I was the only platform supervisor
tasked with this additional responsibility.
“MDO Ezem also instructed me to remain physically on the platform from
4:00 p.m. until 5:00 p.m. He would not let me leave even two minutes early to set
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up my SPBS operation, the computer, assignment of my employees or to even
check on what the previous tour had done. Many times the tours’ previous
supervisor failed to clean house or complete dispatches before they left work after
eight hours.… This would increase my workload and that of my employees. We
became responsible for their work as well as our own. This in turn caused my
overtime work hours to increase dramatically…. MDO Ezem’s additional
requirement of mandating me to stay until all dispatches were completed also
contributed to the huge increase in my overtime work hours in 2004 and 2005….
These longer hours were taking their toll on my health and well being.
“MDO Ezem increased my work hours.... I frequently noticed that he was
allowing other supervisors to leave their operations after having just worked eight
hours…. This disparity of treatment just added to the burden of my work….
“On December 22, 2005 I was feeling very tired because of all the overtime that I
had incurred as a result of MDO Ezem’s instructions. Around 8:15 p.m., I
became disoriented, and could not focus while trying to input my employees’
information into the computer, a routine daily task….
“Extra workload and excessive overtime by the employing establishment have
been proven. I have proven one compensable factor of employment of excessive
and increased hours of overtime that I was required to work….”
In support of his request, appellant submitted payroll records, clock rings, timesheets and
pay stubs from 2003 to 2005. He stated that he filed a grievance for being charged with being
AWOL for 32 hours during pay period one for the year 2006 charge, which was approved, and
received a pay adjustment.
By decision dated November 13, 2006, an Office hearing representative affirmed the
June 30, 2006 decision.
In a report dated January 16, 2007, Dr. Brignoni stated:
“Between 2001 [and] mid 2004, [appellant] had no new complaints and
apparently continued to function adequately at his post. He continued to pursue
his EEOC [Equal Employment Opportunity Commission] case, but was working
without major exacerbations of his anxiety or mood disturbance.”
By letter dated January 25, 2007, appellant’s representative, Dean T. Albrecht, requested
reconsideration. He contended that appellant’s being forced to work an excessive amount of
overtime constituted a compensable factor of employment. Mr. Albrecht also argued that
Dr. Brignoni’s January 16, 2007 report indicates that the additional overtime he was forced to work
directly resulted in the exacerbation of appellant’s major depression condition.
By decision dated April 11, 2007, the Office denied modification of the June 20, 2006
decision.

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LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition, and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.2 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.3
The first issue to be addressed is whether appellant has established factors of employment
that contributed to her alleged emotional condition or disability. Where the disability results
from an emotional reaction to regular or specially assigned work duties or a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position, or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of the Act.5
ANALYSIS
The Board finds that appellant has failed to submit sufficient evidence to establish his
allegations that his supervisor engaged in a pattern of harassment, intimidation or discrimination.
Appellant alleged that Mr. Ezem harassed him, but did not provide sufficient evidence to
establish that he was harassed or treated in a discriminatory manner.6 Mere perceptions of
harassment or discrimination are not compensable; a claimant must establish a basis in fact for
the claim by supporting his allegations with probative and reliable evidence.7 Appellant alleged
that Mr. Ezem gave him unreasonable restrictions and expectations that he did not impose on
other supervisors, but failed to submit documentation to prove these allegations.8 Mr. Ezem
2

See Debbie J. Hobbs, 43 ECAB 135 (1991).

3

See Ruth C. Borden, 43 ECAB 146 (1991).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Id.

6

See Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
7

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

8

The Board notes that although appellant submitted voluminous records of his work hours and overtime hours in
the form of pay stubs, clock rings and timesheets, he failed to provide similar records from other supervisors
indicating that his work schedule was discriminatory, nor has appellant indicated that he was given additional work
assignments and restrictions which created unreasonable responsibilities, over and above those of other supervisors,
which constituted discriminatory treatment.

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denied appellant’s allegations that he was unfairly singled out or treated in a discriminatory
manner. He stated that he counseled appellant about his attendance and leave, which was part of
his managerial functions. Disciplinary matters consisting of counseling sessions, discussions or
letters of warning for conduct pertain to actions taken in an administrative capacity, and are not
compensable as factors of employment.9 Appellant alleged that his supervisors made statements
and engaged in actions which he believed constituted harassment and discrimination, but he
provided no corroborating evidence, such as witness statements, to establish that the statements
actually were made or that the actions actually occurred.10 Ms. Ezem did acknowledge
discussing with appellant the need to clarify requests for leave and the need to make them in a
timely manner. He denied, however, that he harassed appellant regarding leave issues. Ms. Ezem
indicated that he acted in his administrative capacity in counseling appellant about matters
pertaining to leave and in monitoring his whereabouts because his attendance was unsatisfactory,
because he took unauthorized breaks and because he frequently failed to submit the proper forms
for requesting leave. He rejected appellant’s allegation that he harassed appellant by arbitrarily
denying his requests for leave.
The Office reviewed all of appellant’s allegations of harassment, abuse and mistreatment,
and found that they were not substantiated or corroborated. To that end, the Board finds that the
Office properly found that the episodes of harassment cited by appellant did not factually occur
as alleged by appellant, as he failed to provide any corroborating evidence for his allegations. As
such, appellant’s allegations constitute mere perceptions or generally stated assertions of
dissatisfaction with a certain superior at work which do not support his claim for an emotional
disability.11 For this reason, the Office properly determined that these incidents constituted mere
perceptions and were not factually established. Appellant has not submitted evidence sufficient
to establish that Mr. Ezem engaged in a pattern of harassment toward him or created a hostile
workplace environment.
The Board finds the evidence of record does not establish that the administrative and
personnel actions taken by management in this case were in error and are, therefore, not
considered factors of employment. An employee’s emotional reaction to an administrative or
personnel matter is not covered under the Act, unless there is evidence that the employing
establishment acted unreasonably.12 Appellant has not presented sufficient evidence that the
employing establishment acted unreasonably or committed error with regard to the incidents of
alleged unreasonable actions involving personnel matters on the part of the employing
establishment.
Appellant alleged that he sustained stress in the performance of his duties as a supervisor
due to the additional responsibilities and excessive overtime assigned to him by Mr. Ezem. The
Board has held that emotional reactions to situations in which an employee is trying to meet his
9

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

10

See William P. George, 43 ECAB 1159, 1167 (1992).

11

See Debbie J. Hobbs, supra note 2.

12

See Alfred Arts, 45 ECAB 530, 543-44 (1994).

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or her position requirements are compensable.13 However, appellant has submitted insufficient
evidence to establish that the employing establishment acted unreasonably or committed error
with regard to the incidents of alleged unreasonable actions involving administrative or
personnel matters on the part of the employing establishment. An employee’s emotional reaction
to an administrative or personnel matter is not covered under the Act, unless there is evidence
that the employing establishment acted unreasonably.14 Assignment of a work schedule is an
administrative function, and not a work factor, and is not compensable absent a showing of error
or abuse.
As part of the managerial function, a supervisor must assign work. Appellant did not
submit any evidence to substantiate that any of his work assignments were in error or were
abusive.
The Board has held that an employee’s dissatisfaction with perceived poor management
constitutes frustration from not being permitted to work in a particular environment or to hold a
particular position and is not compensable under the Act.15 Appellant has not submitted
sufficient evidence to support his allegations that Mr. Ezem gave him incorrect and contradictory
scheduling instructions, imposed an unusually heavy workload and issued unreasonable
deadlines. Appellant also has not established that the employing establishment subjected him to
unreasonable demands in setting performance guidelines for his. Thus, these actions on the part
of management did not constitute a factor of employment.
Regarding appellant’s allegation that he developed stress due to the uncertainty of his job
duties and his insecurity about maintaining his position, the Board has previously held that a
claimant’s job insecurity is not a compensable factor of employment under the Act.16
Accordingly, appellant has presented no evidence that the employing establishment acted
unreasonably or committed error with regard to these incidents of administrative managerial
functions. A reaction to such factors did not constitute an injury arising within the performance
of duty; such personnel matters were not compensable factors of employment in the absence of
agency error or abuse.
The Board notes that matters pertaining to use of leave are generally not covered under
the Act as they pertain to administrative actions of the employing establishment and not to the
regular or specially assigned duties the employee was hired to perform.17 However, error or
abuse by the employing establishment in an administrative or personnel matter, or evidence that
the employing establishment acted unreasonably in the administrative or personnel matter, may
afford coverage.18 As appellant has failed to show that these actions demonstrated error or abuse
13

See Lillian Cutler, supra note 4.

14

See Alfred Arts, supra note 12.

15

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

16

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

17

Elizabeth Pinero, 46 ECAB 123 (1994).

18

Margreate Lublin, 44 ECAB 945 (1993).

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on the part of management, they are not compensable.19 The Board further finds that
management did not commit administrative abuse or error by monitoring appellant’s leave and
his whereabouts at the worksite. The Board notes that disciplinary action is an administrative
function and therefore any reaction to such is not considered to be in the performance of duty.
Appellant failed to demonstrate that Mr. Ezem was doing anything more than discharging his
supervisory duties by monitoring and checking on his employees or that he engaged in improper
conduct which exceeded his administrative responsibilities.
The Board has held that investigations, which are an administrative function of the
employing establishment, that do not involve an employee’s regularly or specially assigned
employment duties are not considered to be employment factors.20 However, the Board has also
found that an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.21 Although appellant has
made allegations that the employing establishment erred and acted abusively in conducting its
investigative interview, appellant has not provided sufficient evidence to support such a claim.
A review of the evidence indicates that appellant has not shown that the employing
establishment’s actions in connection with its investigation of him were unreasonable. Appellant
alleged that his supervisor made abusive statements during the course of the investigation of him,
but he provided no corroborating evidence, such as witness statements, to establish that the
statements were actually made.22 Thus, appellant has not established a compensable
employment factor under the Act in this respect.
The Board finds that appellant has not established a compensable work factor. For this
reason, the medical evidence will not be considered.23 The Board will affirm the June 20 and
November 8, 2006 and April 11, 2007 decisions denying compensation for an alleged emotional
condition.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.

19

The Board notes that the case file contains a document indicating that appellant received a pay adjustment after
being charged with being AWOL for 32 hours in December 2005 and January 2006. However, the mere fact that
personnel actions were later modified or rescinded, does not in and of itself, establish error or abuse. See Michael
Thomas Plante, supra note 15.
20

Jimmy B. Copeland, 43 ECAB 339, 345 (1991).

21

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

22

See Larry J. Thomas, 44 ECAB 291, 300 (1992).

23

See Margaret S. Krzycki, supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the April 11, 2007 and November 8 and June 20,
2006 decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: May 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Reno, NV, Employer
__________________________________________

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

Docket No. 12-1254
Issued: November 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 22, 2012 appellant filed a timely appeal from a January 19, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) terminating her compensation and medical
benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective January 19, 2012 on the grounds that the accepted lumbar and left knee injuries ceased
without residuals.
On appeal, appellant asserts that the employing establishment pressured a second opinion
physician to find against her and that her condition worsened during the referral process.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 27, 2010 appellant, then a 50-year-old lead security
screener, sustained a lumbar sprain and left knee contusion when she slipped and fell in a
parking lot, landing on both wrists and her left knee. She sought treatment in a hospital
emergency room at the time of the injury. Appellant remained off work through March 15,
2011, worked full duty through March 18, 2011, again stopped work, then returned to work for
four hours a day on April 30, 2011 in a light-duty capacity. She claimed compensation through
December 31, 2011 for the remaining four hours a day.
Dr. Michael A. Glick, an attending osteopathic physician Board-certified in family
practice, submitted reports commencing November 29, 2010. He noted that, before the
November 27, 2010 slip and fall, appellant had a two-level L4-5 fusion due to a motor vehicle
accident in 2005 and had a knee injury with an imaging study in January 2010. Dr. Glick
diagnosed a left knee contusion and a lumbar strain. On January 28, 2011 he diagnosed lumbar
and sacroiliac strains with possible radiculopathy.
Appellant was also followed by Dr. Brett Men-Muir, a Board-certified orthopedic
surgeon. In a December 14, 2010 report, Dr. Men-Muir related her complaints of buttock pain to
a November 27, 2010 slip and fall in which she struck her left knee and jarred her lumbar spine.
He diagnosed left sacroiliitis and status arthrodesis. In a May 13, 201 report, Dr. Men-Muir
opined that appellant’s symptoms were objectively referable to the left S1 joint and
recommended a sacroiliac fusion.2
On June 5, 2011 OWCP obtained a second opinion report from Dr. Aubrey Swartz, a
Board-certified orthopedic surgeon, noting findings on a May 17, 2011 examination. Dr. Swartz
reviewed the medical record and statement of accepted facts provided by OWCP. He opined that
appellant’s sacroiliac symptoms were not related to the accepted November 27, 2010 injuries
because a university study identified “slip and fall” patients as having a psychological
dysfunction and not true sacroiliac pathology. Dr. Swartz stated that the effects of the
November 27, 2010 slip and fall had ceased and attributed appellant’s symptoms to the
nonoccupational L4-5 fusion. He noted work restrictions limiting pulling, pushing and lifting to
10 pounds. Dr. Swartz noted that the restrictions would apply for one year. In a June 16, 2011
supplemental report, he opined that June 14, 2011 imaging studies showed a stable lumbar fusion
unrelated to the accepted injuries.3 Dr. Swartz concurred with Dr. Men-Muir that appellant
required a left sacroiliac joint fusion.
In reports from August 19 to November 28, 2011, Dr. Glick noted worsening left
sacroiliitis necessitating modified duty and periodic work absences. He stated that appellant was
awaiting authorization for a left sacroiliac fusion.
2

Dr. Martin J. Arraiz, an attending Board-certified physiatrist, diagnosed left sacroiliitis and degenerative lumbar
disc disease and administered a series of epidural and trigger point injections from April through November 2011.
3

June 14, 2011 x-rays showed mild dextroscoliosis, rod and screw stabilization at L4-5 with minimal
degenerative changes and minimal facet sclerosis, sacroiliac osteoarthritis. A June 14, 2011 magnetic resonance
imaging (MRI) scan showed status post anterior-posterior L4-5 fusion without instability or acute disc herniation,
osteophytes at the right L4-5 facet joint and mild facet arthropathy at L3-4.

2

In a November 3, 2011 addendum, Dr. Swartz opined that appellant required a left
sacroiliac fusion due to a nonindustrial or preexisting condition and not to the accepted injuries.
By notice dated November 21, 2011, OWCP advised appellant that it proposed to
terminate her wage-loss and medical compensation benefits as the accepted conditions had
ceased without residuals. It accorded Dr. Swartz the weight of the medical evidence. OWCP
afforded appellant 30 days to submit evidence or argument contesting the proposed termination.
In a December 3, 2011 letter, appellant contended that, prior to the accepted injuries, she
had not consulted Dr. Men-Muir since July 2008 and that she did not have a torn left knee
ligament, only a contusion in January 2010.
In December 19, 2011 reports, Dr. Glick diagnosed a chronic S1 strain. He found
appellant able to perform modified duty from November 28, 2011 to January 5, 2012.
In a December 21, 2011 report, Dr. Men-Muir noted that appellant’s buttock pain had
returned after an April 13, 2011 epidural steroid injection, reiterating that the left sacroiliac
fusion was warranted. He diagnosed a left S1 joint dysfunction, “work related.” Dr. Men-Muir
opined that all of appellant’s “symptoms [were] coming from her left S1 joint.” He
recommended a left S1 joint fusion. Dr. Men-Muir restricted appellant to sedentary duty.
By decision dated January 19, 2012, OWCP terminated appellant’s wage-loss and
medical compensation benefits that day, based on Dr. Swartz’ opinion that the accepted
conditions had ceased.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
Section 8123 of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
4

Bernadine P. Taylor, 54 ECAB 342 (2003).

5

Id.

6

Roger G. Payne, 55 ECAB 535 (2004).

7

Pamela K. Guesford, 53 ECAB 726 (2002).

3

shall appoint a third physician, who shall make an examination.8 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.9
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain and left knee contusion when
she slipped and fell on November 27, 2010. Dr. Glick, an attending osteopath Board-certified in
family practice, supported total or partial disability for work due to the accepted injuries through
January 5, 2012. Dr. Men-Muir, an attending Board-certified orthopedic surgeon, submitted
reports from December 14, 2010 to December 21, 2011 supporting that the November 27, 2010
incident caused a left sacroiliac joint dysfunction producing lumbar and radicular pain and
necessitating a sacroiliac fusion.
OWCP referred appellant to Dr. Swartz, a Board-certified orthopedic surgeon, for a
second opinion. In a June 5, 2011 report and two addenda, Dr. Swartz opined that her chronic
lumbar pain was attributable only to the preexisting L4-5 fusion and was unrelated to the
accepted injuries. He based this opinion on a university study characterizing sacroiliac pain in
“slip and fall patients” as a psychologic dysfunction. Yet, Dr. Swartz stated on November 3,
2011 that he concurred with Dr. Men-Muir that appellant required a left sacroiliac joint fusion.
OWCP terminated appellant’s wage-loss and medical benefits effective January 19, 2012,
based on the opinion of Dr. Swartz as the weight of the medical evidence. The Board finds that
termination was improper as there was a conflict of medical opinion between Dr. Swartz, for the
government and Dr. Men-Muir, for appellant, regarding the nature and extent of her
injury-related disability. Dr. Swartz attributed appellant’s ongoing condition to a preexisting
lumbar fusion, whereas Dr. Men-Muir explained that the objective sacroiliitis and need for
surgery were related to the November 27, 2010 slip and fall. The statute 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. OWCP did not do this. At the time of the termination, there was a conflict of
medical opinion between Dr. Swartz and Dr. Men-Muir.10
On appeal, appellant asserts that the employing establishment pressured Dr. Swartz to
find against her and that her condition worsened during OWCP’s referral process. As stated,
OWCP’s January 19, 2012 decision terminating her wage-loss and medical compensation
benefits will be reversed.

8

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

9

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

10

Raymond W. Behrens, 50 ECAB 221 (1999).

4

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss and medical compensation benefits effective January 19, 2012.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 14, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Madison, WI, Employer
__________________________________________

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

Docket No. 16-1673
Issued: February 20, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On August 17, 2016 appellant filed a timely appeal from an August 2, 2016 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 claim.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
recurrent facial cellulitis in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its August 2, 2016 decision. The
Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On April 15, 2015 appellant, then a 46-year-old transportation security officer (screener),
filed an occupational disease claim (Form CA-2) for recurrent facial cellulitis, which she
attributed to alleged exposure to bacteria in the employing establishment’s breakroom. She
indicated that the breakroom had not been consistently maintained and the conditions were
deplorable. Appellant also indicated that the water closet she used to get water for mopping
(PODS) had not been cleaned in the 10 years she worked at the airport facility.3 She noted that
the water closet basin had a hose lying at the bottom surrounded by filth. Appellant believed the
dark, moist, dirty environment was a perfect setting for bacteria to grow. She first became aware
of her condition on December 28, 2006, and she first realized it was caused or aggravated by
factors of her federal employment on January 28, 2015. The employing establishment indicated
that appellant initially reported her condition on October 19, 2010, and that each year she had
been off work intermittently due to recurrent facial cellulitis. It further explained that appellant
was permitted to use the break area, but not required to do so. Appellant was last exposed to the
alleged working conditions on April 16, 2015.
OWCP received various medical treatment records covering the period December 2008
through March 2015. Appellant provided a chronology of the treatment she received for facial
cellulitis, erysipelas, urticaria/hives, angioedema, dermatitis, skin infection(s), lesions and/or
rash/blotchiness. She also noted that she had been hospitalized on five occasions between
November 2012 and March 2015 due to recurrent facial cellulitis.
In a March 30, 2015 attending physician’s report (Form CA-20), Dr. Keith Konkol, a
Board-certified internist specializing in infectious diseases, diagnosed recurrent facial cellulitis.
He also indicated that it was possible appellant’s condition was caused or aggravated by her
employment.
In an undated letter/report received on May 12, 2015, Dr. Konkol advised that he had seen
appellant on a number of occasions for recurrent facial cellulitis. Appellant had this infection a
minimum of four to five times, which was quite unusual. Moreover, every time the condition
recurred, she required a two-week course of intravenous antibiotics. Dr. Konkol indicated that he
had written the letter because appellant expressed concern that these recurrent infections were a
result of her work environment. Appellant informed him that some of her work duties included
cleaning up areas she deemed as not being the most sanitary of conditions. She expressed concern
that, while cleaning these areas, she contaminated her face with bacteria, and thus, subsequently
developed recurrent infections. Dr. Konkol noted that he had not visited appellant’s workplace,
but she was quite concerned that her work environment was the trigger of her recurrent infections.
He surmised that, if this were true, removal of appellant from her present work environment would
result in less frequent recurrent infections and eventual resolution of the condition completely.
Dr. Konkol further noted that, while he did not know appellant’s entire job description, if she could
avoid the cleaning part of the job then hopefully her recurrent facial infections would decline.

3

Appellant worked at the Dane County Regional Airport, Madison, WI.

2

On May 15, 2015 OWCP advised appellant that the evidence received to date was
insufficient to support her claim. It explained that it was unclear whether appellant provided
timely notification of her claimed work injury. OWCP also noted that the evidence of record
was insufficient to establish that she actually experienced the employment factor(s) alleged to
have caused her injury. It further advised that the evidence was insufficient to support that
appellant was injured while performing any specific employment duty. OWCP provided a
factual development questionnaire for her to complete and return. It afforded appellant 30 days
to submit the requested information. OWCP similarly requested information from the employing
establishment regarding appellant’s occupational exposure and what, if any, precautions were
taken to minimize the effects of the exposure.
In an undated narrative statement received June 12, 2015, appellant asserted her belief that
she contracted facial cellulitis while cleaning the breakroom, which was excessively dusty and
dirty and caused frequent sneezing. She stated that covering her face while sneezing caused
bacteria to spread on her face. Appellant reported that isopropyl alcohol was used as a cleanser
when she began working at the employing establishment, but management ultimately began using
a cleanser called Simple Green. It was at this time that she allegedly began to experience facial
cellulitis. Appellant alleged that she researched Simple Green’s website in January 2015 and read
that it does not kill germs. She asserted that the breakroom is used by 30 employees on a daily
basis and is rarely cleaned. Appellant added that dirty water frequently accumulated in a warm,
dark, moist environment and it was not always poured out, creating an unsanitary workplace.
Appellant reported that in January 2015 she asked management if she could use bleach to
clean the kitchen sink, as she had done previously, after it ran out of bleach in December 2014.
She alleged that management ignored her request and she soon became ill again with cellulitis
around the end of January 2015 after mopping the breakroom floor. Appellant alleged that other
employees told her that they too became ill after working in the breakroom.
Appellant also submitted copies of e-mails from January, February, and May 2015. The emails documented her attempts to have management restock the breakroom with a bleach-based
cleanser.
In a statement dated June 4, 2015, appellant’s supervisor, R.S., addressed her allegations.
With regard to appellant’s claim that she developed facial cellulitis after exposure to mop water, he
acknowledged that officers periodically mopped floors. However, R.S. noted that appellant never
provided a specific date of exposure. He also noted that appellant had issues with cellulitis since
June 2010. R.S. further commented that appellant requested leave in January and March 2015 for
recurrent cellulitis, which she alleged was due to mop water. He further noted that approximately
100 employees used the breakroom daily, but appellant was the only employee who raised these
concerns. With regard to her assertion that the breakroom was dirty because it was cleaned with
Simple Green as opposed to bleach, R.S. noted that management provided an approved cleaner that
specifically addressed methicillin-resistant staphylococcus aureus (MRSA), pursuant to appellant’s
request. He also explained that employees mopped twice weekly, once by each shift. Mopping
was performed by officers assigned to specific locations, and individual officers might find
themselves performing this task perhaps once each month, but more likely once every quarter.
R.S. noted that he did not dispute that appellant mopped the floor. As to precautionary measures,
he advised that officers were provided with latex gloves for use during any task.

3

In her June 7, 2015 response to OWCP’s developmental letter, appellant advised that she
was exposed to gram positive bacteria that can cause cellulitis or MRSA. She asserted that she was
not exposed to these elements except in unclean areas in the breakroom. Appellant alleged that the
exposure occurred when she was accessing water for the mop bucket from the water closet located
in the breakroom or by cleaning up the breakroom or using it during a time when no proper
disinfectant was used. She reported that she used a bleach germicide from April 2014 until midDecember 2014 and did not become ill. Appellant also noted that the correct date of injury was
December 21, 2008, not December 28, 2006.
In a June 7, 2015 statement, J.O., appellant’s coworker, indicated that he developed a skin
infection that he believed he contracted while working at the airport. J.O. indicated that he had
worked there since 2008.
By decision dated October 29, 2015, OWCP denied the claim, finding that appellant failed
to establish that the event(s)/exposures occurred as alleged.
Appellant timely requested an oral hearing before a representative of OWCP’s Branch of
Hearings and Review, which was held on June 29, 2016.
At the hearing, appellant testified that management was not using the proper disinfectant
and that the water closet had not been cleaned for 10 years. She asserted that the water closet in
the breakroom contained a cutoff hose that was dirty and had not been disinfected. Appellant
believed that bacteria formed in such water and that she was exposed to the bacteria when using
the water for cleaning the room. She stated that such bacteria must have been present in the
breakroom water because she was not exposed to bacteria at home. Appellant reiterated her
assertions that Simple Green cleaner, used at the worksite from 2008 to 2015, was insufficient to
kill harmful bacteria. She also stated that two of her coworkers also developed cellulitis as a result
of this exposure. Appellant reported that she stopped working for the employing establishment
sometime in 2015, and began working with the U.S. Department of Veterans Affairs in
November 2015. When asked how she knew that the water in the breakroom contained specific
bacteria in the absence of testing for such elements, she responded that an emergency room doctor
told her that certain bacteria caused the cellulitis infection that she contracted.
In a June 15, 2016 report, Dr. Ronald L Ragotzy, a Board-certified allergist and
immunologist, noted that he had treated appellant on eight occasions between October 2010 and
June 2016. He followed her for asthma, rhinitis, and recurrent cellulitis. Dr. Ragotzy explained
that cellulitis was an infection of the skin and underlying soft tissue that could be contracted from
other infected individuals or any contaminated surface that had not been disinfected on a daily
basis. He further noted that appellant’s cellulitis had recurred over seven years exclusively while
she worked for the employing establishment. Appellant’s condition required frequent medical
encounters, hospitalizations, and prolonged intravenous antibiotics. Dr. Ragotzy indicated that he
was convinced the recurring nature of appellant’s cellulitis was directly caused by her work
environment. He explained that appellant’s coworkers developed similar symptoms, some of
whom had left employment. Dr. Ragotzy also noted that the breakroom was not cleaned with a
disinfectant. Lastly, he explained that appellant’s cellulitis completely resolved after she left the
employing establishment, which was consistent with Dr. Konkol’s prediction. In closing,

4

Dr. Ragotzy indicated that he was absolutely convinced that appellant’s recurrent cellulitis was
caused by her work environment.
By decision dated August 2, 2016, an OWCP hearing representative affirmed the
October 29, 2015 decision. He determined that the evidence of record did not establish that
exposure to bacteria occurred as alleged. The hearing representative found that appellant failed
to meet her burden of proof to establish that the water in the breakroom tested positive for
bacteria. He noted that, while the water in the employing establishment’s breakroom might have
been dirty on occasion, appellant failed to submit objective evidence that the water was
contaminated with specific bacteria. The hearing representative found that her belief that she
developed cellulitis because of a workplace exposure did not, by itself, establish that exposure to
bacteria occurred. He therefore found that fact of injury was not established by evidence of
exposure to bacteria in excess of a permissible level. The hearing representative further found
that the record did not establish that Simple Green was insufficient to use for mopping the work
area.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the identified employment factors.6
ANALYSIS
The Board finds that appellant has not submitted sufficient evidence that she was, in fact,
exposed to particular bacteria at work. She has alleged that she was exposed to gram positive
bacteria that can cause cellulitis or MRSA while accessing water from the water closet and/or
4

See supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
6

Victor J. Woodhams, id.

5

when cleaning the breakroom without a proper disinfectant. Appellant, however, has not provided
any evidence regarding whether such bacteria was present in the workplace. The fact that a
condition manifests itself during a period of employment is insufficient to establish causal
relationship.7 Temporal relationship alone will not suffice.8 Entitlement to FECA benefits may
not be based on surmise, conjecture, speculation, or on the employee’s own belief of a causal
relationship.9
The weight of the factual evidence, therefore, does not support that appellant was
exposed to bacteria in the employing establishment breakroom and/or water closet while engaged
in her employment duties. The factual evidence developed in this case does not substantiate
appellant’s claim of exposure. For this reason, the Board affirms the denial of appellant’s
occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
developed recurrent facial cellulitis in the performance of duty.

7

20 C.F.R. § 10.115(e).

8

See D.I., 59 ECAB 158, 162 (2007).

9

See M.H., Docket No. 16-0228 (issued June 8, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF DEFENSE, FINANCE &
ACCOUNTING SERVICE, Indianapolis, IN,
Employer
__________________________________________

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

Docket No. 18-0042
Issued: March 16, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 6, 2017 appellant filed a timely appeal from an August 4, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated May 9, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On August 15, 2005 appellant, then a 44-year-old staff accountant, filed a traumatic
injury claim (Form CA-1) alleging a right hand/finger injury on August 11, 2005. She claimed
1

5 U.S.C. § 8101 et seq.

that her right hand, including her right fifth finger (little finger), became caught in a file cabinet
drawer when the cabinet fell forward and she attempted to stop it. Appellant did not stop work.
Appellant was seen in an emergency room on August 15, 2005 and, on the next day, she
began to receive treatment for her right hand/finger condition from Dr. Douglas A. Kuhn, an
attending Board-certified orthopedic surgeon. Dr. Kuhn placed a cast on her right fifth finger
and recommended restrictions such as no lifting of more than five pounds with the right hand.
OWCP accepted that appellant sustained a crushing injury of right finger(s) and closed
fracture of right fifth finger phalanx.
Appellant stopped work August 24, 2005 and Dr. Kuhn performed surgery on that date
including open reduction/internal fixation on the proximal phalanx of her right fifth finger. The
surgery was approved by OWCP.2
On September 2, 2005 appellant returned to work for the employing establishment with a
restriction of no use of her right hand. On October 7, 2005 she resumed her regular work duties
without restriction.3
Appellant reported range of motion problems with her right fifth finger and stopped work
on January 12, 2006. Dr. Kuhn performed an OWCP-approved surgical manipulation and lysis
of adhesions on her right fifth finger on that date. On February 28, 2006 appellant returned to
work without restrictions.
On March 22, 2006 appellant filed a claim for compensation (Form CA-7) seeking a
schedule award due to her accepted employment conditions.
In an August 4, 2006 decision, OWCP granted appellant a schedule award for 62 percent
permanent impairment of her right thumb.4 The award ran from April 27, 2006 to March 18,
2007, and it was based on an April 27, 2006 permanent impairment rating of Dr. Kuhn and a
July 5, 2006 permanent impairment rating of an OWCP medical adviser.5
On December 17, 2015 appellant filed a notice of recurrence (CA-2a) alleging that, on
April 15, 2015, she sustained a recurrence for “Medical Treatment Only” which was necessitated
by her accepted medical conditions. She asserted that she had experienced swelling in her right
fifth finger since the August 11, 2005 employment injury. At the time appellant filed her claim
for a recurrence of the need for medical treatment, the record did not contain any medical
evidence dated after mid-2006.
2

Appellant used leave to cover her period of work stoppage and later received leave buy back monies.

In an October 27, 2005 report, Dr. Kuhn declared that the break of appellant’s right fifth finger was “totally
healed.”
3

4

The Board notes that OWCP misidentified the scheduled member in its schedule award decision, as it should
read right fifth finger.
5
Appellant received schedule award compensation on the daily rolls beginning April 27, 2006 and on the periodic
rolls beginning July 9, 2006. OWCP later expanded the accepted conditions to include tenosynovitis of the right
hand/wrist and joint ankylosis of the right hand.

2

In a February 17, 2016 letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim for a recurrence of the need for medical
treatment. In a March 15, 2016 statement, appellant reported that in April 2015 she visited an
attending physician after experiencing increased symptoms in her right hand.
In a May 9, 2016 decision, OWCP denied appellant’s claim for a recurrence of the need
for medical treatment. It found that she did not submit sufficient medical evidence to establish
the need for medical treatment related to her accepted employment conditions.
In a letter received on May 10, 2017, appellant requested reconsideration of OWCP’s
May 9, 2016 decision. She indicated that she was providing additional documentation, not
previously submitted, which established her need for additional medical treatment due to
worsening of her accepted work-related conditions.
Appellant submitted an undated, three-page document which contains the signature of
Dr. Nilda Durany, an attending Board-certified family practitioner, and of Paul Mattox, an
attending physician assistant. However, other than the signatures, the report is comprised of
seemingly arbitrary symbols and does not contain any recognizable words. Appellant also
submitted an undated, unsigned one-page document, bearing the title, “Letter of
Reconsideration,” which has words in place of the symbols found on the first page of the abovenoted document produced by Dr. Durany and Mr. Mattox. The document contains a history of
her August 11, 2005 employment injury and limited findings from an examination conducted on
an unspecified date.6 In the history section, it was noted that appellant had a cyst growing from
2005 until 2016 when Dr. Kuhn removed a large ping pong ball size cyst from the second digit
of the right hand (index finger). It was also indicated that the “continued right hand and finger
injuries are directly related to the accident on ‘May 11, 2005,’7 while working for the department
[of] finance and accounting service in Indianapolis, Indiana.”
By decision dated August 4, 2017, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error. It found that her
request for reconsideration was untimely filed as it was not received until May 10, 2017, more
than one year after issuance of its May 9, 2016 merit decision. OWCP further determined that
the evidence appellant submitted in support of her untimely reconsideration request did not
demonstrate that it erred in its May 9, 2016 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his or her own motion or on
application. The Secretary, in accordance with the facts found on review, may end, decrease or
increase the compensation awarded; or award compensation previously refused or discontinued.8
The document lists the “Date of Initial Visit” as April 20, 2017, but it does not list the date of the examination
findings contained therein. It does not list any findings for appellant’s right hand.
6

7

The Board notes that the date of injury is August 11, 2005.

8

5 U.S.C. § 8128(a).

3

OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.9 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP in
its most recent merit decision. To demonstrate clear evidence of error, a claimant must submit
evidence relevant to the issue that was decided by OWCP. The evidence must be positive,
precise, and explicit and must be manifest on its face that OWCP committed an error.10
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.11 The Board
notes that clear evidence of error is intended to represent a difficult standard.12 Evidence that
does not raise a substantial question concerning the correctness of OWCP’s decision is
insufficient to demonstrate clear evidence of error.13 It is not enough merely to establish that the
evidence could be construed so as to produce a contrary conclusion.14 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.15 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.16
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.17 As appellant’s request for
reconsideration was not received by OWCP until May 10, 2017, more than one year after
issuance of its May 9, 2016 merit decision, it was untimely filed. Consequently, she must
demonstrate clear evidence of error by OWCP in its May 9, 2016 decision.

9

20 C.F.R. § 10.607(a).

10

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

11

Annie L. Billingsley, 50 ECAB 210 (1998).

12

R.K., Docket No. 16-0355 (issued June 27, 2016).

13

Jimmy L. Day, 48 ECAB 652 (1997).

14

Id.

15

Id.

16

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

17

See supra note 9.

4

The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP in issuing its May 9, 2016 decision.
Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its May 9, 2016 decision.18 In its May 9,
2016 decision, OWCP denied her claim for a recurrence, finding that she did not submit
sufficient medical evidence to establish the need for additional medical treatment related to her
accepted employment conditions. The evidence and argument she submitted did not raise a
substantial question concerning the correctness of OWCP’s decision. Appellant submitted an
undated three-page document which contains the signature of Dr. Durany, an attending
physician, and of Mr. Mattox, an attending physician assistant. However, other than the
signatures, the report is comprised of symbols and does not contain any recognizable words.
Appellant also submitted an undated, unsigned one-page document, bearing the title, “Letter of
Reconsideration,” which has words in place of the symbols found on the first page of
above-noted document produced by Dr. Durany and Mr. Mattox. The document contains a
history of appellant’s August 11, 2005 employment injury and limited findings from an
examination conducted on an unspecified date.19
The Board finds that neither of these documents constitutes probative medical evidence
because neither document constitutes a legible report signed by a physician within the meaning
of FECA. The Board has held that a medical report may not be considered as probative medical
evidence if there is no indication that the person completing the report qualifies as a physician as
defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not constitute
probative medical evidence.20 The signed three-page document is illegible and the legible
one-page document is not signed.
The underlying issue in this case medical in nature, i.e., whether appellant has submitted
sufficient medical evidence to demonstrate that she sustained a recurrence, on or after April 15,
2015, of the need for additional medical treatment due to her accepted employment conditions.
Given that the above-noted documents do not constitute probative medical evidence under
FECA, they do not raise a substantial question as to the correctness of OWCP’s May 9, 2016
decision.21 The Board finds that appellant’s application for review does not demonstrate on its
face that OWCP committed error when it found in its May 9, 2016 decision that she did not

18

See supra note 10.

19

In the history section, it was noted that appellant had a cyst growing from 2005 until 2016 when Dr. Kuhn
removed a large ping pong ball size cyst from the second digit of the right hand (index finger). It was also indicated
that the “continued right hand and finger injuries are directly related to the accident on May 11, 2005 while working
for the department [of] finance and accounting service in Indianapolis, Indiana.” The Board notes that OWCP has
not accepted that appellant sustained a work-related right index finger injury and that there is no indication in the
record that appellant sustained a work-related injury on May 11, 2005.
20

C.B., Docket No. 09-2027 (issued May 12, 2010).

21
Appellant did not submit any argument in connection with her reconsideration request other than her assertion
that the evidence she submitted upon reconsideration established her claim.

5

establish a recurrence of the need for medical treatment.22 As noted, clear evidence of error is
intended to represent a difficult standard23 and appellant has not met this standard in this case.
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s May 9, 2016 decision and OWCP properly
determined that appellant did not demonstrate clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2017 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: March 16, 2018
Washington, DC

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

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

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

22

See S.F., Docket No. 09-0270 (issued August 26, 2009).

23

See supra note 12.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
R.J., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, WICKER PARK POST )
OFFICE, Chicago, IL, Employer
)
__________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-1431
Issued: November 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 18, 2015 appellant filed a timely appeal of an April 30, 2015 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
on December 21, 2014 in the performance of duty.
FACTUAL HISTORY
On December 22, 2014 appellant, then a 32-year-old temporary city carrier, filed a claim
for traumatic injury (Form CA-1) alleging that on December 21, 2014 while delivering mail she
tripped and landed on her hand. She stated that her left hand was swollen.
1
2

5 U.S.C. § 8101 et seq.

Following OWCP’s April 30, 2015 decision, appellant submitted additional medical evidence. As OWCP did
not consider this evidence in reaching a final decision, the Board may not consider it for the first time on appeal.
20 C.F.R. § 501.2(c)(1).

In support of her claim, appellant submitted an illegible disability certificate received on
December 30, 2014. She also submitted a duty status report dated December 23, 2014 allegedly
from a chiropractor but whose signature was illegible. The chiropractor diagnosed left wrist
sprain and indicated that appellant could work with her right hand only. Appellant also
submitted notes dated January 8 and March 5, 2015 from a physical therapist, Luis Maldonada.
Dr. Dulce Vazquez, a chiropractor, examined appellant on February 6, 2015 found that she could
work with restrictions.
In a note dated January 14, 2015, Dr. Aleksandra Goldvekht, a Board-certified
physiatrist, listed appellant’s date of injury as December 21, 2014 and stated that she had slipped
and fallen on a step, falling forward onto her left hand. He diagnosed left hand injury and stated
that appellant could perform light duty. Mr. Goldvekht examined appellant on February 18,
2015 and again diagnosed left hand injury.
In a letter dated March 20, 2015, OWCP requested additional factual and medical
evidence in support of appellant’s traumatic injury claim. Dr. Adrian Zaragoza, a chiropractor,
examined appellant on January 8, February 6, 18, and 27, as well as March 3, 2015 and reviewed
x-rays of appellant’s left wrist which were negative for any fracture or dislocation.
Dr. Goldvekht completed an attending physician’s report (Form CA-20) diagnosing left
hand injury and indicating with a checkmark “yes” that the condition was caused or aggravated
by an employment activity.
By decision dated April 30, 2015, OWCP found that appellant, a federal employee, had
filed a timely claim and established that the employment incident occurred as alleged. However,
it denied appellant’s traumatic injury claim finding that she had failed to meet her burden of
proof to submit medical evidence establishing a diagnosed medical condition resulting from the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 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.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

2

whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.8
ANALYSIS
The Board finds that appellant has failed to submit the necessary medical opinion to
establish a traumatic injury on December 21, 2014 in the performance of duty.
Appellant has submitted a consistent factual description of slipping and falling in the
performance of duty on December 21, 2014. In support of an injury resulting from this
employment incident, appellant submitted notes from Dr. Goldvekht including a description of
her fall on December 21, 2014. Dr. Goldvekht did not provide the necessary diagnosis of a
medical condition resulting from the December 21, 2014 fall. He merely diagnosed a left wrist
injury. The Board has held that a physician must identify a specific medical condition in order to
support a traumatic injury claim.9 Because the medical evidence fails to establish that appellant
had been diagnosed with a specific medical condition related to the December 21, 2014
employment incident, the Board finds that appellant has not met her burden of proof to establish
that she sustained an injury in the performance of duty.
Appellant also submitted reports from two chiropractors, Dr. Vazquez and Dr. Zaragoza.
Neither chiropractor diagnosed a spinal subluxation based on a review of an x-ray. Section
8101(2) of FECA10 provides that the term “physician” includes chiropractors only to the extent
that their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation demonstrated by x-ray to exist. Without a diagnosis of spinal
subluxation from an x-ray, a chiropractor is not considered a physician under FECA and his or
her opinion does not constitute competent medical evidence.11 As neither Dr. Vazquez nor
Dr. Zaragoza, provided a diagnosis of a spinal subluxation from an x-ray, these chiropractors are
not physicians under FECA and their reports do not constitute competent medical evidence and
cannot meet appellant’s burden of proof to establish her traumatic injury claim.
Appellant also submitted notes from a physical therapist, Mr. Maldonada. These notes
are immaterial as physical therapists are also not considered physicians under FECA.12 As he is
not a physician, Mr. Maldonada’s notes do not constitute competent medical evidence and
cannot meet appellant’s burden of proof to establish her traumatic injury claim.13
7

John J. Carlone, 41 ECAB 354 (1989).

8

J.Z., 58 ECAB 529 (2007).

9

C.S., Docket No. 14-2065 (issued February 11, 2015); M.O., Docket No. 14-1902 (issued January 28, 2015).

10

5 U.S.C. §§ 8101-8193, 8101(2).

11

F.D., Docket No. 15-0868 (issued August 10, 2015).

12

R.S., Docket No. 15-0988 (issued August 12, 2015).

13

Supra note 11.

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury on December 21, 2014 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF THE ARMY, TEST &
EVALUATION COMMAND, White Sands
Missile Range, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1869
Issued: January 14, 2014

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 August 7, 2013 appellant filed a timely appeal from a July 12, 2013 nonmerit decision
and a March 28, 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 OWCP properly suspended appellant’s compensation
benefits effective April 7, 2013 due to her failure to attend a scheduled medical examination; and
(2) whether OWCP properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On March 2, 2012 appellant, then a 48-year-old IT specialist, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a right back and abdominal injury on February 28,
1

5 U.S.C. § 8101 et seq.

2012 when she was moving and lifting metal desks. She indicated on the claim form that her
home was in New Mexico. On April 11, 2012 OWCP accepted that appellant sustained a lumbar
sprain. Appellant was paid medical and wage-loss benefits.
By letter dated April 18, 2012, OWCP acknowledged receipt of appellant’s change of
address request to an address in El Paso, Texas.
By letter dated September 28, 2012, OWCP notified appellant that a second-opinion
examination was needed to address the nature of her condition, extent of disability and
appropriate treatment. Appellant was advised that, if she refused to attend or obstructed the
examination, her compensation could be suspended under 5 U.S.C. § 8123(d).
In a letter dated October 1, 2012, QTC Medical Services, Inc., the medical appointment
scheduler, notified her that she was scheduled for an appointment with Dr. Charles D. Mitchell, a
Board-certified orthopedic surgeon, at 12:30 p.m. on November 12, 2012.
In a record of a telephone conversation dated November 13, 2012, a claims examiner
noted that she had spoken with appellant, who stated that she did not go to the appointment with
Dr. Mitchell on November 12, 2012 because she had not been notified about the appointment.
In an e-mail dated November 13, 2012, a claims examiner asserted that appellant had
missed her appointment with Dr. Mitchell due to late notification. She stated that the
appointment with Dr. Mitchell was seven hours away from appellant’s address of record.
By letter dated November 14, 2012, QTC Medical Services, Inc. informed OWCP that
appellant did not keep her appointment on November 12, 2012.
In a letter dated November 14, 2012, QTC Medical Services, Inc. notified appellant that
her appointment had been rescheduled with Dr. James Hood, a Board-certified orthopedist, at
8:30 a.m. on December 27, 2012, in El Paso Texas. This letter was addressed to appellant’s
home in El Paso Texas.
By letter dated December 31, 2012, OWCP was informed that appellant did not keep her
appointment on December 27, 2012.
On February 11, 2013 OWCP proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA for failure to attend the December 27, 2012 examination
with Dr. Hood. Appellant was advised to provide a written explanation of her reasons for not
attending this appointment, along with corroborating evidence, within 14 days for failing to
attend the scheduled examination. She did not respond within the allotted period.
By decision dated March 28, 2013, OWCP finalized its proposed suspension, effective
April 7, 2013. It noted that it directed appellant to report for the examination scheduled on
December 27, 2012, but she did not attend the examination or provide a written explanation of
her failure to attend within 14 days of OWCP’s February 11, 2013 letter.
In a letter dated April 9, 2013, appellant alleged that she never received the letter of
November 14, 2012, notifying her of her appointment with Dr. Hood, or the letter of
February 11, 2013, notifying her of the proposed suspension of benefits. She stated that she had
2

not been contacted by OWCP regarding suspension of her benefits until receiving the March 28,
2013 letter finalizing its proposed suspension. Appellant noted that she did not go to her
appointment with Dr. Mitchell because her claims examiner told her to ignore letters from QTC
Medical Services, Inc., until she had heard back from the claims examiner. She stated that
Dr. Mitchell’s office was nine hours from El Paso, Texas and that she could not drive.
In a note dated May 14, 2013, a claims examiner stated that appellant attended a May 10,
2013 second-opinion appointment for another case, and that the claims examiner requested
doubling of the case file.
In a letter dated June 24, 2013, appellant stated that her claims examiner had directed her
not to attend the appointment with Dr. Mitchell and to ignore further appointment notifications
with QTC Medical Services, Inc. until contacted. She noted that she had not known she was
required to see Dr. Hood until she received the March 28, 2013 letter finalizing suspension of
benefits. Appellant noted that she would attend an examination with Dr. Mitchell if OWCP
approved travel expenses to visit him.
In a letter dated June 24, 2013, appellant enclosed a work capacity evaluation from her
treating physician, a copy of the October 1, 2012 letter regarding her appointment with
Dr. Mitchell, and noted that she was still waiting for approval of travel expenses to visit him.
Appellant requested a telephonic hearing on June 24, 2013. The form requesting an oral
hearing was received on July 1, 2013 and was date stamped June 28, 2013.
In a letter dated June 24, 2013, appellant reviewed the history of her case and noted that
she had not received any letter regarding her appointment with Dr. Hood.
By decision dated July 12, 2013, OWCP denied appellant’s request for an oral hearing as
untimely. It found that she had not made her request for an oral hearing within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.2
The determination of the need for an examination, the type of examination, the choice of locale
and the choice of medical examiners are matters within the province and discretion of OWCP.3
OWCP regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.4
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit
to or obstructs a directed medical examination, his or her right to compensation is suspended
until the refusal or obstruction ceases.5 OWCP procedures provide that, before OWCP may
invoke these provisions, the employee is to be provided a period for 14 days within which to
2

5 U.S.C. § 8123.

3

J.T., 59 ECAB 293, 296 (2008); S.B., 58 ECAB 267, 271 (2007); James C. Talbert, 42 ECAB 974, 975 (1991).

4

20 C.F.R. § 10.320.

5

Supra note 3; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298, 303 (2006).

3

present in writing his or her reasons for the refusal or obstruction.6 If good cause for the refusal
or obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.7
It is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed.8
ANALYSIS -- ISSUE 1
OWCP scheduled a second opinion examination on December 27, 2012 with Dr. Hood.
Appellant did not appear for the scheduled examination. In a February 11, 2013 letter, OWCP
provided her 14 days from the date of the letter to provide an explanation for her failure to attend
the scheduled examination. Appellant did not provide a response within the allotted time. By
decision dated March 28, 2013, OWCP suspended her compensation benefits based on her
failure to appear. The Board finds that OWCP properly suspended appellant’s compensation for
failure to attend a medical examination on December 27, 2012.
Regarding her failure to appear for the examination, appellant stated that she had not
received any letter notifying her of an appointment with Dr. Hood in El Paso, Texas. The letter
notifying her of the date, time and location of the appointment was mailed to her last known
address in El Paso, Texas on November 14, 2012, over a month prior to the date of the scheduled
examination. The Board notes that at the time the letters were sent, appellant’s last known
address was in El Paso, Texas. Her later letters to OWCP dated from April 9 through June 24,
2013, and her request for a hearing dated June 24, 2013, were mailed from the same address.
The Board finds that it is presumed that appellant received OWCP’s letter dated
November 14, 2013 advising her of her appointment with Dr. Hood and the letter dated
February 11, 2013 advising her of the proposed suspension of benefits, because these letters were
properly addressed and duly mailed to her last known address.9 Appellant alleged that she had
not received these letters, but did not submit any contrary evidence to show that these letters
were not mailed to her in the ordinary course of business.
For these reasons, the Board finds that OWCP properly suspended appellant’s entitlement
to compensation in accordance with 5 U.S.C. § 8123, effective April 7, 2013, for failure to
submit to a medical examination without good cause. Should appellant subsequently agree to
attend the examination or cease the obstruction, OWCP will restore any periodic benefits to
which she is entitled when she actually reports for and cooperates with the examination.10
Payment will be retroactive to the date appellant agreed to attend the examination.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
7

Id.

8

Y.C., Docket No. 13-800 (issued August 22, 2013).

9

See id.

10

20 C.F.R. § 10.323.

4

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.11 Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.12
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.13 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.14 Although there is no right to a review of the written record or an oral hearing
if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request and must exercise its discretion.15 OWCP’s procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).16
ANALYSIS -- ISSUE 2
Appellant requested an oral hearing in an appeal form dated June 24, 2013, received on
July 1, 2013, and date stamped June 28, 2013. As the hearing request was made more than 30
days after issuance of the March 28, 2013 OWCP decision, her request for an oral hearing was
untimely filed and she was not entitled to an oral hearing as a matter of right.
OWCP also notified appellant that it had considered the matter in relation to the issue
involved and indicated that additional argument and evidence could be submitted with a request
for reconsideration. It has broad administrative discretion in choosing means to achieve its
general objective of ensuring that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken,
which are contrary to both logic and probable deductions from established facts.17 There is no
indication that OWCP abused its discretion in this case in finding that appellant could further
pursue the matter through the reconsideration process.
11

Id. at § 501.2(c).

12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. §§ 10.616-10.618.

14

Id. at § 10.616(a).

15

Eddie Franklin, 51 ECAB 223, 227 (1999); Delmont L. Thompson, 51 ECAB 155, 157 (1999).

16

See R.T., Docket No. 08-408 (issued December 16, 2008).

17

Minnie B. Lewis, 53 ECAB 606, 609 (2002).

5

Consequently, the Board finds that OWCP properly denied appellant’s request for an oral
hearing.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation effective
April 7, 2013. The Board further finds that OWCP properly denied appellant’s request for an
oral hearing pursuant to 5 U.S.C. § 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the July 12 and March 28, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 14, 2014
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

6