United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eastman, GA, Employer
__________________________________________

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Appearances:
Victor A. Walker, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0140
Issued: April 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 27, 2016 appellant, through her representative, filed a timely appeal from an
October 11, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
April 13, 2016 under 20 C.F.R. § 10.500(a) based on her earnings had she accepted a temporary
light-duty assignment.
FACTUAL HISTORY
On August 20, 2014 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she injured a disc in her back due to factors of her
federal employment. She stopped work on July 15, 2014. OWCP accepted the claim for
intervertebral disc disorder with myelopathy of the lumbar region and thoracic or lumbosacral
neuritis or radiculitis. It paid compensation for total disability beginning July 26, 2014 and
placed her on the periodic rolls beginning December 14, 2014.
Appellant, on August 14, 2014, underwent a posterior lumbar fusion, discectomy, and
decompression at L4-5.
In a progress report dated May 20, 2015, Dr. William W. Brooks, an attending Boardcertified orthopedic surgeon, discussed appellant’s complaints of radiculopathy on the left side
following surgery. He diagnosed low back pain, lumbosacral radiculopathy, and “angry back
syndrome” or lumbago. Dr. Brooks advised that appellant was unable to work pending
diagnostic studies. A computerized tomography (CT) scan obtained June 19, 2015 showed a left
annular bulge at L3-4.
OWCP referred appellant to Dr. Douglas P. Hein, a Board-certified orthopedic surgeon,
for a second opinion examination. In a report dated August 5, 2015, Dr. Hein discussed her
history of prior work injuries in 2012 and 2014 and reviewed the results of diagnostic studies.
He diagnosed degenerative disc disease following surgery at L4-5 without significant
improvement. Dr. Hein found that appellant’s herniated disc had resolved, but that she had
continued lumbar radiculopathy with reduced strength and objective evidence of disc
abnormalities. He advised that she had not yet reached maximum medical improvement and was
“capable of only light and occasional moderate physical activities….” In an August 15, 2015
work restriction evaluation, Dr. Hein found that appellant could not perform her regular
employment because of her restrictions on lifting and walking, but could work eight hours per
day in a sedentary or light capacity. He provided limitations of sitting and standing for four
hours per day, walking for two hours per day, operating a motor vehicle at work for two hours
per day, and pushing, pulling, and lifting up to 20 pounds for two hours per day. Dr. Hein
advised that appellant could not squat, kneel, or climb.
Dr. Brooks, in an August 6, 2015 progress report, diagnosed lumbago, sciatica,
lumbosacral radiculopathy, and a prolapsed lumbar intervertebral disc. He noted that appellant
was currently undergoing treatment for breast cancer and found that she was “out of work.”
On September 3, 2015 Dr. Brooks evaluated appellant for radiculopathy of the left leg.
He provided examination findings and indicated that he agreed with the finding of the second
opinion physician that she was not at maximum medical improvement. Dr. Brooks opined that

2

appellant could work at a sedentary rather than moderate level with no bending, twisting, or
lifting. He noted that her cancer had resulted in delayed treatment of her back.3 Dr. Brooks, on
January 11, 2016, found that appellant should remain off work pending a functional capacity
evaluation (FCE).
The employing establishment, on January 19, 2016, offered appellant a position as a
modified city carrier for four hours per day. The duties of the position included casing mail for
one and a half hours per day, delivering a route for two hours per day, and working on a machine
for a half hour per day. It required lifting, pushing, and pulling up to 20 pounds for two hours
per day, operating a motor vehicle at work for no more than two hours per day, and no squatting,
kneeling, or climbing. The position also indicated that it involved no walking over two hours or
standing over four hours, and advised that appellant would drive a vehicle to deliver mail,
dismount from the vehicle, and walk to indoor and side mail boxes. She would also perform
seated deliveries that required her to “turn to the left to gather mail and back to the right to reach
thr[ough] the open vehicle window to open a mailbox and place the mail in the box and close the
lid.” The employing establishment advised that due to appellant’s physical limitations and its
work load it could not provide a full-time offer.
Appellant accepted the position subject to her physician’s approval.
An FCE performed February 5, 2016 indicated that appellant could work at a light level
for four to six hours per day. The physical therapist who performed the evaluation found that
appellant could work six hours per day lifting and carrying up to 25 pounds, pushing carts up to
35 pounds, pulling with one arm up to 40 pounds, and infrequently climbing stairs. Appellant
described the duties of the offered limited-duty position and the physical therapist found that she
could work in the position six hours per day. He further indicated that she could infrequently
climb stairs. The physical therapist further advised that the results of the FCE were not valid and
that her demonstrated work ability was “very conservative.”
In an undated work restriction evaluation (Form OWCP-5c), Dr. Brooks found that
appellant could work four to six hours per day with reconditioning prior to working full time. He
determined that she could walk two to four hours per day, stand one to two hours per day, push
and pull 35 to 40 pounds, and lift up to 25 pounds. Dr. Brooks indicated that appellant could not
twist or squat, could kneel 5 to 10 minutes, bend and stoop 5 to 10 minutes, and could climb 10
to 30 minutes.
OWCP, in a notice dated February 17, 2016, informed appellant of its proposed reduction
of her compensation as the employing establishment had offered a temporary position as a parttime modified city carrier that accommodated her work-related limitations. It advised her of the
provisions of 20 C.F.R. § 10.500(a) and discussed that compensation was only available while
her wages precluded her from earning the same wages as before her injury. OWCP afforded
appellant 30 days to accept the temporary position or provide good cause for not doing so.
Dr. Brooks submitted a February 18, 2016 work restriction evaluation that was identical
to the undated work restriction evaluation received by OWCP on February 16, 2016.
3

Dr. Brooks continued to provide progress reports describing his treatment of appellant.

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By letter dated February 29, 2016, appellant asserted that she was unable to accept the
modified position because the FCE found that she could not perform twisting.
In a February 26, 2015 progress report, Dr. Brooks diagnosed postlaminectomy
syndrome, listed findings on examination, and found that appellant could perform limited-duty
employment as per the FCE.
By decision dated April 13, 2016, OWCP reduced appellant’s wage-loss compensation
effective that date as she did not accept the light-duty position offered on January 19, 2016 by
the employing establishment.4 It applied the formula set forth in Albert C. Shadrick5 to calculate
her loss of wage-earning capacity.
In a report dated June 2, 2016, Dr. Jeremy Prine, a Board-certified anesthesiologist,
evaluated appellant for low back pain with radiculopathy into the right hip and left leg. He
advised that appellant had been referred to him by Dr. Brooks for treatment. Dr. Prine diagnosed
lumbosacral radiculopathy and long-term opiate use. He provided pain management. Dr. Prine
continued to submit progress reports describing his treatment of appellant from June through
August 2016.
Appellant also resubmitted progress reports from Dr. Brooks from March 2015 to
March 2016.
On August 2, 2016 appellant, through her representative, requested reconsideration. He
noted that appellant had declined the position based on poor advice from a union representative.
The representative asserted that a conflict existed between Drs. Hein and Brooks regarding
whether appellant could perform twisting, necessitating referral to an impartial medical
examiner. He further maintained that the job was not within Dr. Hein’s restrictions as he found
that appellant could not climb, and her job description involved climbing. The representative
advised that she would have to go up the stairs in front of houses to deliver mail.
By decision dated October 11, 2016, OWCP denied modification of its April 13, 2016
decision. It found that the medical evidence of record established that appellant was capable of
performing the offered modified city carrier position and that she did not provide an adequate
reason for refusing the position.
On appeal appellant, through her representative, contends that Dr. Hein found that she
could perform no climbing, but in performing the offered position she would need to climb stairs
to deliver mail. The representative noted that the physician reviewed her date-of-injury position
that required climbing and that the position was not suitable as it was temporary. The
representative also asserts that OWCP did not advise appellant that her reasons for refusing the

4

In a decision dated April 29, 2016, OWCP found an overpayment of compensation in the amount of $799.74
because insufficient life insurance premiums had been deducted. It found that she was without fault in creation of
the overpayment but denied waiver of recovery. Appellant did not appeal this decision.
5

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

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position were not suitable or provide her with 15 days to accept the position or have her
compensation terminated after it found the position suitable, citing Maggie Moore.6
LEGAL PRECEDENT
Section 10.500(a) of the Code of Federal Regulations provides:
“(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents
[her] from earning the wages earned before the work-related injury. For example,
an employee is not entitled to compensation for any wage loss claimed on a
[Form] CA-7 to the extent that evidence contemporaneous with the period
claimed on a [Form] CA-7 establishes that an employee had medical work
restrictions in place; that light duty within those work restrictions was available;
and that the employee was previously notified in writing that such duty was
available. Similarly, an employee receiving continuing periodic payments for
disability was not prevented from earning the wages earned before the workrelated injury if the evidence establishes that the employing [establishment] had
offered, in accordance with OWCP procedures, a temporary light-duty assignment
within the employee’s work restrictions.7”
When it is determined that an appellant is no longer totally disabled from work and is on
the periodic rolls, OWCP procedures provide that the claims examiner should evaluate whether
the evidence establishes that light-duty work was available within her restrictions. The claims
examiner should provide a pretermination or prereduction notice if appellant is being removed
from the periodic rolls.8 When the light-duty assignment either ends or is no longer available,
the claimant should be returned to the periodic rolls if medical evidence supports continued
disability.9
OWCP procedures further advise, “If there would have been wage loss if the claimant
had accepted the light-duty assignment, the claimant remains entitled to compensation benefits
based on the temporary actual earnings WEC [wage-earning capacity] calculation (just as if
he/she had accepted the light-duty assignment).”10
A part-time light-duty assignment may be appropriate if it is for at least half of the total
hours that the claimant was released for work, is not less than two hours per day, and there is
6

42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

7

20 C.F.R. § 10.500(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(c)(1)
(June 2013).
9

Id.

10

Id. at Chapter 2.814.8(c)(10).

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written verification from the employing establishment verifying that it is not able to provide
work for the total hours that the claimant was released for work.11
ANALYSIS
OWCP accepted that appellant sustained lumbar intervertebral disc disorder with
myelopathy and thoracic or lumbosacral neuritis or radiculitis causally related to factors of her
federal employment. It paid her compensation for total disability beginning July 26, 2014.
OWCP placed her on the periodic rolls effective December 14, 2014. On August 14, 2014
appellant underwent a lumbar fusion, discectomy, and decompression at L4-5.
On January 19, 2016 the employing establishment offered appellant a position as a
modified carrier working four hours per day. The position required casing mail for one and a
half hours per day, delivering mail for two hours per day, and working on a machine for a half
hour per day. The physical requirements consisted of walking no more than two hours, standing
no more than four hours, lifting, pushing, or pulling up to two hours, operating a motor vehicle
for no more than two hours, and no squatting, kneeling, or climbing. It also required driving a
vehicle to deliver mail, getting out of the vehicle to deliver mail to indoor and side mailboxes,
and performing seated deliveries that required turning.
The determination of whether an employee has the physical ability to perform a position
offered by the employing establishment is primarily a medical question that must be resolved by
the medical evidence.12 In his August 5, 2015 report, Dr. Hein found that appellant had no
residuals of her herniated disc, but that she did have lumbar radiculopathy, reduced strength, and
evidence of disc abnormalities on objective testing. He found that she had not reached maximum
medical improvement and was unable to perform her usual job, but that she could perform
sedentary or light work for eight hours a day. Dr. Hein advised that appellant could sit and stand
for four hours per day, walk for two hours per day, operate a motor vehicle at work for two hours
per day, and push, pull, and lift up to 20 pounds for two hours per day. His report, which is
detailed and well rationalized, is entitled to the weight of the evidence and establishes that she
has the ability to perform the offered modified employment.13
In the progress report dated August 6, 2015, Dr. Brooks diagnosed a prolapsed lumbar
intervertebral disc, lumbosacral radiculopathy, sciatica, and lumbago. He found that appellant
was out of work, noting that she was undergoing treatment for breast cancer. Dr. Brooks,
however, did not provide rationale in support of his disability finding or specifically attribute the
disability to the work injury, and thus his report is of little probative value.14
On September 3, 2015 Dr. Brooks reviewed the opinion of the second opinion examiner,
Dr. Hein, and opined that appellant could perform sedentary work with no bending, twisting, or
11

Id. at Chapter 2.814.9(d).

12

See N.D., Docket No. 15-0027 (issued February 4, 2016); T.T., 58 ECAB 296 (2007).

13

See generally H.Y., Docket No. 14-0019 (issued March 24, 2014).

14

K.W., 59 ECAB 271 (2007).

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lifting. On January 11, 2016 he advised that she should not work until after an FCE. An FCE
performed February 5, 2015 indicated that appellant could perform light work for six hours per
day lifting up to 25 pounds and infrequently climbing stairs. The physical therapist who
performed the evaluation advised that she could work in the offered limited-duty position for six
hours per day. In a work restriction evaluation received February 16, 2016, Dr. Brooks found
that appellant could work four to six hours per day walking up to four hours, standing up to two
hours, pushing and pulling up to 40 pounds, and lifting up to 25 pounds. He opined that she
could not twist or squat, kneel, bend, or stoop more than 10 minutes, or climb more than 30
minutes. On February 26, 2016 Dr. Brooks found that appellant could perform limited duty in
accordance with the FCE. As the FCE supports that she was able to work in the offered position,
his reports do not support that the light-duty offered position was outside of her physical
capacity.
The Board finds that OWCP complied with all procedural requirements as set forth in 20
C.F.R. § 10.500(a) by advising appellant that the offered assignment was suitable, providing her
with the opportunity to accept the position or provide reasons for her refusal, and notifying her
that her wage-loss compensation would be reduced if she failed to submit sufficient evidence
showing that such reduction was not justified.15 The Board further finds that no procedural
requirements beyond those set forth in 20 C.F.R. § 10.500(a) need be afforded to appellant prior
to reduction of her benefits.16 OWCP properly applied the provisions of Shadrick in determining
her loss of wage-earning capacity.17 The offered position was for four hours per day and the
employing establishment verified that it was unable to provide a job offer for more hours per day
due to its work load.18
The remaining evidence of record is insufficient to contradict that appellant had the
capacity to perform the offered limited-duty position. On June 2, 2016 Dr. Prine diagnosed
lumbosacral radiculopathy and opiate use. He noted that her pain started after a work injury and
that she had undergone a fusion.19 Progress reports dated June through August 2016 describe his
treatment of appellant with pain management. Dr. Prine, however, did not address the relevant
issue of whether she could perform the offered modified-duty employment for four hours daily,
and thus his opinion is of little probative value.
On appeal appellant’s representative argues that Dr. Hein found that she could not climb
and the offered position required her to climb stairs delivering mail. The job offer specified,
15

See supra note 8.

16

P.A., Docket No. 16-0768 (issued June 27, 2016).

17

See supra note 6. OWCP divided appellant’s employment capacity to earn wages of $575.57 a week by the
current pay rate of the position held when injured of $1,151.00 per week to find 50 percent wage-earning capacity.
OWCP multiplied the pay rate at the time disability began of $1,100.37 by the 50 percent wage-earning capacity
percentage. The resulting amount of $550.18 was subtracted from appellant’s date-of-injury pay rate of $1,100.37
which provided a loss of wage-earning capacity of $550.19 per week. OWCP then multiplied this amount by the
appropriate compensation rate which yielded $366.79 or $1,467.17 every four weeks after adjustments.
18

See supra note 12.

19

A June 19, 2016 CT scan showed an annual bulge at L4-5 that was not present on a 2014 MRI scan.

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however, that she would deliver mail to indoor and side mail boxes and that the position required
no climbing.
Appellant’s representative also contends that the position was not suitable as it was
temporary. He further notes that OWCP did not provide her with 15 days to accept the position
or have her compensation terminated after it found the position suitable. OWCP, however, did
not invoke the penalty provision of 5 U.S.C. § 8106(c) and terminate appellant’s compensation
for refusing suitable work, but instead reduced her wage-loss compensation under 20 C.F.R.
§ 10.500(a). As discussed, it complied with the procedural requirements prior to the reduction.
A reduction of compensation based on a temporary position is allowed under section 10.500(a).20
The evidence reflects that appellant did not accept a temporary light-duty assignment offered by
the employing establishment that was within her physical capabilities and, therefore, OWCP
properly reduced her compensation under section 10.500(a).
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
April 13, 2016 based on her earnings had she accepted a temporary light-duty assignment.

20

B.W., Docket No. 16-0120 (issued July 22, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the October 11, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

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

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

1

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

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Houston, TX, Employer
__________________________________________

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

Docket No. 07-2218
Issued: March 18, 2008

Case Submitted on the Record

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

JURISDICTION
On August 29, 2007 appellant filed a timely appeal from a June 22, 2007 merit decision
of a hearing representative of the Office of Workers’ Compensation Programs denying her
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On August 7, 2006 appellant, then a 56-year-old therapeutic radiologic technologist, filed
an occupational disease claim (Form CA-2) alleging that her headaches, nervousness, neck pain
overeating and insomnia were caused by factors of her employment. She alleged that
unsubstantiated allegations by her supervisor resulted in counseling and written reprimands; her

coworkers lied about various incidents and were constantly reporting on her; and she was singled
out. Appellant was first aware of her condition on June 24, 2005.
In letters dated August 16, 2006, the Office requested additional information from both
appellant and the employing establishment. Appellant was requested to describe in detail the
incidents which she believed contributed to her condition and provide a report from her
physician which included the physician’s opinion, with medical rationale, on the cause of her
condition.
In an August 11, 2006 statement, appellant indicated that her tension headaches began on
June 24, 2005 when her supervisor, Jennifer Webb-Goetz, gave her a report listing treatment
errors she allegedly committed on June 3, 13 and 15, 2005 with regard to patient radiation
treatment. She also noted a June 24, 2005 written counseling report regarding her behavior and
use of profanity towards patients and coworkers.1 Appellant submitted her response to the list of
treatment errors, as requested, on June 27, 2005. She also responded to the written counseling
report.
Appellant indicated that she was accused of patient neglect and abuse on July 5, 2005.
She stated that her headaches became progressively worse after an August 8, 2005 fact-finding
meeting was held regarding the July 5, 2005 incident. An August 11, 2005 fact-finding summary
and conclusion found that appellant failed to timely respond to a patient’s distress on
July 5, 2005. As a result of the fact findings, she received a September 20, 2006 memorandum
from Ms. Webb-Goetz proposing to admonish her for negligent work. Appellant disagreed with
the proposed admonishment and requested hearing before employing establishment officials,
which was held on October 24, 2005. During the hearing, her union representative requested that
certain evidence be considered prior to a decision being rendered and advised that the evidence
would be submitted by October 28, 2005. Appellant submitted an October 28, 2005 response
from Christopher Allen, her union representative, together with statements from coworkers,
Arthur Alvarado, Aimee Boyd, Lori Edwards, Jackie Elijate and Nancy Hacker. The
admonishment decision, however, was finalized on October 27, 2005. Appellant contended that
she was not accorded due process as her documentation was never reviewed.
The October 27, 2005 decision from Dr. Meena S. Vij, Diagnostic & Therapeutic Care
Line Executive, found the neglect charge fully supported by the evidence and that “It is my
decision that you be admonished.” The decision advised appellant that, if she believed the
admonishment was unjustified, she could appeal through a grievance procedure.
Appellant received the admonishment decision on October 28, 2005. She became
overwhelmed and ill and made an appointment with Dr. Winston E. Watkins, Jr., a Boardcertified internist, who referred her to mental health services. Appellant also filed a formal
Equal Employment Opportunity (EEO) complaint for harassment for prior EEO activity on
November 1, 2005.

1

Ms. Webb-Goetz indicated that, during the week of June 6, 2005, she heard appellant complaining loudly
several times about the workload and also heard her using profanity. She also noted that appellant had twice ignored
a doctor’s request on June 15, 2005 that she get the dosimetrist for an electron set up.

2

Appellant submitted medical reports from Dr. Watkins and Dr. Royce Watts, Ph.D., a
clinical psychologist. Dr. Watkins saw appellant on November 4, 2005 and diagnosed severe
anxiety and situational depression. He opined that she was totally disabled. Dr. Watkins later
advised that appellant was able to return to work on March 16, 2005 for no more than 40 hours
per week. On November 5, 2005 Dr. Watts first examined appellant and indicated that she
should be able to transition back to normal work after three months.
In an undated memorandum, Ms. Webb-Goetz stated that the June 24, 2005 letter of
counseling was warranted as the evidence showed that appellant ignored a patient’s cries for help
on July 5, 2005. The patient identified appellant as the therapist who treated him on
July 5, 2005. Appellant was given an opportunity to be heard during the fact finding and had
union representation. When she returned to work on March 16, 2006, she was told she had to
request reasonable accommodation for no overtime work and was accommodated after medical
evidence was received. Ms. Webb-Goetz noted that appellant’s physician initially stated that
appellant should not work overtime for three months. Thereafter, medical documentation was
requested from appellant who was notified on August 4, 2006 that she had to submit medical
documentation if she was requesting accommodation on a permanent basis.
In an August 31, 2006 report, Dr. Ateka Zaki, a Board-certified psychiatrist, diagnosed
appellant with adjustment disorder with anxiety and depression.
In a letter dated September 11, 2006, appellant indicated that she received the results of
the August 18, 2006 EEO investigation and was consulting an attorney.2
By decision dated November 30, 2006, the Office denied appellant’s claim, finding that
she had not established any compensable work factors or submitted any probative evidence that
she was singled out or that her coworkers had lied about the work incidents.
Appellant requested an oral hearing which was held on April 26, 2007. She testified that
her problems began on June 24, 2005 when Ms. Webb-Goetz gave her a memorandum of written
counseling along with a list of errors. Appellant stated that Ms. Webb-Goetz refused to provide
her with details concerning the memorandum of written counseling, which concerned allegations
of her harsh treatment of patients and coworkers and the use of profanity. She met with Zahida
Kahn, an administrative officer, on June 27, 2005, who stated that she did not have knowledge of
the basis for the charges. Appellant testified about the July 5, 2005 patient incident and denied
that she had been negligent in treating the patient. She contended that Ms. Boyd did not
truthfully state what happened on July 5, 2005 and had told her on October 18, 2005 that she was
forced to write the statement she provided. Appellant contended that the employing
establishment did not consider the written response submitted by her union representative prior
to issuing the October 27, 2005 decision. She had never been written up for patient abuse in her
14 years of working. Appellant stated that Warren Robicheaux, of human resources, called
Dr. Watts and wanted to know why she had to be off work on the days that she had counseling.
She contended that this was harassment. After appellant returned to work March 16, 2006, she
2

The record also contains copies of awards and commendations appellant received on October 21, 1998,
August 26, 1999 and April 18, 2002 along with statements from coworkers recommending her for various awards.

3

was monitored and followed. She noted that no decision had been reached in the EEO complaint
she filed.
After the hearing, appellant submitted duplicative copies of evidence already of record.
She noted that she filed an informal EEO complaint on July 6, 2005 and a formal complaint on
November 1, 2005. Appellant advised that she did not pursue any further relief with respect to
the October 27, 2005 admonishment decision as she could not function mentally or emotionally.
She stated that, after returning to work March 16, 2006, her supervisor provided her with a fully
successful evaluation rating for the period March 2005 to February 2006 despite the accusation
of patient neglect and abuse.
In a May 10, 2007 memorandum, Dr. Vij responded to appellant’s comments at the
hearing. She generally stated that the disciplinary actions taken against appellant were
warranted. Dr. Vij denied appellant’s allegations that her prior EEO involvement was a factor in
issuing the proposed admonishment or that an employee had been assigned to monitor her. In a
June 12, 2007 letter, appellant responded to Dr. Vij’s comments.
By decision dated June 22, 2007, an Office hearing representative affirmed the
November 30, 2006 decision, finding that appellant had not established any compensable
employment factors.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to her regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of her work or
her fear and anxiety regarding her ability to carry out her work duties.4 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers compensation law because they are not found to have arisen out of employment,

3

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

4

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

4

such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim but rather must be corroborated by the
evidence.9 Mere perceptions and feelings of harassment or discrimination will not support an
award of compensation. The claimant must substantiate such allegations with probative and
reliable evidence.10 The primary reason for requiring factual evidence from the claimant in
support of her allegations of stress in the workplace is to establish a basis in fact for the
contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by the Office and the Board.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
5

Id.

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

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

8

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

9

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
10

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
11

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

5

factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents. The Office denied appellant’s emotional condition claim on the grounds
that she did not establish any compensable employment factors. The Board must, therefore,
initially review whether these alleged incidents of employment are covered employment factors
under the terms of the Act.
Appellant attributed her emotional condition, in part, to administrative and personnel
actions taken by management. These concern a June 24, 2005 written counseling report
regarding her behavior and use of profanity towards patients and coworkers; a June 24, 2005
request to respond to reports of three errors in patients’ radiation treatment on June 3, 13 and 15,
2005; the investigation into and decision concerning the July 5, 2005 incident in which she was
accused of not timely responding to a patient’s distress; the failure to consider the union’s
October 28, 2005 written response and evidence regarding the proposed admonishment due to
the July 5, 2005 incident; and the August 4, 2006 request that appellant should submit a request
for reasonable accommodation with current medical documentation if she intended to request
permanent limited work of no more than 40 hours per week.
Appellant alleged that management unfairly singled her out or treated her in a
discriminatory manner with respect to its disciplinary actions of June 24 and October 27, 2005.
Her supervisor, Ms. Webb-Goetz, stated that evidence which gave rise to the June 24, 2005 letter
of counseling, the reports of errors in patients’ radiation treatment, and the July 5, 2005 incident
whereby appellant ignored a patient’s cries for help were well documented by the record.
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 absent any error or abuse.13 There is no evidence to support appellant’s
allegations that she was unfairly singled out for disciplinary action or that her coworkers lied
about her alleged mistreatment and neglect of patients. The July 5, 2005 incident ultimately
resulted in an October 27, 2005 decision admonishing appellant. The record reflects that
appellant was given the opportunity to be heard during the fact-finding process and had union
representation. While she contends that the employing establishment failed to consider all the
evidence she submitted, including the union’s response to the proposed admonishment, the
Board notes that appellant never appealed the October 27, 2005 decision. As a result, the record
does not establish that the disciplinary and administrative actions taken by management were in
error. Therefore, appellant has not established compensable factors of employment. An
employee’s emotional reaction to an administrative or personnel matter is not covered under the
12

D.L., supra note 2; T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); C.S., 58 ECAB ___
(Docket No. 06-1583, issued November 6, 2006); A.K., 58 ECAB ___ (Docket No. 06-626, issued
October 17, 2006).
13

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

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Act, unless there is evidence to establish that the employing establishment acted unreasonably.14
Appellant has not presented sufficient evidence that her managers acted unreasonably or
committed error with regard to the personnel matters asserted.
The Board further finds that management did not commit administrative abuse or error by
monitoring appellant’s requests for accommodation. The Board has held that an employee’s
complaints concerning the manner in which a supervisor performs his duties as a supervisor or
the manner in which a supervisor exercises his supervisory discretion falls, as a rule, outside the
scope of coverage provided by the Act.15 This principle recognizes that a supervisor or manager
must be allowed to perform their duties and that employees will at times dislike the actions
taken; however, mere disagreement or dislike of a supervisory or management action will not be
actionable, absent evidence of error or abuse.16 The record indicates that appellant’s physician
did not permanently restrict appellant from working overtime, but rather advised that she could
return to normal work after three months. Thus, it appears reasonable that the employing
establishment would request medical documentation from appellant after the first three months.
Additionally, the employing establishment’s August 4, 2006 notification to appellant that she
must submit medical documentation if she was requesting an accommodation on a permanent
basis, appears reasonable given the circumstances of this case.17 Appellant has not submitted
any evidence to show that these actions demonstrated error or abuse on the part of management.
Thus, she has not established a compensable employment factor.
Regarding appellant’s contention that the employing establishment had assigned someone
to monitor her after she returned to work on March 16, 2006, appellant has not provided any
specific examples of improper monitoring of her work or provided sufficient supporting evidence
to substantiate this allegation. Thus, this allegation is not accepted as factual.
There is also no evidence to support that the disciplinary actions constituted harassment
as a result of prior EEO activity.18 Although appellant filed an EEO complaint claiming that the
actions of the employing establishment constituted harassment for her prior EEO activity,
grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.19 She has additionally alleged that she was harassed when a
Mr. Robicheaux, from human resources, called Dr. Watts and inquired why she had to be off
work on the days she had counseling. As previously noted, appellant must substantiate her
allegations of harassment or discrimination with probative and reliable evidence.20 She has
14

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

15

See Judy L. Kahn, 53 ECAB 321 (2002).

16

Id.

17

Furthermore, the assignment of work by a supervisor, the granting or denial of a request for a transfer and the
assignment to a different position are administrative functions that are not compensable absent error or abuse. D.L.,
supra note 2.
18

See Joel Parker, Sr., supra note 10.

19

See Parley A. Clement, 48 ECAB 302 (1997).

20

See Joel Parker, Sr., supra note 10.

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submitted no evidence corroborating her allegation that her physician was called by the
employing establishment. Thus, this allegation is not accepted as factual.
For the foregoing reasons, the Board finds that appellant has not established any
compensable employment factors under the Act and, therefore, has not met her burden of proof
in establishing that she sustained an emotional condition in the performance of duty.21
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

21

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. Karen K. Levene, 54 ECAB 671 (2003); see also Margaret S. Krzycki, 43 ECAB 496, 50203 (1992).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, NC, Employer
__________________________________________

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

Docket No. 18-1677
Issued: April 27, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 4, 2018 appellant filed a timely appeal from a June 26, 2018 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 to
consider the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for intermittent periods from January 5 through May 13, 2016 causally related to her accepted
March 15, 2005 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the June 28, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 26, 2005 appellant, then a 46-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 15, 2005 she sustained a right arm injury when her mail truck
was struck by another vehicle as she was delivering mail while in the performance of duty. She
stopped work on March 16, 2005. OWCP initially accepted appellant’s claim for sprain/strain of
the rotator cuff (capsule) of the right shoulder, and it later expanded the accepted conditions to
include adhesive capsulitis of the right shoulder.3
On June 16, 2012 appellant returned to work for the employing establishment as a modified
mail handler. By decision dated September 19, 2012, OWCP reduced her wage-loss compensation
to zero effective June 16, 2012 to reflect that her actual earnings as a modified mail handler fairly
and reasonably represented her wage-earning capacity. It determined that appellant’s actual
earnings met or exceeded the current wages of the job held when injured and therefore found that
she had no loss in wage-earning capacity.
On November 28, 2012 Dr. Erik C. Johnson, a Board-certified orthopedic surgeon,
performed OWCP-authorized right shoulder surgery, including arthroscopy with distal clavicle
excision, subacromial decompression, and tenotomy of the long head of the biceps.
On December 2, 2015 appellant was treated by Dr. Kirsten D’Amore, a Board-certified in
physical medicine and rehabilitation, for complaints of continued neck and bilateral shoulder pain.
She reported physical examination findings, noting that appellant exhibited pain upon palpation
and range of motion testing of her neck. Dr. D’Amore diagnosed chronic neck and bilateral
shoulder pain, and she recommended a follow-up visit in three months.
In a March 9, 2016 report, Dr. Adelle Anthony-Williams, a Board-certified
anesthesiologist, noted that appellant complained of “upper extremity injury/pain” and reported
that her condition had been stable since her last appointment which was in December 2015. She
detailed physical examination findings, noting that appellant moved all four of her extremities
without difficulty.
Dr. Anthony-Williams diagnosed chronic right shoulder pain and
recommended a follow-up visit in three months. In reports dated June 8, September 7,
November 30, 2016 and March 1, May 31, August 23, and November 15, 2017, she provided
follow-up treatment and diagnosed several conditions including chronic shoulder pain, arthralgia
of the right shoulder, and chronic pain syndrome. 4
In an attending physician’s report (Form CA-20) dated July 2, 2016, Dr. Johnson diagnosed
left shoulder impingement with associated acromioclavicular joint arthritis and related this
condition to the March 15, 2005 employment injury. He returned appellant to light-duty work. In
reports dated August 29, November 14, December 21, 2016 and May 23, August 29, and
September 14, 2017, Dr. Johnson further discussed his treatment of appellant’s left shoulder
3

OWCP paid appellant wage-loss compensation benefits on the supplemental rolls from May 28 through
June 10, 2005. In early-July 2005 she returned to work for the employing establishment in a modified position without
wage loss. Appellant stopped work again on February 11, 2010 and OWCP paid her wage-loss compensation benefits
on the supplemental rolls commencing February 11, 2010 and on the periodic rolls commencing June 6, 2010.
4

On July 21, 2016 Dr. Patrice Rodgers-Morales, a Board-certified family practitioner, diagnosed several conditions,
including chronic pain syndrome and chronic shoulder arthralgia.

2

condition. In his August 29 and September 14, 2017 reports, he diagnosed incomplete tear of the
rotator cuff of the left shoulder.
On December 13, 2017 appellant filed several wage-loss compensation claims (CA-7
forms) alleging entitlement to compensation for intermittent disability between January 5 and
May 13, 2016 causally related to her accepted March 15, 2005 employment injury.5
In a development letter dated December 20, 2017, OWCP requested that appellant submit
additional information to support her claim for intermittent disability including medical evidence
establishing that her disability during this period was causally related to her accepted March 15,
2005 employment injury.
Appellant submitted an August 9, 2017 health care provider certificate from Dr. Johnson
who diagnosed status post November 28, 2012 right shoulder surgery and detailed permanent work
restrictions, including limits on lifting, pushing, pulling, and overhead work.
By several decisions dated January 24, 2018, OWCP denied appellant’s disability claims
for intermittent wage-loss compensation because she had not submitted sufficient medical
evidence to establish the claimed disability causally related to her accepted March 15, 2005
employment injury.6
On May 16, 2018 appellant requested reconsideration of the January 24, 2018 decisions
and submitted a January 19, 2018 report from Dr. Johnson who indicated that appellant missed
work on January 5, March 11, 24, April 29, and May 8, 2016. He noted that it was within medical
reasonability that appellant had to skip work on these days secondary to incapacitating left
shoulder pain. In a February 20, 2018 report, Dr. Johnson discussed his treatment of appellant’s
left shoulder condition and diagnosed left shoulder incomplete rotator cuff tear, left shoulder
acromioclavicular joint arthrosis, and “work-related injury.”
Appellant also submitted February 7 and May 2, 2018 reports from Dr. Anthony-Williams
who diagnosed several conditions, including chronic pain syndrome and arthralgia of the right
shoulder.7 On February 15, 2018 Dr. Andrew M. Bruton, a Board-certified emergency medicine
physician, treated appellant for bilateral shoulder pain.
By decision dated June 26, 2018, OWCP denied modification of its January 24, 2018
decision.

5

The claim forms identified the following specific periods, two of which overlap each other: January 5 to 8, 2016;
March 11 to 24, 2016; March 19 to April 1, 2016; April 16 to 29, 2016; and April 30 to May 13, 2016.
6

OWCP issued five decisions dated January 24, 2018, each addressing one of appellant’s claimed periods of
disability. See id.
7

Appellant also submitted reports from Dr. Anthony-Williams dated September 7 and November 30, 2016 which
were previously of record. In a February 15, 2018 report, Jeffrey Harre, a physician assistant, and Amy Propst, a
registered nurse, discussed appellant’s medical problems.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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. 8
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. 9 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA. 11 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages. 12
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the specific employment factors
identified by the claimant. 13
ANALYSIS
The Board finds that appellant has not meet her burden of proof to establish disability from
work for intermittent periods from January 5 through May 13, 2016 causally related to her accepted
March 15, 2005 employment injury.
Appellant only submitted one medical report which discussed her medical condition
contemporaneous with the claimed periods of disability, i.e., intermittent periods between January 5
and May 13, 2016. In a March 9, 2016 report, Dr. Anthony-Williams detailed physical
examination findings noting that appellant moved all four of her extremities without difficulty ,
and diagnosed chronic right shoulder pain. However, this report is of no probative value regarding
the underlying issue of this case because it does not contain an opinion that appellant had disability
8

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

9

20 C.F.R. § 10.5(f).

10

See L.W., Docket No. 17-1685 (issued October 9, 2018).

11

See K.H., Docket No. 19-1635 (issued March 5, 2020).

12

See D.R., Docket No. 18-0323 (issued October 2, 2018).

13

Y.S., Docket No. 19-1572 (issued March 12, 2020).

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from work during the claimed periods due to the accepted March 15, 2005 employment injury to
her right shoulder. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition or disability is of no probative value on the issue of
causal relationship.14 Therefore, Dr. Anthony-Williams’ March 9, 2016 report is insufficient to
establish appellant’s claim.
Appellant also submitted numerous medical documents which discussed her medical
condition after the claimed period of disability, including reports dated between June 8, 2016 and
May 2, 2018 from Dr. Anthony-Williams, reports dated between July 2, 2016 and February 20,
2018 from Dr. Johnson, a July 21, 2016 report from Dr. Rodgers-Morales, and a February 15, 2018
report from Dr. Bruton. These reports also lack probative value regarding the underlying issue of
this case because they do not contain an opinion that appellant had disability during the claimed
periods causally related to her accepted March 15, 2005 employment injury.15 Dr. Johnson
indicated in a January 19, 2018 report that appellant missed work on January 5, March 11, 24,
April 29, and May 8, 2016, and that it was within medical reasonability that she had to skip work
on these days secondary to incapacitating left shoulder pain. However, OWCP has not accepted
appellant’s claim for a left shoulder condition and the reports of Dr. Johnson do not contain a
rationalized medical opinion establishing the existence of such a work-related condition. 16
Therefore, these reports are insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal relationship
between her claimed periods of disability and the accepted March 15, 2005 employment injury, she
has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not meet her burden of proof to establish disability from
work for intermittent periods from January 5 through May 13, 2016 causally related to her accepted
March 15, 2005 employment injury.

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

Id.

16

See D.T., Docket No. 19-0399 (issued August 1, 2019) (finding that medical rationale is necessary to establish
the relationship between a given employment injury and a medical condition/period of disability). Appellant also
submitted a February 15, 2018 report produced by Mr. Harre, a physician assistant, and Ms. Propst, a registered nurse.
This report does not address appellant’s claimed periods of disability and would not be considered probative medical
evidence as physician assistants and registered nurses are not physicians within the meaning of FECA. P.S., Docket
No. 17-0598 (issued June 23, 2017); R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-0829
(issued August 20, 2013). See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

5

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 27, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERAN ADMINISTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

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Appearances:
Daniel E. Broussard, Esq, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1832
Issued: January 10, 2014

Case Submitted on the Record

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

JURISDICTION
On July 31, 2013 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated February 1, 2013 which denied her
reconsideration request. As the appeal in this case was filed on July 31, 2013, more than 180
days after the date of the most recent merit decision, under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This case was previously before the Board. Appellant, a 50-year-old nurse, injured her
neck on September 4, 2003. OWCP accepted her claim for cervical and lumbar strain,
aggravation of degenerative disc disease of the cervical and lumbar spine and lumbar

radiculopathy. Appellant stopped work on August 21, 2003 and was placed on the periodic rolls.
In a June 29, 2005 decision, OWCP terminated her monetary benefits, finding that she refused an
offer of suitable work. By decision dated May 21, 2007, OWCP’s hearing representative
affirmed the June 29, 2005 decision. In an August 26, 2008 decision,1 the Board reversed the
finding that OWCP failed to consider all of the medical evidence of record. OWCP reinstated
appellant’s wage-loss benefits.
In an August 10, 2009 report, Dr. Robert Holladay, a Board-certified orthopedic surgeon,
opined that appellant could return to full duty with restrictions of no stooping, twisting, bending,
squatting, kneeling or climbing and no lifting, pulling or pushing more than 10 pounds.
On September 29, 2009 the employing establishment offered appellant a limited-duty
position as a program support assistant based on Dr. Holladay’s restrictions. The position was
sedentary, but required walking. On October 29, 2009 appellant accepted the limited-duty
position as a program support assistant. By decision dated January 20, 2010, OWCP reduced her
compensation benefits effective November 22, 2009 based upon her actual earnings. It found
that appellant’s actual earnings fairly and reasonably represented her wage-earning capacity.
On April 20, 2010 appellant submitted a notice of recurrence of total disability as of
April 9, 2010. After her return to work, her pain increased and her function and motion
decreased. In an April 19, 2010 report, Dr. John M. Burdine, Board-certified in pain medicine,
diagnosed cervical syndrome; cervico-brachial neuralgia; facet arthropathy of the spine; lumbar
spondylosis and lumbosacral radiculitis. He recommended that appellant undergo a functional
capacity examination and outlined temporary work restrictions of no lifting, bending, prolonged
activities, overhead activities; he also recommended that she take frequent breaks. Dr. Burdine
stated that without surgery her prognosis was poor.
In an April 9, 2010 report, Dr. DeVinder Verma, a specialist in internal medicine, stated
that appellant was unable to work as of April 7, 2010.
Appellant submitted an April 5, 2010 performance review from Fay C. Thrasher, Ph.D,
her supervisor. She had both physical and cognitive difficulties which interfered with her ability
to successfully perform the functions of her position. Ms. Thrasher noted that appellant had a
hard time typing and focusing due to numerous medications taken for pain.
In a July 6, 2010 report, OWCP’s medical adviser reviewed the medical record and noted
that appellant experienced ongoing problems following her 2003 work injury. The record
revealed stiffness and pain in the neck and intermittent left shoulder pain, which required
injections. The medical adviser opined that the left shoulder condition should be considered
consequential to the injury of August 21, 2003.
On July 9, 2010 OWCP accepted “other affections of the shoulder region” and authorized
treatment of the left shoulder as consequential to the original August 21, 2003 injury.

1

Docket No. 07-2103 (issued August 26, 2008).

2

By decision dated July 19, 2010, OWCP denied modification of the January 20, 2010
wage-earning capacity decision. It adjudicated appellant’s recurrence claim as a request to
modify the loss of wage-earning capacity determination. OWCP found that the medical evidence
failed to establish a change in the nature and extent of her injury-related condition, that she had
been retrained or vocationally rehabilitated or that the original determination was erroneous. By
decision dated October 4, 2011, the Board set aside the January 20, 2010 wage-earning capacity
decision.2 It found that the medical evidence generally supported appellant’s claim that her
condition worsened following her return to work in the modified program support assistant
position. Although, OWCP authorized treatment of the left shoulder as consequential to the
original injury based on the medical adviser’s report, it erred by failing to consider whether
appellant’s left shoulder condition constituted a worsening of her accepted injury warranting
modification of the wage-earning capacity determination. The Board remanded the case to
OWCP for further development of the medical evidence. The facts of the case as set forth in the
Board’s August 26, 2008 and October 4, 2011 decisions are incorporated by reference.
By decision dated December 5, 2011, OWCP denied modification of its January 20, 2010
wage-earning capacity decision.
By letter dated December 5, 2012, received by OWCP on December 13, 2012, appellant,
through her attorney, requested reconsideration of OWCP’s December 5, 2011 decision denying
modification of the wage-earning capacity decision. Counsel noted that he was seeking
modification of the January 20, 2010 wage-earning capacity decision on the grounds that there
had been a material change in the nature and extent of her injury-related back, neck and left
shoulder conditions.
By decision dated December 5, 2011, OWCP denied modification of the January 20,
2010 wage-earning capacity decision.
By letter dated December 5, 2012, received by OWCP on December 13, 2012, appellant
through her attorney, requested reconsideration of the December 5, 2011 decision denying
modification of the wage-earning capacity decision.
Appellant submitted several reports from Dr. Burdine, a treating physician. In a
February 13, 2012, Dr. Burdine noted that she had continued complaints of achy, burning,
throbbing pain in her low back, neck and left shoulder, in addition to numbness and tingling.
Appellant also had a limited range of motion in the left shoulder. Dr. Burdine noted that she had
been scheduled for left shoulder surgery but had cancelled the procedure because her husband
underwent heart surgery.
In an April 18, 2012 report, Dr. Burdine related that the pain in appellant’s left arm had
worsened in the previous two weeks. He rated it as an eight on a scale of 1 to 10. Appellant
underwent a magnetic resonance imaging (MRI) scan on January 21, 2011 which showed some
impingement, partial tears and fraying of the supraspinatus tendon, along with arthritic disease in
the acromioclavicular (AC) and glenhumeral joints. On examination, she had limited range of
motion and tenderness in the left shoulder, with a positive impingement sign -- impingement
2

Docket No. 11-681 (issued October 4, 2011).

3

syndrome -- and uneven shoulders. Dr. Burdine advised that appellant had neuritis or radiculitis
due to displacement of her lumbar intervertebral disc.
Dr. Burdine stated that appellant’s overwhelming problem was her left shoulder pain.
Appellant had not been able to have surgery to ameliorate her condition. Dr. Burdine prescribed
conservative treatment until she was able to undergo left shoulder surgery.
In a July 11, 2012 report, Dr. Burdine reiterated that appellant’s primary complaint
involved her left shoulder. Appellant was also troubled by her neck condition. Dr. Burdine
opined that her neck condition was not fixable, as she had bone spurs and herniations which were
probably not repairable.
In a July 13, 2013 report, Dr. Kyle F. Dickson, Board-certified in orthopedic surgery,
stated that appellant had a history of having left shoulder pain since the August 21, 2003
employment injury. A January 21, 2011 MRI scan showed arthritic changes in the glenohumeral
and AC joints. On examination, there were signs that she might have a rotator cuff tear in the
left shoulder, although the diagnostic reports indicated that there might be some inflammation
but no complete tear. Dr. Dickson recommended that appellant return to her treating physician
and make sure that there was nothing more that could be done for her spine, then have her left
shoulder treated. He opined that she had constant pain which was occasionally severe.
Dr. Dickson recommended that appellant have an “adjustment” otherwise she would become
progressively worse as her body developed a tolerance to pain medication.
In an October 3, 2012 report, Dr. Burdine advised that appellant’s left shoulder pain was
worse. Medication patches did not ameliorate appellant’s pain and she sought other forms of
treatment for her left shoulder. She rated the pain in her left shoulder as a seven on a scale of 1
to 10.
In a November 13, 2012 report, Dr. Burdine reiterated that appellant’s bilateral shoulder
pain was worsening. He recommended that she be evaluated for left shoulder surgery as
medication did not control her symptoms. Dr. Burdine had tried more conservative measures
such as physical therapy but appellant’s shoulder had not responded. He outlined work
restrictions of no prolonged activity, which exacerbated her pain, no bending/lifting during
normal activity, no lifting exceeding 10 to 15 pounds, no bending/squatting/stooping, no
prolonged sitting, no prolonged standing, no prolonged walking and no overhead activities.
Dr. Burdine stated that, without surgery, her prognosis was poor and she would most likely not
be able to return to work.
By decision dated February 1, 2013, OWCP denied appellant’s request for
reconsideration without a merit review. It found that she had not timely requested
reconsideration and had failed to submit factual or medical evidence sufficient to establish clear
evidence of error.
LEGAL PRECEDENT
It is well established that either a claimant or OWCP may seek to modify a formal loss of
wage-earning capacity determination. Once the wage-earning capacity of an injured employee is

4

determined, a modification of such determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee has been retrained
or otherwise vocationally rehabilitated or the original determination was, in fact, erroneous.3
The burden of proof is on the party attempting to show modification.4 There is no time limit for
appellant to submit a request for modification of a wage-earning capacity determination.5
ANALYSIS
OWCP adjudicated appellant’s December 13, 2012 letter as a request for reconsideration
of the December 5, 2011 decision denying modification of the January 20, 2010 wage-earning
capacity determination under 5 U.S.C. § 8128(a). It found the request untimely and that she did
not establish clear evidence of error. The Boards found that the December 5, 2012 letter
constitutes a request for modification of OWCP’s January 20, 2010 wage-earning capacity
determination.6 A request for modification of the loss of wage-earning capacity is not a request
for a review under 5 U.S.C. § 8128(a) even though the term reconsideration may be used.
Therefore, OWCP improperly characterized the December 13, 2012 letter from appellant’s
attorney as a request for reconsideration subject to the one-year time limitation set forth at 20
C.F.R. § 10.607(a).
The Board finds that appellant has requested modification of the January 20, 2010 wageearning capacity determination. Appellant is entitled to a merit review on that issue.7 On
remand, OWCP shall adjudicate her request for modification of the wage-earning capacity
determination and issue an appropriate decision in the case.

3

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).
McCauley, 51 ECAB 375 (2000).
4

See also Tamra

Darletha Coleman, 55 ECAB 143 (2003).

5

Gary L. Moreland, 54 ECAB 638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19,
2005), Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004) (in Peoples and Taylor, the Board determined that
the claimant’s request for reconsideration of a wage-earning capacity determination constituted a request for
modification requiring a merit review. In both cases, the Board set aside OWCP’s decision denying appellant’s
reconsideration request as untimely and remanded for OWCP to address the merits of his request for modification of
a loss of wage-earning capacity decision).
6

See supra note 4.

7

Id.

5

CONCLUSION
The Board finds that appellant requested modification of the January 20, 2010 wageearning capacity determination. The case will be remanded to OWCP for all necessary
development and issuance of an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2013 is set aside and the case remanded for further
action consistent with this decision.
Issued: January 10, 2014
Washington, DC

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

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

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

6