United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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)
)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Newport Beach, CA, Employer
)
___________________________________________ )
D.B., Appellant

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

Docket No. 08-2169
Issued: August 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 4, 2008 appellant filed a timely appeal from a decision of the May 13, 2008
Office of Workers’ Compensation Programs which denied his 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 his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On August 23, 2005 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim alleging that he developed depression, anxiety and panic attacks due to workrelated stress. He became aware of his condition and realized it was related to his employment
on August 20, 2003. Appellant stopped work on April 15, 2005.

In a July 24, 2005 statement, appellant alleged that he was harassed and subject to
reprisal by management and coworkers. In June 1997, his postmaster improperly accused him of
throwing out mail and violated his privacy. In August 2003, Karin Rueckert, a coworker,
accused appellant of rolling up windows in her mail truck and verbally assaulted him. In
August 2003, while appellant prepared a diagram of the postal parking lot, he noted being
approached by Ms. Rueckert who “baited” him. He alleged that he was forced to resign his
position as an on-the-job-trainer, safety captain and welfare committee member because of the
hostile situation with Ms. Rueckert. On July 26, 2004 a union steward informed him that
Ms. Rueckert spread rumors that appellant scratched and dented her car. Appellant alleged that
on June 9, 2004, Ms. Rueckert threw a red book at him. On August 22, 2003 after requesting
financial and insurance information from Sheree Coates, his manager, she held a meeting for all
employees and stated that she would not be taken to task for “threats of suicidal violence.”
Appellant believed her comments were directed at him. He stated that, on August 22, 2003,
Ms. Coates improperly referred him for a confidential interview for disrupting the workroom
floor and, on April 15, 2005, threatened discipline when he advised her that he was leaving work
due to job stress. On April 15, 2005 Brent Jones, his supervisor, intimidated and harassed him
by instructing him to distribute an unspecified amount of swing mail because he had 1 hour and
45 minutes of downtime. Appellant contended that Mr. Jones was improperly estimating his
work time based on the delivery operations information system (DOIS) which was rejected as the
sole source of route time determination. He alleged that management did not notify him of all
biddable open craft positions. Appellant stated that Ms. Coates coerced him to reveal the name
of the coworker he saw reviewing a confidential file. He noted that Ms. Rueckert placed
cardboard around his case on August 13, 2003 that caused stress. Appellant was later questioned
by a threat assessment investigation team about the incident and became upset.
Appellant submitted a May 9, 2005 Equal Employment Opportunity (EEO) complaint
asserting that on April 15, 2005 his supervisor asserted, in front of coworkers, that he had
personal problems, instructed him to use downtime to carry his mail and denied him access to a
union representative. He submitted several May 10, 2005 grievance settlement forms and an
August 22, 2005 referral for a confidential interview from Ms. Coates.
In a July 26, 2005 report, Dr. Hosea Brown, III, a Board-certified internist, treated
appellant for anxiety due to work incidents starting in August 2003. He diagnosed generalized
anxiety disorder and depression and opined that appellant’s injuries were work related. An
August 22, 2005 report from Dr. Norman Reichwald, a Board-certified psychiatrist, diagnosed
major depressive disorder and panic disorder. Appellant reported that harassment by another
coworker caused his depression. In reports dated September 22 to November 21, 2005,
Dr. Reichwald treated him for depression due to workplace stress. He opined that appellant’s
injuries were due to workplace events, specifically mentioning a verbal altercation over work
performance on April 15, 2005 as a contributing factor to his condition.
In an August 20, 2003 statement, Ms. Coates advised that on August 19, 2003, Dan Jette,
a workplace intervention specialist, investigated a conflict between appellant and Ms. Rueckert,
who noted being afraid of appellant and alleged that he gave her orders and stared at her. The
investigation found appellant was responsible for inciting the conflict. Appellant was given
workplace behavior expectations and was referred to the employee assistance program. On
June 18, 2004 Ms. Coates reported that Eric Shephard, a coworker, complained that appellant

2

stared at him and intimidated him by discussing his job performance with supervisors. In an
April 15, 2005 memorandum, she noted that appellant became upset and sought to leave work
after Mr. Jones asked him to complete his route and carry swing mail. Mr. Jones noted that
appellant’s mail volume supported 6.5 hours of work and he had asked appellant to carry an
additional 30 minutes of swing mail. Ms. Coates reported appellant’s unhappiness with the
removal of his case equipment when an analysis of mail routes by management and the union
showed that his route did not meet the criteria for extra equipment. On September 7, 2005 she
stated that, on April 15, 2005, appellant became upset after his supervisor instructed him to assist
with another route. Appellant argued with his supervisor and walked off the workroom floor
with his work unfinished. Ms. Coates noted his history of inciting conflict with coworkers and
customers and becoming argumentative with supervisors. On December 8, 2005 she stated that
Ms. Rueckert was responsible for maintaining the address management data base or redbook and
complained that appellant would not cooperate. Ms Rueckert denied throwing the redbook at
appellant; rather she noted placing the book on his case ledge and leaving immediately.
The employing establishment submitted records from Mr. Jones. On September 21, 2001
Mr. Jones reported that Dan McGinn, a coworker, complained that appellant overheard a
conversation and began to push Mr. McGinn and shout at him. On August 6, 2003 he had an
official discussion with appellant for failure to follow instructions, noting that appellant
improperly cased a bundle of mail on August 5, 2003. On April 15, 2005 Mr. Jones requested
assistance from all carriers who were out of mail and asked appellant to complete a 30-minute
swing delivery as his route only had mail volume to support 6.5 hours of work. Appellant
declined and indicated that he wanted to go through pink cards. He subsequently spoke to
appellant in his office with a neutral witness present and advised that he was required to provide
8 hours of work and appellant’s volume justified 6.5 hours. On December 29, 2005 Mr. Jones
investigated appellant’s claim that Ms. Rueckert threw a redbook and noted that there were no
witnesses. Ms. Rueckert reported setting the redbook next to appellant and immediately leaving.
On August 21, 2003 Mr. Jette reported investigating a conflict between appellant and
Mr. Rueckert about allegations of a hostile work environment. He expressed concern that
appellant was harassing Ms. Rueckert.
On November 23, 2005 the Office asked appellant and the employing establishment to
provide additional evidence. Appellant submitted statements dated November 18, 2005 to
February 17, 2006 and reiterated his allegations. He was treated by Dr. Hisham Korraa, a Boardcertified internist, from May 12 to December 14, 2005, for work-related anxiety and stress.
In a December 8, 2005 statement, Ms. Rueckert denied throwing a book at appellant. She
noted being responsible for interviewing carriers as to the accuracy of their route and had
attempted to interview appellant; however, he would not cooperate. She placed the red book on
appellant’s ledge. In an e-mail dated December 29, 2005, Ms. Coates noted appellant created
problems with other coworkers and had a history of not following instructions.1 In an April 10,
1

Ms. Coates documented incidents, including a January 2, 2001 customer complaint about appellant’s conduct
while delivering mail, July 12, 2003, when he confronted Ms. Rueckert about leaving her postal vehicle unsecured,
July 23, 2003, when he was instructed not to case the third bundle of mail August 6, 2003, when a discussion was
held with appellant for failure to follow instructions about casing the third bundle, August 11, 2003, when a union
representative investigated an ongoing conflict with Ms. Rueckert; and March 11 and June 18, 2004, when Brent
Pate and Mr. Shephard, both carriers, complained of appellant’s intimidating behavior.

3

2006 conference memorandum, she reported that appellant approached her three times regarding
the postal vehicle window. In an August 3, 2006 statement, Pamela Richardson, an injury
compensation specialist, noted that she had contacted appellant and a union steward when open
craft positions became available and that appellant bid on several jobs. Also submitted was a
December 27, 2005 report from the Office of the Inspector General (OIG) that was initiated
when appellant was suspected of misrepresenting his condition to the Office.
In an August 7, 2006 decision, the Office denied appellant’s claim finding that her
emotional condition did not arise in the performance of duty.
Appellant requested an oral hearing which was held on December 12, 2006. He
submitted evidence previously of record and also achievement awards dated June 17, 1997 to
February 15, 2001 for exceptional performance. On November 4, 2006 Dr. Korraa noted
treatment of post-traumatic stress disorder and major depression. Appellant reported being
accused and ridiculed at work which caused extreme anxiety and an inability to perform his
duties. In a December 18, 2006 letter, Rich Cowan, a union steward, stated that he attended an
August 2003 meeting in which management and the union agreed to remove cardboard that
Ms. Rueckert put around appellant’s case as she did not obtain prior approval and it created a
safety hazard. Ms. Rueckert placed the cardboard around appellant’s case because he stared at
her. On January 24, 2007 appellant asserted that Mr. Jones’ statements were inaccurate and
misleading.
The employer submitted bid postings of May 31, June 13, July 28, August 15,
September 26, October 3, October 17 and November 1, 2005 and January 19, 2007. In a
January 10, 2007 statement, Mr. Jones indicated that appellant reported Ms. Rueckert for failing
to secure her postal vehicle on two occasions. He investigated the allegations and determined the
most appropriate course of action. Mr. Jones denied harassing appellant about his mail route on
April 15, 2005; rather, he noted the office workload had declined dramatically and he sought
assistance from those carriers whose mail volume was less than eight hours. He noted that most
carriers provided additional assistance but appellant was particularly uncooperative. Mr. Jones
spoke with appellant privately and, as no steward was available, a neutral witness was present.
He denied mentioning appellant’s personal problems or accusing him of crying on the workroom
floor.
In a February 22, 2007 decision, an Office hearing representative affirmed the August 7,
2006 decision. The hearing representative found that Ms. Rueckert’s placement of cardboard
around appellant’s case on August 13, 2003 was a compensable work factor; however, the
medical evidence did not establish that this caused appellant’s emotional condition.
On February 7, 2008 appellant requested reconsideration. He asserted that the employing
establishment informed him of only 2 out of 14 vacant assignments. In a January 28, 2007 letter,
Michele Valenzuela Ingram, a former supervisor, noted that she investigated a complaint that
appellant was disposing of mail and found it to be unfounded. On May 29, 2007 Dr. Reichwald,
stated that the events August 13, 2003, specifically the placement of cardboard around
appellant’s workstation were recorded in his initial evaluation on August 22, 2005. He advised
that the onset and cause of appellant’s disabling symptomology coincided with the events of
August 13, 2003. Dr. Reichwald diagnosed major depressive disorder, single episode in partial

4

remission. On January 2, 2008 he opined that this was the result of ongoing patterns of work
stress. Appellant reported that he was detained for 10 minutes on April 15, 2005, by his
managers after requesting to go home sick and had requested to be notified of any job bids but
received notification of only two bids. Dr. Reichwald opined that his disabling symptoms were
due to a pattern of harassment which included specific violations of his work contract and events
described in prior reports.
In an April 14, 2008 statement, Ms. Coates explained that the employing establishment
provided appellant craft bids as he requested by mail. Appellant previously bid on a carrier
position while he was off work and was awarded a position which took effect on May 14, 2005,
at another station. Ms. Coates noted that appellant was advised to direct any other work-related
documents to the manager at his new station. She further indicated that appellant’s work time
was not estimated using the DOIS system as alleged; rather it was calculated by observation.
By decision dated May 13, 2008, the Office denied modification of the February 22, 2007
decision.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, a claimant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to as the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.5 When an employee
experiences emotional stress in carrying out his employment duties, and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of an in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.6
There are situations where an injury or an illness has some connection with the employment but
2

Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

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

6

Lillian Cutler, supra note 3.

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nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to his regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.7
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.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
ANALYSIS
Appellant alleged that he was harassed, subject to reprisals and retaliated against by
management and his coworker. He alleged that in 1997 the postmaster improperly accused him
of disposing of mail and violated his privacy. In August 2003, Ms. Rueckert improperly accused
appellant of rolling up the windows of her postal vehicle and had verbally baited him when he
attempted to document that her vehicle was unsecured. On June 9, 2004 Ms. Rueckert allegedly
threw a red book at appellant and told coworkers that he scratched and dented her car. On
April 15, 2005 Mr. Jones harassed appellant by instructing him to perform an additional 30
minutes of swing mail.
To the extent that incidents alleged as constituting harassment by a supervisor and
coworkers are established as occurring and arising from appellant’s performance of his regular
duties, these could constitute employment factors.10 However, for harassment to give rise to a
compensable disability under the Act there must be evidence that harassment did in fact occur.
Mere perceptions of harassment are not compensable under the Act.11

7

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 3.
8

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

9

Id.

10

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

11

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

6

The factual evidence fails to support appellant’s claim for harassment or retaliation. As
to his allegation that in 1997 he was accused of disposing of mail, the record does not support
that he was harassed. On January 28, 2007 Ms. Ingram, a former supervisor, noted investigating
the matter and concluded that the complaint was unfounded. Appellant alleged that,
Ms. Rueckert improperly accused him of rolling up the windows of her vehicle, and mocked him
in August 2003. Ms. Rueckert denied the allegations. She noted appellant approached her three
times insisting that she completely close the window and she advised him that she had
permission from a supervisor regarding the window. The evidence does not support allegations
that on June 9, 2004 Ms. Rueckert threw a red book at appellant or that she told coworkers that
he scratched and dented her car. On December 8, 2005 she denied the allegations, noting that
she did not throw a book at appellant or verbally abuse him. Ms. Rueckert explained that she
was interviewing carriers about route information and that appellant was noncooperative. She
placed the book on his ledge and left.
Appellant alleged that Mr. Jones harassed him by assigning him an additional 30 minutes
of swing mail; however, the evidence does not support this allegation. Mr. Jones noted that the
Office workload had declined and he sought assistance from those carriers whose mail volume
did not support eight hours of work. He advised that appellant’s mail volume only supported 6.5
hours of work and requested that appellant carry an additional 30 minutes of swing mail.
Similarly, Ms. Coates denied harassing appellant on April 15, 2005. She contended that he
became upset and argumentative after Mr. Jones asked him to assist with another route and
walked off the workroom floor leaving his work assignment unfinished. There is no evidence
that appellant was singled out or treated disparately. Although he alleged that his supervisors
engaged in actions which he believed constituted harassment, he provided insufficient evidence
to establish his allegations.12
Appellant also alleged verbal abuse by Ms. Rueckert. The Board has recognized the
compensability of verbal abuse under certain circumstances. This does not imply; however, that
every statement uttered in the workplace will give rise to coverage under the Act.13 The Board
finds that the evidence does not establish that Ms. Rueckert verbally abused appellant. Appellant
provided insufficient evidence, such as witness statements, to establish his allegations.
Ms. Rueckert denied that she ever threatened appellant or spoke to him in a hostile manner.
Appellant has not shown how any comments by Ms. Rueckert rise to the level of verbal abuse or
otherwise fall within coverage of the Act.14
Appellant also filed an EEO claim for harassment; however, the Board notes that
grievances and EEO complaints, by themselves, do not establish that workplace harassment or

12

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
13

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

14

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).

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unfair treatment occurred.15 He has not established a compensable employment factor under the
Act with respect to the claimed harassment or verbal abuse.
Certain of appellant’s allegations also relate to administrative or personnel actions. In
Thomas D. McEuen,16 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment are not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
the Act would attach if the factual circumstances established error or abuse by management in
dealing with the employee. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.17
Appellant contended that he was improperly disciplined. The Board finds that his
manager did not act unreasonably in this administrative matter.18 Although the handling of
disciplinary actions and evaluations are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.19 Appellant alleged
that, on August 22, 2003, Ms. Coates improperly disciplined him for disrupting the workroom
floor and threatened disciplinary action on April 15, 2005, when he informed her that he was
leaving work due to illness. On August 20, 2003 Ms. Coates noted that a workplace intervention
specialist investigated matters arising between appellant and Ms. Rueckert and concluded that
appellant was responsible for inciting the conflict. As to discipline on April 15, 2005, she
indicated that appellant became upset and argumentative after his supervisor instructed him to
assist with another route and he walked off the workroom floor with his work assignment
unfinished. The employing establishment did not act unreasonably in response to appellant’s
conduct. Mr. Jones and Ms. Coates explained their actions and denied any abuse. Although
several grievances were settled on May 10, 2005, this does not establish error or abuse.20 The
evidence establishes that employing establishment acted reasonably in response to appellant’s
conduct. Appellant presented no corroborating evidence to support that the employing
establishment erred or acted abusively with regard to these matters.
Appellant alleged that on April 15, 2005, Mr. Jones improperly estimated his work
volume at 6.5 hours and requested he complete a 30 minute swing delivery. The Board notes

15

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

16

See supra note 7.

17

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

18

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
19

Id.

20

See Linda K. Mitchell, 54 ECAB 748 (2003) (the mere fact that the employing establishment lessened a
disciplinary action did not establish that the employing establishment erred or acted in an abusive manner).

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that the assignment of work is an administrative function.21 The manner in which a supervisor
exercises his or her discretion generally falls outside the ambit of the Act. The Board finds that
appellant has not submitted sufficient evidence to establish error or abuse regarding his work
assignments. The evidence does not establish that Mr. Jones acted unreasonably. Mr. Jones
explained that the volume of mail had dramatically declined and he sought assistance from many
mail carriers whose mail volume was less than eight hours per day. Ms. Coates indicated that
appellant’s work time was estimated by direct observation.
Appellant alleged that he was forced to resign his position as on-the-job-trainer, safety
captain and welfare committee member, due to a hostile relationship with Ms. Rueckert. He also
alleged that management failed to notify him of all biddable open craft positions. The Board has
held that denials by an employing establishment of a request for a different job, promotion or
transfer are not compensable factors of employment under the Act, as they do not involve the
employee’s regular or specially assigned work duties, but rather constitute a desire to work in a
different position.22 Ms. Coates explained that appellant was provided notice of all appropriate
jobs and that her station was not responsible for providing such information after appellant
accepted a job at another station. Appellant has presented no evidence to support that
management acted unreasonably. He has not established a compensable factor of employment in
this regard.
Appellant alleged that Ms. Coates coerced him into revealing the name of a coworker
who he witnessed reviewing a confidential file in her office. On August 22, 2003 she directed
comments at him in a meeting stating that she would not be taken to task for “threats of suicidal
violence.” The Board has found that an employee’s complaints concerning the manner in which
a supervisor performs her duties as a supervisor or the manner in which a supervisor exercises
her supervisory discretion fall, as a rule, is outside the scope of coverage provided by the Act.
This principle recognizes that a supervisor or manager in general must be allowed to perform her
duties that employees will at times dislike the actions taken, but that mere disagreement or
dislike of a supervisory or management action will not be actionable, absent evidence of error or
abuse.23 Appellant presented no evidence or witness statements to support that she erred or acted
abusively with regard to these allegations. He has not established that these matters rise to the
level of compensable employment factors.
The Office found that appellant established a compensable factor of employment when
on August 13, 2003 Ms. Rueckert, improperly placed cardboard around his case. The record
supports this finding as Mr. Cowan, a union steward, reported that Ms. Rueckert was instructed
to remove the cardboard because she failed to obtain permission and it created a safety hazard.
The Board finds that appellant has established a compensable factor of employment with respect
to this allegation.
21

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

22

Donald W. Bottles, 40 ECAB 349, 353 (1988). See also D.L., 58 ECAB ___ (Docket No. 06-2018, issued
December 12, 2006) (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).
23

See Marguerite J. Toland, 52 ECAB 294 (2001).

9

However, appellant’s burden of proof is not discharged by the fact that he has established
an employment factor which may give rise to a compensable disability under the Act. To
establish his occupational disease claim, he must also submit rationalized medical evidence
establishing that his claimed conditions are causally related to the accepted compensable
employment factor.24 While the medical evidence shows that appellant has a diagnosed
condition, it does not adequately explain how the employment factor caused or contributed to his
emotional condition.
Dr. Korraa treated appellant for post-traumatic stress disorder, depression, anxiety and
stress. Appellant reported a history of being ridiculed at work which caused extreme anxiety and
an inability to perform his duties. On July 26, 2005 Dr. Brown treated appellant for anxiety
caused by work incidents. However, he did not provide a rationalized medical opinion
explaining how appellant’s condition was caused or aggravated by accepted compensable
factors.25 Neither physician addressed how Ms. Rueckert’s August 13, 2003 placement of
cardboard around his case caused or contributed to the diagnosed conditions.
In a May 29, 2007 report, Dr. Reichwald noted the August 13, 2003 incident involving
the placement of cardboard around appellant’s workstation and asserted that this was recorded in
his initial evaluation of August 22, 2005. He noted that the onset of appellant’s disabling
symptomology coincided with this event and was the predominant cause of his disabling
symptomology. Dr. Reichwald diagnosed major depressive disorder, single episode in partial
remission. Although he referenced the August 13, 2003 incident, he did not adequately explain
how this factor caused or contributed to appellant’s emotional condition. Dr. Reichwald did not
explain the reasons that supported his opinion on causal relationship regarding why placement of
cardboard around appellant’s workstation caused or aggravated a diagnosed emotional condition
and why any such condition would not have been the result of nonwork-related factors. Other
reports from him are insufficient as they do not specifically address the August 13, 2003
employment incident in addressing the cause of appellant’s emotional condition.
The Board finds that appellant has not submitted rationalized medical evidence
establishing that his claimed conditions are causally related to the compensable work factor.
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

24

See William P. George, supra note 12.

25

Id.; see also Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical
reports not containing rationale on causal relationship are entitled to little probative value).

10

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HARRY S. TRUMAN MEMORIAL VETERANS
HOSPITAL, Columbia MO, Employer
__________________________________________

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Appearances:
Barbara J. Baney, for the appellant
Office of Solicitor, for the Director

Docket No. 09-101
Issued: August 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 25, 2008 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d)(2), the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office followed proper procedures when denying
appellant’s request for continuance of a prerecoupment hearing; (2) whether the Office properly
determined that appellant received an overpayment of compensation in the amount of $5,231.93;
and (3) whether the Office properly determined that appellant was at fault in creating the
overpayment of compensation, thereby, precluding waiver of recovery.
FACTUAL HISTORY
The Office accepted appellant’s February 28, 2002 occupational disease claim for right
carpal tunnel syndrome and right shoulder impingement. On February 13, 2006 it granted her a

schedule award for four percent permanent impairment of her right shoulder. The period of the
award was from November 9, 2005 through February 18, 2006; however, the Office continued
making payments to appellant after the expiration of the award.
On November 21, 2006 the Office made a preliminary determination that appellant had
been overpaid in the amount of $5,231.93, and was at fault in the creation of the overpayment,
because she erroneously received and accepted schedule award payments to which she was not
entitled. On April 21, 2007 it finalized its preliminary determination. Appellant appealed the
overpayment decision to the Board.
By order dated December 5, 2007, the Board found that the Office had failed to give
proper notice of its November 21, 2006 preliminary overpayment determination or its April 10,
2007 final overpayment decision, to appellant’s representative. Accordingly, the case was
remanded so that the preliminary overpayment determination could be properly issued.1
On March 3, 2008 the Office reissued its preliminary determination that appellant had
been overpaid in the amount of $5,231.93, and was at fault in the creation of the overpayment,
because she erroneously received and accepted schedule award payments to which she was not
entitled. Appellant was advised of rights she could exercise in an attempt to overturn the
preliminary finding, including the right to request a prerecoupment hearing.
On March 28, 2008 appellant requested a prerecoupment hearing. She submitted
numerous documents supporting her contention that she was not at fault in the creation of the
overpayment and that she should be granted a waiver, including a completed overpayment
recovery questionnaire dated December 16, 2006; personal statements; correspondence to and
from the Office and numerous financial documents. By letter dated June 27, 2008, appellant and
her representative, Barbara Baney, were notified that a hearing had been scheduled for 9:15 a.m.
on August 7, 2008 in St. Louis, MO.
The record contains a July 23, 2008 memorandum from Karen S. Hunt, hearing
representative, reflecting telephone requests by appellant and her representative that the hearing
scheduled for August 7, 2008 be either postponed, or changed to a telephonic hearing, due to her
inability to appear on the scheduled date. The hearing representative stated that on July 11, 2008
appellant requested a telephone hearing in lieu of the oral hearing scheduled for August 7, 2008
in St. Louis, MO. She advised appellant that she would not reschedule the hearing as a telephone
hearing. On July 16, 2008 Lynn Williams, who was identified by appellant as a union
representative “subbing” for Ms. Baney, who was incapacitated due to surgery, “insisted” that
the hearing representative reschedule the matter as a telephone hearing. Ms. Hunt informed her
that the hearing remained as scheduled. In a July 17, 2008 telephone conversation, appellant’s
representative explained to the hearing representative that she had recently undergone knee
replacement surgery and would not be able to attend the scheduled hearing. Appellant offered to
provide documentation of Ms. Baney’s incapacity. The hearing representative told Ms. Baney
that that was not an acceptable basis for postponement of the hearing, and she would not
reschedule the hearing as a telephone hearing. Ms. Baney argued that the hearing representative
1

Docket No. 07-1854 (issued December 5, 2007).

2

was being unreasonable, noting that appellant was unable to travel to the hearing, and there is no
one who could appear in her stead. The hearing representative advised Ms. Baney that she
should submit any additional evidence she wished to be considered, in the event that she was
required to proceed with a record review.
The record contains a July 22, 2008 facsimile from appellant’s representative to the
Office hearing representative advising her that she had undergone total knee replacement. The
facsimile included July 21, 2008 medical reports from a Dr. B. Bal reflecting treatment for “total
knee protocol.”
By decision dated September 25, 2008, the Office hearing representative found that
appellant had abandoned her request for a hearing because she had failed to appear on the
scheduled date. The representative further found that appellant had received an overpayment of
compensation in the amount of $5,231.93, for which she was at fault, due to her receipt of
schedule award benefits to which she was not entitled. As appellant was found to be at fault, the
representative found that she was not entitled to waiver of the overpayment amount. The hearing
representative further found that the record contained insufficient evidence as to appellant’s
current financial status to allow her to determine an equitable repayment schedule. Therefore,
she stated that the overpayment amount was due and payable in full.
LEGAL PRECEDENT -- ISSUE 1
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.2
The Office’s regulations at 5 C.F.R. § 10.622 provide guidance regarding a claimant’s
request to postpone a hearing:
“(b) [The Office] will entertain any reasonable request for scheduling the oral
hearing, but such requests should be made at the time of the original application
for hearing. Scheduling is at the sole discretion of the hearing representative, and
is not reviewable. Once the oral hearing is scheduled and [the Office] has mailed
appropriate written notice to the claimant, the oral hearing cannot be postponed at
the claimant’s request for any reason except those stated in paragraph (c) of this
section, unless the hearing representative can reschedule the hearing on the same
docket (that is, during the same hearing trip). When the request to postpone a
scheduled hearing does not meet the test of paragraph (c) of this section and
cannot be accommodated on the docket, no further opportunity for an oral hearing
will be provided. Instead, the hearing will take the form of a review of the written
record and a decision issued accordingly. In the alternative, a teleconference may
be substituted for the oral hearing at the discretion of the hearing representative.

2

20 C.F.R. § 10.616(a).

3

“(c) Where the claimant is hospitalized for a reason which is not elective, or
where the death of the claimant’s parent, spouse, or child prevents attendance at
the hearing, a postponement may be granted upon proper documentation.”3
The Office procedure manual recognizes that claimants will continue to request
postponement for an unspecified reason or for any other reason other than the extraordinary
reasons described in 10 C.F.R. § 10.622(c). Where the request for postponement is received in
sufficient time to contact the claimant prior to the scheduled hearing (i.e., 10 days for mailing or
through a documented telephone contact), the Office hearing representative should advise the
claimant that the postponement will not be allowed pursuant to the regulations at 5 C.F.R.
§ 10.622(b). The claimant would then have the option of withdrawing the hearing request,
attending the scheduled hearing, rescheduling the hearing at an available time within the same
docket, opting for a review of the written record by the Office hearing representative, or having a
telephone hearing, if the Office hearing representative wished to grant such a hearing within her
discretion.4
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the Federal (FECA) Procedure Manual, dated January 1999,
provides as follows:
“e. Abandonment of Hearing Requests.
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
Under these circumstances, H&R [Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the DO [district Office]. In
cases involving prerecoupment hearings, H&R will also issue a final
decision on the overpayment, based on the available evidence, before
returning the case to the DO.
(2) However, in any case where a request for postponement has been
received, regardless of any failure to appear for the hearing, H&R should
advise the claimant that such a request has the effect of converting the
format from an oral hearing to a review of the written record.

3

20 C.F.R. § 10.622(b), (c).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.d (January 1999).

4

This course of action is correct even if H&R can advise the claimant far
enough in advance of the hearing that the request is not approved and that
the claimant is, therefore, expected to attend the hearing and the claimant
does not attend.5”
ANALYSIS -- ISSUE 1
In this case, appellant made a timely request for an oral hearing but, due to the medical
situation of appellant’s representative, requested to postpone the hearing. The hearing
representative denied her request for continuance and rendered a decision on the record. The
Board finds, however, that the Office did not properly follow procedures associated with the
denial.
The record reflects that appellant and her representative requested a postponement of the
prerecoupment hearing, which was originally scheduled for August 7, 2008. In her July 23, 2008
memorandum, the Office hearing representative acknowledged several telephone conversations
in which both appellant and her representative requested that the hearing be either postponed or
changed to a telephone conference, due to Ms. Baney’s physical incapacity. Appellant’s
representative offered and provided evidence of her physical condition. The hearing
representative documented her denial of the request for postponement both in her July 23, 2008
memorandum and in the September 25, 2008 decision.
Clearly, under the regulations, the hearing representative has full discretion on deciding
whether to grant an extension of time for a hearing, or whether to convert the oral hearing into a
telephonic hearing. In this case, the hearing representative, within her right, determined that the
oral hearing would go on as scheduled. That decision, however, brought with it some procedural
requirements under Office procedures. The hearing representative stated:
“However, in any case where a request for postponement has been received,
regardless of any failure to appear for the hearing, [the hearing representative]
should advise the claimant that such a request has the effect of converting the
format from an oral hearing into a review of the written record. This course of
action is correct even if the [hearing representative] can advise the claimant far
enough in advance of the hearing that the request is not approved and that the
claimant is, therefore, expected to attend the hearing and the claimant does not
attend.6”
There is a memorandum of telephone calls in the record, dated July 23, 2008, that reflects
the hearing representative’s statement to appellant upon her decision on the oral hearing and
states:
“I explained that another union representative could appear with claimant, the
claimant could appear without a representative or I could do a record review.... I
5

Id. at Chapter 2.1601.6(e) (January 1999).

6

Id.

5

advised her that they should submit any additional evidence they wished to be
considered in the event that I must proceed with a record review.”
The Board notes that the hearing representative did not follow proper Office procedures
when it failed to unequivocally notify appellant that her denied request for postponement had the
effect of converting the format from an oral hearing to a review of the written record.7
Consequently, appellant was deprived of the opportunity to choose among all the options which
should have been available to her, namely to withdraw the hearing request; attend the scheduled
hearing; reschedule the hearing at an available time within the same docket; opt for a review of
the written record by the Office hearing representative; or engage in a teleconference at the
discretion of the Office hearing representative.8 Further, had appellant opted for a review of the
written record, the Office was required to provide her written notice that she had 15 days in
which to submit any information or evidence she wanted to be considered in the review of the
record.9 For these reasons, the case will be remanded to the Office, so that appellant will have
the opportunity to exercise her options pursuant to Office procedures. After such development
as the Office deems necessary, the hearing representative should issue an appropriate decision.10
CONCLUSION
The Board finds that the Office failed to follow proper procedures when it denied
appellant’s request to reschedule the oral hearing. The case is remanded to the Office for further
development in accordance with this decision. The Board accordingly finds that this case is not
in posture for a decision on the remaining issues.

7

Id.

8

See 20 C.F.R. § 10.622(b) and supra note 4.

9

Supra note 4.

10

As the case must be remanded to the Office for appropriate development, the Board finds that the case is not in
posture for a decision on the remaining issues.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 25, 2008 decision is set aside and the case is remanded to the Office for further
proceedings consistent with this opinion of the Board.
Issued: August 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Atlanta, GA, Employer
__________________________________________

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

Docket No. 16-0200
Issued: February 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On November 16, 2015 appellant filed a timely appeal from an October 23, 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 established eligibility for continuation of pay.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its October 23, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1).
Appellant may submit this evidence to OWCP, together with a formal request for reconsideration, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On December 9, 2014 appellant, then a 55-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on November 5, 2014 while turning a patient as he was
giving him a bed bath, he felt pain in his low back. The Form CA-1 was signed by appellant on
December 9, 2014 and he requested continuation of pay. Appellant’s supervisor, Akosua K.
Sedenu, also signed the CA-1 form on December 9, 2014, but the document was not received by
OWCP until August 14, 2015.
On August 18, 2015 OWCP advised appellant of the type of factual and medical evidence
needed to establish his claim.
In a statement dated September 16, 2015, appellant noted that on November 5, 2014 he
was asked to turn a male patient who weighed 380 pounds and who was paralyzed. He indicated
that, while turning the patient, he experienced back pain and he could not finish his shift and
went home. Appellant subsequently returned to work and experienced persistent back problems
and went on leave through the Family Medical Leave Act. He submitted employing
establishment medical records from Dr. Elsie Morris, a Board-certified pediatrician, dated
November 12 and December 9, 2014, who had treated him for low back pain. Appellant had
reported an acute onset of low back pain on November 5, 2014 while turning a patient.
Dr. Morris diagnosed lumbar strain and noted that appellant was off duty.
On October 1, 2015 Dr. Morris noted treating appellant from November 12 to
December 17, 2014 for low back pain which occurred after he moved a patient. Appellant
reported a history of a previous back injury in 1998 that was stable until he reinjured his back
while assisting in turning a patient. Dr. Morris diagnosed degenerative arthritis of the lumbar
sacral spine, lumbar strain, and exacerbation of a preexisting condition.
By decision dated October 23, 2015, OWCP accepted appellant’s claim for lumbar strain,
but in a separate decision that same date it denied his claim for continuation of pay because he
had failed to submit a written claim within 30 days of his November 5, 2014 employment injury.
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes continuation of pay, not to exceed 45 days, to an
employee who has filed a claim for a period of wage loss due to a traumatic injury with his or her
immediate superior on a form approved by the Secretary of Labor within the time specified in
section 8122(a)(2) of this title.3 This latter section provides that written notice of injury shall be
given within 30 days.4 The context of section 8122 makes clear that this means within 30 days
of the injury.5

3

Id. at § 8118(a).

4

Id. at § 8122(a)(2).

5

Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

2

OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay,
an employee must: (1) have a traumatic injury which is job related and the cause of the disability
and/or the cause of lost time due to the need for medical examination and treatment; (2) file a
Form CA-1 within 30 days of the date of the injury (but if that form is not available, using
another form would not alone preclude receipt); and (3) begin losing time from work due to the
traumatic injury within 45 days of the injury.6
The employee must provide a written report on a Form CA-1 to the employing
establishment within 30 days of the injury.7 OWCP’s procedure manual states that another
OWCP-approved form, such as CA-2, CA-2a, or CA-7 forms, which contains words of claim,
can be used to satisfy timely filing requirements.8
The Board has held that section 8122(d)(3) of FECA,9 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because
of exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for continuation of pay. Thus, there is no provision in the law for excusing an
employee’s failure to file a claim within 30 days of the employment injury.10
ANALYSIS
Appellant filed a written notice of a traumatic injury on December 9, 2014 more than 30
days after his injury on November 5, 2014. Because he filed the claim on December 9, 2014, the
Board finds that it was not filed within 30 days of the November 5, 2015 injury, as specified in
sections 8118(a) and 8122(a)(2) of FECA.
On appeal appellant explained that he did not know the procedure of filing a claim, that
no one had assisted him, and that he had been very sick and homeless. He believed that he
should have been awarded continuation of pay as he lost so much from the work injury.
Appellant claimed that he was also entitled to back pay from January 2015 to the present time.
There is no provision in FECA, however, for excusing a late filing when requesting continuation
of pay.11 This is so regardless of any failure on the part of the employing establishment.12 The

6

20 C.F.R. § 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

7

Id. at § 10.210(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.7(a) (March 2004).
9

5 U.S.C. § 8122(d)(3).

10

Dodge Osborne, 44 ECAB 849, 855 (1993).

11

Id.

12

See 20 C.F.R. § 10.211.

3

Board finds that OWCP properly denied continuation of pay as appellant did not file his claim
within the requisite 30 days from the date of injury.13
CONCLUSION
The Board finds that appellant has not met the requirements for continuation of pay.
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

Id. This decision only applies to continuation of pay. It does not preclude appellant from filing a claim for
wage-loss compensation if he missed time from work due to the accepted injury.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 07-83
Issued: April 12, 2007

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 October 11, 2006 appellant timely appealed from the Office of Workers’
Compensation Programs’ September 18, 2006 merit decision regarding his entitlement to
schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a two percent right lower extremity impairment, for which he received a schedule award.
FACTUAL HISTORY
On August 30, 2004 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim alleging that he twisted his right knee when he stepped out of the back of a work truck.
The Office accepted his claim for right tear of medial cartilage or meniscus of the knee. The
Office authorized a right knee arthroscopic partial medial meniscectomy and chondroplasty

medial femoral condyle, which he underwent on March 8, 2005. Following a period of physical
therapy, appellant returned to work full duty on April 27, 2005.
On March 23, 2006 appellant filed a request for a schedule award. By letter dated
April 5, 2006, the Office advised appellant’s treating physician, Dr. Barry L. Northcutt, a Boardcertified orthopedic surgeon, of the evidence required for an assessment of permanent
impairment to the right lower extremity under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001).
In an April 27, 2005 progress report, Dr. Northcutt stated that appellant had completely
recovered from his meniscectomy and debridement. He opined that appellant reached maximum
medical improvement and released him to full work duties without restrictions.
As Dr. Northcutt did not provide a report in which to evaluate appellant for a right lower
extremity impairment under the A.M.A., Guides, the Office referred appellant for a second
opinion evaluation with Dr. Shawn Smith, a physiatrist. In a July 24, 2006 report, Dr. Smith
noted that appellant underwent a partial medial meniscectomy of the right knee and
chondroplasty of the patella on March 8, 2005 and was released to full duty on April 27, 2005.
Examination findings revealed 120 degrees flexion right knee, 0 degrees extension right knee
with no joint contractures or ankylosis, no significant pain, no weakness, no atrophy, no sensory
deficits and no effusion.
Dr. Smith stated that appellant reached maximum medical
improvement on April 27, 2005. He found that, under Table 17-10 page 537 of the A.M.A.,
Guides, there was no impairment related to residual range of motion, strength and neurologic
examination. Referring to Table 17-33, page 546 of the A.M.A., Guides, Dr. Smith concluded
that appellant had two percent lower extremity impairment related to the partial meniscectomy.
The Office forwarded the case file to the Office medical adviser for an opinion on the
degree of permanent impairment of appellant’s right lower extremity. In an August 25, 2006
report, the Office medical adviser concluded that the date of maximum medical improvement
was July 24, 2006, the date of Dr. Smith’s evaluation. Based on Table 17-33, page 546 of the
A.M.A., Guides and Dr. Smith’s examination findings, the Office medical adviser concluded that
appellant had two percent right lower extremity impairment based on a partial medial
meniscectomy of the right knee.
On September 12, 2006 the Office granted appellant a schedule award for a two percent
impairment to his right lower extremity, finding that the date of maximum medical improvement
was July 24, 2005.
The award was for a period of 5.76 weeks, from July 24 to
September 2, 2005. On September 18, 2006 the Office issued a corrected schedule award
decision. It granted appellant a schedule award for two percent impairment to his right lower
extremity, but noted that the date of maximum medical improvement was July 24, 2006 and the
period of the award of 5.76 ran from July 24 to September 2, 2006.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulation2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.3
Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from appellant’s physician. In obtaining medical evidence required for a schedule
award, the evaluation made by the attending physician must include a description of the
impairment including, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation, or other pertinent descriptions of the impairment. This description
must be in sufficient detail so that the claims examiner and others reviewing the file will be able
to clearly visualize the impairment with its resulting restrictions and limitations.4
The A.M.A., Guides provide that, in evaluating lower extremity impairment, it is the
responsibility of the evaluating physician to explain in writing why a particular method to assign
the impairment rating was chosen. When uncertain about which method to choose, the evaluator
should calculate the impairment using different alternatives and choose the method or
combination of methods that gives the most clinically accurate impairment rating.5
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.6
ANALYSIS
The Office accepted that appellant sustained a torn medial cartilage of the right knee and
authorized surgery. Appellant filed a claim for a schedule award on March 23, 2006. As his
treating physician, Dr. Northcutt, did not provide a sufficient description of the impairment so
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

Robert B. Rozelle, 44 ECAB 616, 618 (1993).

5

Richard F. Williams, 55 ECAB 343, 347 (2004).

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (March 1995).

3

the A.M.A., Guides could be utilized in determining impairment, the Office referred appellant to
Dr. Smith, a second opinion physician, for an evaluation. In his July 24, 2006 report, Dr. Smith
utilized a diagnostic-based estimate in concluding that appellant had two percent impairment
based upon the partial medial meniscectomy of the right knee.
An Office medical adviser reviewed Dr. Smith’s findings and concurred with his
determination that appellant had two percent impairment due to partial medial meniscectomy.7
The Board notes that, as there were no ratable range of motion, sensory or neurological deficits
under the A.M.A., Guides,8 a diagnostic-based impairment rating was appropriate.9 The Board,
thus, finds that the evidence supports that appellant has no more than two percent impairment of
the right leg based on a diagnosis-based impairment rating. Consequently, he has not established
entitlement to a schedule award greater than the two percent awarded by the Office.
CONCLUSION
The Board finds that appellant has no more than a two percent impairment of his right
lower extremity for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 18, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2007
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
7

A.M.A., Guides 546, Table 17-33.

8

See id. at 537, Table 17-10.

9

See Robert B. Rozelle, supra note 4.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF ENERGY, NATIONAL
NUCLEAR SECURITY ADMINISTRATION,
OFFICE OF SECURE TRANSPORTATION,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 13-1997
Issued: February 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 28, 2013 appellant filed a timely appeal of a June 4, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim. He
also appealed from a June 25, 2013 decision denying his request for reconsideration. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty on April 10, 2013, as alleged; and (2) whether
OWCP properly denied appellant’s request for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant argues that he was not able to get an appointment with his physician
until after the initial claim was denied. He also contended that he was away from home for over
four weeks when the questionnaire was sent to his residence.
FACTUAL HISTORY
On April 15, 2013 appellant, then a 39-year-old federal agent/nuclear material courier,
filed a claim for a traumatic injury alleging that on April 10, 2013 he injured his low back riding
in an SRV-5 during tactical training. He submitted no evidence with his claim.
By letter dated April 24, 2013, OWCP informed appellant that he had submitted
insufficient evidence to support his claim. It requested that he submit evidence, including a
response to questions with regard to the employment incident and medical evidence establishing
that he sustained a diagnosed medical condition causally related to the alleged employment
incident. Appellant was given 30 days to submit the necessary evidence. He did not submit a
timely response to this letter.
By decision dated June 4, 2013, OWCP denied appellant’s claim. It determined that the
evidence was not sufficient to establish that he experienced the April 10, 2013 incident as
alleged. Further, there was no firm medical diagnosis of any condition resulting from the injury.
Appellant did not submit a physician’s opinion as to how the alleged incident resulted in a
diagnosed condition.
On June 19, 2013 appellant requested reconsideration. He did not submit any evidence
with his reconsideration request.
By decision dated June 25, 2013, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

2

The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.4 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.5
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on April 10, 2013. The Board notes that he did
not submit any medical or factual evidence in support of his claim. Appellant did not submit a
sufficiently detailed description of the employment incident or a response to the questions sent to
him by OWCP. Furthermore, he did not submit any medical evidence in support of his claim.
By letter dated April 24, 2013, OWCP informed appellant of the deficiencies of his claim and the
need to submit additional information regarding the alleged incident and medical evidence in
support of his claim. Appellant did not submit a timely response. As he failed to establish that
he sustained an employment incident and as he failed to submit medical evidence that established
a medical condition causally related to the employment incident, OWCP properly denied his
claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor, his belief that the condition was caused by his employment is sufficient to
establish causal relationship.6
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 When a claimant fails to meet one

4

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

6

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

7

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(3).

3

of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.9
ANALYSIS -- ISSUE 2
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law, nor did it advance a point of law or fact not previously considered by
OWCP. Furthermore, he failed to submit any pertinent new and relevant evidence before OWCP
that supported his request for reconsideration. The Board, therefore, finds that OWCP did not
abuse its discretion in refusing to reopen appellant’s claim for a review on the merits.
The Board notes that appellant submitted evidence after the issuance of the June 25, 2013
decision. The Board lacks jurisdiction to review evidence for the first time on appeal.10
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 failed to meet his burden of proof to establish that he
sustained an injury in the performance of duty on April 10, 2013. The Board further finds that
OWCP properly denied his request for review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

9

Id. at § 10.608(b).

10

See id. at § 501.2(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 25 and 4, 2013 are affirmed.
Issued: February 11, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1442
Issued: October 3, 2016

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 June 22, 2015 appellant filed a timely appeal from a June 18, 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 this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation to zero effective
June 18, 2015 for failure to cooperate with vocational rehabilitation.
FACTUAL HISTORY
On February 8, 2008 appellant, then a 47-year-old mail clerk, filed an occupational
disease claim (Form CA-2) alleging a bilateral wrist and thumb condition causally related to her
employment duties. She first became aware of her condition and realized it resulted from her
1

5 U.S.C. § 8101 et seq.

employment on January 14, 2008. Appellant stopped work on January 14, 2008 and returned on
January 17, 2008. OWCP accepted her claim for aggravation of bilateral carpal tunnel
syndrome, bilateral de Quervain’s syndrome, and bilateral hand arthritis.
Appellant underwent authorized carpal tunnel surgery and incision of the tendon sheath
on May 4, 2009. She stopped work and received wage-loss compensation benefits. On
September 18, 2009 OWCP placed appellant on the periodic rolls.
On October 6, 2010 OWCP referred appellant for vocational rehabilitation services.
OWCP informed the rehabilitation counselor on December 29, 2010 that a functional
capacity evaluation (FCE) was necessary in order to determine appellant’s work capacity. In a
letter also dated December 29, 2010, it informed her that she was expected to cooperate fully
with her rehabilitation counselor in an effort to return to work.
On April 18, 2011 appellant underwent right carpal tunnel release surgery.
On June 15, 2011 the rehabilitation counselor determined that due to appellant’s current
level of disability her vocational rehabilitation case would be closed.
Appellant continued to receive treatment from Dr. I. Grant Orlin, a Board-certified family
practitioner, for complaints of numbness in the left thumb and in the right wrist. In reports dated
October 24, 2011 to October 9, 2012, Dr. Orlin observed slight tenderness over the first dorsal
extensor compartment and pain on full dorsi and volar flexion. He reported positive Tinel’s sign
on the left and right. Dr. Orlin diagnosed status post left carpal tunnel release, status post left
de Quervain’s release, and bilateral arthritis of the hands. He authorized appellant to work
modified duty with restrictions of lifting no more than five pounds bilaterally.
Appellant also received treatment from Dr. Charles Herring, a Board-certified orthopedic
surgeon. In reports dated November 17, 2011 to April 26, 2012, Dr. Herring observed positive
Tinel’s sign of the right wrist and hypersensitivity over the incision site of the right wrist. He
reported mild Tinel’s sign, carpal tunnel compression, and Phalen’s tests of the left wrist.
Dr. Herring diagnosed bilateral carpal tunnel syndrome and status post right and left carpal
tunnel release. He noted that appellant continued to be symptomatic primarily in the right hand.
Dr. Herring opined that she could work with restrictions.
By letter dated April 13, 2015, OWCP informed appellant that she had been referred for a
second opinion evaluation with Dr. Gary J. La Tourette, a Board-certified orthopedic surgeon, to
determine the extent of her work-related condition. In questions to Dr. La Tourette, dated
April 13, 2015, OWCP asked that he address the physical demand/strength levels at which
appellant was currently able to work or participate in vocational rehabilitation, describe her
physical limitations and restrictions, and complete a work capacity evaluation form (Form
OWCP 5c).
On April 13, 2015 appellant resumed vocational rehabilitation services.
OWCP informed the rehabilitation counselor on April 17, 2015 that a FCE was necessary
in order to determine appellant’s current work capacity. In a letter dated April 17, 2015, it
2

informed her that she was expected to cooperate fully with her rehabilitation counselor in an
effort to return to work.
On April 20, 2015 Marcia Brier, the rehabilitation counselor, notified appellant that an
FCE was scheduled for May 6, 2015 at 10:00 a.m. Appellant rescheduled her FCE to
May 4, 2015.
Appellant attended the scheduled evaluation on May 4, 2015. In a May 11, 2015 report,
Doug Ellis, a physical therapist, noted that the FCE was unreliable and invalid. He explained
that there were inconsistencies in appellant’s performance and that he observed self-limiting pain
behavior. Mr. Ellis reported that any permanent work restrictions should be based upon
objective findings only. He also noted that, for a variety of reasons, the results of the current
testing were less than what would be required for a safe return to work. Mr. Ellis observed that
appellant could not complete the activity of lifting 10 pounds from floor to shoulder height. He
reported that lifting activities were discontinued due to increased symptoms, but he pointed out
that there were no signs of any observed breakdown of her body mechanics or any other noted
signs of a maximum effort other than using a decreased speed of motion. Mr. Ellis also observed
that appellant did not produce the minimally expected elevation of heart rate of over 10 percent
with the static push and pull tests and lifting activities. He explained that these findings would
be indications of a probable less than maximum effort.
On May 12, 2015 the rehabilitation counselor noted in a rehabilitation action report that
appellant obstructed the rehabilitation process because the May 4, 2015 FCE was determined to
be unreliable and invalid.
In a letter dated May 12, 2015, an OWCP claims examiner informed appellant that her
failure to cooperate during the FCE constituted a refusal to undergo vocational rehabilitation. It
notified her that 5 U.S.C. § 8113(b) provides that if an individual, without good cause, fails to
apply for and undergo vocational rehabilitation when so directed and it finds that, in the absence
of the failure the individual’s wage-earning capacity would probably have substantially
increased, it may reduce prospectively the compensation based on what probably would have
been the individual’s wage-earning capacity had she not failed to apply for and undergo
vocational rehabilitation. Appellant was informed that within 30 days another FCE would be
scheduled, that she was directed to fully participate in the evaluation, and that if she believed she
had a good reason for not participating she should so advise OWCP within 30 days, providing
reasons for noncompliance and any supporting evidence. OWCP advised her that after any
evidence submitted was evaluated, further action would be taken without additional notice to her.
If appellant did not comply with the instructions contained within the letter within 30 days, the
vocational rehabilitation effort would be terminated and her compensation reduced in accordance
with 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519.
On May 13, 2015 Ms. Brier notified appellant that a second FCE had been scheduled for
May 27, 2015 at 12:30 p.m. with the same physical therapist, Mr. Ellis, who had conducted the
first FCE on May 4, 2015.
In a May 27, 2015 report, Mr. Ellis noted that he went over the results of the previous
evaluation and explained the importance of appellant’s full participation with all testing

3

activities. He advised her that she could stop a test or procedure if she felt this was necessary
due to increased symptoms, level of endurance, or difficulty performing the activity. Upon
examination, Mr. Ellis observed no atrophy of appellant’s upper extremities. He also reported no
swelling or increased skin temperature or discoloration of her wrists and hands. Mr. Ellis related
that appellant demonstrated no difficulty with the handling and fingering of small objects other
than using a decreased speed of motion. Appellant also demonstrated no difficulty with sitting,
standing, or walking. Mr. Ellis also provided test results for grip strength, noting inconsistent
results between the various tests. He noted that appellant stopped with various activities, such as
lifting and carrying tests, due to reports of increased symptoms, but he did not observe any
breakdown of her body mechanics or other signs of maximum effort. Mr. Ellis explained that
there was not the expected elevation of heart rate of over 10 percent even though she claimed
that the object was heavy and that she was experiencing increased symptoms, which indicated a
probable less than maximum effort. He concluded that “there does exist the probability of a less
than maximum effort” and again found the FCE unreliable and invalid.
Appellant was examined again by Dr. Orlin and in a May 15, 2015 report, he noted that
she continued to have discomfort over the first dorsal extensor compartment bilaterally as well as
numbness and tingling in both hands. Upon examination, Dr. Orlin observed residual tenderness
over the dorsum of the bilateral wrists and tenderness over the first dorsal extensor compartments
bilaterally, right greater than left. Tinel’s sign was positive bilaterally. Dr. Orlin diagnosed
status post left carpal tunnel release and left de Quervain’s release, bilateral de Quervain’s
syndrome, and bilateral arthritis of the hands. He authorized appellant to return to modified
duty.
On June 11, 2015 appellant informed OWCP via telephone that she disputed the finding
by Mr. Ellis and claimed that she had put forth effort during the May 27, 2015 evaluation. She
was informed to discuss what occurred during the May 27, 2015 FCE with her rehabilitation
counselor.
OWCP advised appellant on June 16, 2015 to put her concerns about the FCE in writing
and submit them to OWCP for review. Two days later, in a decision dated June 18, 2015, it
reduced her compensation, effective that day, to zero under section 8113(b) of FECA and 20
C.F.R. § 10.519. OWCP found that appellant had failed to participate as required with
vocational rehabilitation efforts and that she did not show good cause for failing to fully comply.
LEGAL PRECEDENT
FECA provides that the Secretary of Labor may direct a permanently disabled individual
whose disability is compensable to undergo vocational rehabilitation.2 According to 5 U.S.C.
§ 8113(b) if an individual, without good cause, fails to apply for and undergo vocational
rehabilitation when so directed under 5 U.S.C. § 8104, OWCP may, after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, reduce prospectively the monetary compensation of the individual. The
reduction of compensation is performed in accordance with what would probably have been his
2

Id. at § 8104(a).

4

or her wage-earning capacity in the absence of the failure, until the individual in good faith
complies with the direction to undergo vocational rehabilitation. It is OWCP’s burden of proof
with respect to any reduction of compensation, including the reduction of compensation pursuant
to 5 U.S.C. § 8113(b).3
Section 10.519 of OWCP’s regulations provides:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, OWCP will act as follows:
(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early, but necessary stages of a vocational
rehabilitation effort (that is, interviews, testing, counseling, [FCE], and
work evaluations) OWCP cannot determine what would have been the
employee’s wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, OWCP will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity, and OWCP will reduce the
employee’s monetary compensation accordingly (that is, to zero). This
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of OWCP.”4
OWCP procedures provide that specific instances of noncooperation include a failure to
appear for the initial interview, counselling sessions, a FCE, other interviews conducted by the
rehabilitation counselor, vocational testing sessions, and work evaluations, as well as lack of
response or inappropriate response to directions in a testing session after several attempts at
instruction. Its procedures recognize that specific instances of noncooperation include a failure
to appear for a FEC, as well as lack of response or inappropriate response to directions in a
testing session after several attempts at instruction.5
ANALYSIS
The Board finds that OWCP improperly reduced appellant’s compensation to zero for
failing, without good cause, to participate in the vocational rehabilitation efforts.
OWCP accepted that appellant sustained a temporary aggravation of bilateral carpal
tunnel syndrome, bilateral de Quervain’s syndrome, and bilateral hand arthritis as a result of her
employment duties as a mail clerk. Appellant stopped work and was placed on the periodic rolls.

3

See D.A., Docket No. 14-375 (issued May 28, 2014).

4

20 C.F.R. § 10.519.

5

Id.

5

On April 13, 2015 OWCP referred appellant for a second opinion evaluation to determine
her work restrictions and to vocational rehabilitation to develop a vocational plan to assist her in
returning to gainful employment within her medical limitations. As part of the vocational
rehabilitation process appellant was directed to attend and fully participate in an FCE on
May 4, 2015. Although she attended the examination, the evaluator’s report reflected that she
provided inconsistent responses and failed to demonstrate maximum effort. The evaluator
concluded that the evaluation was unreliable and invalid.
Appellant was notified that her failure to cooperate without good cause was reason to
reduce her compensation benefits. She was directed to attend and fully participate in a second
FCE scheduled for May 27, 2015. The second FCE was scheduled with the same physical
therapist who had conducted the first FCE and who had found her effort was less than maximum.
Appellant attended the evaluation, but the evaluator, Mr. Ellis, again reported that he was unable
to accurately assess her full work capacity due to inconsistencies in her test responses and
probable less than maximum effort. The evaluator reported that the second FCE was also
unreliable and invalid.
The Board finds, however, that the FCE report of May 27, 2015 is of limited probative
value because it is speculative and inconsistent. Mr. Ellis specifically noted that he had
discussed the results of the prior test with appellant prior to the May 27, 2015 examination and
had advised her that she could stop any test if she had increased symptoms, lacked endurance, or
could not complete the activity. He then reported the activities that appellant could perform,
such as fingering small objects, sitting, walking, and standing, and those that she could not
perform, such as lifting, but with reports of increased symptoms. Mr. Ellis had instructed her to
report increased symptoms or to stop any test if she could not complete the activity, however,
when she did stop performing an activity due to increased symptoms, he determined that was
invalid because he did not notice signs of maximum effort, such as a breakdown of body
mechanics or elevation of her heart rate. Based on this, he concluded that there was a
“probability” that appellant’s test results were invalid. The Board notes that Mr. Ellis offered no
opinion regarding appellant’s ability to perform work activities given the tests she was able to
perform which would have provided guidance to the vocational rehabilitation counselor of her
actual work ability for certain tasks. The Board finds that the May 27, 2015 FCE report was
internally inconsistent and speculative in nature. It is therefore of limited probative value.
The Board further finds that the second FCE result dated May 27, 2015 is also of
diminished probative value as to appellant’s ability to perform employment duties. It was
scheduled with the same physical therapist, Mr. Ellis, who had conducted the previous FCE.
Although OWCP procedures do not require that a second FCE be conducted with one not already
affiliated with the case, in such circumstances the physical therapist could have a predisposition
for a particular result. The Board notes that the second FCE is virtually identical to the first one
in both format and results, and remains internally inconsistent, subject to predisposition, and
speculative in nature. As such, the Board finds that it, too, is of limited probative value. To
avoid the appearance of a predisposition for any result and to obtain a fair and impartial

6

reporting, the second FCE should have been scheduled with an independent physical therapist or
other medical professional not already affiliated with the case to perform the second FCE.6
The Board therefore finds that OWCP improperly reduced appellant’s compensation
benefits to zero, for failure to cooperate in vocational rehabilitation, based upon the FCE report
which was of limited probative value without scheduling a second, independent FCE.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation to zero
pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational
rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 3, 2016
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

6

See E.S., Docket No. 12-467 (issued August 8, 2012) (a second, independent physical therapist was scheduled to
perform an FCE after an initial physical therapist reported that appellant provided inconsistent responses and failed
to otherwise comply with the FCE testing).

7