United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 15-1089
Issued: July 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 15, 2015 appellant filed a timely appeal from an October 17, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision issued on April 21, 2014 and the filing of this appeal on
April 15, 2015, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed.

1
2

5 U.S.C. § 8101 et seq.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On November 18, 2013 appellant, then a 46-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that on November 16, 2013 she sustained carpal
tunnel syndrome (CTS) of the right lower arm as a result of repetitive movement of the right
hand for which she previously had carpal tunnel surgery.
In a November 18, 2013 accident report form, appellant’s supervisor stated that on
November 16, 2013 appellant felt a sharp pain in her right shoulder/arm down to her right hand
and finger tips. He noted that appellant had undergone carpal tunnel surgery in April 2013.
A November 18, 2013 medical report and x-ray of the right wrist was submitted from
Dr. William S. Cragun, a Doctor of Osteopathic Medicine. Attending Physician’s Reports (Form
CA-20) and Duty Status Reports (Form CA-17) dated November 4, 2013 through December 23,
2013 were also submitted from Dr. Christyne Lawson, Board-certified in family medicine.
By letter dated January 14, 2014, appellant requested that her file be updated because she
had been off work since November 17, 2013.
By letter dated February 11, 2014, OWCP stated that when appellant’s claim was first
received, it appeared to be a minor injury, which resulted in minimal or no lost time from work,
and payment of a limited amount of medical expenses was administratively approved. It
reopened the claim for consideration because appellant had not returned to work in a full-time
capacity. OWCP informed appellant that the evidence submitted was insufficient to establish
that the incident or employment factor occurred as alleged or how her injury resulted in the
diagnosed condition.3 It instructed her of the medical and factual evidence needed, provided her
a series of questions to answer, and afforded her 30 days to respond to its inquiries.
On February 25, 2014 OWCP received a February 12, 2014 medical report from
Dr. Lawson. He noted treating appellant for severe bilateral carpal tunnel syndrome aggravated
by her November 16, 2013 job injury. No other evidence or statements were received.
By decision dated April 21, 2014, OWCP denied appellant’s claim finding that the
evidence failed to establish that the incident occurred as alleged. It specifically noted that she
had not identified a specific factor of employment which caused or aggravated her condition and
also had failed to submit medical evidence establishing that an injury was caused by the work
incident or event.
In an appeal request form postmarked May 22, 2014, appellant requested an oral hearing
before the Branch of Hearings and Review. Accompanying the appeal request form was a
May 21, 2014 letter requesting a hearing for the April 21, 2014 decision denying her claim.
In support of her claim, appellant responded to OWCP’s February 11, 2014 development
letter. She provided details regarding her employment duties, the November 16, 2013 injury, her
prior OWCP claims, and her course of medical treatment.
3

OWCP noted that appellant had a previous claim accepted for bilateral CTS under claim No. xxxxxx586.

2

By decision dated October 17, 2014, the Branch of Hearings and Review denied
appellant’s request for an oral hearing finding that her request was not made within 30 days of
the April 21, 2014 OWCP decision. The Branch of Hearings and Review further determined that
the issue in the case could equally well be addressed by requesting reconsideration from OWCP
and submitting evidence not previously considered which established that she sustained an
injury.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.4 Section 10.615 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record.5 OWCP regulations provide that the request must be postmarked within 30 days of the
date of the decision for which a hearing is sought, as determined by postmark or other carrier’s
date marking, and also that the claimant must not have previously submitted a reconsideration
request (whether or not it was granted) on the same decision.6
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA,7 has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.8 OWCP procedures, which require OWCP to exercise its discretion
to grant or deny a hearing when the request is untimely or made after reconsideration, are a
proper interpretation of FECA and Board precedent.9
ANALYSIS
In the present case, appellant’s request for oral hearing was postmarked on May 22, 2014.
Her request was made more than 30 days after OWCP’s April 21, 2014 merit decision. The time
limitation to request an oral hearing expired on May 21, 2014, 30 days after the April 21, 2014
decision. Therefore, OWCP properly found in its October 17, 2014 decision that appellant was
not entitled to an oral hearing or examination of the written record as a matter of right because
her request was not made within 30 days of its April 21, 2014 decision.10
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

5 U.S.C. §§ 8101-8193.

8

Marilyn F. Wilson, 52 ECAB 347 (2001).

9

Teresa M. Valle, 57 ECAB 542 (2006).

10

Supra note 5; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.4(a) (October 2011).

3

OWCP then properly exercised its discretion by stating that it had considered the matter
and had denied appellant’s request for a hearing because the issue of fact of injury could be
addressed through reconsideration. The Board has held that the only limitation on OWCP’s
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deduction from established facts.11 In this case, the evidence of record does
not indicate that OWCP abused its discretion in its denial of an oral hearing. Accordingly, the
Board finds that OWCP properly denied her request.12
On appeal, appellant argues that her injury was work related. The Board notes that
OWCP’s April 21, 2014 denial of appellant’s claim provided a timeline and instructions
pertaining to the different forms of appeal. Any additional evidence on the merits of her claim
cannot be reviewed by the Board for the first time on appeal.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely.

11

Daniel J. Perea, 42 ECAB 214, 221 (1990).

12

D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

13

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2014 is affirmed.
Issued: July 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Yeadon, PA, Employer
__________________________________________

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

Docket No. 10-413
Issued: January 19, 2011

Case Submitted on the Record

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

JURISDICTION
On December 2, 2009 appellant filed a timely appeal from a September 16, 2009 decision
of the Office of Workers’ Compensation Programs terminating her compensation benefits for her
accepted work injury and a September 25, 2009 decision denying an additional schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits for her accepted injury effective September 16, 2009; and (2) whether
appellant has more than a five percent impairment of the right leg for which she received a
schedule award.
FACTUAL HISTORY
On March 16, 2004 appellant, then a 38-year-old letter carrier, was injured when she was
struck from behind by a car that pinned her against her work truck. The Office accepted the

claim for herniated lumbar disc and contusions of both knees. Appellant stopped work on
March 16, 2004 and returned to full-time limited-duty work on September 28, 2004.
Appellant was treated for bilateral knee contusions. She came under the treatment of
Dr. George L. Rodriguez, a Board-certified physiatrist, for knee and back injuries sustained at
work. Dr. Rodriguez diagnosed herniated lumbar disc, lumbar radiculopathy, sciatic nerve crush
injury, contusion of both knees, internal derangement of the knees and gait abnormality and
recommended physical therapy. On September 28, 2004 he returned appellant to work full-time,
light-duty work. An April 27, 2005 right knee magnetic resonance imaging (MRI) scan revealed
chondromalacia of the patella but was otherwise normal. An MRI scan of the lumbar spine of
the same date revealed minimal meningeal cysts at S2 and several minimal nabothian cysts.
On April 28, 2006 appellant filed a claim for a schedule award.
On August 8, 2006 the Office referred appellant to Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon, for a second opinion as to whether appellant had permanent impairment
under the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides)1 due to her work injuries. In an August 25, 2006 report, Dr. Hanley diagnosed
bilateral knee contusions with retropatellar crepitus and noted that appellant reached maximum
medical improvement. He advised that an MRI scan of the back did not reveal any significant
disc herniation or protrusion. Examination showed limited range of motion of the low back and
retropatellar crepitus in both knees with full range of motion bilaterally. Dr. Hanley noted that
appellant sustained direct trauma to her right knee and had patellofemoral pain and crepitus on
examination without joint space narrowing on x-ray. He rated five percent impairment of the
right leg pursuant to the A.M.A., Guides.2
The Office referred Dr. Hanley’s report and the case record to an Office medical adviser.
On October 20, 2006 the Office medical adviser concurred with Dr. Hanley’s determination that
appellant had five percent impairment of the right leg.
In a December 5, 2006 decision, the Office granted appellant a schedule award for five
percent permanent impairment of the right leg. The period of the award was from September 2,
2006 to March 22, 2007.3
Appellant came under the treatment of Dr. Daisy Rodriguez, a Board-certified physiatrist
and associate of Dr. George Rodriguez, for mid and low back pain and bilateral knee pain
causally related to her March 16, 2004 work injury. Dr. Daisy Rodriguez diagnosed lumbosacral
radiculopathy, sciatic nerve crush injuries, contusions of the knees, chondromalacia patella,
lumbosacral sprain, bulging thoracic discs, meniscal tear and chronic pain. Appellant could
work full time with restrictions pursuant to a functional capacity evaluation. An electromyogram
1

A.M.A., Guides (5th ed. 2001).

2

Id. at 544, Figure 17-31.

3

On January 28, 2007 appellant requested an oral hearing which the Office denied as untimely on March 7, 2007.
She filed a CA-7, claim for compensation for the period July 19 to August 15, 2008 which was denied by the Office
on October 31, 2008.

2

(EMG) dated August 15, 2008 revealed lumbosacral radiculopathy, severe at L4, L5, S1 and
moderate lumbar radiculopathy at L4.
On September 9, 2008 the Office referred appellant to Dr. Hanley for an opinion as to the
extent of appellant’s work-related condition.
On October 3, 2008 appellant filed a claim for an additional schedule award.
In an October 3, 2008 report, Dr. Hanley reviewed the history of injury and medical
treatment. He diagnosed chronic lumbar mechanical back pain and bilateral symptomatic
patellofemoral dysfunction. Dr. Hanley advised that there was no significant change in findings
since his August 25, 2006 examination. He noted retropatellar crepitus in both knees with no
swelling, full range of motion of the knees, moderate limitation of low back motion due to pain
with no neurologic findings and intact reflexes with no evidence of neurologic compromise.
Dr. Hanley reiterated that appellant had no more than five percent impairment of the right leg
due to the March 16, 2004 work injury. He advised that appellant had permanent residuals but
remained at maximum medical improvement. Appellant could continue to work full time with
permanent restrictions pursuant to the functional capacity evaluation. She did not require
physical therapy or other treatment modalities but recommended pain management to monitor
the use of narcotic medicine.
On October 10, 2008 the Office requested that Dr. George Rodriguez review
Dr. Hanley’s report and address appellant’s work capacity. It also requested that Dr. Rodriguez
further address appellant’s permanent impairment under the A.M.A., Guides.
In an October 7, 2008 report, Dr. Daisy Rodriguez noted appellant’s continued
complaints of mid- and low-back pain and cracking sensation of both knees. She diagnosed
lumbosacral radiculopathy, sciatic nerve crush injuries, contusions of the knees, chondromalacia
patella, lumbosacral sprain, bulging thoracic discs, meniscal tear and chronic pain. Appellant
could continue to work full time with restrictions pursuant to the functional capacity evaluation.
Dr. Rodriguez advised that appellant required treatment modalities including a hinged knee
brace, straight cane, analgesic gel, corset back brace, electric heating pad, body pillow, massage
bed pad, lumbar car seat cushion and a whirlpool unit.
The Office found a conflict of medical opinion. Appellant’s treating physicians indicated
that appellant had residuals of her work-related injuries and required a hinged knee brace,
straight cane, analgesic gel, corset back brace, electric heating pad, body pillow, massage bed
pad, lumbar car seat cushion and a whirlpool unit and could work subject to restrictions.
Dr. Hanley, an Office referral physician, determined that appellant reached maximum medical
improvement and would not require physical therapy or other treatment modalities and could
work subject to restrictions.
On November 14, 2008 the Office referred appellant to Dr. John T. Williams, a Boardcertified orthopedic surgeon. In a December 2, 2008 report, Dr. Williams reviewed the medical
records and statement of accepted facts. He reviewed appellant’s job requirements, noted a
history of appellant’s work injury and her treatment following the injury. Lumbar MRI scans
from 2004 and 2005 did not report any trauma-related findings. Physical examination revealed
obesity, normal motor testing, normal sensation and no evidence of paraspinal muscle spasms.
3

Straight leg raising on the left was to 20 degrees although Dr. Williams later passively raised
both legs to 45 degrees with no complaints. Appellant stated that she could not squat in a deep
knee position but, passively, she had full range of motion of the hips and Dr. Williams also
passively extended and flexed both knees. Dr. Williams found no instability of the medial and
lateral plains of the bilateral knees, no effusion, positive grating on the patellofemoral excursion
bilaterally, negative McMurray’s and Lachman’s test bilaterally and negative synovial
thickening.
He diagnosed acute lumbosacral sprain/strain by history, resolved, acute
sprain/strain of the bilateral lower extremities, resolved and crush injuries, both lower extremities
by history, resolved. Dr. Williams opined that appellant had preexisting wear and tear of both
knees and diagnosed degenerative chondromalacia patellae. There was no evidence of any
significant lumbar disc bulge as diagnostic testing showed no evidence of diffuse disc bulging.
Dr. Williams found no basis for an impairment rating for the degenerative chondromalacia
patellae because this condition preexisted her work injury and was not caused by the accident.
He opined that appellant was fully recovered from her work injuries sustained on March 16,
2004 and could resume her normal preinjury activities without restrictions and did not require
any further treatment for her conditions.
Appellant submitted December 4, 2008 and January 8, 2009 reports from Dr. Daisy
Rodriguez who noted appellant’s back and knee diagnoses and advised that appellant could
continue working with restrictions.
On February 19, 2009 the Office terminated appellant’s compensation benefits, finding
that the weight of the medical evidence was represented by Dr. Williams and established that she
had no continuing disability resulting from her accepted employment injuries. It also found that
appellant was not entitled to an additional schedule award for the right lower extremity.
On February 27, 2009 appellant requested an oral hearing and asserted that the Office
failed to issue a pretermination notice. In February 5 to June 9, 2009 reports, Drs. George and
Daisy Rodriguez noted that appellant’s condition was unchanged. They diagnosed lumbar
sciatica, contusions of the knees, lumbosacral radiculopathy, sciatic nerve crush injuries,
chondromalacia patella, lumbosacral sprain, bulging thoracic discs, left meniscal tear and chronic
pain. Drs. Rodriguez noted that appellant could continue to work full time with restrictions.
On August 17, 2009 the Office proposed to terminate compensation benefits on the
grounds that Dr. Williams’ report established that she had no residuals of the work-related
herniated disc of the lumbosacral spine and contusion of the bilateral knees.
On September 7, 2009 appellant objected to the Office’s notice of proposed termination
of her benefits. An August 4, 2009 report from Dr. George Rodriguez noted no change in
appellant’s condition and diagnosed lumbar sciatica, contusions of the knees, lumbosacral
radiculopathy, sciatic nerve crush injuries, chondromalacia patella, lumbosacral sprain, bulging
thoracic discs, left meniscal tear and chronic pain. Dr. Rodriguez noted that appellant could
continue to work full time with restrictions.
On September 16, 2009 the Office terminated appellant’s compensation benefits effective
that day, finding that the weight of the medical evidence established that her accepted conditions
had resolved.

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Appellant submitted a September 1, 2009 report from Dr. George Rodriguez who
reiterated his prior opinion.
In a September 25, 2009 decision, an Office hearing representative affirmed the
February 19, 2009 Office decision denying appellant’s claim for an additional schedule award.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.5 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for herniated disc of the lumbosacral spine and
contusion of the bilateral knees. It found a conflict in medical opinion between Dr. George
Rodriguez, a Board-certified physiatrist, who found that appellant required treatment for
residuals of her accepted conditions and could work with restrictions, and Dr. Hanley, an Office
referral physician, who determined that appellant would not require physical therapy or other
treatment modalities other than pain management and could continue to work subject to
restrictions. The Office referred appellant to Dr. Williams to resolve the conflict.
In a December 2, 2008 report, Dr. Williams reviewed appellant’s history, reported
findings and noted that appellant exhibited no objective complaints or definite work-related
abnormality in her condition. He diagnosed acute lumbosacral sprain/strain by history, resolved,
acute sprain/strain of the bilateral lower extremities, resolved and crush injuries, both lower
extremities by history, which had resolved. Dr. Williams advised that on physical examination
there were no positive objective findings to correlate to appellant’s complaints and noted a
negative passive straight leg test, normal motor and sensory testing, negative instability of the
medial and lateral plains of the knees, no effusion, positive grating on the patellofemoral
excursion bilaterally and negative synovial thickening. He noted that appellant sustained a soft
tissue injury which would have resolved within a few days to a couple of months and that
diagnostic testing in the record did not support any significant lumbar disc bulge or herniation.
Dr. Williams opined that appellant was fully recovered from her work injuries sustained on
March 16, 2004 and could resume her normal preinjury activities without restrictions and
without need for further treatment for her conditions. He found no basis on which to attribute
any continuing residuals or disability to the accepted March 16, 2004 work injury.
4

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

5

Mary A. Lowe, 52 ECAB 223 (2001).

6

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

The Board finds that the opinion of Dr. Williams is sufficiently well rationalized and
based upon a proper factual background such that it is entitled to special weight and establishes
that appellant’s work-related herniated disc of the lumbosacral spine and contusion of the
bilateral knees has ceased. Where there exists a conflict of medical opinion and the case is
referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled
to special weight.7
Appellant submitted reports from Drs. George and Daisy Rodriguez, who noted
appellant’s continued complaints of mid- and low-back pain and bilateral knee pain.
Drs. Rodriguez advised that appellant’s condition was unchanged and that she could continue to
work full time with restrictions. Neither physician specifically explained how any continuing
condition or disability was causally related to the accepted employment injuries. As
Drs. Rodriguez were silent as to causation, these additional reports of the attending physicians
are insufficient to overcome that of Dr. Williams or to create a new medical conflict.
The Board finds Dr. Williams had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. Dr. Williams is a specialist in the appropriate field. He offered
no basis to support that appellant had residuals or work-related disability from the accepted
conditions. Dr. Williams’ opinion as set forth in his report of December 2, 2008 is probative
evidence and reliable. The Board finds that Dr. Williams’ opinion constitutes the weight of the
medical evidence and is sufficient to justify the Office’s termination of compensation benefits
for the accepted conditions.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulations9 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 Office evaluates the degree of permanent
impairment according to the standards set forth in the specified edition of the A.M.A., Guides.10
The A.M.A., Guides has been adopted by the implementing regulation as the appropriate
standard for evaluating schedule losses.11
7

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
11

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

6

ANALYSIS -- ISSUE 2
On appeal, appellant contends that she has more than five percent permanent impairment
of the right lower extremity. The Office accepted appellant’s claim for herniated disc of the
lumbosacral spine and contusion of the bilateral knees. On December 5, 2006 it granted
appellant a schedule award for five percent permanent impairment of the right lower extremity.
Appellant later requested an additional schedule award.
The Office obtained an additional report from Dr. Hanley dated October 3, 2008.
Dr. Hanley noted examination findings and found no significant changes in his examination on
August 25, 2006. He opined that appellant sustained no more than the five percent impairment
of the right leg which was causally related to her March 16, 2004 work injury.
On October 10, 2010 the Office apprised appellant of Dr. Hanley’s latest opinion
regarding permanent impairment and advised that appellant needed to submit a medical report
conforming to the A.M.A., Guides that substantiated additional impairment. It also requested
that Dr. George Rodriguez further address appellant’s permanent impairment pursuant to the
A.M.A., Guides. Appellant submitted several reports from Drs. George and Daisy Rodriguez
who noted appellant’s continued complaints of low back and bilateral knee pain and provided a
diagnosis. Drs. Rodriguez failed, however, to specifically address whether appellant had
permanent impairment of the right leg pursuant to the A.M.A., Guides. Consequently, appellant
did not submit any medical evidence substantiating greater permanent impairment of the right
leg than that for which she previously received a schedule award.
The record also contains Dr. Williams’ December 2, 2008 report12 in which he found no
instability of the medial and lateral plains of the bilateral knees, no effusion, noted positive
grating on the patellofemoral excursion bilaterally and negative synovial thickening.
Dr. Williams provided diagnoses and found no basis for an impairment evaluation.
The Board finds that, under the circumstances of this case, the medical evidence does not
establish that appellant has more than a five percent permanent impairment of the right leg for
which she previously received a schedule award. There is no evidence of record, conforming
with the A.M.A., Guides, supporting any greater impairment.
On appeal appellant asserts that she continues to have residuals of her work related
herniated disc of the lumbosacral spine and contusion of the bilateral knees and her body hurts.
She further believed Dr. Williams report was inaccurate. The Board, however, has reviewed
Dr. Williams’ report, as noted, and finds that it is sufficiently well rationalized and based upon a

12

The Office selected Dr. Williams to resolve a conflict on a separate issue. Although Dr. Williams is not an
impartial specialist with regard to right leg impairment for schedule award purposes, his report can still be
considered for its own intrinsic value. See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996); see also Leanne E.
Maynard, 43 ECAB 482 (1992) (the Board found that a physician’s “opinion is probative even though he was not an
impartial medical examiner”).

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proper factual background such that it is entitled to special weight and establishes that
appellant’s work-related conditions have resolved.13
CONCLUSION
The Board finds that the Office has met its burden of proof to terminate benefits effective
September 16, 2009. The Board further finds that appellant has no more than five percent
permanent impairment of the right lower extremity for which she has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 25 and 16, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 19, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

In a decision dated April 20, 2010, the Office vacated the September 16, 2009 termination decision and directed
further development. Thereafter, on September 23, 2010 the Office issued a decision terminating appellant’s
compensation. However, the Board notes that appellant appealed the matter to the Board on December 2, 2009 and
the Board obtained jurisdiction over the termination issue on that date. Therefore, the Board notes that the April 20
and September 23, 2010 decisions are null and void as the Office and the Board may not have concurrent
jurisdiction over the same issue in a case. Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB
880 (1990).

8


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

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

Docket No. 18-1166
Issued: July 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 22, 2018 appellant filed a timely appeal from a March 20, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her emotional
condition is causally related to the accepted August 31, 2017 employment incident.
FACTUAL HISTORY
On September 6, 2017 appellant, then a 47-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 31, 2017 she sustained an emotional condition post-

1

5 U.S.C. § 8101 et seq.

traumatic stress disorder (PTSD) as a result of hearing her coworker being shot while she was on
the telephone with him while in the performance of duty. She stopped work on September 2, 2017.
In a handwritten statement, appellant described that on August 31, 2017 she was on the
telephone with E.M., a mail carrier, when the conversation stopped and she heard a scuffle and a
loud noise. She related that a few seconds later, E.M. told her that he had been shot and that he
needed help. Appellant noted that she hung up the telephone and tried to get help for him. She
explained that she did not know what was happening and began to think that someone was shooting
mail carriers. Appellant reported that she was afraid to come out of her house because she feared
being shot.
Appellant submitted a September 6, 2017 work excuse from Dr. Claire A. Presswood, a
Board-certified internist. The note indicated that appellant had been seen that day and was excused
from work for the period September 2 to 16, 2017.
In a letter dated September 8, 2017, the employing establishment controverted appellant’s
claim. It provided a September 6, 2017 e-mail from Y.S., a customer service supervisor, who
explained that appellant handed her a Form CA-1 saying she wanted to file a claim for stress
brought on by the August 31, 2017 accident concerning E.M. Y.S. controverted appellant’s claim
noting that she should not have been on the telephone. She also noted that appellant continued her
normal duties the day of the incident, and a portion of the following day. Lastly, Y.S. noted that
the medical report submitted was not from a mental healthcare provider.
In a development letter dated September 15, 2017, OWCP acknowledged receipt of
appellant’s claim and informed her that additional evidence was needed to establish her claim. It
requested that she respond to an attached factual questionnaire in order to substantiate that the
August 31, 2017 employment incident occurred as alleged. OWCP also advised appellant to
provide medical evidence to establish a diagnosed condition causally related to the alleged
incident. It afforded her 30 days to submit additional evidence. No additional evidence was
received.
By decision dated October 23, 2017, OWCP denied appellant’s claim because the factual
component of fact of injury had not been met. It found that the evidence of record failed to
establish that the August 31, 2017 incident occurred as alleged. OWCP noted that appellant failed
to respond to the factual questionnaire sent to her on September 15, 2017. It also determined that
there was insufficient medical evidence to establish a diagnosed condition causally related to the
alleged incident. OWCP concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On November 3, 2017 appellant requested reconsideration.
Appellant received treatment from Latasha Baird, a licensed professional counselor
(LPC/S). In a September 14, 2017 intake assessment, Ms. Baird indicated that appellant sought
counseling services due to having paranoia, disturbances, fatigue, poor concentration, panic
attacks, and feelings of hopelessness and guilt. She reported that the precipitating factor was when
her coworker and friend was speaking to her on the telephone and was shot. Ms. Baird related that
appellant had two other traumas when her fiancée passed away in 2002 and when a man held a

2

gun to her head in 1994. She reported that examination of appellant’s mental status showed good
insight, depressed/flat affect and mood, good judgment, and intact cognitive ability. Ms. Baird
diagnosed acute stress disorder. She continued to treat appellant and provided progress notes dated
September 21 to October 24, 2017. Ms. Baird noted that appellant still had symptoms related to
the August 31, 2017 traumatic event, including panic attacks, hypervigilance, sleep disturbance,
and intrusive thoughts.
A September 20, 2017 Millon Clinical Multiaxial Inventory -- III (MCMI -- III) revealed
possible diagnoses of paranoid personality disorder, major depression, and generalized anxiety
disorder.
In a September 21, 2017 letter from Dr. Presswood, who related that she was appellant’s
primary care provider and was working in conjunction with appellant’s psychiatrist.
Dr. Presswood noted that appellant was diagnosed with adjustment disorder, disturbance of
emotions and conduct, personal history of trauma, and anxiety. She recommended that appellant
remain out of work for the next two weeks.
OWCP also received additional progress notes from Ms. Baird dated September 21 and 28,
and October 19 and 24, 2017.
In a November 1, 2017 letter, Dr. Presswood indicated that she continued to treat appellant
for PTSD, anxiety, and insomnia all related to the employment incident that occurred with a
colleague’s shooting. She recommended that appellant continue with her leave of absence for that
month and then transition to a position that did not require mail delivery.
By decision dated January 9, 2018, OWCP denied modification of the October 23, 2017
decision. It noted that appellant had still not responded to the September 15, 2017 development
questionnaire and, accordingly, the evidence of record failed to establish that the August 31, 2017
employment incident occurred as alleged.
On January 29, 2018 appellant again requested reconsideration. She provided her response
to OWCP’s questions. Appellant explained that on August 31, 2017 she was out on her route
delivering mail and was on the telephone with E.M. She related that she heard a scuffle and then
a very loud noise. Appellant indicated that she kept asking E.M. what was that noise and he would
not answer. She reported that E.M. finally told her that he had been shot. Appellant related that
she asked him where he was, but she could not understand what he said. She noted that she hung
up the telephone and tried to get help. Appellant explained that she was already being treated with
medication because of an incident that happened to her on November 3, 2016 with a customer who
had assaulted her in the mail truck. She indicated that the medication was helping with her anxiety
at work until the August 31, 2017 incident with E.M. occurred.
Appellant also submitted a September 2, 2017 news article captioned: “Mailman Shot on
the Job Making Deliveries.” It addressed the August 31, 2017 shooting of E.M.
In a November 27, 2017 letter, Dr. Presswood indicated that appellant remained unable to
carry out her duties as a mail carrier due to her medical condition.

3

Dr. Presswood also completed a Medical Information and Restriction Assessment form
dated January 2, 2018. She related that appellant had PTSD with recurring panic attacks that
developed after a coworker was injured on the job. Dr. Presswood noted that appellant was unable
to work delivering mail and provided work restrictions.
By decision dated March 20, 2018, OWCP modified the January 9, 2018 decision. It
accepted that the August 31, 2017 incident occurred as alleged and that medical diagnoses were
established (anxiety, panic attacks, PTSD, adjustment disorder, and major depression), but denied
appellant’s claim because the medical evidence of record was insufficient to establish that her
emotional condition was causally related to the accepted employment incident.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional condition or
psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged to
have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that his or her emotional condition is causally related to the identified compensable
employment factors.2
When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter, OWCP must base its decision on an analysis of the
medical evidence.3
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.4 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.5 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).6

2

F.B., Docket No. 18-1462 (issued May 9, 2019); G.R., Docket No. 18-0893 (issued November 21, 2018);
George H. Clark, 56 ECAB 162 (2004).
3
See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).
4

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish causal
relationship between her diagnosed emotional condition and the accepted August 31, 2017
employment incident.
Appellant received medical treatment from Dr. Presswood. In letters dated September 21
and November 27, 2017, Dr. Presswood noted that appellant was under her care and diagnosed
adjustment disorder, disturbance of emotions and conduct, personal history of trauma, and anxiety.
She recommended that appellant remain out of work and then transition to a position that did not
require her to deliver mail. In a January 2, 2018 Medical Information and Restriction Assessment
form, Dr. Presswood reported that appellant had PTSD with recurring panic attacks that developed
after a coworker was injured on the job.
Although Dr. Presswood noted that appellant’s PTSD developed after a coworker was
injured on the job, such generalized statements do not establish causal relationship.7 Her reports
do not contain adequate medical rationale explaining how the accepted employment incident had
caused or aggravated her emotional condition.8 Because Dr. Presswood did not provide a reasoned
opinion explaining how the August 31, 2017 employment incident caused or contributed to her
PTSD condition, her reports are insufficient to establish appellant’s claim.
Appellant also submitted September and October 2017 treatment notes from Ms. Baird, a
licensed professional counselor. A licensed professional counselor is not a clinical psychologist,
and therefore, does not satisfy the definition of “physician” under FECA.9 Because a licensed
professional counselor is not considered a physician as defined under FECA, Ms. Baird’s treatment
records are of no probative value with respect to establishing entitlement to FECA benefits.10
Because appellant has not provided medical evidence demonstrating that her emotional
condition is causally related to the accepted August 31, 2017 employment incident, she has not
met her burden of proof to establish her traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
emotional condition is causally related to the accepted August 31, 2017 employment incident.

7

See L.M., Docket No. 16-0188 (issued March 24, 2016).

8

K.W., Docket No. 10-0098 (issued September 10, 2010).

9

5 U.S.C. § 8101(2); see Jaqueline E. Brown, 54 ECAB 583, 585-86 (2003).

10

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 13-2041
Issued: February 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 30, 2013 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated March 8, 2013, which denied her
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error.1 Because more than 180 days have elapsed between the last merit decision
dated January 6, 2012 and the filing of this appeal on August 30, 2013, the Board lacks
jurisdiction to review the merits of her claim pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

1

This appeal was received by the Board on September 6, 2013. The 180th day following March 8, 2013 was
September 4, 2013. Postal service tracking, however, confirms that the appeal was mailed on August 30, 2013. The
Board’s Rules of Procedure state that if the notice of appeal is sent by United States Mail or commercial carrier and
use of the date of delivery as the date of filing would result in a loss of appeal rights, the appeal will be considered to
have been filed as of the date of postmark or other carriers’ date markings. 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
Appellant, a 48-year-old distribution clerk, was exposed to fumes from a floor cleaning
solution or a sealant at her worksite, which aggravated her asthmatic condition on
September 15, 2001. She filed a claim for benefits on May 8, 2002, which OWCP accepted for
aggravation of preexisting reactive airway disease, toxic exposure and aggravation of asthma.
OWCP paid appropriate compensation for temporary total disability.
In a report dated July 24, 2009, Dr. Michelle A. Huggins, a specialist in internal
medicine, advised that appellant had recently recovered from a severe and prolonged
exacerbation of asthma with acute bronchitis; this caused her extreme fatigue, shortness of
breath, poor exercise tolerance and required primary bed rest for approximately three weeks.
She stated that appellant had experienced recurrent episodes of bronchospasm and asthmatic
exacerbations since she sustained a work-related pulmonary injury in September 2001.
Dr. Huggins asserted that appellant’s symptoms were aggravated by poorly ventilated spaces and
extremes of hot and cold temperatures, abnormal fumes, chemicals and excessive dust. She
advised that appellant had also been plagued with neurologic abnormalities of the upper and
lower extremities, which slowed her mobility and dexterity, but did not completely inhibit her
functioning.
Dr. Huggins advised that, in addition to her physical limitations, appellant had behavioral
stressors which had led to clinical depression and limited her ability to effectively maintain
employment at this time. She opined that appellant was neither physically nor behaviorally able
to return to the workforce at this time. Dr. Huggins further opined that appellant was not capable
of participating in vocational rehabilitation.
By letter dated September 1, 2009, OWCP noted that it had received a request from
appellant to accept the conditions of stress, anxiety and depression. It asked her to submit
additional factual and medical evidence in support of her request.
In order to determine appellant’s current condition and whether she was capable of
returning to gainful employment, OWCP referred her for a second opinion examination with
Dr. Gerald Adler, a specialist in pulmonology. In reports dated September 1 and 21, 2009,
Dr. Adler reviewed the medical history and the statement of accepted facts and stated findings on
examination. He concluded that while appellant did experience asthma she had been able to
work in certain settings so long as she avoided exposure to exacerbating factors such as irritant
gasses, fumes or dust. Dr. Adler advised that she underwent a pulmonary function test on
September 11, 2009 which showed a combination of obstructive lung disease of mild severity
with improvement following a bronchodilator with typical asthmatic-type response and
restrictive lung disease partially due to her increased body habitus. He opined that the 2001
work event may have either unmasked underlying asthma or aggravated appellant’s air passage,

2

causing asthma exacerbation; her present condition was stable. Dr. Adler recommended that she
avoid precipitating environmental factors like pollutants, dust and temperature extremes.
In a September 8, 2009 work restriction evaluation form, Dr. Adler indicated that
appellant could return to her usual job within the listed restrictions.
In a report dated October 14, 2009, Dr. Huggins reiterated her previous findings and
conclusions. She further stated that she claimed distress, anxiety and depression were due to the
physical limitations brought on by the chemical lung injury and subsequent exposures causally
related to employment factors, including work-induced stressors regarding job reassignment that
resulted in new exposures and financial loss from excessive time off work without pay.
Dr. Huggins advised that appellant was being treated for her claimed emotional condition with
counseling and antidepressant medication; she advised that appellant’s recovery was uncertain at
that time.
In order to determine whether appellant had sustained an emotional condition causally
related to employment factors and whether this condition resulted in her total disability, OWCP
referred her to David B. Rush, Ph.D. in psychology. In a December 14, 2009 report, Dr. Rush
stated that appellant had been experiencing symptoms of depression since 2002; she received
psychiatric treatment and was taking various medications. He diagnosed recurrent, major
depressive disorder and anxiety disorder. Appellant expressed anger and frustration with her
current circumstances and had thoughts of hopelessness, but denied suicidal thoughts. She
related that she experienced periods of tearfulness, hopelessness, irritability, memory deficits and
loss of interest in activities and sexual interaction. Dr. Rush indicated that appellant’s current
level of depression and anxiety had been created by multiple circumstances, past and present and
were not limited to the September 2001 work injury; this created some psychological
vulnerability. He advised that she had difficulties while in the Army Reserves and became
inactive prematurely and was involved in an automobile accident in 2000. Dr. Rush concluded
that, from a psychological standpoint, appellant should be able to perform the duties of a
distribution clerk, assuming that the physical limitations and restrictions were addressed.
OWCP found that there was a conflict in the medical evidence regarding whether
appellant still had residuals from her accepted respiratory condition and whether she still was
disabled due to a work-related physical or emotional condition. It referred her to Dr. William
Crosland, a specialist in critical care medicine, and Dr. Gregory A. Haley, a specialist in
psychiatry, for referee medical examinations.
In an April 6, 2010 report, Dr. Haley related that many of appellant’s work colleagues
experienced teary eyes and sore throat; she, however, believed that she was the only one who
developed lung problems. Appellant attempted to return to work but was unable to stay at work
for a long period. She asserted that on one occasion she was not given a job within her medical
restrictions and that she left for recurrence of “pneumonia” or other complaints of a respiratory
nature. Appellant advised that her coughing and shortness of breath resulted in extreme anxiety
and panic; by February 2002 she was being treated for anxiety and depression. She asserted that
she was offered light duty from June through November 2002 but she declined. Appellant
alleged that they were refusing her medical documentation that would have taken her out of work
on medical leave. In addition, there were apparently long periods in which she was without pay,

3

which she resented bitterly, stating that it jeopardized her household and life. Appellant was
prescribed medication and counseling but resents being required to attend group sessions.
Dr. Haley related that appellant is currently off work due to her severe asthma condition.
While appellant uses a nebulizer three times a day she lacks a portable one, which makes it
difficult for her to leave the house. Dr. Haley noted that she took medication for depression,
anxiety and panic. Appellant related being anxious and angry because she never used to get sick
and she feels her asthma condition robbed her life from her. Dr. Haley stated that she feels
mistreated by her employer to the extent that she experiences homicidal thoughts toward her
supervisors; she also believes that the employing establishment is spying on her. He diagnosed
depression, anxiety disorder, cluster B personality traits and moderate to high reactive airway
disease. Dr. Haley opined that he did not believe that appellant was totally disabled from a
psychiatric standpoint; he noted that she has not failed multiple conservative attempts to treat her
anxiety, anger and depression. He advised that her anxiety actually seemed to revolve around
her losing her benefits as much if not more than her anxiety about her pulmonary status.
Dr. Haley believed that appellant was very fixed on the idea that she is “owed” for “their” having
“taken my life away” from a pulmonary/health standpoint and that she is being unfairly treated
as she “knows” that “they have paid off other lesser conditions for fellow employees.”
Dr. Haley asserted that the likelihood of appellant returning to work without being
disruptive or issuing more overt threats was low. He advised that she had a personality disorder
that colored her view of the world and of the claims process; he was unable to tell how much was
baseline difficulty or retaliatory, passive aggression. Dr. Haley opined, however, that resentment
over appellant’s condition was not a basis for disability. He considered her appropriate for job
retraining or a position commensurate with her physical limitations; any position, in which she is
exposed to pressure to resign, retire or quit, however, will certainly fail.
On August 23, 2010 OWCP accepted the emotional condition of dysthymic disorder.
In a July 12, 2011 report, Dr. Crosland stated findings on examination and presented a
thorough review of the medical evidence and appellant’s medical history. He opined that, based
on her job description, her measured pulmonary function test, her spirometry and her
methacholine challenge test that she was capable of doing her job as a distribution clerk.
Dr. Crosland listed the following diagnoses: acute inhalation injury in 2001 without long-term
objective sequelae by pulmonary function, methacholine challenge or chest x-ray; dyspnea,
doubt pulmonary limitation, suspect deconditioning; gastroesophageal reflux disease; and
panic/anxiety disorder. He opined that appellant might experience breathlessness standing four
hours per day, lifting 70 pounds or carrying 70 pounds based on her obesity and level of fitness.
Dr. Crosland advised that she had a history of gastroesophageal reflux and that her symptoms
could be a manifestation of nonacid symptoms; he stated that uncontrolled nonacid reflux could
present as recurrent bronchitis, chest tightness and dyspnea. He further advised that appellant
had a normal persantine thallium stress test but no echocardiogram, which could be helpful in
evaluating and treating her symptoms.
Dr. Crosland stated that appellant underwent pulmonary function testing on
September 11, 2009 which showed a primary mild restrictive ventilatory defect based on a
reduction in the total lung capacity of 2.85 liters. He related that the technician reported that she

4

did not give her best effort for all tests and did not tolerate the body box test for determination of
lung volume. Dr. Crosland advised that appellant’s flow volume loops were inconsistent; her
prebronchodilator FEV1 was normal at 82 percent of predicted and her postbronchodilator
maneuver showed improvement in her FEV1. He stated, however, that given her inconsistent
efforts, this might represent a false positive bronchodilator response.
On September 1, 2010 OWCP issued a notice of proposed termination of compensation
to appellant. It found that the weight of the medical evidence, as represented by the impartial
opinions of Drs. Crosland and Haley, established that appellant’s accepted respiratory condition
had ceased and that she had no work-related residuals stemming from these conditions.
In a September 28, 2010 report, Dr. Huggins expressed her disagreement with the opinion
that appellant had no residuals from her accepte respiratory condition. She stated that she was
awaiting functional capacity testing before making a determination as to appellant’s ability to
perform work, in light of her ongoing, accepted work-related conditions.
By decision dated October 8, 2010, OWCP terminated appellant’s compensation for
medical benefits.
By letter dated October 3, 2011, appellant requested reconsideration. She argued that the
opinions of Drs. Rush and Haley lacked probative value because her dysthymic disorder was not
included in the statement of accepted facts at the time of their evaluations. Appellant also
contended that the case file was incomplete because it did not include all of her medical records.
By decision dated January 6, 2012, OWCP denied modification. It rejected appellant’s
argument that the opinions of Drs. Rush and Haley were not valid because her dysthymic
disorder condition was not included in the statement of accepted facts when they rendered their
opinions. OWCP stated that at the time she was referred for her second opinion and referee
examinations the examiners were provided with a complete and accurate copy of the medical
evidence contained in your case file.
By letter dated January 2, 2013, received by OWCP on January 8, 2013, appellant
requested reconsideration. She essentially reiterated the contentions she advanced with her
October 3, 2011 reconsideration request.
In a December 28, 2012 report, received by OWCP on January 8, 2013, Dr. Huggins
stated that appellant had been treated for numerous severe and prolonged exacerbations of
asthma, chronic bronchitis, pneumonia and allergy-related symptoms. She stated:
“Since terminations of her wages, [appellant] experienced a lengthy asthma/flair
which began October 2010 lasting through August 2011 and another flare up in
November 2011 lasted over a month. This caused her extreme fatigue, shortness
of breath and poor exercise tolerance.
“Since her work[-]related pulmonary injury ... [appellant] has been disabled by
life’s single most important function, breathing. Her asthma has substantially
limited her ability to work and perform the basic functions of her job. Pulmonary
function testing performed by Georgia Lung Associates confirms moderate to
5

severe persistent asthma, requiring daily medications. At present [appellant] does
not meet the physical requirements of her job which requires arduous exertion
involving prolonged standing, walking, bending, reaching, handling/lifting heavy
containers of mail/parcels weighing up to 70 pounds or more. Required daily
medications which cause drowsiness/dizziness would prevent her from operating
industrial machinery.
“The following industrial pollutants would prevent [appellant] from returning to
the job she held prior to her injury; excessive dust, toxic solvents, paint fumes,
welding dust, etc.
“Due to the unpredictable nature of the onset of respiratory limitations and [her]
history of prolonged exacerbations she will have difficulty maintaining regular
attendance on any job. Pulmonologist recommendations and plans to improve her
lung function and endurance require allergy treatments with injections for three to
five years with strict adherence to respiratory triggers. [Appellant] continues to
be incapacitated because of her employment injury, to earn the wages that she
received at the time of her injury.”
By decision dated March 8, 2013, OWCP denied appellant’s request for reconsideration
without a merit review, finding that the request was untimely requested reconsideration and that
she had not established clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle an employee to a review of an OWCP decision
as a matter of right.4 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”

3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).

6

OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).5 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.6 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP granted under 5 U.S.C. § 8128(a).7
In those cases where a request for reconsideration is not timely filed, the Board had held
however, that OWCP must nevertheless undertake a limited review of the case to determine,
whether there is clear evidence of error pursuant to the untimely request.8 OWCP’s procedures
state that OWCP will reopen an appellant’s case for merit review, notwithstanding the one-year
filing limitation set forth in 20 C.F.R. § 10.607(b), if the appellant’s application for review shows
“clear evidence of error” on the part of OWCP.9
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise and explicit and
must be manifested on its face that OWCP committed an error.11 Evidence which does not raise
a substantial question concerning the correctness of OWCP decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.15 The Board makes an
5

Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against
payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that OWCP erroneously applied or interpreted a point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constituting relevant and pertinent new evidence not previously
considered by OWCP. See 20 C.F.R. § 10.606(b).
6

20 C.F.R. § 10.607(b).

7

See cases cited supra note 3.

8

Rex L. Weaver, 44 ECAB 535 (1993).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

10

See Dean D. Beets, 43 ECAB 1153 (1992).

11

See Leona N. Travis, 43 ECAB 227 (1991).

12

See Sanchez, supra note 4.

13

See Travis, supra note 11.

14

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

15

See Faidley, supra note 4.

7

independent determination of whether an appellant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.16
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on January 6, 2012. OWCP received
appellant’s reconsideration request on January 8, 2013; thus, the request is untimely as it was
outside the one-year time limit.17
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s March 8,
2013 decision to shift the evidence of record in her favor. It is appellant’s burden to establish
clear evidence of error in OWCP’s merit denial of the claim. The issues in this case concern
whether she had any continuing disability due to her accepted respiratory or emotional
conditions. Dr. Huggins’ December 28, 2012 report merely reiterated that appellant continued to
experience symptoms of her respiratory condition which made it difficult to perform her usual
job duties as a distribution clerk. It is repetitive and cumulative of previous reports.
Dr. Huggins’ opinion represents one side of a conflict in medical evidence which was resolved
by Dr. Crosland’s impartial medical opinion. Appellant’s arguments regarding the validity of the
reports from Dr. Rush, the second opinion psychologist, and Dr. Haley, the impartial
psychiatrist, which she also presented in her appeal to the Board, were addressed and properly
rejected by OWCP. She did not submit evidence to create a prima facie case of continuing
disability sufficient to shift the weight of the evidence or raise a substantial question as to the
correctness of the decision. Therefore, appellant has failed to demonstrate clear evidence of
error on the part of OWCP such that it abused its discretion in denying merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear evidence
of error on the part of OWCP in her reconsideration request dated January 8, 2013. Inasmuch as
her reconsideration request was untimely filed and failed to establish clear evidence of error,
OWCP properly denied further review on March 8, 2013.

16

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

17

20 C.F.R. § 10.607(a).

8

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2013 decision of the Office of
Workers’ Compensation Programs is hereby affirmed.
Issued: February 20, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., claiming as guardian of A.V., (son of R.V.),
Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Lompoc, CA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0905
Issued: September 19, 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 March 20, 2015 appellant, through counsel, filed a timely appeal from a
September 22, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish survivor benefits for
the benefit of the deceased employee’s son.
FACTUAL HISTORY
On June 6, 2014 appellant filed a claim for compensation by widow, widower, and/or
children (Form CA-5) in her capacity as mother and guardian of the minor son of the deceased
employee. She claimed that the employee’s death on February 10, 2012 was causally related to
his work as a correctional officer for the employing establishment.3 The record contains an
amended certificate of death, issued by Santa Barbara County on March 19, 2012, listing the
employee’s immediate cause of death on February 10, 2012 (estimated time, 7:36 a.m.) as
“gunshot wound of head,”4 The manner of death as “suicide,” and “other significant conditions”
as depression, bipolar disorder, and paranoia.5
In an undated statement received on June 9, 2014, appellant indicated that she was the
mother of the employee’s minor son who was born on April 9, 2006. She noted that she moved
with her son to Wyoming in March 2011 and later divorced the employee, but that she still
remained good friends with the employee and talked with him nearly every day. Appellant
asserted that, beginning about May 2011, the employee repeatedly told her that he was afraid of
what might happen to him at work. The employee told her that he found a weapon with his name
on it, which was not his weapon, and kept saying, “They’re going to kill me,” referring to people
at the prison. Appellant noted that the employee had been receiving treatment in 2011 for
emotional problems and took medications which he told her made him “feel bad.”
In an undated statement received by OWCP on June 9, 2014, the employee’s stepmother
indicated that in August 2011, after his divorce, the employee came to live with her, his father,
and his brother and sister. She noted that the employee was saddened by losing his son and by
his girlfriend making him move out of the residence they shared. The employee’s stepmother
related that the employee reported being harassed and threatened at work by two coworkers, that
he was very afraid of one of these coworkers, and that agents from the Federal Bureau of
Investigation (FBI) and Immigration and Customs Enforcement (ICE) were following him and
calling him.
3

Appellant indicated on the form that she was not living with the employee at the time of his death. Other
documents of record, including marriage and birth certificates, show that the minor son was born to appellant and
the employee while they were married. Divorce papers for appellant and the employee were filed in April 2011 and
were finalized in August 2011. The employee worked as a correctional officer at the time of his death.
4

The description of how the injury occurred was listed as “decedent shot himself in the head with a handgun.”

5

A March 29, 2012 coroner’s report from the Santa Barbara County Sheriff indicated that on February 10, 2012
the employee committed suicide at work with a prison-issued weapon. The report contains statements from several
interviewees, including the employee’s mother who indicated that he was being treated for depression related to his
divorce, his girlfriend who noted that he had commented on “having problems at work,” and his psychiatrist who
indicated that he displayed signs of paranoia by reporting that unspecified people were out to get him. A March 2,
2012 toxicology report showed post-death positive findings for caffeine, nicotine/cotinine, and Olanzapine (an antipsychotic medication).

2

The employee’s stepmother noted that one night in October 2011 the employee came
home and told his brother that a “hit” had been placed on him and that a Washington, DC, gang
tried to kill him. The employee reported that he proceeded to lock up a prisoner in a cell and was
then cornered in the cell by six Washington, DC gang members, one of whom was crouched
down with a weapon. The employee’s stepmother noted that the employee stated that, before the
gang members harmed him, a prisoner (whom the employee previously protected against guards)
came into the cell, called off the gang members, and yelled, “Remember, I saved you.” She
indicated that the employee claimed to have hit the panic button to call for backup but that no
one came and that, the next evening when he was off on sick leave, a fellow guard told him that
they found a plexiglass shank “on the keyboard by [his] office.” The employee’s stepmother
discussed the employee’s medical treatment after this incident and noted that the employee
asserted that there was a “hit” on the family and that the FBI and the “feds” were watching all of
them.
Counsel at the time produced a timeline document discussing the employee’s personal,
work, and medical histories. It detailed the incidents and conditions at work believed to have
contributed to his suicide. The document reflected that, on December 3, 2009, the employee
assisted two officers who were handcuffing an inmate, on August 10, 2010, he was threatened by
a coworker who said that he would assault him when he saw him downtown, on August 15,
2010, the same coworker stared at him threateningly and told him that he and another coworker
would be waiting for him in the parking lot;6 and on September 29, 2011 the employee found a
knife in a lockbox in his unit at work and called for assistance. The summary document noted
that, on an unspecified October 2011 date, several prisoners cornered and attacked the employee.
The employee allegedly pressed a panic button, but did not receive immediate assistance. It was
indicated that a prisoner saved the employee by calling off the attack after the employee
reminded him of a favor he had done for him and that the employee believed that the attack was
a “set-up.” The document noted that a plexiglass knife was later found near the employee’s
office and that, on unspecified dates in October 2011, the prisoner who saved the employee from
attack was beaten by prison guards and transferred to another location shortly thereafter.
The record contains a photocopy of a photograph of an object identified as a homemade
weapon comprised of two pieces of plexiglass (approximately five-and-a-half inches long) fused
together and sharpened on one end. The document indicates that the weapon was found on
October 5, 2011 in the F-Unit on top of the D-Range lock box.
The record contains notes of sessions conducted by the employee’s marriage and family
therapist. On October 17, 2011 the therapist indicated that the employee had reported that he had
a traumatic incident at work approximately two and half weeks prior and that he thought he was
going to get killed. She noted that the employee reported that he had been cornered by inmates
in a cell and that people were “messing [with] him” at work. The employee also indicated that
his divorce had been finalized several months prior and that his ex-wife got full custody of their
child with “phoney” job papers.
6

The document indicated that, on an unspecified date in September 2010, the coworker repeated his threats and
that, on an unspecified date in November 2010, the coworker’s wife told the employee that the coworker intended to
provoke him at work.

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In a report dated October 20, 2011, Dr. Steven K. Yao, an attending Board-certified
emergency medicine physician, indicated that the employee presented with a chief complaint of
paranoia and reported symptoms of gradual onset within the past four days. He noted that the
employee believed that there was a “hit on his life” from a man in prison and that he had been
followed by the FBI and the U.S. Secret Service for the past four days. The employee also noted
that “other individuals” informed him that the FBI would stop following him if he went to the
hospital. Dr. Yao indicated that the employee did not display suicidal ideation, but that he
exhibited evidence of acute psychosis characterized by paranoid delusions. The employee
voluntarily admitted himself to the hospital and was given medication.7 A hospital discharge
summary dated October 23, 2011 contained the diagnosis of bipolar I disorder, most recent
episode mixed, severe with psychotic features.8
In reports and notes from late October 2011, Dr. Angeline Y. DeGuzman, an attending
Board-certified psychiatrist, noted that the employee claimed to have had flashbacks from an
incident at work, that there was an investigation because he reported a problem with a coworker,
that he felt he was being watched at work, and that a knife was found in his unit on
September 29, 2011. On October 27, 2011 Dr. DeGuzman diagnosed bipolar I disorder, most
recent episode manic with psychotic features, rule out alcohol and cannabis abuse.
In an October 31, 2011 note, Dr. DeGuzman related that in the beginning of
October 2011 the employee alleged to have been cornered in a cell when getting bags from an
inmate and the other prisoners gave him the death look. The employee indicated that he was able
to leave unharmed but that his “gripe” was that he was left alone in a cell block (with no lock
down) and he felt that he could have been killed. In a November 7, 2011 note, the employee’s
therapist noted that the employee believed that prison officials were monitoring him and, in other
notes from mid to late 2011, he mentioned “his incident” or “precipitating event.” He claimed in
his December 17, 2011 report that the employee had shown improvement with treatment and was
cleared to return to work. On March 15, 2011 Dr. DeGuzman noted that she had advised the
employing establishment after the employee’s death that the employee had bipolar disorder and
had been depressed because he felt that people “were messing with his life” with respect to work
and personal matters.
In a report dated May 22, 2014, Dr. Seth Bricklin, a clinical psychologist, who evaluated
the case at the request of counsel, interpreted the evidence of record as a “precipitating event”
which led to the employee’s mental health diagnosis which ultimately caused his suicide. He
described the precipitating event as occurring in early 2011 when the employee was cornered by
several prisoners and, as the prisoners were closing in and about to attack, another prisoner
intervened and stopped the attack. Dr. Bricklin diagnosed the employee as having chronic post7

In other medical records dated October 20 and 21, 2011, the employee indicated that he was having frequent
flashbacks to a prison incident two weeks prior “where his safety and the safety of his unit was [sic] compromised,”
that an inmate put a “hit on me on the street,” that a friend was told by the FBI that there was a “hit on me,” and that
he was subjected to camera surveillance at a friend’s house and followed by the U.S. Secret Service. The records
show that he tested positive for marijuana and amphetamines.
8

The discharge summary noted that the employee felt that the FBI had been following him and reported that his
symptoms especially worsened after “an incident at work when he had unsafe interactions with prisoners.”

4

traumatic stress syndrome (PTSD) prior to the employee’s February 10, 2012 death and
indicated, “In my opinion, the [precipitating event], which occurred while [the employee] was
performing his work duties, caused his diagnosis of PTSD. Furthermore, the impairment caused
by his diagnosis of PTSD was the primary cause of his suicide.” Dr. Bricklin opined that, while
there were several stressors that may have impacted the employee’s functioning (i.e., the
separation from his son, break-up with his girlfriend, and reported cannabis use), none of them
were sufficient to break the chain of causation between the precipitating event and his suicide.
OWCP sent July 31 and August 14, 2014 letters to the employing establishment
requesting information about the employee’s work and incidents or conditions that might have
caused him stress. Each letter provided the employing establishment 30 days to respond. The
employing establishment did not respond to either letter in the allotted time.
In an August 14, 2014 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim for survivor benefits, including any relevant
witness statements or findings of any grievance or formal complaint.
In an August 26, 2014 letter, counsel indicated that he was unable to obtain any further
witness statements regarding the employee’s work situation prior to his death on
February 10, 2012.
By decision dated September 22, 2014, OWCP denied appellant’s claim for survivor’s
benefits for the benefit of the deceased employee’s son because she had failed to establish any
compensable employment factors that could have caused an emotional condition that led to the
employee’s suicide on February 10, 2012. It noted that, while various workplace incidents were
alleged, “the specific incident of being cornered by inmates in October 2011 was not verified by
any of the evidence received in file.” OWCP indicated, “The employing [establishment] has not
confirmed that the alleged harassment took place nor has other corroborating evidence been
received in file, such as statements from coworkers who witnessed the harassment, a workers’
compensation claim made by the decedent prior to his death, or findings of an agency/board/
arbitrator/investigative report….”
LEGAL PRECEDENT
A claimant for survivor benefits has the burden of proving by the weight of the reliable,
probative, and substantial evidence that the employee’s death was causally related to his or her
employment.9 To establish his or her claim that a deceased employee sustained stress in the
performance of duty, which precipitated his or her death, a claimant must submit the following:
“(1) factual evidence identifying and supporting employment factors or incidents
alleged to have caused or contributed to his or her condition;
“(2) rationalized medical evidence establishing that his or her death was due to or
aggravated by an emotional reaction; and
9

L.R. (E.R.), 58 ECAB 369 (2007).

5

“(3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her death.”10
Appellant has the burden of establishing by a preponderance of the reliable, probative,
and substantial evidence the existence of a causal relationship between the employee’s death by
suicide and factors of his federal employment.11 The suicide itself must arise out of the
employee’s assigned duties to such an extent as to be regarded as arising out of and in the course
of employment.12 In determining whether an employee’s suicide is causally related to factors of
his employment, OWCP has adopted the chain of causation test.13 OWCP’s procedure manual
explains that all suicide claims are not precluded by 5 U.S.C. § 8102(a)(2)14 and provides,
“[C]ompensation can be paid if the job-related injury (or disease) and its consequences directly
resulted in the employee’s domination by a disturbance of the mind and loss of normal judgment
which, in an unbroken chain, resulted in suicide.”15 The emphasis is on a showing of genuine
brain derangement or psychosis, as distinguished from mere melancholy, discouragement, or
other sane condition such as depression.16 Under the chain of causation test, OWCP’s procedure
manual provides that, if the injury and its consequences directly resulted in a mental disturbance,
or physical condition which produced a compulsion to commit suicide, and disabled the
employee from exercising sound discretion or judgment so as to control that compulsion, then
the test is satisfied and the suicide is compensable.17 OWCP’s procedure manual adds that, for
the suicide to be compensable, the chain of causation from the injury to the suicide must be
unbroken.18
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,19 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
10

See Martha L. Watson, 46 ECAB 407 (1995).

11

Rosita Mahana (Wayne Mahana), 53 ECAB 503 (2002).

12

Id.

13

Id.

14

Section 8102(a)(2) of FECA precludes payment of compensation for disability or death sustained in the
performance of duty where the injury or death is caused by the employee’s intention to bring about the injury or
death of himself, herself, or another. See 5 U.S.C. § 8102(a)(2).
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.15
(September 1995).
16

A. Larson, The Law of Workers’ Compensation § 38.01 (2016).

17

See supra note 15 at Chapter 2.804.15(b)(2).

18

Id. at Chapter 2.804.15(b)(3).

19

28 ECAB 125 (1976).

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coverage under FECA.20 Where the claimed condition results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the condition comes within the coverage of FECA.21 A claimant must support his
or her allegations with probative and reliable evidence. Personal perceptions alone are
insufficient to establish an employment-related emotional condition.22
For harassment to give rise to a compensable disability, there must be evidence
introduced which establishes that the acts alleged or implicated by the employee did, in fact,
occur. Unsubstantiated allegations of harassment are not determinative of whether such
harassment occurred. A claimant must establish a factual basis for his or her allegations that the
harassment occurred with probative and reliable evidence.23 Mere perceptions and feelings of
harassment will not support an award of compensation.24
In cases involving emotional or stress-related conditions, the Board has held that when
working conditions are alleged as factors in causing a condition or disability, OWCP, as part of
its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.25 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.26
ANALYSIS
On June 6, 2014 appellant filed a claim for compensation by widow, widower, and/or
children in her capacity as mother and guardian of the minor son of the deceased employee.
Appellant claimed that the employee’s February 10, 2012 death by suicide was related to his
work as a correctional officer for the employing establishment. She alleged that the employee
committed suicide on February 10, 2012 due to an emotional condition caused by incidents and
conditions related to his job as a correctional officer for the employing establishment. Appellant
claimed that numerous work factors between 2009 and 2012, including an incident when the
employee was attacked by inmates in October 2012, caused him to develop an emotional
condition that led to his suicide. She submitted medical reports in which some of the claimed
20

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

21

L.S., Docket No. 16-0769 (issued July 11, 2016).

22

Roger Williams, 52 ECAB 468 (2001).

23

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

24

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

25

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

26

Id.

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factors were discussed, including medical reports of treatment of the employee shortly before he
died.
The Board has duly considered the matter and concludes that this case is not in posture
for decision.
In developing the case, OWCP sent July 31 and August 14, 2014 letters to the employing
establishment requesting information about the employee’s work and incidents or conditions that
might have caused him stress. Each letter provided the employing establishment 30 days to
respond. The employing establishment did not respond to either letter in the allotted time. In its
September 22, 2014 decision, OWCP denied appellant’s survivor benefits claims because she
had failed to establish any compensable employment factors that could have caused an emotional
condition that led to the employee’s suicide on February 10, 2012. In reaching this
determination, it indicated that, while various workplace incidents were alleged, “the specific
incident of being cornered by inmates in October 2011 was not verified by any of the evidence
received in file.” OWCP noted, “The employing [establishment] has not confirmed that the
alleged harassment took place nor has other corroborating evidence been received in file, such as
statements from coworkers who witnessed the harassment, a workers’ compensation claim made
by the decedent prior to his death, or findings of an agency/board/arbitrator/investigative
report….” It did not make any further findings regarding the numerous employment factors the
appellant alleged the employee was exposed to between 2009 and 2012.
The Board notes that OWCP procedures provide:
“If an employing agency fails to respond to a request for comments on the
claimant’s allegations, the [claims examiner] may usually accept the claimant’s
statements as factual. However, acceptance of the claimant’s statements as
factual is not automatic in the absence of a reply from the agency, especially in
instances where performance of duty is questionable. [The Board] has
consistently held that allegations unsupported by probative evidence are not
established. The [claims examiner] should consider the totality of the evidence
and evaluate any inconsistencies prior to making a determination.”27
The Board finds that OWCP has not properly developed appellant’s claim for survivor’s
benefits for the benefit of the deceased employee’s son. Appellant alleged that numerous work
factors between 2009 and 2012 caused the employee to develop an emotional condition that led
to his suicide, but OWCP had not adequately developed regarding these allegations.
On remand, OWCP should obtain additional information from the employing
establishment, including information about the employee’s alleged work and incidents or
conditions that might have caused him stress prior to his death on February 10, 2012.28
27

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(d)(1)
(June 2011). See also R.B., Docket No. 14-1663 (issued September 29, 2015) (citing Chapter 2.800.5(d)(1)).
28

See G.V., Docket No. 15-1899 (issued February 11, 2016); T.M., Docket No. 14-1631 (issued
December 2, 2014).

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Therefore, the case will be remanded to OWCP for further development to include the issuance
of a de novo decision regarding appellant’s claim for survivor’s benefits which contains adequate
facts and findings.
CONCLUSION
The Board finds that the case is not in posture regarding whether appellant met her
burden of proof to establish entitlement to survivor’s benefits for the benefit of the deceased
employee’s son.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 19, 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

9