United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Mountain Home, TN, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1057
Issued: December 7, 2015

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 April 6, 2015 appellant, through counsel, filed a timely appeal from a January 14,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On November 13, 2013 appellant, then a 52-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she sustained anxiety, stress, and post-traumatic stress disorder
1

5 U.S.C. § 8101 et seq.

(PTSD) as a result of an “offensive, oppressive, and intimidating work environment.” She
stopped work on October 12, 2013 and did not return.
In a report of contact dated February 25, 2013, Rebecca Messer, a nurse, related that on
that date she was unable to locate a fellow nurse, appellant, on the C-Ground Advanced (CGA)
unit. She stated:
“The nurse returned to the unit approximately 30 minutes later and advised that
she had gone to take another patient that she discharged to the pharmacy. [She]
was advised that she needed to report to the charge nurse of ICU [intensive care
unit] when she was going to be off the unit and that a NA [nurse assistant] was
floating between the units and could have taken the patient to [the] pharmacy and
that escort could have been called. The nurse advised that she stepped into PCU
[progressive care unit] and advised them that she was taking a patient to [the]
pharmacy. Accord[ing] to her Martha Stewart [a nurse] was at the nurse’s
station.”
On March 15, 2013 Mildred Stacy Swenson, the nurse manager of the Special Care Unit
(SCU), related that she conducted a meeting on March 6, 2013 to investigate whether appellant
had left CGA on February 25, 2013 without notice. Appellant told Ms. Swenson that she
informed Ms. Stewart that she was taking a patient out of the unit, but noted that Ms. Stewart
was at a computer and did not seem to have heard what she said. Ms. Swenson advised appellant
to ensure that “the nurse being communicated with acknowledge[d] her and understood she was
leaving the unit.”
On May 1, 2013 the employing establishment issued appellant a proposed three-day
suspension for abandoning a patient on February 25, 2013. It noted that she was the primary
caregiver for two patients. The employing establishment stated:
“One of these [v]eteran patients was being discharged, and you made the decision
to leave [CGA] in order to take the discharged patient to the pharmacy to pick up
medication. Before you left [CGA], you failed to provide an appropriate hand-off
report to another qualified medical professional to ensure a continuum of patient
care; thus, abandoning the other [v]eteran patient that was assigned to your care.”
In a response dated May 8, 2013, appellant denied abandoning a patient. She explained
that she had two discharged patients waiting for transportation from the hospital. One of the
patients was eating a meal. Appellant informed the patient who was eating that she would be
absent while taking another patient to his transportation. She told the patient to ring the call bell,
which also rang in the PCU, if he needed anything. Appellant notified Ms. Stewart that she was
leaving and that she had agreed to watch the patient. The discharge took longer than anticipated
because the patient needed to pick up medication from the pharmacy. Approximately one month
later, Ms. Swenson conducted an investigation into the incident. Five weeks later, Carol Dubay,
a fellow nurse, told appellant that “she would recommend a three-day suspension without pay,
and that she would consider notifying the State Board of Nursing regarding the events of that day
because it was a case of patient abandonment.” Appellant indicated that Ms. Stewart did not
remember that she told her that she was leaving the unit. She stated, “I then asked the other

2

nurse who was present, Chris Guess, RN [registered nurse], what he remembered. He told me
that he recalls me telling Ms. Stewart that I was leaving, and, moreover, he considered himself to
have been informed as well, and thus monitored the call lights himself in my absence.”
In an undated statement, Mr. Guess related that, on the date in question, appellant
informed him that two of her patients had been discharged and that she was taking one of the
patients to the pharmacy and his car. He moved his computer between the PCU and CGA.
Appellant’s patient asked Mr. Guess how long it would be until he could leave. Mr. Guess told
the patient that it would be a little bit longer and then went to care for another patient. He stated,
“A few weeks later, M[s.] Stewart and I were contacted by [tele]phone by M[s]. Swenson and
asked about the events of the day in question. At that moment, it was difficult placing days and
times and faces together due to the busy nature of the unit, but after careful thought, I believe the
above statements are an accurate account of the events of that afternoon.”
On July 1, 2013 the employing establishment reduced the May 1, 2013 notice of
proposed suspension to a reprimand for abandoning a veteran patient.
On July 26, 2013 the union filed a grievance challenging the July 1, 2013 reprimand. It
noted that Mr. Guess provided a statement confirming that appellant had notified him that she
was leaving the unit. The union asserted that Ms. Swenson’s action in contacting Mr. Guess by
telephone while he was busy showed poor management and inadequate fact finding.
In an August 7, 2013 meeting regarding a fact finding investigation into the February 25,
2013 incident, Mr. Guess advised that on March 6, 2013, when he was initially asked about the
incident, he had difficulty remembering the events of that day. Subsequently, he advised that
appellant, on that date “let me know she had two discharges and that she was taking one out to
get his medicines.”
In a report of contact dated August 9, 2013, another nurse advised of a discrepancy in
medication. Appellant related that she had dropped some hydromorphine in a sharps box. In
another statement dated August 9, 2013, Ms. Swenson related that on August 8, 2013 John
Carter, a charge nurse, advised that appellant was crying and she told him that she was in a lot of
pain. As nurses had informed her earlier that there was a missing hydromorphine vial, a police
investigation was initiated.
On August 14, 2013 a police officer related that he investigated allegations that appellant
may have diverted drugs based on her “erratic behavior and numerous policy violations with
administering medications” on August 8 and 9, 2013. He indicated that the case was closed
without criminal charges as it appeared administrative in nature.
On August 21, 2013 the employing establishment advised appellant that it had rescinded
the July 1, 2013 reprimand for abandonment of a veteran patient. On August 21, 2013 the
employing establishment issued her a proposed reprimand for failing to follow proper policy and
procedure on February 25, 2013 when she failed to hand-off a patient before leaving the floor “to
take the discharged patient to the pharmacy to pick up medication.” It determined that appellant
failed to follow a hand-off technique called identification, situation, background, assessment, and
recommendations (ISBAR).

3

In a memorandum to Ms. Dubay dated August 23, 2013, appellant alleged that
Ms. Swenson had created a hostile work environment.
On September 20, 2013 the union filed a grievance challenging appellant’s August 21,
2013 proposed reprimand for failing to follow proper procedures. It asserted that management
did not “make any effort to reconcile conflict statements by developing additional evidence.”
The union alleged, “[Appellant] followed the ‘past practice’ of no full ISBAR being used for
lunches, breaks and/or short absences from the patient area.” It further alleged that employees
currently did not understand the proper procedures to follow ISBAR.
In a statement dated October 11, 2013, appellant related that she took a temporary
position as a nursing supervisor in August 2008. She believed that she could return to her
position as a charge nurse at the end of the temporary position, but another employee took her
place. Appellant tried to get a position at her old location, but was notified that the area was not
hiring new nurses. Later several new nurses were hired at that location. Ms. Dubay told
appellant that she was not performing adequately because she was not rounding or answering her
pages. She issued appellant written counseling in October 2010 because she was late, but
another employee who missed her shift because she thought she was not scheduled for work
received no disciplinary action. In 2012 appellant requested reasonable accommodation due to
fibromyalgia and insomnia. In December 2012 Ms. Swenson suggested that she seek counseling
and a change of medication after a death in the family. Appellant replied that work stress
contributed to her condition. She stated, “[Ms. Swenson] told me that multiple coworkers had
complained to her that I was hysterical yet I was never approached with this until I requested
leave for my psychological state.”
Appellant further related that in April 2013 she sought treatment at the emergency room
for shingles. Management denied her request to use leave under the Family and Medical Leave
Act (FMLA) for shingles as the condition was not listed on her FMLA paperwork. It marked
appellant as absent without leave (AWOL). Subsequently she added shingles to her FMLA
papers and the employing establishment granted her approved leave. On July 21, 2013 appellant
injured her back while assisting a patient who was about to fall. When completing her claim for
a traumatic injury (Form CA-1), a manager told her that her claim might not be approved and
that she should have used a lift. Appellant was not able to sign the claim form electronically and
had to get a new claim form cosigned. She alleged that Ms. Swenson discussed her injury with
her husband, a doctor, in violation of patient confidentiality.
Appellant indicated that on August 8, 2013 she experienced significant pain in her back
and asked a coworker to administer medications to her patients. Ms. Swenson did not allow
appellant to “hand off” her patients to her coworker. She charged appellant with patient
abandonment on August 22, 2013 which was later reduced to a failure to follow procedure.
Management investigated appellant for drug use. Ms. Swenson tossed paperwork at her and, on
August 16, 2013, again informed her that she needed to have a magnetic resonance imaging
(MRI) scan study to diagnose nerve compression.
On November 14, 2013 Cindy Metcalf, an Equal Employment Opportunity (EEO)
manager, indicated that she had investigated appellant’s allegation that Ms. Swenson created a
hostile work environment, but found that the allegation was not substantiated.

4

In a December 8, 2013 response to appellant’s allegations, Ms. Swenson responded that
the employing establishment, after investigation, had found that she had not created a hostile
work environment. She indicated that she began working as a staff nurse in the SCU in 2010
when appellant was a nursing supervisor. On December 28, 2012 Mr. Carter told Ms. Swenson
that appellant could not stop crying. Ms. Swenson suggested that appellant go home and request
that her physician “possibly evaluate her medication.” She stated, “It is correct that there were
multiple occasions that the staff would come to my office concerned about [appellant’s] behavior
and the safety concerns with her patients. I would at that time go and check on her and on
several occasions have sent her home because of her emotional status.” On July 21, 2013
appellant injured her back. She and Ms. Swenson had difficulty completing an OWCP claim
form because of problems with the electronic system. Ms. Swenson did not tell her that her
claim would be denied because she did not use a lift. She did not discuss the injury with her
husband. Rather, she informed appellant of the advice that he had given her when she suffered
leg and back pain. On August 16, 2013 appellant informed Ms. Swenson that she had L4 and L5
nerve compression that was not improving and Ms. Swenson told her that based on her
experience MRI scan studies were not always conclusive. Ms. Swenson denied accusing
appellant of using FMLA to drop off her grandson at school, but instead related that appellant
had told her that she was late because her daughter was not taking her son to school.
Regarding the February 2013 incident,2 Ms. Swenson indicated that appellant received
disciplinary action for leaving a patient while taking another patient to the car. Appellant
asserted that she handed off her patient to Ms. Stewart but she and the rest of the staff denied
receiving the hand off. In June 2013, four months later, Mr. Guess indicated that appellant had
handed off the patient to him. He did not specifically address why he did not relay this
information when nursing supervisors were asking for appellant’s location.
On December 10, 2013 the employing establishment mitigated the proposed August 2013
reprimand and instead issued an admonishment for failing to follow proper procedures.
In a statement dated December 12, 2013, Ms. Dubay related that appellant could have
returned to her usual position after her detail but instead had applied and was selected for a
position as a nurse supervisor. Staff complained about her work as a nurse supervisor. On
February 25, 2011 appellant elected reassignment to her prior position in the SCU. She received
written counseling on October 5, 2010 because she used excessive leave. Appellant requested
FMLA for depression but did not attribute her condition to work.
By decision dated January 29, 2014, OWCP denied appellant’s emotional condition
claim, finding that she had not established any compensable work factors.
On February 4, 2014 appellant requested an oral hearing. In a statement dated
December 18, 2013, received by OWCP on March 10, 2014, she related that Ms. Dubay told her
that she would be charged AWOL the next time she left “to pick up my daughter and grandson
when they were having car problems….” Ms. Dubay verbally attacked appellant over the
telephone. Beginning in August 2012, coworkers informed Ms. Swenson of the time that she
2

Ms. Swenson refers to the incident where appellant took one of her patients off the unit and left the other patient
as occurring in February 2012 rather than February 2013, but this appears to be a typographical error.

5

arrived at work. Ms. Dubay notified appellant that she could no longer insert peripherally
inserted central catheter (PICC) lines. In March 2013 Ms. Dubay and Ms. Swenson sent an
e-mail advising that appellant should not be granted unscheduled leave. In May 2013
management charged her with abandoning a patient and in June 2013 Ms. Swenson started
tossing mail to her. In August 2013 management changed the charge of abandonment to a
reprimand for not following instructions. It also moved her from her position in SCU to same
day surgery and recovery, which required her to work with patients who were heavier and
required more care. Appellant stated, “When I asked Ms. Swenson about these assignments, I
was told that I knew my restrictions and that she was not there to babysit me.”
On July 16, 2014 appellant requested reconsideration in lieu of an oral hearing. On
August 13, 2014 OWCP accepted her withdrawal of her hearing request.
By decision dated September 5, 2014, OWCP denied appellant’s request for
reconsideration as she had not submitted evidence or raised an argument sufficient to warrant
reopening her case for further merit review.
On December 2, 2014 appellant again requested reconsideration. In support of her
request, she submitted witness statements.3 In a statement dated October 20, 2014, Karen
Rochelle, a coworker, related that appellant told her that Ms. Dubay and Ms. Swenson instructed
her to no longer insert PICC lines.
In a statement dated October 31, 2014, Sammie Sharpe, a union representative, related
that, at meetings with Ms. Dubay and Ms. Swenson, appellant was “badgered, belittled, and even
had her thought processes questioned.” On August 8, 2012 Ms. Dubay charged appellant as
AWOL when she was not able to contact anyone to state that she would be late arriving.
Management later allowed her to use FMLA. Appellant had to submit another FMLA request
when she had shingles. On October 23, 2012 management denied her request for reasonable
accommodation. At a May 1, 2013 meeting, appellant was charged with abandoning a patient on
February 23, 2013, and Ms. Dubay told appellant that she was not thinking critically.
Ms. Sharpe indicated that Mr. Guess was disciplined for submitting his statement supporting that
appellant told him that she was leaving the PCU.
Ms. Sharpe further related that on May 10, 2013 appellant called PCU for assistance with
a patient who was not stable and she was told that it would take some time to respond. A
cardiologist told her to take the patient to the emergency room, where the patient “coded upon
arrival.” Ms. Swenson told appellant that she should have called a Code Blue rather than follow
the instructions of the cardiologist. On May 15, 2013 agents questioned appellant about
narcotics after she dropped medication into a sharps container. Ms. Swenson accused appellant
of taking a patient to a floor at a change in shift and leaving him without assuring proper care.
On July 24, 2013 she told her that her OWCP claim for a traumatic back injury might not be
accepted and further informed her that she was not her babysitter and that she knew her
restrictions. On August 2, 2013 appellant had to redo her claim form because Ms. Swenson had

3

The record contains a September 21, 2014 statement from Cynthia Robbins. The record also contains an
October 15, 2014 statement from appellant’s daughter.

6

not signed it. Management moved her on August 26, 2013 to the same day surgery unit without
orientation.
On November 20, 2014 Janice Bowden, another union representative, advised that, at a
July 24, 2013 meeting, Ms. Swenson told appellant that she was not her babysitter, that she knew
her restrictions, and that her OWCP traumatic injury claim might not be accepted. On
August 26, 2013 management transferred her to same day surgery without notice or orientation
to same day surgery. Management questioned appellant about her arrival time to determine
whether she was late. Ms. Bowden related that she “had the opportunity to observe firsthand the
emotional and physical effects of the disparate treatment towards [appellant] at the hands of
management at this facility.”
In a response dated December 22, 2014, the employing establishment asserted that
appellant was not treated differently than her coworkers and that the incidents described by
Ms. Sharpe were “based on normal policies and procedures, hearsay and her own personal
opinion.” It noted that Ms. Bowden’s statement was her “personal opinion.”
By decision dated January 14, 2015, OWCP denied modification of its January 29, 2014
decision.
On appeal counsel argues that appellant has shown error and abuse by management
falsely accusing her of patient abandonment. She maintains that Ms. Dubay threatened to notify
the state nursing board that appellant had abandoned a patient after receiving Mr. Guess’
statement. On August 21, 2013 the employing establishment issued a proposed reprimand for
failing to follow procedures, even though appellant had complied with past practice. The union
filed a grievance on her behalf, which the union argues supports the allegations of harassment
pursuant to Gaston Ray Weathers,4 and K.M.5 Counsel also contends that appellant’s supervisors
created a hostile work environment by ignoring a witness statement that showed that she had not
abandoned a patient. Statements by Ms. Bowden and Ms. Sharpe supported that Ms. Dubay and
Ms. Swenson belittled appellant. Management found her AWOL when she was absent on
August 8, 2012 even though it was related to medical issues covered under FMLA. Counsel also
summarized the medical evidence of record.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.6 On the other hand, the
4

Docket No. 05-0386 (issued June 10, 2005).

5

Docket No. 10-0072 (issued April 25, 2011).

6

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

7

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.8 However,
the Board has held that where the evidence establishes error or abuse on the part of the
employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.9 In determining whether the employing establishment has erred or acted abusively, the
Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.11 A claimant must
establish a factual basis for her allegations with probative and reliable evidence. Grievances and
Equal Employment Opportunity complaints, by themselves, do not establish that workplace
harassment or unfair treatment occurred.12 The issue is whether the claimant has submitted
sufficient evidence under FECA to establish a factual basis for the claim by supporting her
allegations with probative and reliable evidence.13 The primary reason for requiring factual
evidence from the claimant in support of her allegations of stress in the workplace is to establish
a basis in fact for the contentions made, as opposed to mere perceptions of the claimant, which in
turn may be fully examined and evaluated by OWCP and the Board.14
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.15 If a claimant does implicate a factor of
7

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

8

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
9

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

10

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

11

See Michael Ewanichak, 48 ECAB 364 (1997).

12

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

13

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

14

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

15

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

8

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, it must base its decision on an analysis of the
medical evidence.16
ANALYSIS
Appellant has not attributed her emotional condition to the performance of her job duties
under Cutler.17 Instead, she alleged that she experienced stress due to error and abuse by the
employing establishment in administrative actions and harassment by her supervisors.
In Thomas D. McEuen,18 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.19
Appellant alleged that the employing establishment wrongfully disciplined her based on
its finding that she abandoned a patient on February 25, 2013. Matters involving discipline and
investigations into allegations of wrongdoing are administrative functions of the employing
establishment and not a duty of the employee.20 As discussed, an administrative or personnel
matter is an employment factor only where the evidence discloses error or abuse by the
employing establishment.21 The employing establishment retains the right to investigate an
employee if wrongdoing is suspected or as part of the evaluation process.22
Appellant stated that on February 25, 2013 two discharged patients were waiting for
transportation. She told Ms. Stewart, a nurse, that she was leaving the unit to take one of the
patients to the pharmacy and then to his vehicle. Ms. Stewart, who was at her computer, did not
acknowledge that she had heard. Appellant told the other patient to ring a call bell if he needed
16

Id.

17

See Lillian Cutler, supra note 6.

18

See Thomas D. McEuen, supra note 8.

19

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

20

N.Y., Docket No. 12-0886 (issued March 26, 2015); Donney T. Drennon-Gala, 56 ECAB 469 (2005);
Thomas O. Potts, 53 ECAB 353 (2002).
21

Id.

22

Sandra F. Powell, 45 ECAB 877 (1994).

9

anything. She returned to the unit after 30 minutes. A month later, Ms. Swenson conducted an
investigation into the events occurring on February 25, 2013. Ms. Dubay told appellant that she
might notify the State Board of Nursing that appellant had abandoned a patient. Appellant asked
Mr. Guess, who was also present on February 25, 2013, what he remembered about the incident
and he confirmed that she told him that she was leaving the unit.
The Board finds that appellant has not established that the employing establishment
committed error or abuse when investigating her for possibly abandoning a patient on
February 25, 2013 or issuing discipline in connection with this incident. In a statement dated
February 25, 2013, Ms. Messer related that she was unable to locate a nurse in the CGA unit and
that no other nurses or clerks knew where appellant had gone. In an undated statement,
Mr. Guess indicated that appellant told him that she was leaving to take one of her patients to the
pharmacy and his vehicle. He advised that when Ms. Swenson initially questioned him by
telephone about the incident, he was busy and unable to remember what happened. On
December 8, 2013 Ms. Swenson indicated that an investigation revealed that appellant left her
unit for 45 minutes without a proper hand off. She related that in June 2013, four months after
the incident, Mr. Guess advised that she had handed-off the patient to him.
After an investigation of the incident, on May 1, 2013 the employing establishment
issued appellant a notice of a proposed three-day suspension for abandoning a patient on
February 25, 2013. On July 1, 2013 it reduced the proposed suspension to a reprimand for
abandoning a patient. The employing establishment subsequently lessened the reprimand to an
admonishment for not following proper procedures. Ms. Swenson explained that at the time the
employing establishment issued the May 1, 2013 proposed suspension the other nurses and staff
denied that appellant handed off her patient. After receiving Mr. Guess’ statement, it reduced the
proposed suspension first to a reprimand for abandoning a patient and then to an admonishment
for failing to follow established procedures. While the disciplinary actions taken by the
employing establishment were subsequently reduced, the mere fact that the employer lessens or
reduces a disciplinary action does not, in and of itself, establish error or abuse.23 There is no
admission or acknowledgment of error by the employing establishment or any final
administrative or grievance decision showing that it erred in issuing disciplinary action based on
the February 25, 2013 incident.24 Consequently, appellant has not established a compensable
work factor.
Appellant further has not demonstrated error or abuse by the employing establishment in
other disciplinary actions and investigations. She maintained that in October 2010 Ms. Dubay
wrongly gave her written counseling for being late. In a December 12, 2013 statement,
Ms. Dubay related that she issued appellant written counseling on October 5, 2010 because she
used excessive leave. Appellant has not submitted any evidence showing error or abuse by the
employing establishment in this administrative matter.
Appellant also asserted that management investigated her for drug use. On August 9,
2013 a nurse advised that medication was missing. The nurse noted that appellant explained that
23

See Linda K. Mitchell, 54 ECAB 748 (2003); supra note 15.

24

See J.S., Docket No. 06-2080 (issued December 20, 2007).

10

she had dropped hydromorphine into a sharps box. Ms. Swenson instituted a police investigation
after nurses told her that appellant had been crying and was in pain around the time of the
missing medication. The investigation did not show criminal activity. As noted, the employing
establishment has the right to investigate suspected wrongdoing.25 Appellant has not submitted
any evidence supporting her allegation of error by management in investigating the missing
medication and thus has not shown error or abuse by the employing establishment.
Appellant further contended that she was transferred without notice to same day surgery,
that Ms. Dubay told her that she could no longer place PICC lines, and that Ms. Swenson
monitored her arrival time at work. She submitted witness statements supporting that these
events occurred as alleged. However, the assignment of work and the monitoring of work are
administrative functions of the employing establishment rather than a duty of the employee and,
absent evidence of error or abuse, are not compensable.26 Further, the denial by the employing
establishment of a request for a transfer or the desire for a different job are not compensable
under FECA as they do not involve a claimant’s ability to perform her regular or specially
assigned work duties but rather constitute a desire to work in a different position.27 Appellant
has submitted no evidence showing how these actions by her employer constituted error or abuse
and thus has not established a compensable work factor.
Appellant also maintained that she was unable to return to her former position after
accepting a detail. Ms. Dubay, however, related that she did not return to her prior position at
the end of her detail because she applied for and received a position as a supervisor. Appellant,
consequently, has not factually established her allegation. Additionally, as discussed, the desire
for a different position is not compensable under FECA.28
Appellant maintained that in March 2013 Ms. Dubay and Ms. Swenson sent an e-mail
indicating that managers should not approve her requests for unscheduled leave. She also
asserted that in April 2013 the employing establishment denied her request to use leave under the
FMLA for shingles until the condition was added to her FMLA paperwork. On October 31,
2014 Ms. Sharpe advised that in August 2012 Ms. Dubay found appellant AWOL.
Subsequently, management allowed her to use leave under the FMLA. Although the handling of
leave requests and attendance matters are generally related to employment, they are
administrative matters and are not a duty of the employee.29 Consequently, the denial of leave
requests is not compensable absent a showing of error or abuse.30 Appellant has not submitted
any corroborating evidence to support that the employing establishment acted unreasonably with
regard to leave matters.
25

See M.M., Docket No. 15-1221 (issued September 14, 2015).

26

Jeral R. Gray, 57 ECAB 611 (2006); see also supra note 14.

27

See Charles D. Edwards, supra note 12.

28

See Hasty P. Foreman, 54 ECAB 427 (2003).

29

C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, supra note 26.

30

James P. Guinan, 51 ECAB 604 (2000).

11

Appellant also maintained that Ms. Swenson discussed her medical condition with her
husband. Ms. Swenson denied telling her husband about her condition. She asserted that she
informed appellant of the advice her husband gave her after her own back injury. Appellant has
not submitted any evidence corroborating that Ms. Swenson disclosed information about her
medical condition.
Appellant further alleged that Ms. Swenson had difficulty completing a claim form
electronically after her July 2013 injury. Ms. Swenson acknowledged that she experienced
problems with the electronic system when completing the claim form. Appellant, however, has
not demonstrated how Ms. Swenson’s initial difficulty completing her claim form would rise to
the level of error or abuse as there is no evidence that this action was unreasonable.31
Appellant additionally maintained that Ms. Swenson harassed her and created a hostile
work environment. She alleged that Ms. Swenson threw paper at her, accused her of using
FMLA to drop off her grandson at school, told her that she needed counseling and new
medication, and informed her that her claim might not be accepted. Appellant also indicated that
Ms. Swenson told her that she knew her work restrictions and was not her “babysitter. She
maintained that Ms. Dubay verbally attacked her on the telephone and told her that she would
mark her as AWOL if she left work to pick up her daughter and grandson. Harassment and
discrimination by supervisors and coworkers, if established as occurring and arising from the
performance of work duties, can constitute a compensable work factor.32 A claimant, however,
must substantiate allegations of harassment and discrimination with probative and reliable
evidence.33 Additionally, the Board has recognized the compensability of verbal abuse in certain
circumstances. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under FECA.34
Ms. Swenson denied accusing appellant of using FMLA to take her grandson to school.
Instead, she related that appellant told her that she was late for work because she had to take her
grandson to school. After she could not stop crying at work on December 28, 2012,
Ms. Swenson suggested that she see her physician for a possible change in medication.
Appellant has not demonstrated how Ms. Swenson’s suggestion that she might need a medication
change after she was unable to stop crying would constitute harassment. On November 14, 2013
an EEO manager with the employing establishment related that an investigation revealed that
Ms. Swenson had not created a hostile work environment. While appellant submitted witness
statements from Ms. Sharpe and Ms. Bowden, neither provided any detailed description of
actions that could be considered harassment, discrimination, or verbal abuse. In an October 31,
2014 statement, Ms. Sharpe advised that Ms. Dubay and Ms. Swenson “badgered and belittled”
appellant at meetings and that Ms. Dubay told her that she did not engage in critical thinking. In
a November 20, 2014 statement, Ms. Bowden related that she received “disparate treatment”
from management and Ms. Swenson told her that she was not her babysitter. Neither Ms. Sharpe
31

See T.M., Docket No. 15-0715 (issued July 7, 2015).

32

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

33

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

34

See Mary A. Sisneros, 46 ECAB 155 (1994).

12

nor Ms. Bowden, however, describes any specific instances of alleged harassment. While
Ms. Sharpe noted that Ms. Dubay told her she did not think critically and Ms. Bowden stated that
Ms. Swenson told her she was not her babysitter, such isolated comments would not rise to the
level of verbal abuse or harassment.35
On appeal counsel argues that the employing establishment erred in charging appellant
with patient abandonment after it received the statement by Mr. Guess. As discussed, however,
she has not submitted any evidence finding wrongdoing by the employing establishment in its
disciplinary action. Counsel contends that the fact that the union filed a grievance on appellant’s
behalf shows error by the employing establishment, citing Gaston Ray Weathers.36 In Weathers
the Board found that the claimant had not shown error in administrative matters, noting that the
union refused to file a grievance for appellant. The filing of a union grievance alone, however, is
not sufficient to show error or abuse by the employing establishment.37
Counsel also maintains that statements by Ms. Bowden and Ms. Sharpe support that
Ms. Dubay and Ms. Swenson belittled appellant and that management erroneously found her
AWOL.38 As the Board has discussed, however, the statements by Ms. Bowden and Ms. Sharpe
are insufficient to show harassment and discrimination. Appellant further has not shown error by
her employer in initially denying her request for leave under FMLA on August 8, 2012.
Counsel further discussed the medical evidence of record. It is well established that in an
emotional condition claim, however, a claimant must first establish compensation work factors
before the medical evidence is considered.39 As appellant has not established a compensable
work factors, the Board will not address the medical evidence.40
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.
35

See Denise Y. McCollum, 53 ECAB 647 (2002) (appellant did not show that her supervisor’s statement that she
was full of piss and vinegar would rise to the level of verbal abuse or otherwise fall within the coverage of FECA).
36

Docket No. 05-0386 (issued June 10, 2005).

37

See Joan Jean Shaffer, Docket No. 96-2400 (issued August 17, 1998).

38

Counsel also cited, K.M. Docket No. 10-0072 (issued April 25, 2011). In K.M., the Board found that appellant
did not submit any decision showing administrative wrongdoing or other evidence of administrative error in
administrative actions. It found, however, witness statements supported harassment and remanded the case for
further development. As discussed, however, in this case appellant has not supported her allegations of harassment
by supervisors.
39

Richard Yadron, 57 ECAB 207 (2005).

40

See Lori A. Facey, 55 ECAB 217 (2004); Margaret S. Krzycki, 43 ECAB 496 (1992).

13

ORDER
IT IS HEREBY ORDERED THAT the January 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2015
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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Huntsville, TX, Employer
__________________________________________

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

Docket No. 10-2299
Issued: June 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 13, 2010 appellant filed a timely appeal of a July 21, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP), denying his application for
reconsideration without merit review of the claim. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
July 21, 2010 nonmerit decision. Since more than 180 days elapsed between the most recent
merit decision of September 18, 2009 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim, pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 14, 2008 appellant, then a 59-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a right shoulder injury in the performance of duty
on September 27, 2006. OWCP accepted the claim for right shoulder contusion, right shoulder
and upper arm sprain, rotator cuff tear and sprain of shoulder and upper arm acromioclavicular.
Appellant received compensation for wage loss commencing March 14, 2009, and underwent
right shoulder arthroscopic surgery on March 31, 2009.
On May 11, 2009 the employing establishment offered appellant a full-time modified
rural carrier position effective May 14, 2009. Appellant returned to work in the modified
position on May 14, 2009.
In a decision dated September 18, 2009, OWCP determined that appellant’s actual
earnings fairly and reasonably represented his wage-earning capacity. It found he had no loss of
wage-earning capacity.
The record indicates that OWCP developed the medical evidence with respect to a
schedule award for a right arm permanent impairment, and he received compensation for a
schedule award from December 13, 2009 to May 14, 2010. There is no formal schedule award
decision in the case record on appeal.
By letter dated June 25, 2010, appellant requested reconsideration of his claim.2 He
indicated that his last day at work in federal employment was May 20, 2010, and stated that he
“had been removed from my position as a mail carrier, and was assigned a temporary light-duty
clerical position, and was being kept on the payroll at my former salary.” Appellant submitted
medical evidence regarding his permanent impairment.
By decision dated July 21, 2010, OWCP declined to review the merits of the claim. It
stated, “Because your letter neither raised substantive legal questions nor included new and
relevant evidence, it is insufficient to warrant a review of our prior decision at this time.” No
further discussion of appellant’s June 25, 2010 application for reconsideration was provided.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under 5 U.S.C. § 8128(a),3 the
Office’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”4 Section
2

On the appeal request form appellant indicated that the date of the Office decision was September 18, 2009. In
the June 25, 2010 letter, appellant also referred to a reconsideration of “the schedule award previously applied for.”
3

This section states, “The Secretary of Labor may review and award for or against payment of compensation at
any time on his own motion or on application.”
4

20 C.F.R. § 10.606(b)(2).

2

10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.5
ANALYSIS
In this case, OWCP issued a September 18, 2009 decision finding that appellant’s actual
earnings in a modified rural carrier position since May 14, 2009 represented his wage-earning
capacity. In his application for reconsideration, appellant asserted that the position was a
temporary clerical position. OWCP did not discuss appellant’s specific contentions in its
July 21, 2010 decision. It is well established that a wage-earning capacity determination using
actual earnings cannot be based on a job that is part time, seasonal or temporary.6 Appellant has
advanced a relevant legal argument with respect to the wage-earning capacity determination. He
had not raised the issue before and it is a relevant legal argument not previously considered.
Pursuant to 20 C.F.R. § 10.606(b)(2)(ii), OWCP should have reviewed the merits of the claim
and addressed appellant’s argument. Accordingly, the case will be remanded for a merit decision
with respect to the loss of wage-earning capacity determination.
With respect to a schedule award, OWCP apparently paid compensation pursuant to a
schedule award issued in 2009. The record does not contain a final decision with appeal rights.
If OWCP has not issued a final decision regarding a schedule award, it should do so on return of
the case record.
CONCLUSION
The Board finds that appellant met the requirements of 20 C.F.R. § 10.606(b)(2) in his
application for reconsideration. The case is remanded for a merit decision.

5

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

6

See D.T., Docket No. 10-1012 (issued January 6, 2011); A.J., Docket No. 10-619 (issued June 29, 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2010 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: June 20, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Brunswick, NJ, Employer
__________________________________________
Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-108
Issued: July 22, 2014

Case Submitted on the Record

ORDER GRANTING PETITION FOR RECONSIDERATION
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1
COLLEEN DUFFY KIKO, Judge

On February 12, 2013 the Board issued an order dismissing appeal in the above entitled
case. By that order, the Board dismissed appellant’s appeal of an April 16, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), docketed as No. 13-108, on the grounds
that the appeal was not filed within 180 days from the date of issuance of OWCP’s decision.2
On February 25, 2014 appellant, through counsel, filed a petition for reconsideration.
On March 18, 2014 the Director of OWCP filed an answer to the petition for
reconsideration, requesting the Board to deny the petition. The Clerk of the Board served
appellant a copy of the Director’s response on March 25, 2014.
The Board has carefully considered the matter and concludes that the petition should be
granted and the Board’s February 12, 2013 order dismissing appellant’s appeal be set aside.
In the petition for reconsideration, appellant’s counsel contended that the appeal request
was timely and submitted supporting evidence, including a copy of a certified mail receipt from
1

Effective May 20, 2014, Patricia Howard Fitzgerald, was appointed Acting Chief Judge.

2

20 C.F.R. § 501.3(e) (2008).

the U.S. Postal Service dated October 15, 2013 and counsel’s affidavit stating that he had mailed
appellant’s appeal request with the Board on October 15, 2013. The Board has reviewed the
evidence submitted by appellant and finds it establishes that her request was mailed on
October 15, 2013, which was within 180 days of the April 16, 2012 OWCP decision. Thus, the
Board finds that the appeal docketed as 13-108 is timely filed, sets aside the February 12, 2013
Board’s dismissal order and reinstates the appeal for a full decision and order by the Board.
IT IS HEREBY ORDERED THAT appellant’s February 25, 2014 petition for
reconsideration is granted. The appeal docketed as No. 13-108 shall go forward.3
Issued: July 22, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

Richard J. Daschbach, Chief Judge, who participated in the preparation of the order, was no longer a member of
the Board after May 16, 2014.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Boston, MA,
Employer
__________________________________________

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

Docket No. 18-0072
Issued: January 21, 2020

Case Submitted on the Record

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

JURISDICTION
On October 11, 2017 appellant filed a timely appeal from a July 5, 2017 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 has met his burden of proof to establish a right upper
extremity condition causally related to the accepted December 9, 2016 employment incident.
FACTUAL HISTORY
On December 13, 2016 appellant, then a 56-year-old information technology specialist,
filed a traumatic injury claim (Form CA-1) alleging that on December 9, 2016 he injured his right
1

5 U.S.C. § 8101 et seq.

shoulder and upper right arm when installing computers and moving portable walls while in the
performance of duty. On the reverse side of the claim form the employing establishment noted
that its knowledge of the facts about the injury aligned with his statements. Appellant did not stop
work.
On December 15, 2016 x-rays of appellant’s right shoulder revealed: moderate
glenohumeral narrowing and hypertrophic change; moderate hypertrophic change of the
acromioclavicular joint; a small focus of mineralization superior to the greater tuberosity, possibly
reflecting calcific tendinosis; and a spall possible projecting over the axillary recess. No acute
fracture or dislocation was noted.
On December 15, 2016 Dr. Elizabeth Matzkin, a Board-certified orthopedic surgeon,
examined appellant for complaints for right shoulder pain. She noted that she had last seen him in
August 2014 for his right shoulder and that he had been doing fairly well. Appellant reported that,
less than one week prior, he was at work moving wall dividers when he jammed his right shoulder.
He did not experience pain until he was driving home. On physical examination Dr. Matzkin noted
no tenderness, full muscle strength with pain at the subscapularis, and positive impingement and
Hawkins’ tests. She noted that appellant’s right shoulder range of motion was 80 degrees active
abduction, 140 degrees active forward flexion, 70 degrees of external rotation, and internal rotation
at 90 degrees of 40 degrees. Dr. Matzkin diagnosed right shoulder glenohumeral osteoarthritis
exacerbation. She noted the December 9, 2016 employment incident and indicated that appellant
may also have a partial thickness supraspinatus tear. Dr. Matzkin performed an injection into his
right subacromial space and glenohumeral joint.
On January 23, 2017 Dr. Matzkin examined appellant and in her report she noted that his
right shoulder displayed the same ranges of motion, tenderness, muscle strength, and positive tests
as on December 15, 2017. She indicated that he had attended physical therapy since their last
meeting and that his pain had decreased. Dr. Matzkin diagnosed a right shoulder glenohumeral
osteoarthritis exacerbation and a likely partial thickness supraspinatus tear. She recommended
that appellant continue physical therapy. Dr. Matzkin again examined him on April 27, 2017 and
noted that he had not kept up with physical therapy exercises.
Appellant submitted physical therapy treatment notes covering the period December 22,
2016 through January 19, 2017.
On May 4, 2017 appellant informed Dr. Matzkin that he had another injury at work on
May 1, 2017, but that his pain had improved since that time. On physical examination Dr. Matzkin
noted no tenderness, full muscle strength with pain at the supraspinatus, and positive impingement
and Hawkins’ tests. Appellant’s right shoulder range of motion was 160 degrees forward flexion,
80 degrees external rotation, internal rotation at 0 degrees of “lumbar,” and internal rotation at
90 degrees of 60 degrees. Dr. Matzkin diagnosed a right shoulder glenohumeral osteoarthritis
exacerbation and a possible partial thickness rotator cuff tear. She noted that appellant’s pain and
limitations were mostly attributable to his osteoarthritis. Appellant refused an additional steroid
injection.
In a development letter dated June 2, 2017, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It explained the medical evidence needed to

2

establish his claim and advised that appellant’s physician should differentiate his claimed injury
from the symptoms of preexisting right shoulder and arm injuries, as well as subsequent injuries.
OWCP noted appellant’s prior injuries to his right shoulder and arm under OWCP File
Nos. xxxxxx457 and xxxxxx626, as well as the subsequent right shoulder injury on April 18, 2017
under OWCP File No. xxxxxx315. It requested that he respond to its inquiries and afforded him
30 days to submit additional evidence. Appellant did not respond.
By decision dated July 5, 2017, OWCP denied appellant’s claim, finding that he had not
submitted sufficient evidence to establish causal relationship between a right shoulder condition
and the accepted December 9, 2016 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation period of FECA,3 that an injury was sustained while in the performance of duty, as
alleged, and that any disability or specific condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components, which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.6 The second component is whether the employment incident
caused a personal injury.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
2

Id.

3

See R.B., Docket No. 18-1327 (issued December 31, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41
ECAB 153 (1989).
4

Y.K., Docket No. 18-0806 (issued December 19, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

R.R., Docket No. 19-0048 (issued April 25, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

6

R.E., Docket No. 17-0547 (issued November 13, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

7

D.C., Docket No. 18-1664 (issued April 1, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

between the diagnosed condition and the specific employment factors identified by the employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.11
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.12
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right upper
extremity condition causally related to the accepted December 9, 2016 employment incident.
In support of his claim, appellant submitted a series of medical reports from Dr. Matzkin.
Dr. Matzkin noted that he had a preexisting right shoulder injury in August 2014 for his right
shoulder and noted that he had progressed well. She noted appellant’s history of injury and
conducted a physical examination. Dr. Matzkin diagnosed a right shoulder glenohumeral
osteoarthritis exacerbation, indicating that he may also have a partial thickness supraspinatus tear,
and noting a work injury on December 9, 2016. In her May 4, 2017 report, she noted that
appellant’s pain and limitations were mostly attributable to his osteoarthritis and that he sustained
an additional employment injury to his right shoulder on May 1, 2017. The Board finds that none
of the reports of Dr. Matzkin provide an opinion on the issue of causal relationship. Medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no

9

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13

Id. at U.S.C. § 8101(2) (defining a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law);
K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Supra note 11 at Chapter 2.805.3a(1).

4

probative value on the issue of causal relationship.14 As such, the reports from Dr. Matzkin are
insufficient to establish a work-related injury to appellant’s right shoulder on December 9, 2016.15
Appellant submitted a diagnostic study of his right shoulder in support of his claim. The
Board has held, however, that diagnostic studies lack probative value on the issue of causal
relationship, as they do not address whether the employment incident caused an exacerbation of
his right shoulder conditions.16 Thus, the diagnostic study is insufficient to establish appellant’s
claim.
Appellant also submitted physical therapy reports. Reports signed by physical therapists,
without a countersignature from a physician, have no probative value, as physical therapists are
not considered physicians as defined under FECA.17
As the medical evidence of record does not contain a rationalized opinion on causal
relationship between appellant’s right upper extremity condition and the December 9, 2016
employment incident, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right upper
extremity condition causally related to the accepted December 9, 2016 employment incident.

14

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

15

See C.R., Docket No. 17-1681 (issued December 1, 2017).

16

See J.S., Docket No. 17-1039 (issued October 6, 2017).

17

Supra note 13.

5

ORDER
IT IS HEREBY ORDERED THAT the July 5, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 21, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, BROOKLYN PARK
POST OFFICE, Brooklyn Park, MN, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0174
Issued: June 7, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 24, 2020 appellant, through counsel, filed a timely appeal from an
October 27, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On July 30, 2015 appellant, then a 54-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her left hand and both ankles while in the
performance of duty. OWCP accepted the claim for a left knee sprain, a left knee contusion, and
a left ankle fracture.
A magnetic resonance imaging (MRI) scan of the left knee, obtained on September 3, 2015
revealed a mild-to-moderate medial collateral ligament (MCL) sprain with no other ligamentous
injuries, a mild bony contusion, reactive marrow edema or a stress change at the posterolateral
aspect of the lateral femoral condyle, and mild-to-moderate joint effusion.
On August 2, 2017 Dr. Steven Greer, Board-certified in family medicine, indicated that
appellant had reached maximum medical improvement (MMI).
Appellant, on October 6, 2017, filed a schedule award claim (Form CA-7).
In a development letter dated October 12, 2017, OWCP requested that appellant submit a
report from a physician addressing whether she had reached MMI and rating any employmentrelated permanent impairment in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
In an impairment evaluation dated November 11, 2017, Dr. Neil Allen, a Board-certified
internist and neurologist, discussed appellant’s current complaints of left knee pain with instability.
On examination of the left knee, he found no atrophy, mild patellofemoral crepitus, intact
sensation, no laxity, and full strength. Dr. Allen measured range of motion (ROM) three times,
finding a maximum of 134 degrees flexion and 10 degrees extension. He noted that a September 3,
2015 MRI scan had shown a mild-to-moderate sprain of the MCL with mild-to-moderate effusion
and a mild bony contusion. Using Table 16-3 on page 509 of the A.M.A., Guides, Dr. Allen
identified the class of diagnosis (CDX) as a class 1 knee sprain with palpatory findings, which
yielded a default value of two percent. He applied a grade modifier for functional history (GMFH)
of one based on the lower limb questionnaire. Dr. Allen found that a grade modifier for physical
examination (GMPE) and a grade modifier for clinical studies (GMCS) were both inapplicable as
they had been used for grid placement. After applying the grade modifier, he found no change
from the default value of two percent. Dr. Allen concluded that appellant had two percent
permanent impairment of the left lower extremity.
On January 30, 2018 Dr. Jovito Estaris, Board-certified in occupational medicine serving
as a district medical adviser (DMA), advised that the applicable CDX was a class 0 collateral
ligament injury of the left knee under Table 16-3 page 510, which yielded no impairment of the
3

A.M.A., Guides (6th ed. 2009).

2

left lower extremity. He further found no impairment based on loss of ROM. Dr. Estaris disagreed
with Dr. Allen’s use of the diagnosis of strain/tendinitis, asserting that the applicable diagnosis
was an MCL strain. He advised that an MCL injury with no laxity or instability yielded no
impairment. Dr. Estaris found that appellant had reached MMI on November 11, 2017.
By decision dated February 23, 2018, OWCP denied appellant’s claim for a schedule
award.
In addendum reports dated December 21, 2018 and January 9, 2019, Dr. Allen disagreed
with Dr. Estaris’ finding, noting that the A.M.A., Guides provided that, if two or more diagnoses
could be used, the evaluator should use the diagnosis that characterizes the impairment and its
impact on activities. He advised that appellant had symptoms compatible with a muscle strain
rather than an MCL injury/sprain.
On September 15, 2019 Dr. Estaris advised that appellant’s only diagnosis was a left knee
sprain. He indicated that the most accurate diagnosis was an MCL sprain rather than a left knee
sprain. Dr. Estaris reiterated that appellant had no impairment due to a collateral ligament injury
under Table 16-3 on page 10 of the A.M.A., Guides.
By decision dated September 17, 2019, OWCP denied appellant’s schedule award claim as
there was no measurable impairment.
On September 26, 2019 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on January 14, 2020.
In an addendum dated January 27, 2020, Dr. Allen disagreed with Dr. Estaris’ finding that
appellant had no permanent impairment of the left lower extremity, noting that the A.M.A., Guides
provided that if two diagnoses were present, the examiner should use the one which yielded the
highest rating.
By decision dated March 25, 2020, OWCP’s hearing representative vacated the
September 17, 2019 decision and remanded the case for a DMA to review Dr. Allen’s January 27,
2020 report.
On April 9, 2020 Dr. Estaris advised that the specific diagnosis in this case was an MCL
strain, and that a strain was a nonspecific diagnosis. He asserted that the specific diagnosis should
be used for rating diagnosis-based impairments (DBI) under the A.M.A., Guides.
By decision dated April 22, 2020, OWCP denied appellant’s schedule award claim as the
medical evidence did not demonstrate a measurable impairment.
On May 1, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on August 12, 2020.

3

By decision dated October 27, 2020, OWCP’s hearing representative affirmed OWCP’s
April 22, 2020 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.6 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted by grade modifiers based on functional history (GMFH),
physical examination (GMPE) and clinical studies (GMCS).9 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Evaluators are directed to provide reasons
for their impairment choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.11
ANALYSIS
The Board finds that this case is not in posture for decision.

4

Supra note 2.

5

20 C.F.R. § 10.404.

6

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8
A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

Id. 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

4

In support of her schedule award claim, appellant submitted a November 11, 2017
impairment evaluation from Dr. Allen. On examination, Dr. Allen found no atrophy, full
sensation, mild patellofemoral crepitus, and no laxity of the left knee. He measured ROM of 134
degrees flexion and 10 degrees extension. Dr. Allen indicated that a September 3, 2015 MRI scan
had revealed a mild-to-moderate MCL sprain with mild-to-moderate effusion and a mild bony
contusion. Using Table 16-3 on page 509 of the A.M.A., Guides, he identified the CDX as a class
1 knee sprain, which yielded a default value of two percent. Dr. Allen found no change from the
default value after application of the grade modifier, and thus concluded that appellant had two
percent permanent impairment of the left lower extremity.
Dr. Estaris, a DMA, reviewed Dr. Allen’s report on January 30, 2018 and disagreed with
his finding that the CDX was a left knee strain. He identified the CDX as a class 0 collateral
ligament injury using Table 16-3 on page 510. As appellant had no laxity at the MCL, he found
no ratable impairment.
In addendum reports dated December 21, 2018 and January 9, 2019, Dr. Allen advised that
if appellant had two or more diagnoses, the evaluator should use the one that better characterized
the impairment.
On September 15, 2019 Dr. Estaris asserted that a MCL sprain was a more accurate
diagnosis than a left knee sprain. He again found that appellant had no ratable injury using the
CDX of a cruciate or collateral ligament injury set forth at Table 16-3 on 510 of the A.M.A.,
Guides.
The Board finds that Dr. Estaris failed to sufficiently explain why appellant’s permanent
impairment could not be rated for the accepted condition of left knee sprain. OWCP has not
accepted a collateral ligament injury as employment related.12 Dr. Allen opined that appellant’s
residual symptoms were compatible with a muscle strain rather than an MCL injury. Dr. Estaris
failed to address whether Dr. Allen’s impairment rating was sufficient to show that she had two
percent permanent impairment due to her left knee sprain, rating her instead for an MCL injury, a
condition not accepted by OWCP which he found to be a more accurate diagnosis.
It is well established that proceedings under FECA are not adversarial in nature, and while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 Once OWCP undertook development of the
evidence by referring appellant’s case file to an OWCP medical adviser, it had an obligation to do
a complete job and obtain a proper evaluation and report that would resolve the issue in this case.14
The case is, therefore, remanded to OWCP to refer the record to another DMA, or a specialist in
the appropriate field of medicine, to determine whether appellant has a permanent impairment of
the left lower extremity as a result of her accepted employment injury of a left knee sprain.

12

The Board notes that OWCP accepted left knee sprain, identified by the International Classification of Disease
(ICD)-10 code S83.92XA. A sprain of the MCL of the knee is identified as S83.412.
13

See W.W., Docket No. 18-0093 (issued October 9, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

14

P.R., Docket No. 20-1199 (issued February 8, 2021).

5

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 7, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-252
Issued: July 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 6, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 5, 2006 merit decision denying his claim for a left shoulder
condition, and an August 4, 2006 nonmerit decision denying his request for a review of the
written record.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.

1

The Board notes that, by decision dated January 5, 2005, the Office granted appellant a schedule award for a
nine percent impairment of his right upper extremity. On January 24, 2005 the Office terminated appellant’s
compensation benefits for refusal to accept suitable employment. By decisions dated May 24 and September 21,
2006, the schedule award and termination decisions were affirmed. In this appeal, appellant, through his
representative, has requested review only of the decisions relating to the denial of a left shoulder condition.
Therefore, the Board will address only the April 5 and August 4, 2006 decisions.

ISSUES
The issues are: (1) whether appellant has established that his left shoulder condition is a
consequence of his accepted right rotator cuff tear; and (2) whether the Branch of Hearings and
Review abused its discretion in denying appellant’s request for a review of the written record.
FACTUAL HISTORY
On January 28, 2002 appellant, then a 40-year-old distribution clerk, filed an
occupational injury claim (Form CA-2), alleging that he developed a right shoulder condition as
a result of repetitive employment activities.2 His claim was accepted for right rotator cuff tear.
The Office subsequently approved two surgical procedures, which occurred on December 6,
2002 and January 9, 2004, by Dr. Carolyn M. Hyde, a Board-certified orthopedic surgeon. On
July 26, 2004 appellant elected disability retirement benefits in lieu of benefits under the Federal
Employees’ Compensation Act.
In a February 26, 2004 report, Dr. Hyde diagnosed a “full thickness rotator cuff tear with
biceps tendon repair, failed repair after two attempts.” She stated that the type of repair involved
in appellant’s case would never completely heal, because the fabric of the rotator cuff was rotten
and did not hold stitches. Dr. Hyde indicated that, “because [appellant’s] right shoulder wore out
under work conditions, it [is] possible that his left shoulder could wear out too.”
Appellant submitted a claim for medical benefits related to a left shoulder condition. In a
report dated January 18, 2006, Dr. Hyde stated that she saw appellant on that date for pain in his
neck and left shoulder. She opined that appellant’s symptoms resulted from having to
compensate for an incompletely cured right shoulder. Examination of the right shoulder showed
elevation of flexion to 160 degrees, abduction to 140 degrees, and good power of resisted
external and internal rotation. Resisted scaption was a bit weak. Dr. Hyde stated that the
combination of abduction plus external rotation against resistance reproduced the characteristic
weakness of an incomplete rotator cuff repair. Examination of the left shoulder revealed a
painful arc of flexion, pain with resisted scaption and external rotation, and pain between the
ranges of 80 to 110 degrees. Impingement signs were positive; pain was worse with resisted
abduction and external rotation. Appellant had pain and tenderness in his neck along the spinous
processes at the C5-6 area and some pain with compression. Dr. Hyde stated that, although
appellant did not have a drop arm sign, the examination was somewhat suspicious of a left
rotator cuff tear. X-rays showed mild acromioclavicular (AC) joint arthritis in both shoulders.
Dr. Hyde opined that appellant might have some supraspinatus tendinopathy, if not a small tear
on the left side, “which went through the same work life and stresses as the right side did to
create the tendinopathy.” The record also contains a report of a magnetic resonance imaging
scan of the right shoulder dated February 14, 2006.
The Office referred Dr. Hyde’s January 18, 2006 report, together with a statement of
accepted facts, to the district medical adviser for his review and an opinion as to whether
2

The record reflects that, on January 2, 2002, appellant underwent an open rotator cuff repair with acromioplasty,
biceps tendon repair, and arthroscopic debridement and acromioplasty of the glenohumeral joint.

2

appellant’s left shoulder condition was causally related to the accepted right shoulder injury. On
March 2, 2006 the medical adviser opined that appellant had bilateral shoulder impingement
syndromes and AC joint arthritis. He stated that appellant’s neck and left shoulder symptoms
were the natural progression of his underlying condition, rather than a result of compensating for
an incompletely cured right shoulder or an aggravation of his December 15, 2001 injury.
By decision dated April 5, 2006, the Office denied appellant’s claim. The Office found
that the evidence failed to establish that the claimed left shoulder condition was causally related
to the accepted right shoulder injury.
The record contains a May 17, 2006 letter to the Office from Congressman Lloyd
Doggett inquiring as to the status of appellant’s claim for medical treatment for his neck and left
shoulder condition. Enclosed was a copy of an April 17, 2006 letter from appellant requesting
the Congressman’s assistance relative to the Office’s denial of his neck and left shoulder
condition.
On June 12, 2006 appellant requested a review of the written record. By decision dated
August 4, 2006, an Office hearing representative denied the request as untimely. The hearing
representative further found that the issue could be equally well addressed through a request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.3
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.4 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.5
ANALYSIS -- ISSUE 1
The Board finds that appellant submitted insufficient medical evidence to establish a
consequential relationship between his left shoulder condition and the accepted right rotator cuff
tear. The medical evidence of record relevant to his left shoulder condition consists of a
January 18, 2006 report from Dr. Hyde. The Board finds that this report is of diminished
3

See Debra L. Dillworth, 57 ECAB ___ (Docket No. 05-159, issued March 17, 2006). See also Albert F.
Ranieri, 55 ECAB 598 (2004).
4

Id. See also Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation
§ 10.01 (2005).
5

Kathy A. Kelley, 55 ECAB 206 (2004).

3

probative value and is insufficient to establish a causal relationship between the accepted injury
and the claimed left shoulder condition.
Although she provided findings on examination, Dr. Hyde did not provide a rationalized
opinion describing the physiological process whereby appellant’s left shoulder condition
developed as a natural consequence of his accepted right shoulder condition, rather than as a
result of an intervening cause, or the natural progression of an underlying condition. This point
is particularly relevant, given that appellant stopped working as a distribution clerk in 2004.
Dr. Hyde attributed the newly diagnosed condition to compensation for an incompletely cured
right shoulder. The Board has held that a medical report not fortified by sufficient explanation or
rationale is of diminished probative value.6 Dr. Hyde’s opinion is further compromised by its
speculative and equivocal nature. She stated that the examination was “somewhat suspicious” of
a left rotator cuff tear. Dr. Hyde opined that appellant might have some supraspinatus
tendinopathy, if not a small tear on the left side, “which went through the same work life and
stresses as the right side did to create the tendinopathy.” Her statement is more of a hypothesis
than an opinion, and is not rendered to a reasonable degree of medical certainty. Therefore, it
lacks probative value.7
The Board finds the medical evidence of record is insufficient to discharge appellant’s
burden of establishing that his left shoulder condition was a consequential injury of the accepted
right rotator cuff tear.
LEGAL PRECEDENT -- ISSUE 2
Section 8124 of the Act provides that a claimant is entitled to a hearing before an Office
representative when a request is made within 30 days after issuance of a final decision by the
Office.8 Section 10.615 of the federal regulations implementing this section of the Act provides
that a claimant shall be afforded a choice of an oral hearing or a review of the written record.9
The Board has held that section 8124(b)(1) is “unequivocal” in setting forth the time limitation
for requesting hearings. A claimant is entitled to a hearing as a matter of right only if the request
is filed within the requisite 30 days.10
Section 10.616(a) of Title 20 of the Code of Federal Regulations further provides, “A
claimant injured on or after July 4, 1966, who had received a final adverse decision by the
district Office may obtain a hearing by writing to the address specified in the decision. The

6

See, e.g. Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

7

See Leonard J. O Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
8

5 U.S.C. § 8124(b)(1).

9

20 C.F.R. § 10.615; Gerard F. Workinger, 56 ECAB ___ (Docket No. 04-1028, issued January 18, 2005).

10

Tammy J. Kenow, 44 ECAB 619 (1993); Ella M. Garner, 36 ECAB 238 (1984).

4

hearing request must be sent within 30 days (as determined by postmark or other carrier’s date
marking) of the date of the decision for which a hearing is sought.”11
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings, including when the request is made after the 30-day
period for requesting a hearing, and that the Office must exercise this discretionary authority in
deciding whether to grant a hearing.12 In these instances, the Office will determine whether a
discretionary hearing should be granted or, if not, will so advise the claimant with reasons.13
ANALYSIS -- ISSUE 2
The Office issued a decision on April 5, 2006 denying appellant’s request to expand his
claim to include a left shoulder condition. The record reflects that appellant sought a review of
the written record following this decision by request dated June 12, 2006. This hearing request
was denied as untimely on August 4, 2006. The Office properly advised appellant that it had
exercised its discretionary authority and denied his request for the additional reason that the
relevant issue of the case could be addressed by a request for reconsideration before the district
Office and the submission of additional evidence.
Appellant’s June 12, 2006 request for a review of the written record was made more than
30 days after the Office issued its April 5, 2006 decision. As his request was untimely, appellant
was not entitled to a review of the record as a matter of right. The Office properly exercised its
discretion in denying a review upon appellant’s untimely request, determining that the issue
could be equally well addressed through a reconsideration request and the submission of new
evidence.14 The Board has held that the only limitation on the Office’s discretionary authority is
reasonableness. An abuse of discretion is generally shown through proof of manifest error, a
clearly unreasonable exercise of judgment, or actions taken which are contrary to logic and
probable deduction from established facts.15 In the present case, the evidence of record does not
establish that the Office abused its discretion in denying appellant’s request for review of the
written record.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that his
left shoulder condition was a consequence of his accepted left rotator cuff tear. The Board

11

20 C.F.R. § 10.616(a).
January 18, 2005).

See also Gerard F. Workinger, 56 ECAB ___ (Docket No. 04-1028, issued

12

Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994).

13

Claudio Vasquez, 52 ECAB 496 (2001); Johnny S. Henderson, 34 ECAB 216 (1982).

14

See Joseph R. Giallanza, 55 ECAB 186 (2003).

15

See André Thyratron, 54 ECAB 257 (2002).

5

further finds that the Office properly denied appellant’s request for a review of the written
record.
ORDER
IT IS HEREBY ORDERED THAT the August 4 and April 5, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6