United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Carson, CO, Employer
__________________________________________

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Appearances:
Jeff A. Massey, Esq., for the appellant
Claire E. Kenny, for the Director

Docket No. 15-1700
Issued: January 5, 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 August 7, 2015 appellant, through counsel, filed a timely appeal from a June 30, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition due to a factor of her employment.
FACTUAL HISTORY
On September 19, 2013 appellant, then a 61-year-old office automation assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained stress, depression, and
1

5 U.S.C. § 8101 et seq.

anxiety due to “trying to get support from management for the last four years….” She asserted
that her coworkers did not work with her and that management failed to provide her with
assistance. Appellant did not stop work.
By letter dated September 30, 2013, OWCP requested that appellant submit supporting
factual and medical evidence. It asked that she complete a questionnaire providing specific
information about the factual aspect of her claim, including identifying the specific dates of any
alleged incidents, the names of the parties involved, and a detailed description of the work
factors she believed responsible for her condition. OWCP also requested that appellant submit
witness statements and the results of any grievances or complaints connected with an identified
work factor. In a separate letter dated September 30, 2013, it asked that the employing
establishment review and comment on appellant’s allegations and provide information about her
work duties. No response was received by the employing establishment or appellant.
In a decision dated November 4, 2013, OWCP found that appellant had failed to establish
an emotional condition in the performance of duty. It determined that she had not established a
factual basis for her claim or provided any supporting medical evidence, as appellant had not
responded to its request for a factual statement identifying the implicated employment factors.
By letter dated October 23, 2013, received by OWCP on November 7, 2013, appellant’s
supervisor submitted a statement that he had been appellant’s supervisor since September 2011,
and that the work environment did not cause her condition. He noted that appellant did not work
overtime or perform stressful duties. Her supervisor related that appellant had what some
viewed as a “hateful attitude towards others.” He advised that appellant did her work in a
professional manner, but had difficulty controlling anger when interacting with coworkers.
Documents submitted included a May 7, 2012 developmental counseling form for
engaging in unbecoming conduct on May 4, 2012 and a developmental counseling form on
February 12, 2013 for her interactions with employees during duty hours.
E-mails dated January and February 2013, reflect that coworkers complained to
appellant’s supervisor about appellant’s conduct. In a letter dated January 3, 2013, a coworker
advised that appellant had refused to provide him a form that needed to be signed.
On April 18, 2014 appellant, through counsel, requested reconsideration. Counsel
maintained that appellant had been experiencing harassment since June 7, 2011 from her
coworkers. Appellant had filed claims alleging a hostile work environment which had been
settled and, as a result, she was reassigned. When appellant went to her work location to
“remove her personal effects,” counsel related:
“[Appellant] was violently attacked by a coworker who had harassed and
discriminated again [her] for years. [The coworker] struck her in the face, and
upon information, investigation and belief, conspired with other coworkers to
have [her] unlawfully detained by the Military Police who used excessive force
and did not allow [her] her most basic civil rights. In addition to the years of
mental and emotional abuse she has previously complained about, the physical
assault and subsequent unlawful detention has further contributed to her

2

deteriorating emotional state. [Appellant’s] statement regarding the subject
incident is attached hereto for your consideration.”2
He also submitted a medical report in support of the reconsideration request.
By decision dated April 30, 2014, OWCP denied modification of the November 4, 2013
decision. It found that appellant had not adequately identified the specific incidents to which she
attributed her condition.
On April 7, 2015 appellant, through counsel, again requested reconsideration. She
submitted medical reports regarding her mental health treatment from 2007 through 2015.
Appellant also submitted a June 20, 2013 medical report.
In a decision dated June 30, 2015, OWCP denied modification of its April 30, 2014
decision. It again found that appellant had not provided specific examples of the alleged
harassment and abuse and thus had not factually established her claim.
On appeal counsel argues that appellant provided sufficient medical evidence to show
that she sustained major depressive disorder. He maintains that managers and coworkers
mistreated and harassed her, attempted to get her to quit work, and ridiculed her for adhering to
regulations. Counsel asserts that a coworker assaulted appellant on January 15, 2014 when she
tried to transfer her belongings to a new job.
On November 9, 2015 the Director of OWCP filed a memorandum in justification of
OWCP’s decision requesting that the Board affirm the June 30, 2015 decision as appellant did
not establish a factual basis for her claim or provide evidence supporting her allegations of
harassment.
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 his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.3 On the other hand, the
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.4
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
2

The record does not contain a statement from appellant.

3

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

4

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

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employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.5 A claimant must
establish a factual basis for his or 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.6 The issue is whether the claimant has
submitted sufficient evidence under FECA to establish a factual basis for the claim by supporting
his or her allegations with probative and reliable evidence.7 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.8
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.9 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.10
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish stress,
depression, and anxiety due to factors of her federal employment. Appellant generally alleged
that she experienced stress trying to gain the support of management. OWCP denied her claim
finding that she had not established a factual basis for the claim as she failed to adequately
describe the work factors to which she attributed her condition.
On September 30, 2013 OWCP asked appellant to provide a detailed description of the
work factors that caused her condition, including the dates of the alleged incidents and the names
of any involved parties. Appellant did not respond with the information requested by OWCP.
Her supervisor, however, did respond and denied that employment caused appellant’s condition.
A claimant must specifically identify the employment factors or incidents alleged to have
caused her condition and establish a factual basis for her allegations with probative and reliable
5

See Michael Ewanichak, 48 ECAB 364 (1997).

6

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

7

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

8

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

9

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

10

Id.

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evidence.11 Appellant’s counsel asserted that a coworker struck her in the face at an unspecified
date. He also maintained that military police used excessive force in detaining her and violated
her civil rights. Counsel contended that appellant experienced harassment starting in June 2011
and that she and the employing establishment had settled her claims regarding a hostile work
environment. He indicated that he was submitting a statement from appellant but it was not
received by OWCP.
To the extent that appellant is claiming harassment, and discrimination, the Board has
held that 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.12 A claimant, however, must substantiate allegations of harassment and discrimination
with probative and reliable evidence.13 Appellant did not submit any factual evidence in support
of her allegations of harassment, or, as requested by OWCP, identify the dates and details of any
alleged work incidents; thus, she has not established a compensable work factor.
Appellant’s counsel also contended that a coworker struck appellant in the face on an
unspecified date and that the military police wrongly used force in detaining her in connection
with this incident. Although physical contact may constitute a compensable work factor, there
must be probative factual evidence supporting that such contact actually occurred.14 Appellant
did not provide the date of the alleged altercation nor describe it in sufficient detail to warrant
development of the allegation. She further submitted no witness statements or other evidence to
support her allegation of physical contact. Consequently, appellant has not established a factual
basis for her allegation.
For the foregoing reasons, appellant has not factually established any compensable
employment factors under FECA and, therefore, has not met her burden of proof to establish an
emotional condition in the performance of duty.
On appeal counsel alleges that managers and coworkers harassed appellant, tried to make
her quit work, and made fun of her for abiding by regulations. As discussed, however, appellant
has the burden to establish a factual basis for the claim by supporting her allegations with
probative and reliable evidence.15

11

See C.H., Docket No. 12-1927 (issued March 29, 2013); B.H., Docket No. 12-1851 (issued February 20, 2013).

12

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

13

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

14

See P.D., Docket No. 13-1142 (issued August 1, 2013); Marilyn Jones, Docket No. 05-382 (issued
January 19, 2006).
15

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990). See also B.H., supra
note 11.

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Counsel maintains that the medical evidence is sufficient to establish that appellant
experienced major depressive disorder. As appellant has not established a factual basis for her
claim, however, the Board will not address the medical evidence.16
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 she
sustained an emotional condition due to a factor of her employment.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 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

16

See Margaret S. Krzycki, 43 ECAB 496 (1992).

6


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

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

Docket No. 11-26
Issued: January 23, 2012

Case Submitted on the Record

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

JURISDICTION
On October 4, 2010 appellant, through her attorney, filed a timely appeal from a July 21,
2010 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 established a recurrence of disability commencing
October 15, 2009.
FACTUAL HISTORY
The case has been before the Board on a prior appeal. By decision dated June 1, 2005,
the Board affirmed a December 6, 2004 OWCP decision denying a recurrence of disability

1

5 U.S.C. § 8101 et seq.

commencing August 31, 2004.2 OWCP had accepted the claim for an acute lumbosacral sprain
and herniated L4-5 disc, resulting from an October 10, 2000 incident when appellant attempted
to stop a cart moving downhill. The history of the case as noted in the Board’s prior decision is
incorporated herein by reference.
Appellant had returned to work in her regular, full-time position as of December 3, 2002.
On June 9, 2006 OWCP issued a schedule award for an eight percent permanent impairment to
the left leg. The award commenced on December 15, 2005.
On December 4, 2009 appellant filed a claim for a recurrence of disability, Form CA-2a,
commencing October 15, 2009. She indicated that her back pain continued to get worse.
The treating osteopath, Dr. William Miles, submitted a duty status report, Form CA-17,
dated October 15, 2009 describing his findings as severe pain syndrome, limited range of motion
in the lumbosacral region and antalgic gait. He provided work restrictions and stated that
appellant had difficulty meeting every job demand. In a November 19, 2009 Form CA-20 report,
Dr. Miles diagnosed an L3-4 condition, bilateral sacroilitis, left leg radiculopathy and somatic
dysfunction of sacrum. He checked a box “yes” that the conditions were employment related.
In a report dated January 14, 2010, Dr. Miles stated that he had treated appellant since
July 17, 2008 for conditions secondary to an October 10, 2000 work injury. He stated that she
could not sit or stand for prolonged periods without pain. Dr. Miles noted that appellant
underwent a spinal fusion surgery in 2001. With respect to disability, he opined “since
October 15, 2009 [she] cannot meet the requirements of her job in order to safely remain
employed and not be a hazard to herself and others.”
By decision dated January 27, 2010, OWCP denied the claim for a recurrence of
disability. It found the medical evidence was insufficient to establish a recurrence of disability
commencing October 15, 2009. In addition, OWCP noted that a recurrence of disability is a
spontaneous change in an employment-related condition without intervening injury.
On February 4, 2010 appellant requested reconsideration of her claim. She submitted an
October 15, 2009 narrative report from Dr. Miles, who noted that her overall examination was
unchanged. According to Dr. Miles, appellant had sustained a new injury in February 2009
when she fell on ice, but “she was advised by her boss at work that this would simply be
included in her present claim and that no new claim would be initiated.”
In a report dated June 8, 2010, Dr. Miles provided a history and results on examination.
He stated that, if appellant tries to do any activity, the radicular pain in her left leg is increased
and precludes her from gainful employment as a rural mail carrier. Dr. Miles stated that she had
slipped and fallen on her buttocks in February 2009. He indicated that appellant worked until
October 15, 2009 when the pain and problems substantially aggravated by her intervening fall in
February 2009 on ice when her conditions prevented her from continuing to work as a rural mail
carrier. Dr. Miles stated that she suffered from “multiple additional diagnoses” that “have never

2

Docket No. 05-543 (issued June 1, 2005).

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been appropriately added to her recognized claim conditions,” and referred to L3-4 disc
herniation, facet arthropathy L3-S1 and lumbar radiculopathy.
By decision dated July 21, 2010, OWCP’s hearing representative affirmed the
January 24, 2010 decision.
LEGAL PRECEDENT
A person who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which she claims compensation is causally related to the accepted
injury. This burden of proof requires that a claimant furnish medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to the employment injury and supports that conclusion with
sound medical reasoning.3
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”4
ANALYSIS
The July 21, 2010 decision on appeal is a denial of a claim filed on December 4, 2009 for
a recurrence of disability commencing October 15, 2009. As the above definition indicates, a
recurrence of disability is a change in an employment-related condition, without an intervening
injury, that causes disability. If there is a new employment incident, even if the injury may be to
the same part of the body as a prior accepted condition, it is a new injury.5 It is not clear what
advice appellant may have received regarding the filing of a new claim, but it is well established
that, if a new employment incident aggravates a condition, this is a claim for a new injury.
Appellant’s attending physician, Dr. Miles, stated in his October 15, 2009 report that
appellant’s examination was “essentially unchanged,” noting that she continued to complain of
pain and was struggling to continue working. He also briefly referred to a severe depressive
disorder, without further explanation. In his June 8, 2010 report, Dr. Miles stated that appellant
was disabled as of October 15, 2009, but he does not relate the disability to a spontaneous
change in the October 10, 2000 employment-related condition. He indicated that the fall in
February 2009 “substantially aggravated” her condition, and he appeared to indicate that this
3

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

4

20 C.F.R. § 10.5(x).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997). This
section provides that a recurrence of disability does not include: “A condition which results from a new injury, even
if it involves the same part of the body previously injured, or by renewed exposure to the causative agent of a
previously suffered occupational disease. If a new work-related injury or exposure occurs, Form CA-1 or Form
CA-2 should be completed accordingly.”

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intervening injury caused disability. This does not, as noted above, establish a recurrence of
disability commencing October 15, 2009. The evidence may be relevant to a claim for a new
injury, but that issue is not before the Board on this appeal.
The Board notes that Dr. Miles opined that appellant had sustained additional conditions
resulting from the October 10, 2000 injury. Dr. Miles specifically noted, for example, a
November 8, 2000 magnetic resonance imaging scan, which is in the record and does include a
diagnosis of L3-4 disc herniation and facet arthropathy. While the hearing representative
correctly noted that L3-4 disc herniation had not been accepted, his finding that there was “no
objective evidence” with respect to the opinion on causal relationship is not supported by the
record. On return of the case record OWCP should review the evidence on the issue of any
additional conditions causally related to the October 10, 2000 employment injury and issue an
appropriate decision.
With respect to a recurrence of disability commencing October 15, 2009, even if
additional conditions are accepted as causally related to the October 10, 2000 employment
injury, it is still appellant’s burden of proof to establish the claimed recurrence of disability. The
probative evidence must establish a spontaneous change in the employment-related condition as
of October 15, 2009. For the reasons noted, the medical evidence is not of sufficient probative
value to meet appellant’s burden of proof in this case.
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 did not meet her burden of proof to establish a recurrence
of disability commencing October 15, 2009.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2010 is affirmed in part and remanded for further action
consistent with this decision.
Issued: January 23, 2012
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
W.M., Appellant
and
DEPARTMENT OF ENERGY, PANTEX
COURIER SECTION, Amarillo, TX, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-72
Issued: May 21, 2012

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 October 13, 2011 appellant, through his representative, filed a timely appeal from the
April 27, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which suspended wage-loss compensation for his accepted post-traumatic stress disorder
(PTSD). 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 may receive FECA wage-loss compensation concurrently
with an increase in his Veterans Administration (VA) benefits for the same injury.
FACTUAL HISTORY
On August 27, 1997 appellant, a 43-year-old nuclear materials courier, filed an
occupational disease claim alleging that his chronic sleep deprivation and fatigue were a result of
1

5 U.S.C. § 8101 et seq.

his federal civilian employment. He also filed a claim alleging radiation exposure in the course
of his employment, to which he was last exposed on August 27, 1997, when he stopped work.
OWCP accepted appellant’s claim for PTSD, among other conditions.
He received
compensation for temporary total disability on the periodic rolls.
OWCP obtained a rating decision from the VA finding that appellant had a 100 percent
disability rating for PTSD from July 13, 1998.
OWCP notified appellant that he was entitled to receive VA benefits for the same
condition as his workers’ compensation claim, but if the VA benefits for that condition increased
after his date of injury, the increase was considered a dual benefit. It asked appellant to choose
between drawing VA benefits at the previous rating and workers’ compensation or drawing VA
benefits at the 100 percent rating and benefits from the Office of Personnel Management without
disability compensation from OWCP. OWCP advised that failure to return the enclosed Election
of Benefits form would result in suspension of appellant’s compensation benefits pending
receipt. It further advised that the election did not affect his entitlement to medical benefits
under FECA.
On September 26, 2008 OWCP suspended appellant’s wage-loss compensation for PTSD
for failure to make an election of benefits. On June 1, 2009 an OWCP hearing representative
affirmed the September 26, 2008 decision. She noted that appellant had, through his testimony,
effectively elected VA benefits.2
On April 27, 2011 OWCP reviewed the merits of appellant’s claim and denied
modification of its prior decision.
Appellant’s representative argued on appeal that appellant disputes that he should have
been required to make an election.
LEGAL PRECEDENT
While an employee is receiving compensation under FECA, he may not receive salary,
pay or remuneration of any type from the United States except other benefits administered by the
VA unless such benefits are payable for the same injury.3
To determine the employee’s entitlement to compensation, OWCP may require an
employee to submit an affidavit or statement as to the receipt of any federally funded or federally
assisted benefits. If an employee fails to submit such affidavit or statement within 30 days of the
date of the request, his right to compensation shall be suspended until such time as the requested

2

Appellant testified that the VA benefit was greater, and he argued that he did not think he needed to make an
election because he felt his PTSD was service related and completely separate from the conditions he sustained in
his federal civilian employment. He stated that he was not going to accept something from his government that he
should not, so he stopped seeing his psychiatrist and started going to the VA “because I knew that was where my
PTSD was.”
3

5 U.S.C. § 8116(a)(3).

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affidavit or statement is received. At that time compensation will be reinstated retroactive to the
date of suspension provided the employee is entitled to such compensation.4
ANALYSIS
It is well settled that a claimant in appellant’s position is required to make an election of
benefits.5 Under section 8116 of FECA, appellant may not receive FECA wage-loss
compensation for PTSD concurrently with an increase in his VA benefits for the same injury.
The regulations implementing section 8116 foresaw the situation presented here, where a
claimant refuses to make the required election. In such cases, OWCP will suspend the
claimant’s right to compensation until such time as the election is received.
From his testimony before OWCP’s hearing representative, appellant notes that he should
not receive compensation from OWCP for his PTSD. He considers his PTSD to be a result of
his military experience and not a result of his federal civilian employment. By failing to make an
election of benefits, appellant caused OWCP to suspend his wage-loss compensation for PTSD.
As a practical matter, OWCP’s decision leaves appellant in the position he wants: in receipt of
his 100 percent disability rating from the VA and with no wage-loss compensation from OWCP
for an employment-related PTSD.6
As appellant was not entitled to FECA wage-loss compensation for PTSD concurrently
with the increase in his VA benefits for the same injury, and as he refused to make an election,
the Board finds that OWCP properly suspended his right to wage-loss compensation for PTSD.
The Board will therefore affirm OWCP’s April 27, 2011 decision.
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.

4

20 C.F.R. § 10.421(e).

5

Gary J. Bartolucci, 34 ECAB 1569 (1983) (finding that the claimant was required to make an election of
benefits under section 8116 of FECA on the grounds that his benefits under FECA and a portion of his benefits
being paid under statutes administered by the VA were payable for the same injury, thus constituting a prohibited
dual benefit). The Board in Bartolucci noted the following legislative history: “In addition, this section amends the
FECA to require an election of benefits in any case in which a claimant for compensation is eligible to receive any
payment for benefits from the United States by reason of the same disability or death. A small number of cases have
occurred in which the Bureau [now OWCP] has found that the disability or death of an employee has resulted from
an injury sustained in civilian employment by the United States and the Veterans Administration has held that the
same disability or death was caused by military service. As a result, the United States has paid compensation twice
for the same disability or death. This amendment is intended to prevent payment of dual benefits in such cases in
the future.”
6

As appellant expresses no disagreement with the outcome of OWCP’s decision, only with the requirement of an
election, it is not clear what relief he seeks on appeal.

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CONCLUSION
The Board finds that appellant may not receive FECA wage-loss compensation
concurrently with an increase in his VA benefits for the same injury.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2012
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1481
Issued: April 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 23, 2018 appellant, through counsel, filed a timely appeal from January 23 and
June 27, 2018 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP).2
The last merit decision of record was a Board decision dated November 24, 2017, which became
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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s January 23, 2018 nonmerit decision was Sunday,
July 22, 2018. As the last day of the 180-day filing period fell on a weekend, appellant had until the next business
day, Monday, July 23, 2018 to timely file the appeal. 20 C.F.R. § 501.3(f)(2). Because using July 25, 2018, the date
the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the
postmark is considered the date of filing. The date of the U.S. Postal Service postmark is July 23, 2018, rendering the
appeal timely filed. 20 C.F.R. § 501.3(f)(1).

final after 30 days of issuance and is not subject to further review.3 As there was no merit decision
issued by OWCP within 180 days of the filing of this appeal, pursuant to the Federal Employees’
Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s January 10 and April 25, 2018
requests for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).5
FACTUAL HISTORY
This case has previously been before the Board.6 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 1, 2014 appellant, then a 54-year-old supervisor, filed an occupational disease
claim (Form CA-2) alleging that she developed left plantar fasciitis, right soleus rupture, and right
ankle tendinitis as a result of prolonged walking, bending, and squatting required in her job. She
noted that she first became aware of her condition on January 15, 2013 and realized that it was
causally related to her federal employment on March 11, 2014. Appellant was last exposed to the
conditions alleged to have caused her illness on March 11, 2013. She was terminated from
employment on June 4, 2013.
Appellant was treated by Dr. Jack L. Rook, a Board-certified physiatrist, on June 26, 2014
for bilateral foot, right calf, and right hip pain. He noted that appellant’s work required prolonged
walking, standing and pushing and pulling mail containers. Dr. Rook diagnosed: greater
trochanteric bursitis; status post rupture of the right soleus muscle with chronic myofascial pain,
pain related to scar tissue formation; bilateral Achilles tendinitis and bursitis; bilateral plantar
fasciitis; and strain of the metatarsal phalangeal joints of the great toe, second toe, and third toe on
the right. He opined that, based upon appellant’s history and a review of her medical records, she
developed an occupational disease involving her right hip approximately nine years earlier, an
occupational disease involving her left foot in December 2013, and an acute occupational injury
of her right calf on March 11, 2013. Dr. Rook noted that appellant was wearing a left leg surgical
boot and had to excessively contract the right calf muscles to get her left leg over the curb to enter
her workplace and ruptured her right soleus muscle. He believed the soleus rupture was an acute
3

20 C.F.R. § 501.6(d); see A.F., Docket No. 18-0645 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued
July 1, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).
4

5 U.S.C. § 8101 et seq.

5

The Board notes that counsel also submitted a reconsideration request on March 19, 2018.

6

Docket No. 16-1128 (issued November 24, 2017). Appellant, through counsel, appealed to the Board. The case
was docketed as No. 18-0697. On March 27, 2018 appellant withdrew her appeal. In an order dated April 19, 2018,
the Board dismissed the appeal.

2

injury that was related to the left foot injury. Dr. Rook opined that appellant’s right great toe pain
and right hip pain probably resulted from altered weight bearing and that all of her current right
leg problems were indirectly related to the left foot occupational disease. He indicated that the
right hip condition was aggravated because of the alteration of appellant’s gait, which required her
to bear most of her weight on her right leg. With regard to the left plantar fasciitis, appellant’s job
required standing on a hard floor all day long, walking on a hard floor, carrying heavy boxes while
walking on a hard floor, and forcefully pushing and pulling heavy objects. He opined that it is
more than likely that the plantar fasciitis in her left foot, Achilles bursitis, and tendinitis on the
right side was caused by prolonged weight-bearing activities required of her job.
By decision dated January 30, 2015, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that her diagnosed medical conditions were
causally related to the accepted factors of her federal employment.
Appellant requested an oral hearing before an OWCP hearing representative and submitted
a March 5, 2015 report from Dr. Rook, who reviewed his June 26, 2014 evaluation. Dr. Rook
indicated that, based upon reasonable medical probability, appellant’s right hip condition, left
plantar fasciitis, and right soleus muscle rupture were work-related conditions. On April 27, 2015
he reiterated his opinion that appellant’s diagnosed conditions were employment related.
A telephonic hearing was held on September 17, 2015. By decision dated November 30,
2015, an OWCP hearing representative affirmed the January 30, 2015 decision.
Appellant appealed to the Board and by decision dated November 24, 2017, the Board
affirmed the November 30, 2015 decision, finding that appellant had not established an
occupational disease causally related to the accepted factors of her federal employment.
On January 10, 2018 appellant, through counsel, requested reconsideration. Counsel
asserted that the Board improperly disregarded Dr. Rook’s analysis supporting causal relationship.
He indicated that in the absence of medical evidence to the contrary, OWCP should have further
developed the medical evidence. Counsel further noted that proceedings under FECA were not
adversarial in nature, and while the claimant has the burden to establish entitlement to
compensation OWCP shares the responsibility in the development of the evidence.
In a January 23, 2018 decision, OWCP denied appellant’s request for reconsideration as
the evidence submitted was insufficient to warrant a merit review.
On March 19, 2018 appellant, through counsel, requested reconsideration of the prior
OWCP decisions. Counsel indicated that on January 23, 2018 OWCP denied appellant’s
January 10, 2018 reconsideration request because she did not clearly identify the grounds upon
which reconsideration was requested and did not submit new and relevant medical evidence not
previously considered. He indicated that the reconsideration was based on a legal argument that
was not considered by OWCP or the Board, specifically, whether uncontroverted medical evidence
suggests a causal relationship that requires development.
In a decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant a merit review.

3

LEGAL PRECEDENT
Under section 8128(a) of FECA,7 OWCP has the discretion to reopen a case for review on
the merits. It must exercise this discretion in accordance with the guidelines set forth in section
10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits of his or her written application for reconsideration, including all supporting
documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”8
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s January 10 and April 25, 2018
requests for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP denied appellant’s claim because appellant did not meet her burden of proof to
establish an occupational disease causally related to factors of her federal employment. Thereafter,
it denied appellant’s January 10 and April 25, 2018 reconsideration requests, without conducting
a merit review.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In her January 10, 2018 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. Counsel asserted that the Board
improperly disregarded Dr. Rook’s analysis supporting causal relationship and indicated that in
the absence of medical evidence to the contrary, OWCP should have further developed the medical
evidence. He further noted that proceedings under FECA were not adversarial in nature, and while
the claimant has the burden OWCP shares the responsibility in the development of the evidence.
However, this does not show a legal error by OWCP, nor does it provide a new and relevant legal
argument. The underlying issue in this case is whether appellant submitted sufficient medical
evidence establishing that she developed a medical condition causally related to factors of her
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(b).

4

federal employment. That is a medical issue which must be addressed by relevant new medical
evidence.10 However, appellant did not submit any pertinent new and relevant medical evidence
in support of her claim.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3) with regard to her January 10, 2018 request for reconsideration.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of law,
advance a relevant legal argument not previously considered by OWCP, or constitute relevant and
pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, OWCP
properly denied merit review in its January 23, 2018 decision.
With regard to her April 25, 2018 request for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. Counsel indicated that the
January 10, 2018 reconsideration request was based on a legal argument that was not considered
by OWCP or the Board, specifically, whether uncontroverted medical evidence suggests a causal
relationship that requires development.
However, these statements do not show a legal error by OWCP, nor do they provide a new
and relevant legal argument. Furthermore, appellant did not submit any pertinent new and relevant
medical evidence in support of her April 25, 2018 reconsideration request.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3) with regard to her April 25, 2018 request for reconsideration. Appellant did
not show that OWCP erroneously applied or interpreted a specific point of law, advance a relevant
legal argument not previously considered by OWCP, or constitute relevant and pertinent new
evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review in its June 27, 2018 decision.
On appeal appellant, through counsel, disagreed with OWCP’s decision denying her claim
for compensation. Counsel further indicated that OWCP abused its discretion by refusing to
review the factual and medical evidence submitted by appellant. As explained, the Board lacks
jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s January 10 and April 25, 2018
requests for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the June 27 and January 23, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 2, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.U., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Loma Linda, CA, Employer
__________________________________________

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

Docket No. 17-1431
Issued: January 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 14, 2017 appellant filed a timely appeal from a December 16, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated January 12, 2012, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s December 16, 2016 decision was June 14, 2017. Since
using June 16, 2017, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss
of appeal rights, the date of the postmark or other carrier’s date marking is considered the date of filing. The date of
the postmark is June 14, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On November 15, 2010 appellant, then a 44-year-old staff pharmacist, filed a notice of
occupational disease (Form CA-2) claiming that she sustained anxiety, emotional distress,
consequential headaches and hypertension in the performance of duty on or before
September 8, 2008. She attributed these conditions to a pattern of supervisory harassment and
discrimination due to her Nigerian ethnicity and national origin, hostility, reprisals, threats and
retaliation for filing Equal Employment Opportunity (EEO) complaints. Appellant was off work
for intermittent periods from 2009 through 2011.
In a December 1, 2010 letter, OWCP advised appellant of the type of evidence needed to
establish her claim, including a detailed description of the work incidents alleged to have caused
the claimed conditions, and corroborating witness statements. It also requested a report from
appellant’s attending physician explaining how and why the identified work factors would cause
the claimed conditions. OWCP afforded appellant 30 days to submit such evidence.
In response, appellant provided numerous statements, e-mails, and administrative
documents which she asserted demonstrated a pattern of harassment, discrimination, and
disparate treatment by supervisors and coworkers, as follows: May 2003, March 2005, and
February 2010 job reassignments; a poor performance appraisal in 2004 written by Supervisor
R.C. in retaliation for appellant filing an EEO claim against him and Dr. B.K.; a poor
performance appraisal in 2005 in retaliation for filing an EEO claim; being denied assistance in
performing narcotics inspections in November 2005; a May 15, 2008 allegation that she allowed
a subordinate to lock an employee’s computer; inadequate training in E-Pharmacy in April 2009;
a delay in being assigned an internship preceptor in June 2009; denial of a clerkship rotation in
July 2009; being issued LWOP (leave without pay) in June 2009; December 2009 notations in a
record system that a physician was angry when appellant asked him to verify a prescription; an
EEO manager leaving appellant’s confidential folder in the employing establishment canteen on
February 10, 2010; and retaliation on February 11 and 12, 2010 when appellant refused to return
the folder to the employing establishment.
A coworker provided a November 19, 2010 statement alleging that appellant was treated
differently from other pharmacists due to her ethnicity and national origin. A second coworker
submitted a November 17, 2010 statement generally corroborating appellant’s allegations of a
hostile work environment. The coworker alleged that Dr. B.K. instructed her not to associate
with appellant.
Employing establishment supervisors provided January 2011 statements generally
refuting appellant’s allegations of discrimination, harassment, retaliation, disparate treatment,
and malfeasance.
Appellant also submitted medical evidence. Dr. Pamela J. Henderson, an attending
licensed clinical psychologist, provided chart notes dated from September 25 to November 12,
2

2009 relating appellant’s complaints of anxiety and insomnia. Dr. Wesley Hoenshell, an
attending Board-certified family practitioner, treated appellant for hypertension beginning in
2005. He held appellant off work from September 4 to October 2, 2009 and from December 13,
2010 to February 15, 2011 due to anxiety. Dr. Hoenshell opined that appellant should have no
contact with Dr. B.K as appellant alleged that he harassed and berated her.
By decision dated May 23, 2011, OWCP denied appellant’s claim, finding that appellant
failed to establish any compensable factors of employment as she failed to substantiate her
claims of harassment, discrimination, and malfeasance.
In a June 22, 2011 appeal request form, appellant requested a telephonic oral hearing
before a representative of OWCP’s Branch of Hearings and Review. At the hearing, held
November 7, 2011, appellant, through her attorney representative, at that time, reiterated her
allegations against the employing establishment. Following the hearing, she submitted
additional evidence. A former EEO manager provided a November 16, 2010 statement asserting
that in 2002, Supervisor R.C. told appellant that Nigerians were stubborn, inflexible, and disliked
by their coworkers. Appellant also submitted May 2011 documents regarding an employing
establishment settlement offer, with no admission of wrongdoing or final agreement.
Dr. Antonius D. Brandon, an attending licensed clinical psychologist, provided reports
from December 27, 2010 to August 5, 2011 diagnosing recurrence major depressive disorder and
post-traumatic stress disorder, with “severe” difficulties at work. Dr. Hoenshell opined in an
October 21, 2010 report that there was a “clear correlation between severity of symptoms and
degree of job stress.” He released appellant to part-time work at the employing establishment as
of August 11, 2011.
By decision dated January 12, 2012, an OWCP hearing representative affirmed the
May 23, 2011 decision, as modified, finding that appellant established as factual and
compensable that Supervisor R.C. used ethnic slurs against her in 2002. OWCP denied the
claim, however, as the medical evidence did not contain adequate rationale explaining how and
why the established work factor of ethnic slurs would cause the claimed emotional condition.
In May 2013 appellant provided tracking and subpoena request documents related to her
case against the employing establishment in the U.S. District Court for the Central District of
California.
In a letter dated and received by OWCP on November 23, 2016, appellant requested
reconsideration. She asserted that she was unable to submit additional evidence following the
November 7, 2011 hearing because the denial of her claims caused a psychiatric breakdown.
Appellant noted that a federal civil court case against the employing establishment was settled in
November 2013. She reiterated her allegations of harassment and adverse employment actions.
By decision dated December 16, 2016, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error.

3

LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.5 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is timely.
In order to be timely, a request for reconsideration must be received by OWCP within one year
of the date of the last merit decision for which review is sought. Timeliness is determined by the
document receipt date of the reconsideration request (the received date) in the Integrated Federal
Employee’s Compensation System (iFECS).6 The Board has found that the imposition of this
one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).7
In those cases where requests for reconsideration are untimely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to section 10.607(b) of its regulations.8 OWCP regulations and procedures
state that OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s request for reconsideration shows “clear evidence of error” on
the part of OWCP.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which decided by OWCP.10 The evidence must be positive, precise and explicit and must
be manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate 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
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id.; see also Jesus D. Sanchez, 41 ECAB 964 (1990).

6

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
7

5 U.S.C. § 10.607(b); supra note 4, Jesus D. Sanchez, supra note 5.

8

Supra note 4.

9

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5
(February 2016).
10

Supra note 4.

11

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

12

Jesus D. Sanchez, supra note 5.

13

Supra note 11.

4

record and whether the new evidence demonstrates clear error by OWCP.14 The Board must
make an independent determination of whether a claimant 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.15
ANALYSIS
The Board finds that OWCP properly determined that appellant’s reconsideration request
was untimely filed. In a letter dated and received by OWCP on November 23, 2016, appellant
requested reconsideration. As more than one year elapsed from the most recent merit decision,
dated January 12, 2012 her request for reconsideration was untimely.16
Consequently, the Board finds that appellant failed to demonstrate clear evidence of
error.
On reconsideration appellant submitted her November 23, 2016 letter reiterating her
allegations of supervisory harassment and malfeasance. Following OWCP’s January 12, 2012
decision, appellant also submitted tracking and subpoena request documents related to a federal
civil court case against the employing establishment.
The term clear evidence of error is intended to represent a difficult standard, and the
argument appellant provided on reconsideration is not the type of positive, precise, and explicit
evidence which manifested on its face that OWCP committed an error.17 Appellant’s
November 23, 2016 letter and court documents are of insufficient probative value to shift the
weight in her favor and raise a substantial question as to the correctness of the January 12, 2012
decision. The critical issue in the claim at the time of the January 12, 2012 decision was the lack
of medical evidence establishing causal relationship. As appellant’s letter and the court
documents do not constitute medical evidence, they are irrelevant to the underlying issue of
causal relationship.18 Accordingly, they are insufficient to demonstrate clear error by OWCP
with respect to the denial of appellant’s occupational disease claim.
The Board finds that appellant has failed to support her reconsideration request with
evidence or argument demonstrating that OWCP’s January 12, 2012 decision denying her
emotional condition claim was clearly erroneous. Appellant’s request was insufficient to raise a
substantial question as to the correctness of OWCP’s January 12, 2012 decision or shift the
weight of the evidence in her favor.

14

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

15

Gregory Griffin, supra note 6.

16

20 C.F.R. §§ 10.607; 10.608(b).

17

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

18

Supra note 4.

5

On appeal appellant reiterates her allegations of supervisory harassment, discrimination,
and malfeasance. She contends that the medical evidence of record is sufficient to establish her
claim. These arguments pertain to the merits of the claim, which are not before the Board on the
present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2016 is affirmed.
Issued: January 11, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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

Docket No. 09-2285
Issued: August 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 15, 2009 appellant filed a timely appeal from the June 10, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on August 26, 2005 causally related to his employment.
FACTUAL HISTORY
On December 12, 2005 appellant, a 47-year-old custodian, filed a traumatic injury claim
(Form CA-1) for an L4 disc bulge, back spasms and lower back pain. He attributed these
injuries to an August 26, 2005 incident when, while mowing a sloped area of grass, the riding
mower flipped over and he landed on his back.
Appellant submitted an April 24, 2002 certificate documenting that he received 7.5 hours
of training on postal vehicles, specifically “Sedan Thru ½ Ton & L.L.V.”

In an October 27, 2005 report, Dr. Steven P. Payne, a Board-certified diagnostic
radiologist, related that a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
revealed a moderate diffuse L4 disc bulge flattening the thecal sac.
In a November 7, 2005 note, Dr. Edwin D. Schoonover, Board-certified in family
medicine, related that some of appellant’s employment activities “aggravate[d] his disabilities.”
He opined that appellant should not “engage in lawn mowing or weed eating.”
Appellant submitted correspondence dated November 14 and 23 and December 15, 2005.
In a November 14, 2005 report, Dr. Schoonover diagnosed low back pain and provided
work restrictions.
Appellant submitted a December 1, 2005 note signed by Marvin P. Williams, a coworker.
On January 30, 2006 Dr. Schoonover diagnosed back pain with degenerative disc disease
at the L4-5 level, “per[o]neal nerve palsy,” chronic bilateral knee pain, benign prostatic
hyperplasia and hypercholesterolemia. He opined that appellant attained maximum medical
improvement and provided work restrictions.
On February 1, 2006 Dr. Schoonover diagnosed knee and back pain as well as
“per[o]neal nerve palsy” and opined that these conditions were “caused by or at least aggravated
by” the August 26, 2005 employment incident.
In December 1, 2005 and April 3, 2006 notes, appellant described the events of August
26, 2005 and the medication prescribed to treat his condition. He also submitted an undated note
signed by Thomas Haynes.
By decision dated May 1, 2006, the Office denied the claim, finding that, although
appellant established the August 26, 2005 incident occurred as alleged, he failed to demonstrate
that this incident caused his medical condition.
On May 16, 2006 appellant requested reconsideration. He alleged that MRI scans
showed new disc bulges following his August 2005 work incident.
Appellant submitted a December 30, 1996 report signed by Dr. Mark H. Awh, a Boardcertified diagnostic radiologist, who reported that an MRI scan of appellant’s lumbar spine
revealed a mild bulge at the L4-5 level as well as sacralization of the L5 vertebral body.
Appellant submitted a March 1, 2006 note signed by Bob Hattan, an employing
establishment operations manager.
In a November 1, 2005 report, Dr. Ijindah M. Uriri, Board-certified in family medicine,
relates that an MRI scan of appellant’s lumbar spine revealed a moderate diffuse L4 disc bulge.
In a May 12, 2006 note, Dr. Ronald F. Francis, Board-certified in family medicine,
reviewed appellant’s history of injury and course of treatment.

2

Appellant submitted an unsigned September 30, 2005 treatment note and a treatment note
bearing an illegible signature. Also submitted were a March 1, 2006 note signed by Dave
Flippo, a safety and health manager, as well as a May 12, 2006 note signed by Dr. Ronald F.
Centner, Board-certified in family medicine.
By decision dated August 29, 2006, the Office denied modification of its May 1, 2006
decision because the evidence of record did not demonstrate that the August 26, 2005
employment incident caused his medical condition.
Appellant submitted a report dated February 29, 2000 in which Dr. Payne reported that an
MRI scan of appellant’s lumbar spine revealed a mild broad-based bulge at the L4-5 level.
Appellant submitted an October 27, 2005 note signed by a physician’s assistant and a
September 7, 2006 note in which Dr. Justin D. Roby, Board-certified in family medicine,
reviewed appellant’s history of injury and course of treatment.
Appellant submitted a November 1, 2005 report in which Dr. Payne related that an MRI
scan of appellant’s lumbar spine revealed a moderate diffuse L4 disc bulge flattening the thecal
sac.
On September 26, 2006 appellant requested reconsideration.
Appellant also submitted a December 8, 2006 note in which Dr. Juan S. Dinkins, an
orthopedic surgeon, reviewed appellant’s course of treatment. Dr. Dinkins noted that he had
reviewed appellant’s MRI scans and opined that the MRI scans “have progressed” since the
initial scan in December 1996. He also noted that appellant “apparently” was involved in an
accident at work on August 26, 2005; however, he concluded that “it is difficult for me to
provide him with my appropriate assessment because I examined him almost a year afterward.”
By decision dated January 11, 2007, the Office denied modification of its August 29,
2006 decision because the evidence of record did not demonstrate that the August 26, 2005
employment incident caused his medical condition.
Appellant submitted a copy of Dr. Centner’s May 12, 2006 note and Dr. Roby’s
September 7, 2006 note.
Appellant also submitted a January 18, 2007 note signed by a physician’s assistant.
On January 19, 2007 appellant requested reconsideration.
By decision dated March 29, 2007, the Office denied modification of its prior decision
because the evidence of record did not demonstrate that the August 26, 2005 employment
incident caused his medical condition.
Appellant submitted a copy of Dr. Centner’s May 12, 2006 note, Dr. Roby’s
September 7, 2006 note, Dr. Dinkins’ December 8, 2006 note, the January 18, 2007 note signed
by the physician’s assistant and copies of congressional correspondence. Also submitted was an
additional copy of Mr. Hattan’s March 1, 2006 note.

3

In an April 2, 2007 note, appellant described the events of August 26, 2005, his
symptoms and events surrounding the filing of his claim.
On May 16, 2007 appellant requested reconsideration.
By decision dated July 17, 2007, the Office denied modification of its prior decision
because the evidence of record did not demonstrate that the August 26, 2005 employment
incident caused appellant’s medical condition.
On November 14, 2007 appellant requested reconsideration. In a November 14, 2007
note, he related that he had a new attending physician who issued a new report. The record
reflects that no report was submitted with appellant’s request.
By decision dated November 28, 2007, the Office denied the request without conducting
a merit review.
On December 7, 2007 appellant requested reconsideration.
Appellant submitted a personal note dated December 7, 2007, as well as an additional
copy of his November 14, 2007 note.
Also submitted was an August 17, 2007 note in which Dr. Carlo L. Pike, Board-certified
in family medicine, reviewed appellant’s history of injury and course of treatment. Dr. Pike
explained:
“Prior to the accident, [appellant] had two MRI [scan]s of his lumbar spine which
indicated a mild disc bulge at L4-5 that did not impact the neural foramina or
thecal sac. There was no disc herniation noted in either exam[ination]. The first
was dated December 30, 1996 and the second was dated February 29, 2000.
[Appellant] has not had severe back pain or been incapacitated from his back until
after the accident on August 26, 2005. On October 27, 2005 the MRI [scan]
indicated major changes at the L3-4 disc space with narrowing of both neural
formina and a worsening of the disc bulge at L4-5 consistent with a disc
herniation that impinges on the thecal sac. These changes are responsible for the
radicular symptoms he is experiencing in his legs and back. They are consistent
with the traumatic injury he sustained in the accident dated August 26, 2005.”
He speculated that appellant “will continue to experience pain, paresthesias and … disability due
to his injury throughout his life” and “may need surgical intervention.”
By decision dated May 22, 2008, the Office denied modification of its July 17, 2007
decision because the evidence of record did not demonstrate that the August 26, 2005
employment incident caused his medical condition.
On March 16, 2009 appellant requested reconsideration. In a supplemental statement,
also dated March 16, 2009, he asserted that he was “forced into an unsafe act” because he had
never used a riding mower prior to August 26, 2005 and received no training concerning its use.
Appellant related that the riding mower in question was not designed for commercial use. He

4

asserts that he had no back problems prior to the August 26, 2005 incident and provided a
timeline documenting his injury and course of treatment.
Appellant submitted a July 10, 2008 note in which Dr. Victor M. Acevedo, a family
physician, reviewed appellant’s history of injury and course of treatment. Dr. Acevedo noted
that it was the first time that he had examined appellant. He described appellant’s history of
injury and medical treatment. Dr. Acevedo thereafter related that “it is my impression by
evaluating the written information found on [appellant’s] medical chart and provided by [him]
that the injuries sustained on the working accident on August [27], 2005 are the cause of [his]
chronic back pain.”
Appellant submitted a November 26, 2003 report signed by a physician’s assistant as well
as additional copies of Dr. Uriri’s November 1, 2005 report, Dr. Payne’s February 29, 2000
report, Dr. Schoonover’s November 7, 2005 and January 30, 2006 notes and the December 30,
1996 report signed by the physician’s assistant. In addition to a copy of an American Postal
Workers’ Union publication which concerned reporting employment injuries and securing
benefits under the Federal Employees’ Compensation Act, appellant also submitted an undated
note signed by James R. Sell, a human resources manager.
On January 19, 2009 Dr. Richard Davis, a Board-certified orthopedic surgeon, diagnosed
lumbar spinal stenosis at the L3-5 level. Noting that a prior MRI scan revealed neural
compression, he opined that the MRI scan demonstrates a causal relationship exists between the
August 26, 2005 incident and appellant’s condition because he had no prior history of spinal
stenosis symptoms and, further, that his leg pain, “the most common symptom [associated with]
spinal stenosis,” arose following the August 26, 2005 incident.
In a May 18, 2009 note, appellant described his medical condition, expounded upon his
claim’s timeline and discussed particular pieces of medical evidence.
Finding the evidence appellant submitted with his reconsideration request did not
establish a causal relationship between his condition and the established August 26, 2005
employment incident, by decision dated June 10, 2009, the Office denied modification of its
May 22, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of proof to establish the
essential elements of his claim by the weight of the evidence,2 including that he sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he claims compensation is causally related to that employment injury.3 As part of his burden, the
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).

5

employee must submit rationalized medical opinion evidence based on a complete factual and
medical background showing causal relationship.4 The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Office accepted that the August 26, 2005 employment incident occurred as alleged.
Appellant’s burden is to establish that the accepted employment incident caused a medically
diagnosed injury. Throughout the development of the claim he has explained his theory of the
case, that MRI scans as far back as 1996 showed disc bulging, but that MRI scans after the
accepted 2005 incident showed additional disc herniation.
Appellant has not met his burden of proof however because he has never submitted
rationalized medical opinion evidence which explains how physiologically the accepted incident
would have caused or aggravated the conditions diagnosed from the MRI scans after
August 2005.
As noted above, causal relationship is a medical issue that can only be proven by
probative rationalized medical opinion evidence and, as appellant, his coworkers and managers
4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

6

are not “physicians” for purposes of the Act, their lay opinions are not relevant.9 Because
appellant has not submitted sufficient medical opinion evidence supporting his claim, the Board
finds that he has not established he sustained an injury in the performance of duty on August 26,
2005 causally related to his employment.
The record indicates that appellant initially sought medical treatment from
Dr. Schoonover. While Dr. Schoonover diagnosed degenerative disc disease at the L4-5 level
and peroneal nerve palsy, which he opined were caused or aggravated by the August 26, 2005
incident, he never explained, with medical rationale, how the August 2005 incident would have
caused or aggravated these conditions.
Appellant sought treatment from Dr. Dinkins. While Dr. Dinkins noted that there was
“progression” evident on appellant’s MRI scans, he also opined that he could not offer appellant
a complete assessment of his claim because he had not examined him until almost a year after
the August 2005 incident.
Dr. Pike reviewed appellant’s MRI scans and noted that the changes on the scans were
responsible for his radicular symptoms and were consistent with the traumatic injury he
sustained in August 2005. His reports do not contain an opinion explaining how the established
August 26, 2005 employment incident caused appellant’s medical condition, he merely
concludes that it does.10 For this reason, Dr. Pike’s note does not establish a causal relationship
between the August 26, 2005 employment incident and appellant’s medical condition.
The Board notes that appellant submitted reports from a physician’s assistant. Because
healthcare providers such as nurses, acupuncturists, physician’s assistants and physical therapists
are not considered “physicians” under the Act, their reports and opinions do not constitute
competent medical evidence,11 and accordingly, these reports do not establish the August 26,
2005 employment incident caused appellant’s condition.
Appellant submitted additional copies of Dr. Payne’s February 29, 2000 and
November 1, 2005 reports, Dr. Schoonover’s November 7, 2005 and January 30, 2006 notes,
Dr. Awh’s December 30, 1996 report as well as notes signed by several postal employees. As
this evidence duplicates evidence that had already been contained in the record, it has no
probative value and, therefore, does not establish that the August 26, 2005 employment incident
caused his condition.12
Dr. Davis’ January 19, 2009 report and Dr. Acevedo’s July 10, 2008 note are of
diminished probative value because they do not contain the necessary medical reasoning to
9

5 U.S.C. § 8101(2).

10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (Docket No. 06-1564, issued February 27, 2007); Jerre R.
Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983)
12

Linda I. Sprague, 48 ECAB 386 (1997).

7

establish the causal relationship between appellant’s condition and the August 26, 2005
employment incident. The weight of a medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of the physician’s knowledge of
the facts of the case, the medical history provided, the care of analysis manifested and the
medical rationale expressed in support of the stated conclusions.13 While Dr. Acevedo and
Dr. Davis opined that the August 26, 2005 employment incident caused appellant’s condition,
they provide no description of the mechanism of injury or an opinion, supported by medical
rationale, explaining how the incident caused his condition.14 Finally, Dr. Acevedo diagnoses
pain, which is a symptom, not a compensable diagnosis.15 Consequently, this evidence does not
establish the causal relationship between the August 26, 2005 employment incident and
appellant’s medical condition.
Finally, appellant submitted pages from an American Postal Workers’ Union publication
concerning reporting employment injuries and securing benefits under the Act. This evidence is,
at best, of general application16 and has no evidentiary value on the issue of whether specific
conditions were the result of particular employment circumstances.17
An award of compensation may not be based on surmise, conjecture or speculation.18
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.19 The fact that a condition manifests itself or worsens during a
period of employment20 or that work activities produce symptoms revelatory of an underlying
condition21 does not raise an inference of causal relationship between a claimed condition and
employment factors.
Because the medical evidence contains no reasoned discussion of causal relationship, one
that soundly explains how the established August 26, 2005 employment incident caused or
aggravated a firmly diagnosed medical condition, the Board finds that appellant has not
established the essential element of causal relationship.
13

See Anna C. Leanza, 48 ECAB 115 (1996).

14

Supra note 10.

15

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

16

Van Dyk, 53 ECAB 706 (2002).

17

See Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980) (newspaper
clippings, medical texts and excerpts from publications are of general application and not determinative of whether
the specific condition claimed was causally related to the particular employment injury involved).
18

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
19

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

20

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

21

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

8

CONCLUSION
The Board finds appellant has not established that he sustained an injury in the
performance of duty on August 26, 2005 causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, PPROCESSING &
DISTRIBUTION CENTER, Chicago, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1444
Issued: January 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 19, 2017 appellant filed a timely appeal from a May 11, 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 met his burden of proof to establish more than an
additional three percent permanent impairment of the right lower extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
Under OWCP File No. xxxxxx941, appellant, a 69-year-old retired mail processing clerk,
has an accepted occupational disease claim (Form CA-2) for contusion of right great toe, hallux
valgus, and bunion, which arose on or about May 1, 2008.3 He underwent OWCP-approved
right foot surgeries on July 15, 2010 and April 21, 2011. When the case was last on appeal, the
Board affirmed OWCP’s denial of wage-loss compensation for the period December 20, 2011
through February 14, 2012.
Under OWCP File No. xxxxxx940, appellant has an accepted occupational disease claim
for lumbar radiculopathy, which arose on or about May 1, 2008. With respect to his
employment-related lumbar condition, appellant received schedule awards totaling 23 percent
permanent impairment of the left lower extremity and 23 percent permanent impairment of the
right lower extremity.4
In May 2016 appellant filed a claim for a schedule award (Form CA-7) with respect to his
accepted right foot condition under File No. xxxxxx941.
In a December 28, 2015 report, Dr. Estella F. Martinez (nee Hernandez), a Boardcertified family practitioner, diagnosed post-traumatic arthritis of the first metatarsal phalangeal
joint and hallux rigidus of the right foot. Dr. Martinez opined that appellant had two percent
permanent impairment due to pain-related impairment of the right great toe and zero percent
permanent impairment for osteoarthritis of the foot joint. Regarding the metatarsal fracture,
Dr. Martinez utilized Table 16-2, page 504, of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 She found
that appellant had a class 1 diagnosis and assigned a grade modifier of 2 for Functional History
(GMFH) due to appellant’s antalgic limp and occasional use of a cane, a grade modifier of 2 for
Physical Examination (GMPE) due to moderate palpatory findings, and a grade modifier of 1 for
Clinical Studies (GMCS) due to normal cartilage interval. Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. Martinez calculated that appellant had
a net adjustment of (2-1) + (2-1) + (1-1) = 2, which equated to four percent permanent
impairment of the right lower extremity. She concluded that when combining the impairments,
appellant had a whole person impairment rating of five percent.
2

Docket No. 12-1529 (issued December 11, 2012).

3

Appellant retired effective April 2, 2012.

4

The latest award, dated November 6, 2013, was for spinal nerve extremity impairment due to motor and/or
sensory deficits affecting the L5 and S1 nerve roots, bilaterally. See The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009); Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3) (February 2013).
5

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

2

On June 5, 2016 Dr. Morley Slutsky, a Board-certified occupational medicine specialist
and OWCP medical adviser, concurred with Dr. Martinez’ rating of four percent permanent
impairment of the right lower extremity, but disagreed with the rating of two percent permanent
impairment due to pain-related impairment of the right great toe.
OWCP subsequently determined that an improper referral type had been used when the
case was referred to Dr. Slutsky because the required referral memorandum regarding appellant’s
previous schedule awards under File No. xxxxxx940 was missing.
Thereafter, the case record was referred to Dr. Michael M. Katz, a Board-certified
orthopedic surgeon and OWCP medical adviser. In his December 23, 2016 report, Dr. Katz
noted that OWCP had previously granted schedule awards for appellant’s right and left lower
extremities and he requested all prior district medical adviser (DMA) reports authorizing the
prior schedule awards to determine whether overlapping impairments existed.
On March 16, 2017 Dr. Katz reviewed the medical evidence of record and determined
that appellant had reached maximum medical improvement (MMI) as of December 28, 2015, the
date of Dr. Martinez’ examination. He noted that appellant had previously been awarded
schedule awards for a total of 23 percent permanent impairment of the right and left lower
extremities under File No. xxxxxx940. Dr. Katz agreed that appellant had four percent
permanent impairment of the right lower extremity due to his accepted great toe metatarsal
fracture under the sixth edition of the A.M.A., Guides. He disagreed with the rating of two
percent permanent impairment due to pain-related impairment of the right great toe as it was
incorporated with the Table 16-2 impairment rating and did not warrant additional compensation
on a separate basis. He then combined the prior rating for lower extremity motor/sensory deficits
(23 percent) with the current right metatarsal impairment rating (4 percent), and found a total
right lower extremity permanent impairment of 26 percent.6
By decision dated May 11, 2017, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the right lower extremity. The award ran for
8.64 weeks for the period December 28, 2015 to February 26, 2016.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.7 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.8
6

Appendix A, A.M.A., Guides 604 (6th ed. 2009).

7

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2).
8

20 C.F.R. § 10.404.

3

Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides (2009).9
The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment method
of evaluation utilizing the World Health Organization’s International Classification of
Functioning, Disability and Health (ICF).10 Under the sixth edition, the evaluator identifies the
impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers
based on GMFH, GMPE and GMCS.11 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX). Evaluators are directed to provide reasons for their impairment rating
choices, including the choices of diagnoses from regional grids and calculations of modifier
scores.12
After obtaining all necessary medical evidence, the case file should be routed to the
DMA for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides.13 The DMA should provide his or her rationale for the percentage of
impairment specified.14
ANALYSIS
OWCP accepted that appellant sustained a contusion of right great toe, hallux valgus, and
bunion due to factors of his federal employment. Under a separate claim, OWCP accepted
lumbar radiculopathy. In 2013, it granted appellant schedule awards totaling 23 percent
permanent impairment of each lower extremity due to his accepted lumbar condition. Appellant
subsequently filed a claim for a schedule award with respect to his accepted right foot condition.
It is appellant’s burden of proof to submit sufficient evidence to establish the extent of
permanent impairment.15
In her December 28, 2015 report, Dr. Martinez diagnosed post-traumatic arthritis of the
first metatarsal phalangeal joint and hallux rigidus of the right foot. Dr. Martinez opined that
appellant had two percent permanent impairment due to pain-related impairment of the right
great toe and zero percent permanent impairment for osteoarthritis of the foot joint. Regarding
the metatarsal fracture, Dr. Martinez utilized Table 16-2, page 504, of the sixth edition of the
9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
10

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.
11

Id. at 494-531.

12

See R.V., Docket No. 10-1827 (issued April 1, 2011).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6f.
14

Id.

15

See Annette M. Dent, 44 ECAB 403 (1993).

4

A.M.A., Guides and found that appellant had a class 1 diagnosis. She assigned a grade modifier
of 2 for functional history due to appellant’s antalgic limp and occasional use of a cane, a grade
modifier of 2 for physical examination due to moderate palpatory findings, and a grade modifier
of 1 for clinical studies due to normal cartilage interval. Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. Martinez calculated that appellant had
a net adjustment of (2-1) + (2-1) + (1-1) = 2, which equated four percent permanent impairment
of the right lower extremity. She concluded that when combining the impairments, appellant had
a whole person impairment rating of five percent.
In accordance with its procedures, OWCP properly referred the evidence of record to its
OWCP medical adviser, Dr. Katz. In his March 16, 2017 report, Dr. Katz reviewed the medical
evidence of record and determined that appellant had reached MMI as of December 28, 2015, the
date of Dr. Martinez’ examination. He concurred that appellant had four percent permanent
impairment of the right lower extremity due to his accepted right great toe metatarsal fracture
under the sixth edition of the A.M.A., Guides. He disagreed, however, with the rating of two
percent permanent impairment of the right lower extremity due to pain-related impairment of the
right great toe because it was already incorporated with the four percent impairment rating based
on Table 16-2 and did not warrant additional compensation on a separate basis. He then
combined the prior rating for lower extremity motor/sensory deficits (23 percent) with the
current right metatarsal impairment rating (4 percent), and found a total of 26 percent right lower
extremity permanent impairment.
The Board finds that OWCP’s medical adviser applied the appropriate tables and grading
schemes of the sixth edition of the A.M.A., Guides to Dr. Martinez’s clinical findings. OWCP’s
medical adviser’s calculations were mathematically correct. The Board notes that Dr. Martinez’s
assessment of five percent whole person impairment is not allowed for purposes of making
schedule award decisions under FECA. There is no statutory basis for the payment of a schedule
award for whole body impairment under FECA.16 Payment is authorized only for the permanent
impairment of specified members, organs, or functions of the body.17 For these reasons, the
Board finds that OWCP properly relied on an OWCP medical adviser’s assessment of an
additional three percent permanent impairment of the right lower extremity, in granting an
additional schedule award.
There is no probative medical evidence of record, in conformance with the sixth edition
of the A.M.A., Guides, establishing that appellant has more than the additional three percent
permanent impairment of the right lower extremity. Accordingly, appellant has not established
that he is entitled to a schedule award greater than those previously awarded.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

16

See N.H., Docket No. 17-0696 (issued July 19, 2017).

17

Tania R. Keka, 55 ECAB 354 (2004).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained more than an additional three percent permanent impairment of the right lower
extremity.
ORDER
IT IS HEREBY ORDERED THAT the May 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2018
Washington, DC

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

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

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

6