United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Bethesda, MD, Employer
__________________________________________

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

Docket No. 13-1273
Issued: December 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2013 appellant filed an appeal from a March 12, 2013 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 that a June 2, 2011
wage-earning capacity decision should be modified.
On appeal, appellant asserts that OWCP did not consider additional medical conditions in
the June 2, 2011 wage-earning capacity determination and that the accepted conditions prevent
him from working indoors.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board.2 In an October 25, 2010 order, the
Board dismissed appellant’s appeal finding no final adverse OWCP decision over which the
Board could exercise jurisdiction.3 In an order dated November 26, 2012, the Board noted that
OWCP had issued a wage-earning capacity decision on June 2, 2011 and thereafter issued a
nonmerit decision denying his request for reconsideration. The Board remanded the case for
OWCP to adjudicate whether the wage-earning capacity determination should be modified.4 The
facts of the case as set forth in the previous Board orders are incorporated herein by reference.
In January 2010, OWCP referred appellant to Dr. Francisco J. Quiñones, Board-certified
in internal medicine and pulmonary disease, for a second-opinion evaluation. In a February 10,
2010 report, Dr. Quiñones reviewed the medical record, noting that appellant had a
cerebrovascular accident in 2004. He described findings on physical examination and reported
that pre and postbronchodilator spirometry demonstrated an FEV1 of 102 percent of expected,
with a normal FEV1/FVC and normal flow volume loops. Dr. Quiñones diagnosed vasomotor
rhinitis, perhaps allergic; moderate obesity; and hypertension. The examination findings
indicated normal pulmonary function with no sign of pulmonary impairment. With regard to
appellant’s work-related readiness, Dr. Quiñones advised against appellant’s previous occupation
because of a strong history of sensitivity to something in the laboratory environment likely
related to the rodents with which he worked. It was reasonable to assume that such recurrent
exposure to this environment would again produce symptoms. Dr. Quiñones noted that, on
repeated examination by multiple practitioners, there had been no objective evidence of asthma
and, if it was present, it was mild, intermittent and very well controlled with current medication.
He advised that the diagnosis of allergic rhinitis remained work related that appellant lived a
very normal life and was up and about in his office with no difficulty. Dr. Quiñones saw no
reason why appellant could not pursue a different occupation. Appellant was capable of
performing sedentary or light-duty work in an environment where he was not exposed to strong
or noxious smells or to rodents or their bedding.
In September 2010, appellant was referred to Joe Day, a rehabilitation counselor, for
vocational rehabilitation services. Mr. Day conducted vocational and transferable skills
analyses. He identified the positions of desk clerk and security guard, finding that they were
within appellant’s work restrictions and qualifications and reasonably available in the local labor
market.
Appellant maintained that specific accommodations would have to be made by
prospective employers due to his medical conditions. He submitted a June 23, 2010 report from
2

On January 31, 1995 appellant, a 52-year-old animal laboratory technician, filed an occupational disease claim
alleging that employment factors caused a bronchial condition. On August 26, 1997 OWCP accepted allergic
rhinitis and the claim was later expanded to include aggravation of extrinsic asthma. Appellant stopped work on
December 20, 1995 and was placed on the periodic compensation rolls. In 1997 he moved from Washington, DC to
Virginia and then relocated to Alabama. In 2011 appellant moved back to Virginia.
3

Docket No. 10-685 (issued October 25, 2010).

4

Docket No. 12-1350 (issued November 26, 2012).

2

Dr. John McAtee, Board-certified in internal medicine and pulmonary disease, who noted that
days earlier appellant had been admitted to South Baldwin Regional Medical Center for
complete heart block. Appellant had been assessed and a pacemaker recommended but he had
insisted on discharge and returned for further evaluation. Dr. McAtee described physical
examination findings and diagnosed middle age, cardiac arrhythmia, reactive airway disease and
hyper-attention to small details of the clinical process. In a June 23, 2010 hospital consultation,
Dr. James Stinebaugh, Board-certified in internal medicine and cardiovascular disease,
diagnosed arrhythmia, recent nuclear stress testing with no ischemia, hypertension, reactive
airway disease, history of cerebrovascular accident, upper respiration fraction and renal
insufficiency. He recommended evaluation with a cardiac electrophysiologic specialist. In a
June 24, 2010 hospital consultation, Dr. James Storey, Board-certified in internal medicine,
cardiovascular disease and cardiac electrophysiology, described a one-week history of chest pain
and transient heart block. He diagnosed asymptomatic transient third degree heart block, a
current long first degree block, history of stroke, hypertension, normal ejection fraction and mild
renal insufficiency. Dr. Storey recommended a permanent pacemaker.
In correspondence dated January 27, 2011, Mr. Day indicated that during a 90-day period
beginning November 1, 2011, 12 job openings were available. Appellant did not pursue
employment. OWCP secured updated pay rate information from the employing establishment.
By letter dated March 25, 2011, OWCP proposed to reduce appellant’s compensation
benefits based on his capacity to earn wages as a desk clerk.5 It advised him that, if he disagreed
with the proposed reduction, he could submit additional evidence or argument within 30 days.
Appellant disagreed with the proposed reduction in compensation, asserting that the
medical evidence established that he did not quality for any position because he could not
function outside a controlled environment. He submitted medical evidence and correspondence
previously of record. In 2011 appellant relocated from Alabama to Virginia.
In a June 2, 2011 decision, OWCP reduced appellant’s compensation benefits, based on
his capacity to earn wages as a desk clerk. It applied the Shadrick decision,6 finding a new
wage-earning capacity of 23 percent and reduced his compensation as of June 5, 2011. OWCP
found that the physical requirements did not exceed the limitations recommended by
Dr. Quiñones and noted that there was no medical evidence of record to support that appellant
could not perform the duties of the desk clerk position.
On June 21, 2011 appellant requested reconsideration, asserting that he had a stroke on
April 28, 2011 and he could not return to work. He submitted medical reports previously of
record. In an August 23, 2008 report, Dr. Leonard J. Caputo, a Board-certified allergist, advised
5

The Dictionary of Occupational Titles job description for desk clerk is as follows: Greets, registers and assigns
rooms to guests; issues room key; date-stamps, sorts and racks incoming mail and messages; transmits and receives
messages, using telephone or telephone switchboard; answers inquiries pertaining to hotel/motel service; registration
of guests and shopping dining, entertainment and travel services; keeps records of room availability and guests’
accounts, manually or using computer; computes bill, collects payment and makes change for guests; makes and
confirms reservations. It required a light strength level.
6

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).

3

that he treated appellant for symptoms of asthma, rhinitis and chemical sensitivity. He last
evaluated appellant in June 2008. Dr. Caputo advised that appellant’s significant symptoms
caused repeated difficulties, especially in winter and that he had to relocate to a warmer climate.
Appellant was sensitive to multiple chemicals and should avoid chemical exposure. In a report
and discharge summary, Dr. McAtee described appellant’s hospitalization at South Baldwin
Regional Medical Center from June 15 to 19, 2010. He diagnosed middle age, chronic
obstructive pulmonary disease with reactive airway disease, sinusitis, variable cardiac
dysrhythmia and hypertension. On June 15, 2010 Dr. Brian Dearing, Board-certified in internal
medicine and cardiovascular disease, evaluated appellant. He diagnosed complete heart block,
asymptomatic; hypertension; history of asthma; history of cerebral vascular accident; and
abnormal lipids. Appellant withdrew his reconsideration request on July 22, 2011.7
On October 28, 2011 and February 10, 2012 appellant requested reconsideration and
presented arguments that the June 2, 2011 wage-earning capacity decision was in error because
his additional medical conditions were not considered. He submitted medical evidence and
copies of correspondence previously of record. In a June 17, 2011 report, Dr. Nazaneen Grant, a
Board-certified otolaryngologist, noted a history of difficulty breathing and diagnosed vocal cord
dysfunction. He provided stroboscopic examination findings and recommended respiratory
retraining therapy and an allergy work up. In treatment notes dated June 23, 2011 to January 13,
2012, Dr. Matthew Jaeger, Board-certified in family medicine, noted appellant’s medical history
and provided examination findings. He diagnosed increased lipids; history of cerebrovascular
accident; asthma, exacerbated by fumes, old weather and local allergens; and hypertension.
In a May 14, 2012 decision, OWCP denied appellant’s request for reconsideration
without conducting a merit review, which was followed by the Board’s November 26, 2012
remand order.8
Appellant submitted no additional medical evidence.
By decision dated March 12, 2013, OWCP denied modification of the June 2, 2011
wage-earning capacity determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.9 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
7

Appellant withdrew the request, noting that, because he had relocated to Virginia, his case was to be transferred.
His case was transferred on July 29, 2011.
8

Supra note 4.

9

Katherine T. Kreger, 55 ECAB 633 (2004).

4

modifying a formal loss of wage-earning capacity.”10 Once the wage-earning capacity of an
injured employee is determined, a modification of such determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was, in
fact, erroneous.11 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.12
In addition, Chapter 2.814.11 of OWCP’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP’s procedures further provide that the party seeking modification of a
formal loss of wage-earning capacity decision has the burden to prove that one of these criteria
has been met. If OWCP is seeking modification, it must establish that the original rating was in
error, that the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.13 It is not precluded from adjudicating a limited period of employment-related
disability when a formal wage-earning capacity determination has been issued.14
ANALYSIS
Applicable case law and OWCP’s procedures require that once a formal wage-earning
capacity decision is in place, a modification of such determination is not warranted unless there
is a material change in the nature and extent of the injury-related condition, the employee has
been retrained or otherwise vocationally rehabilitated or the original determination was, in fact,
erroneous.15 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.16
On appeal, appellant asserts that the June 2, 2011 wage-earning capacity was erroneous
because he was medically incapable of performing the duties of the selected position. The Board
finds that he did not submit sufficient evidence to show error in OWCP’s June 2, 2011 wageearning capacity determination. OWCP found that the weight of the medical evidence rested
with the opinion of Dr. Quiñones, an OWCP referral pulmonologist. In his February 10, 2010
report, Dr. Quiñones noted his review of the medical record, described physical examination and
spirometry test findings and advised that his examination findings indicated normal pulmonary
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (October 2009).
11

Stanley B. Plotkin, 51 ECAB 700 (2000).

12

Id.

13

See Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.814.11 (October 2009).

14

Sandra D. Pruitt, 57 ECAB 126 (2005).

15

Stanley B. Plotkin, supra note 11.

16

Id.

5

function with no sign of pulmonary impairment. He diagnosed vasomotor rhinitis, perhaps
allergic; moderate obesity; and hypertension. With regard to work ability, Dr. Quiñones stated
that appellant should not return to his previous occupation because of sensitivity in the laboratory
environment and opined that appellant was capable of performing sedentary or light-duty work
in an environment where he is not exposed to strong or noxious smells or to rodents or their
bedding.
The contemporaneous medical evidence submitted by appellant prior to the June 2, 2011
wage-earning capacity determination consisted of reports from his hospitalizations at South
Baldwin Regional Medical Center. This included reports of consultations with Drs. McAtee,
Stinebaugh and Storey. While these physicians described appellant’s cardiovascular condition,
none rendered an opinion on any physical restrictions or work abilities and none advised that he
was totally disabled. The desk clerk position requires a light strength level.17 As the record does
not support that the selected position was outside the restrictions provided by Dr. Quiñones, there
is no evidence that OWCP committed error by its June 2, 2011 decision.18
As to the medical evidence submitted by appellant with his requests for modification,
Dr. Caputo’s report predated the June 2, 2011 wage-earning capacity determination by three
years and is therefore of diminished probative value regarding appellant’s condition in 2011.
Dr. McAtee, Dr. Grant, Dr. Jaeger and Dr. Dearing did not discuss appellant’s physical
restrictions or work abilities.
There is no evidence of record that appellant was retrained or otherwise vocationally
rehabilitated. The medical evidence submitted by him is insufficient to show that there was a
material change in the nature and extent of the injury-related condition such that the June 2, 2011
decision should be modified. OWCP therefore properly denied modification of the January 21,
2009 wage-earning capacity determination.19
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to modify the June 2,
2011 wage-earning capacity decision.20

17

Supra note 5.

18

See Darletha Coleman, 55 ECAB 143 (2003).

19

T.M., Docket No. 08-975 (issued February 6, 2009).

20

The Board notes that appellant submitted evidence subsequent to the March 12, 2013 decision to OWCP and
with his appeal to the Board. The Board cannot consider this evidence as its review of the case is limited to the
evidence before OWCP at the time it rendered its final decision. 20 C.F.R. § 501.2(c); Sandra D. Pruitt, supra
note 14.

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ORDER
IT IS HEREBY ORDERED THAT the March 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
F.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH CARE SYSTEMS,
Biloxi, MS, Employer
___________________________________________

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

Docket No. 10-1398
Issued: May 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 27, 2010 appellant filed a timely appeal of a March 19, 2010 decision of the
Office of Workers’ Compensation Programs that affirmed the denial of her claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition or an occupational disease in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record contains a March 31, 2010 decision; however, appellant’s representative has not appealed this
decision.

FACTUAL HISTORY
On November 7, 2008 appellant, then a 40-year-old licensed practical nurse, filed an
occupational disease claim alleging that she sustained stress and post-traumatic stress when she
was harassed and stalked by a coworker. The employing establishment noted that appellant
stopped work on November 3, 2008.
An October 11, 2008 uniform offense report described an incident involving appellant
and a coworker, Leslie Davis,3 on that date. Ms. Davis pulled appellant’s purse out of her hand
and took a tape recorder out of the purse claiming that appellant was taping conversations
regarding work shift activities. Appellant confirmed that she had a tape recorder and an iPod in
her purse but that there was no tape in the recorder. She submitted a November 1, 2008 e-mail to
her supervisors claiming chest pains because Ms. Davis was on the property and appellant was
concerned for her safety.
In a November 3, 2008 statement, Karen Hanson, a nurse manager, advised that, on that
day, appellant informed Ms. Hanson that her blood pressure was elevated as she “heard
Ms. Davis-Smith was on station Monday October 27, 2008 and no one had notified her.” She
noted that appellant was fearful and was instructed to keep her distance from Ms. Davis until the
issue was resolved. Ms. Hanson stated that appellant was given an option to work in another
unit. Appellant advised that “she was just under so much stress, her aunt was dying and the
incident with Ms. Davis-Smith had her jumping out of her skin.” Ms. Hanson referred appellant
to the employee assistance program. On November 6, 2008 she controverted the claim.
Ms. Hanson noted that appellant had a chronic health condition requiring monthly intravenous
immunoglobulin, hypertension requiring medication, sleep apnea and hypothyroidism. She
advised that appellant was on a job reassignment due to an August 2007 job injury and that
management was available at all times to resolve personnel issues.
In an undated statement received December 29, 2008, appellant noted being harassed by
Ms. Davis. She met with Ms. Hanson on October 7, 2008 to discuss her performance and two
reports of contact with Ms. Davis. Appellant stated that Ms. Davis sat in on the meeting and
harassed and bullied her. Ms. Davis told appellant that, if she had a problem with her, she should
talk to her and not Ms. Hanson. Appellant noted that Ms. Davis abruptly left the meeting to get
the union president. On October 11, 2008 Ms. Davis yelled, “you better watch out there has
been some complaints about people coming by for visits, that they better watch out, that they
would be reported.” She told appellant that she “should be on the floor working.” Appellant
told Ms. Davis that she was “her coworker and not her boss” and to mind her own business and
to stop following her. She told Ms. Davis to get out of her way and Ms. Davis told her that she
was “white trash” and nothing that she did or said mattered to anyone. Appellant changed shifts
to avoid Ms. Davis. She also referred to the October 11, 2008 tape recorder incident. Ms. Davis
told appellant that she was “going to jail” and called the police. Appellant asserted that
Ms. Davis blocked her from the restroom and took a picture of her with her cell phone while a
police officer was speaking to her.

3

She is also known as Leslie Davis-Smith.

2

In November 4, 2008 and January 7, 2009 reports, Daniel L. Koch, PhD, a licensed
clinical psychologist, placed appellant on sick leave. On January 22, 2009 he noted examining
her on November 4, 2008 for complaint of “nervousness, anger, sleep, relaxation, energy, bowel
problems, depression, stress, headaches, memory, insomnia, nightmares, fears, unhappiness,
work, tiredness, making decisions, concentration, health problems and stomach trouble.”
Appellant reported a work-related incident that caused her severe stress and that she might be
experiencing post-traumatic stress disorder. Dr. Koch noted that she had significant levels of
anxiety and depression consistent with post-traumatic stress disorder. Appellant felt that she was
persecuted. Dr. Koch diagnosed major depression, recurrent, severe without psychotic features
and post-traumatic stress disorder.
By decision dated February 3, 2009, the Office denied the claim. It found that the
medical evidence did not support that appellant’s emotional condition was due to work-related
events.
Appellant requested a hearing. On April 28, 2009 an Office hearing representative found
the case not in posture for a decision.4 The hearing representative directed the Office to submit
appellant’s additional statement to the employer for comments and make appropriate findings
regarding which claimed incidents were compensable work factors.
On June 1, 2009 the Office received an undated statement from Ms. Hanson, who
described the October 7, 2008 incident pertaining to appellant’s performance appraisal and two
reports of contact appellant had written concerning her coworker. Ms. Hanson noted that the
coworker entered her office and asked appellant “if she had a problem with her.” Appellant
responded that she did and they raised their voices. Ms. Hanson wanted to settle the matter but
the coworker became upset and left the office to contact the union. She was later advised that
the meeting should end and another meeting be scheduled. Ms. Hanson noted that both
employees worked together the following weekend and an incident arose in which the police
were called by the coworker, who claimed that appellant was taping their conversations. The
coworker blocked appellant’s exit from the office. Appellant alleged that the coworker took a
photo of her with her cell phone. Ms. Hanson noted that appellant went to the employee health
unit during this time alleging elevated blood pressure. Appellant worked with the team which
had been functioning with only three members for a year or more, although there were issues
with the interaction of the team members. Ms. Hanson offered to assign each employee to
separate buildings and offered appellant an opportunity to work in the intensive care unit to
minimize interactions; however, appellant stated that “this was not good enough.”
On July 13, 2009 the Office claims examiner held a teleconference with the employer. It
confirmed that Ms. Hanson was appellant’s supervisor but that appellant no longer worked at the
employing establishment. Regarding the October 7, 2008 incident, Ms. Hanson explained that
appellant came in to review her performance appraisal and two reports of contact she had filed.
One of the reports was about Ms. Davis having visitors in the office and appellant wanted more
information about the visitors. The other report was about Ms. Davis harassing appellant who
4

The hearing representative noted that, while the Office found that the medical evidence was insufficient to
establish that a medical condition was due to the established work events, it did not identify what work events were
established as it made no specific findings about working conditions that were compensable employment factors.

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alleged that Ms. Davis told her that she was going to send her to another building. Appellant
confirmed that Ms. Davis, who was standing outside the office door, came in and asked appellant
if she had a problem with her. She stated that she did and an altercation started. Ms. Hanson
noted that Ms. Davis walked out of the office and stated that she was going to a union
representative about the incident. Regarding the October 11, 2008 allegation that Ms. Davis
blocked appellant either in the hallway or at the bathroom, Ms. Hanson advised that, on July 31,
2009, the police responded to the hallway/bathroom incident and a report was filed.
The Office received a May 21, 2009 report from Dr. Koch, who opined that “the distress
seemed to arise from a work[-]related incident which was very menacing and threatening.”
Dr. Koch diagnosed post-traumatic stress disorder and advised that appellant was feeling
persecuted. He indicated that “no accommodation offered in the work force for [her] to return to
gainful employment in a safe secure environment.”
On September 18, 2009 the Office referred appellant for a second opinion to
Dr. Robert Benson, a Board-certified psychiatrist.5 In an October 15, 2009 report, Dr. Benson
noted her history including the October 11, 2008 tape recorder incident with a coworker. On
examination, appellant was aware of her current circumstances, had no evidence of memory
deficit, displayed average intellectual ability and reported her story in a logical and coherent
manner. Dr. Benson also noted a long history of treatment for attention-deficit hyperactivity
disorder. While Dr. Koch documented problems with concentration and focus, he overlooked
appellant’s prior history of treatment for these conditions. Dr. Benson explained that the
reported anxiety symptoms would not meet criteria for any other DSM IV diagnosis.
Appellant’s current financial problems were a stressor sufficient to explain her current anxiety.
Dr. Benson determined that while she felt threatened by her coworker, the threat dissipated when
she was out of her presence. He found that appellant did not have a work-related emotional
condition.
In an October 23, 2009 decision, the Office denied the claim, noting that the October 11,
2008 incident occurred in the performance of duty.6
On November 6, 2009 appellant’s representative requested a telephonic hearing, which
was held on February 1, 2010. He indicated that additional medical evidence would be
submitted; but none was received.
By decision dated March 19, 2010, the Office hearing representative affirmed the
October 23, 2009 decision.

5

The statement of accepted facts found that the October 11, 2008 altercation, in which the employing
establishment police responded to a call involving appellant and Ms. Davis, in which Ms. Davis pulled appellant’s
purse out of her hand and removed a tape recorder occurred in the performance of duty.
6

It found that the October 7, 2008 verbal altercation was related to appellant’s written report of contact regarding
Ms. Davis’ visitors and was an administrative issue concerning the employer’s office rules/procedures which were
not compensable. It found that the other incidents alleged by appellant concerning Ms. Davis were not established.
The Office found that Dr. Benson’s report determined that appellant’s financial problems caused her current anxiety.

4

LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) medical evidence establishing an emotional or psychiatric disorder; (2) factual evidence
identifying those employment factors or incidents alleged to have caused or contributed to the
condition; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to the emotional condition.7
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or 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 regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Act. On the other hand the disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force or his frustration
from not being permitted to work in a particular environment or to hold a particular position.8
Larson states that assaults arise out of the employment either if the risk of assault is
increased because of the nature or setting of the work or if the reason for the assault was a
quarrel having its origin in the work. Assaults for private reasons do not arise out of the
employment unless, by facilitating as assault that would not otherwise be made, the employment
becomes a contributing factor.9 The Board has held that this principle applies to mental or
emotional injuries as well as to assaults.10 As with assaults, when the subject matter of a verbal
altercation is imported into the employment from a claimant’s domestic or private life and there
is no indication that work contributed to or facilitated the dispute, the dispute is not a
compensable factor of employment and any injury resulting there from does not arise out of
employment.11
ANALYSIS
Appellant alleged that she sustained an emotional condition due to a number of
employment incidents and conditions. The Board must initially review whether the alleged
incidents of employment are compensable factors under the terms of the Act.
With respect to the regular or specially assigned duties as a nurse, the record supports that
while appellant was performing her duties on October 11, 2008, an altercation occurred when
Ms. Davis pulled her purse out of her hand and took a tape recorder out of the purse. Ms. Davis
claimed that appellant was taping conversations regarding work activities. Ms. Hanson
7

George C. Clark, 56 ECAB 162 (2004).

8

Lillian Cutler, 28 ECAB 126 (1976).

9

A. Larson, The Law of Workers’ Compensation § 8.00 (May 2004).

10

Monica M. Lenart, 44 ECAB 772, 774 n.5 (1993).

11

See Edward Savage, Jr., 46 ECAB 346 (1994).

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confirmed that the incident occurred. The Board finds that this altercation occurred in the
performance of duty. The Board has held that workplace altercations occur in the performance
of duty where the work brings the two together and creates the conditions that result in the
altercation.12 The Board has recognized that friction and strain may arise as an inherent part of
the conditions of employment.13 In this case, the reason for the altercation originated from the
workplace, i.e. it was related to her shift activities.14 Work brought the two together and created
the conditions that resulted in the altercation; therefore, the incident occurred in the performance
of duty. The Board finds that the October 11, 2008 altercation arose out of appellant’s
employment and constitutes a compensable work factor under Cutler.15
Appellant also made an allegation related to administrative and personnel actions. In
Thomas D. McEuen,16 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employer is not covered under the Act as such matters
pertain to procedures and requirements of the employer and do not bear a direct relation to the
work required of the employee. The Board noted, however, that coverage under the Act would
attach if the factual circumstances surrounding the administrative or personnel action established
error or abuse by the employing establishment superiors in dealing with the claimant. Absent
evidence of such error or abuse, the resulting emotional condition must be considered selfgenerated and not employment generated. In determining whether the employer erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.17
Appellant alleged that, on October 7, 2008, she was in a meeting with Ms. Hanson to
review her performance appraisal and two reports of contact between herself and Ms. Davis. She
alleged that Ms. Davis came into the meeting and asked her if she had a problem with her, she
should just talk to her and not go to Ms. Hanson. Thereafter, Ms. Davis abruptly left and
requested union representation. Ms. Hanson confirmed that she was meeting with appellant to
discuss performance and two reports of contact related to Ms. Davis when Ms. Davis entered her
12

See C.O., Docket No. 09-217 (issued October 21, 2009).

13

The friction and strain doctrine recognizes that workplace employees under strains and fatigue from human and
mechanical impacts creating frictions, which explode in myriads of ways, only some of which are immediately
relevant to their tasks. Personal animosities are created by working together on the assembly line or in traffic.
Others initiated outside the job are magnified to the breaking point by its compelled contacts. No worker is immune
to these pressures and impacts upon temperament. They accumulate and explode over incidents trivial and
important, personal and official. However, the explosion point is merely the culmination of antecedent pressures.
That it is not relevant to the immediate task, involves a lapse from duty or contains an element of violation or
illegality does not disconnect it from them nor nullify their causal effect in producing its injurious consequences. A.
Larson, supra note 9 at § 801(6)(a). The Board has recognized the friction and strain doctrine. See Shirley Griffin,
43 ECAB 573 (1992). See also M.A., Docket No. 08-2510 (issued July 16, 2009). See also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.12(b) (March 1994) (Coworker
Harassment or Teasing).
14

See supra notes 9, 11.

15

See supra note 8.

16

41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

17

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

6

office and asked appellant “if she had a problem with her.” She confirmed that Ms. Davis
became upset and left the office. Ms. Hanson clarified that one of the reports of contact was
about Ms. Davis having visitors in the office and appellant wanted more information about the
visitors and the other one was about Ms. Davis harassing her and slandering coworkers, staying
late in the office and following her around. She noted that the allegations were never
substantiated. The Board notes that a discussion of performance and administrative reports or
complaints would not be a factor of employment as it is an administrative matter. The employer
responded to appellant’s complaints in connection with her allegations. The record reflects that
the employing establishment reasonably took action that it deemed appropriate. The Board also
finds that a raised voice in the course of a conversation does not, in and of itself, warrant a
finding of verbal abuse.18 The evidence does not establish error or abuse by the employing
establishment in this matter.
Appellant also alleged that she was harassed and stalked by her coworker. To the extent
that disputes and incidents alleged as constituting harassment and discrimination by supervisors
and coworkers are established as occurring and arising from appellant’s performance of her
regular duties, these could constitute employment factors.19 However, for harassment or
discrimination to give rise to a compensable disability under the Act, there must be evidence that
harassment or discrimination did in fact occur. Mere perceptions of harassment or
discrimination are not compensable under the Act.20 The employing establishment has denied
that appellant was harassed or discriminated against and she has not submitted sufficient
evidence to establish her allegations.21
Appellant alleged that she feared for her safety and alleged that she changed shifts to
avoid Ms. Davis. She sent an e-mail to her supervisors on November 1, 2008 advising that her
coworker was on property. Appellant did not describe in detail an alleged act of harassment or
unfair treatment by Ms. Davis on that date. Ms. Hanson, on November 3, 2008, did not note any
particular incidents of inappropriate behavior by Ms. Davis. She advised appellant of options
she could take including the employee assistance program. There were no specific incidents that
are established as occurring on or about November 1, 2008 showing that harassment did in fact
occur. An employee’s dissatisfaction with working in an environment which is considered to be
tedious, monotonous, boring or otherwise undesirable constitutes frustration from not being
permitted to work in a particular environment or to hold a particular position and is not
compensable under the Act.22 Appellant has not established a compensable factor in this regard.
Appellant also alleged that Ms. Davis made several comments that she believed were
harassment or verbal abuse. They included that Ms. Davis yelled “better watch out there has
18

C.T., Docket No. 08-2160 (issued May 7, 2009).

19

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

20

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

21

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
22

See David M. Furey, 44 ECAB 302, 305-06 (1992).

7

been some complaints about people coming by for visits that they better watch out, that they
would be reported”; Ms. Davis reportedly calling her “white trash;” Ms. Davis criticizing,
ridiculing or degrading her; Ms. Davis blocking appellant from exiting the restroom; Ms. Davis
stalking and following appellant; that appellant changed shifts to avoid Ms. Davis; and that
Ms. Davis took a picture of appellant with her cell phone. However, appellant has provided no
corroborating evidence, such as witness statements, to establish that the particular statements
actually were made or that the actions actually occurred at specific times. Ms. Hanson advised
that the allegations were not supported. As noted, mere perceptions of harassment are not
compensable. The Board has held that, while verbal abuse may constitute a compensable factor
of employment, not every statement uttered in the workplace will be covered by the Act.23 The
evidence does not support a compensable factor of employment in this regard.
In the present case, appellant has established one compensable factor of employment, the
October 11, 2008 incident where Ms. Davis grabbed appellant’s purse and pulled a tape recorder
out of it. However, her burden of proof is not discharged by the fact that she has established an
employment factor which may give rise to a compensable disability under the Act. To establish
her occupational disease claim for an emotional condition, appellant must also submit rationalized
medical evidence establishing that she has an emotional or psychiatric disorder and that such
disorder is causally related to the accepted compensable employment factor.24
Appellant submitted several reports from Dr. Koch. In a January 7, 2009 report, Dr. Koch
advised that she reported “a work[-]related incident” that caused severe stress. However, he did
not specifically describe the October 11, 2008 incident and explain how that incident caused or
aggravated a diagnosed emotional condition. Likewise, in a May 22, 2009 report, Dr. Koch
noted that appellant had work problems and noted “a work[-]related incident which was very
menacing and threatening” but he did not identify the October 11, 2008 incident and explain how
it caused or aggravated a diagnosed emotional condition. Other reports from Dr. Koch also did
not address the October 11, 2008 work incident. As these reports do not explain how the
October 11, 2008 incident caused or aggravated the claimed emotional condition, they are
insufficient to meet appellant’s burden of proof.25
Furthermore, Dr. Benson, an Office referral physician, reviewed a statement of accepted
facts and examined appellant. In an October 15, 2009 report, he opined that she did not have a
work-related emotional condition and opined that her current financial problems were a stressor
that explained her current anxiety problems.
The record does not contain any other medical evidence to establish that appellant
sustained an emotional condition due to the established employment factor.

23

C.T., supra note 18.

24

See William P. George, 43 ECAB 1159, 1168 (1992).

25

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. S.E., Docket No. 08-2214 (issued May 6, 2009).

8

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition or an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saddle Brook, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1495
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On August 3, 2020 appellant, through counsel, filed a timely appeal from a March 6, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The case record contains August 13, 2019 and January 16, 2020 decisions in which OWCP denied appellant’s
request that the acceptance of her claim be expanded to include additional cervical conditions causally related to her
accepted February 24, 2015 employment injury. As more than 180 days has elapsed from the issuance of these
decisions to the filing of this appeal, the Board lacks jurisdiction over the denial of appellant’s expansion claim. See
20 C.F.R. §§ 501.2(c) and 501.3.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 22, 2018, as she no longer had
disability or residuals causally related to her accepted February 24, 2015 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing disability or residuals
after September 22, 2018 causally related to her accepted February 24, 2015 employment injury.
FACTUAL HISTORY
On March 2, 2015 appellant, then a 23-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 24, 2015 she sustained a back injury when she slipped and
fell on ice while in the performance of duty. She stopped work on February 25, 2015. In
March 2015 appellant first returned to work after her original work stoppage and, in May 2015,
she stopped work again. OWCP paid her wage-loss compensation for disability from work on the
supplemental rolls for the period May 18 through December 22, 2015.
On January 14, 2016 Dr. Marc Cohen, a Board-certified orthopedic surgeon, performed
OWCP-authorized back surgery, including open laminectomy and lateral recess decompression at
L5-S1, and posterolateral discectomy at L3-4 and L5-S1. In April 2016 appellant returned to lightduty work on a full-time basis.
OWCP accepted appellant’s claim for intervertebral disc disorders of the lumbosacral
region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of the cervical
region.
In a November 5, 2017 report, Dr. Michael Binder, a Board-certified anesthesiologist,
noted that appellant primarily complained of neck and lower back pain. He indicated that, upon
physical examination, appellant exhibited diminished range of motion of the cervical and lumbar
spine. Dr. Binder diagnosed left cervical post-traumatic sprain/strain; left cervical radiculopathy
at C6 versus bilateral cervical post-traumatic facet syndrome at the C4-5, C5-6, and C6-7; lumbar
post-traumatic sprain/strain; and left lumbar radiculopathy at L3-4 versus bilateral lumbar posttraumatic facet syndrome at the L3-4, L4-5, and L5-S1. He opined that these conditions were
related to the February 24, 2015 employment injury.
In March and July 2018 OWCP referred appellant for second opinion examinations and
evaluations with Dr. Melvin Vigman, a Board-certified neurologist, and Dr. Andrew Farber, a
Board-certified orthopedic surgeon. It provided each physician with a statement of accepted facts
(SOAF) and a series of questions and requested that they provide an opinion regarding whether
appellant continued to have disability or residuals causally related to her accepted February 24,
2015 employment injury.
In an April 5, 2018 report, Dr. Vigman discussed appellant’s factual and medical history,
noting that the SOAF indicated that the accepted conditions were “intervertebral discs disorders
with radiculopathy, lumbar region L3-4 and L4-5 and cervical region and dorsopathy.” He further
noted, “I presume that means dorsal spine.” Dr. Vigman advised that appellant currently
complained of back pain and shooting pain into the left lateral thigh. He reported the findings of
the physical examination he performed on April 4, 2018, noting that appellant’s upper extremity
examination showed normal strength in all muscle groups proximally and distally, normal
2

cutaneous sensation at dermatomes C5 through C8, and 1+ reflexes. On lower extremity
examination, appellant had normal strength in all muscle groups proximally and had normal
cutaneous sensation dermatomes L3 through S1 bilaterally. Dr. Vigman noted that, on flexing her
lower back to 90 degrees, appellant complained of left paraspinal discomfort. He provided a
diagnosis of no neurological disease, damage, or dysfunction.
After his review of the medical records, Dr. Vigman opined that there did not appear to
have been a true indication for the January 14, 2016 lumbar surgery. He indicated that the
magnetic resonance imaging (MRI) scans of record obtained on the date of injury demonstrated a
normal lumbar MRI scan and did not indicate that there were herniated lumbar discs and did not
confirm central spinal stenosis. Dr. Vigman maintained that these diagnoses were used to justify
the surgery, but that the surgery was not done for neurological purposes. He indicated that the
“objective aspects of the case are totally normal neurologically” and did not support the subjective
symptomatology. Dr. Vigman indicated that the lumbar spine MRI scans of record “did not
support neurological problems in this case.” He noted “the current diagnoses” from a neurological
standpoint did not exist and there was no neurological diagnosis, neurological damage, or
dysfunction. Dr. Vigman indicated, “[i]n my opinion, the question of the work-related conditions
having resolved: the work-related conditions never caused a neurological problem. Appellant has
reached maximum medical improvement [MMI] neurologically with no permanency.”
Dr. Vigman noted that, from a neurological standpoint, appellant was capable of full-time work
without any restrictions. In an April 4, 2018 work capacity evaluation (Form OWCP-5c), he
indicated that appellant was able to perform her regular job without restrictions.
In a July 2, 2018 report, Dr. Farber discussed appellant’s factual and medical evidence,
noting that she continued to complain of radicular symptoms in her left upper and left lower
extremities. He noted that, upon physical examination of the cervical spine, appellant was
nontender about the cervical spine and had a negative Spurling’s test. Upon examination of the
lumbar spine, there was no erythema or evidence of infection around the incision area from the
January 14, 2016 lumbar surgery and straight leg raising was negative bilaterally. Dr. Farber did
not find neurovascular deficits of the extremities. He indicated that appellant was not presently
suffering from disabling residuals of the accepted conditions and did not have a “current disability
based on the examination of today.” Dr. Farber concluded that appellant did not require further
medical treatment as she had reached MMI and was capable of returning to her date-of-injury work
without restrictions. In a July 2, 2018 Form OWCP-5c, he indicated that appellant was able to
perform her regular job without restrictions.
OWCP then requested that Dr. Farber clarify his July 2, 2018 report by providing a more
detailed discussion regarding appellant’s work-related residuals and disability. In a July 25, 2018
supplemental report, Dr. Farber indicated that appellant was not presently suffering from disabling
residuals of the accepted conditions based upon the July 2, 2018 physical examination. He noted
that, upon examination of the cervical spine, she was nontender about the cervical spine, range of
cervical motion was normal in all planes, and Spurling’s test was negative. Examination of the
lumbar spine revealed no erythema or evidence of infection and normal range of motion during
extension and side bending. Dr. Farber advised that flexion was decreased, a finding he believed
was normal given that appellant was status post lumbar laminectomy. Appellant had negative
straight leg raise bilaterally and there was no evidence of radiculopathy on examination.
Dr. Farber indicated that appellant had reached MMI and there was no need for further treatment.
He opined that appellant was not disabled and was capable of returning to her date-of-injury job
without restrictions.
3

In a notice dated July 26, 2018, OWCP advised appellant that it proposed to terminate her
entitlement to wage-loss compensation and medical benefits as she no longer had residuals or
disability causally related to her accepted February 24, 2015 employment injury. It informed her
that the weight of the medical opinion evidence regarding work-related residuals/disability rested
with the opinions of Dr. Vigman and Dr. Farber, OWCP’s referral physicians. OWCP provided
appellant 30 days to submit evidence and argument challenging the proposed termination action.
Appellant submitted an August 20, 2018 report in which Dr. Cohen indicated that, after the
January 14, 2016 surgery, she did have improvement with reduction in some of her leg pain , but
still had residual issues with respect to numbness and intermittent pain in the left leg. Dr. Cohen
further explained, “[u]nfortunately the patient was left with persistent back and left leg
radiculopathy…. She had pain going from the buttocks to the thigh to the calf to the foot with
associated tingling and numbness.” Dr. Cohen noted that appellant was left with a two-level
lumbar disc surgery that caused “functional and work-related permanency” with respect to her
ability to forward and laterally bend, to lift, and to sit or stand in one position for any extreme
period. Regarding appellant’s post-surgery condition, he opined that appellant’s injuries were
permanent in nature and that appellant was unable to return back to her job without restrictions.
Dr. Cohen noted that he was completely in disagreement with the opinions of Dr. Vigman and
Dr. Farber, which had been provided to him.
By decision dated September 21, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective September 22, 2018, as she no longer had disability
or residuals causally related to her accepted February 24, 2015 employment injury.
On October 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During a hearing held on January 29,
2019, counsel argued that the opinions of Dr. Vigman and Dr. Farber were not well rationalized,
or in the alternative, there was a conflict in the medical opinion evidence between their reports and
those of appellant’s attending physicians, Dr. Binder and Dr. Cohen.
OWCP received a January 3, 2019 report from Dr. Joseph W. Dryer, a Board-certified
orthopedic surgeon, who indicated that appellant did not sustain any permanent lumbar injuries
due to the February 24, 2015 accident.
By decision dated April 4, 2019, OWCP’s hearing representative affirmed the
September 21, 2018 termination decision.4
By decision dated March 6, 2020, OWCP denied modification of its April 4, 2019
termination decision.

4

OWCP’s hearing representative also found that there was a conflict in the medical opinion evidence regarding
appellant’s expansion claim and remanded the case to OWCP for further development, including referral of appellant
for an impartial medical examination. Based on the July 18, 2019 report of Dr. Lydia Shajenko, a Board-certified
neurologist serving as an impartial medical examiner (IME), OWCP issued August 13, 2019 and January 16, 2020
decisions denying appellant’s request that the acceptance of her claim be expanded to include additional cervical
conditions causally related to her accepted February 24, 2015 employment injury. As noted above, the Board lacks
jurisdiction over the denial of appellant’s expansion claim. See supra note 3.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.
In his April 5, 2018 report, Dr. Vigman determined that appellant did not have any
residuals of her accepted employment injuries and could return to her date -of-injury job without
restrictions. However, he did not provide any notable discussion of the conditions accepted in
connection with the February 24, 2015 employment injury, i.e., intervertebral disc disorders of the
lumbosacral region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of
the cervical region. Dr. Vigman did not provide any discussion of when and how the accepted
employment injuries had resolved.
Moreover, in portions of his report, Dr. Vigman suggested that appellant did not actually
sustain all of the accepted employment conditions. He noted, “[i]n my opinion, the question of
the work-related conditions having resolved: the work-related conditions never caused a
neurological problem.” Dr. Vigman indicated that the magnetic resonance imaging (MRI) scans
of record obtained on the date of injury demonstrated a normal lumbar MRI scan and did not
indicate that there were herniated lumbar discs and therefore did not confirm central spinal
stenosis. However, OWCP had accepted that appellant sustained a lumbar condition that could be
characterized as having caused a neurological problem, i.e., the accepted lumbar radiculopathy
stemming from the L3-4 and L5-S1 discs. In addition, Dr. Vigman provided an opinion that the
January 14, 2016 lumbar surgery, which was authorized by OWCP was not necessitated by an
accepted employment injury. The Board has held that the findings of an OWCP referral physician
or IME must be based on the factual underpinnings of the claim, as set forth in the SOAF. 8
OWCP’s procedures provide that when an OWCP referral physician, IME, or district medical
adviser (DMA) renders a medical opinion based on an SOAF, which is incomplete or inaccurate
or does not use the SOAF as the framework in forming his or her opinion, the probative value of

5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See A.D., Docket No. 20-0553 (issued April 19, 2021).

5

the opinion is seriously diminished or negated altogether. 9 Given his failure to acknowledge all
the accepted employment conditions, Dr. Vigman’s opinion is of diminished probative value.
The Board further finds that Dr. Farber’s opinion also is not sufficiently well-rationalized
to justify the termination of appellant’s entitlement to wage-loss compensation and medical
benefits, effective September 22, 2018. Dr. Farber indicated, in reports dated July 2 and 25, 2018,
that appellant did not have any residuals of her accepted employment injuries and could return to
her date-of-injury job without restrictions. However, his opinion in this regard consisted of brief
conclusory statements without adequate explanation. Dr. Farber also did not provide any notable
discussion of the conditions accepted in connection with the February 24, 2015 employment injury
or explain when and how these conditions had resolved. In fact, in a portion of his July 25, 2018
report, he suggested that appellant still had residuals of the OWCP-authorized January 14, 2016
lumbar surgery. Dr. Farber advised that appellant’s lumbar flexion was decreased, a finding he
believed was related to that lumbar surgery. After Dr. Farber produced his July 2, 2018 report,
OWCP requested that he provide a supplemental report, which included a more detailed discussion
regarding appellant’s work-related residuals and disability. However, the July 25, 2018
supplemental report did not provide significant additional discussion in this regard and essentially
summarized examination findings contained in his July 2, 2018 report.
For these reasons, the Board finds that OWCP did not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective September 22, 2018.10
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3a(10)
(October 1990).
10

In light of the Board’s finding regarding Issue 1, Issue 2 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the March 6, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
SOCIAL SECURITY ADMINISTRATION, SSA
REGION VII, Kansas City, MO, Employer
__________________________________________

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

Docket No. 13-660
Issued: November 6, 2013

Case Submitted on the Record

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

JURISDICTION
On January 28, 2013 appellant, through her attorney, filed a timely appeal from an
August 16, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
bilateral wrist, hand, shoulder and neck conditions causally related to factors of her federal
employment as a social insurance specialist claims representative.
FACTUAL HISTORY
On August 2, 2010 appellant filed a traumatic injury claim (Form CA-1) alleging that she
developed bilateral neuritis, bilateral carpal tunnel syndrome (CTS), bilateral epicondylitis,
1

5 U.S.C. § 8101 et seq.

tenosynovitis of the hand and wrist and shoulder conditions as a result of her federal employment
duties as a social insurance specialist claims representative.2 She stated that her symptoms began
on December 7, 1999 and on April 5, 2010, after being returned to full-duty regular rotation
without restrictions,her conditions became more pronounced due to the increased motion of her
wrists.3 Appellant retired on November 30, 2010.
This case has previously been before the Board. On April 20, 2010 appellant filed a
notice of recurrence (Form CA-2a) after being placed on full duty April 5, 2010. On appeal, the
Board affirmed OWCP’s November 18, 2010 denial of her recurrence claim.4 The Board found
that the evidence had not established either a change in the nature or extent of appellant’s
light-duty restrictions or a change in her work-related condition.
Appellant reported that activities from wrist and hand motions were affecting her elbows,
arms and shoulders. The activities she attributed to her condition included keyboarding, typing,
using calculators, the telephone, going through papers and files, writing, folding and stuffing
envelopes, entry between workstations, opening and closing file drawers and locking and
unlocking secured keyboards. Appellant stated that, though her employing establishment
provided devices and software to assist her disability, she was still using her wrists and hands.
Using the microphone provided for the software still required her hands to remain on the
keyboard to continuously push two buttons off and on in order to work the software. Thus,
appellant stated that the accommodations provided to her were ineffective.
By letters dated May 4 and August 13, 2010, the employing establishment controverted
the claim. It noted that,although appellant stated a date of injury of December 7, 1999, she did
not begin working at her current position until January 2006.The employing establishment
confirmed that she had returned to her regular duties on April 5, 2010, but had been on leave
without paysince August 2, 2010. It stated appellant’s treating physician, Dr. John B. Moore,
found her capable of performing her usual job with restrictions of using her wrists for repetitive
movements for 4 hours a workday and taking a 10-minute break after 30 minutes of typing. The
employing establishment had provided herwith voice recognitionsoftware for hands-free access
to the computer and noted that this software had been successfully used by other similarly
situated claims representatives in the employing establishment. The software would have
allowed her to perform the full range of her duties without having to use her hands in excess of
the restrictions imposed by her physician. If appellant had properly used the software, she would
not have needed to continuously push buttons or type. It also noted that, although she was on
duty after April 5, 2010, she rarely was in the office, due to frequent use of annual or sick leave.
Nevertheless, on July 14, 2010 appellant accepted the agency’s offer to continue her permanent
2

Although appellant filed a Form CA-1, OWCP treated her claim as an occupational injury as appellant described
a condition produced by her work environment over a period longer than a single workday or shift. 20 C.F.R.
§ 10.5(q).
3

OWCP had accepted her claim for bilateral CTS and bilateral lateral epicondylitis, Claim No.xxxxxx960.
On June 16, 2008 the claim was expanded to include right wrist tenosynovitis and on April 10, 2009 OWCP also
accepted bilateral nerve neuritis. Appellant’s claims have been combined with Claim No. xxxxxx960 as the
master file.
4

Docket No. 11-527 (issued April 9, 2012).

2

full-time employment as a claims representative with the accommodations of the voice
recognition software.5Relevant medical reports in the record include a March 20, 2007 diagnostic
report by Dr. Milton R. Wolf, a Board-certified diagnostic radiologist,finding a C6-7 small
posterior broad based disc protrusion with mild central canal narrowing, following a magnetic
resonance imaging (MRI) scan of the cervical spine.
In medical reports dated September 14 to October 19, 2007, Dr. Michael J. Schwartzman,
a physician of osteopathic medicine, reported that appellant sustained a nonemployment-related
motor vehicle accident on July 6, 2006 when she was hit from behind and sustained a whiplash
injury. Immediately, following the accident she began experiencing neck and shoulder pain,
upper thoracic discomfort and numbness and tightness in the arms. After seeking physical
therapy and chiropractic treatment, shecomplained of ongoing neck and shoulder pain, stiffness,
spasms and intermittent achiness in her forearms, wrists and fingers. The pain and numbness
were aggravated when using her hands, such as typing and the numbness in her fingertips was
aggravated by repetitive motion. Dr. Schwartzman diagnosed cervical sprain and recurrent
bilateral CTS. In an October 19, 2007 report, he reported that appellant remained off work and
despite eliminating repetitive motions from work, she continued to experience hand numbness
and pain.
In a January 27, 2009 medical report, Dr. John B. Moore IV, a Board-certified hand
surgeon, reported that appellant underwent carpal tunnel release and, based on her subjective
reports of pain when typing, provided restrictions of no keyboarding for more than 4 hours total
per day and a 10-minute break for every hour of key. In a May 17, 2010 medical report,
Dr. Edward J. Prostic, a Board-certified orthopedic surgeon, reported that an electromyography
(EMG) study revealed bilateral CTS and possible mild right C5-6 radiculopathy. He noted that
since appellant already had carpal tunnel decompressive surgery twice, she was unlikely to
benefit from a third attempt. Dr. Prostic further noted that repetitious handling of the median
nerve at a single location could cause devascularization of the nerve with a catastrophic result.
An August 2, 2010 prescription note with an illegible signatureplaced appellant off work
indefinitely to seek medical treatment.
By letter dated August 26, 2010, OWCP informed appellant of the additional medical and
factual evidence needed to support her claim and was provided 30 days to submit the supporting
documentation.
In an undated narrative statement, appellant contended that using the voice-activated
computer workstation and microphone provided to her by the employing establishment
aggravated her upper extremities. She further stated that using the software made it difficult to
conduct interviews and talk at the same time which slowed down her work production. This

5

In order to accommodate her permanent restrictions, it provided her with the following equipment: two new
computers with 19-inch monitors, Dragon Naturally Speaking Software, a microphone, headset, printer, scanner,
photocopier, paper folding machine and tubing to assist her in gripping pencils and pens. Appellant was provided
15 days to either accept or decline this permanent job offer. She accepted the permanent modified job offer on
July 14, 2010.

3

forced appellant to use the keyboard in order to meet her work requirements or else she would
have been terminated.
By letter dated September 3, 2010, Dr. Moore stated that appellant had been diagnosed
with bilateral CTS, but despite a positive EMG, she no longer hadclinical CTS. He noted that
the EMG results rarely return to normal after successful surgical release. Dr. Moore stated that
appellant’s EMG was suspicious for C5-6 radiculopathy, which could potentially explain her
current symptoms. Hefurther noted that her symptoms were predominantly in her upper
extremities in the shoulder and elbow regions and any type of repetitive motion would increase
her pain, even sleeping at nighttime. Dr. Moore found that appellant had been unable to return to
her regular work because of appellant’s chronic pain.Appellant’s permanent restrictions
remained the same with a 30-minute typing restriction, 30-minute 10 keying restriction and a
4-hour hand use restriction.
By decision dated October 4, 2010, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the current diagnosed conditions were causally related
to factors of her federal employment.
On October 21, 2010 appellant requested an oral hearing before the Branch of Hearings
and Review.
At the February 11, 2011 hearing, appellant testified that she had two prior upper
extremity conditions which had been accepted by OWCP. She had been provided with
accommodations after her 1999 injury. Despite appellant’s accommodations and the voice
activated software provided to her, she stated that her condition had continued to worsen, causing
her to retire on November 30, 2010. The record was held open for 30 days.
By decision dated May 6, 2011, the Branch of Hearings and Review affirmed OWCP’s
October 4, 2010 decision finding that the evidence of record failed to establish that appellant’s
conditionswere causally related to the claimed employment factors.
By letter dated October 21, 2011, appellant, through counsel, requested reconsideration
of OWCP’s decision and submitted an April 25, 2011 medical report from Dr. John W. Ellis,
Board-certified in family medicine.
Dr. Ellis reviewed appellant’s medical history and provided findings on physical
examination.
Dr. Ellis, based ona physical examination of appellant, her description of her workstation
and duties and areview of medical records,found that the injuries, impairments and disabilities
set forth in his diagnosis, findings and impairments, arose out of and in the course of her
employment and that employment factors and work duties contributed to, aggravated and/or
caused her stated injuries, disabilities and impairments.The constant tightness in her neck caused
the disc at the C6-7 level to protrude. The constant work caused the tendons and internal
structures of the shoulder girdles and shoulder joints to become inflamed and developed
tendinitis and traumatic arthritis, requiring surgery on appellant’s right shoulder. Up through
August 5, 2010, appellant’swork caused the tendons in the medial aspect of herelbows to become
hypertrophied. This caused CTS through impingement of the ulnar nerve at the elbows.
4

Appellant’s work with a straight keyboard caused the tendons in her forearms to become
tightened, hypertrophied and then inflamed causing radial tunnel syndrome with radial nerve
impingement.Similarly, the ulnar deviation of her wrists with a straight keyboard caused
increased straining. The abnormal straining of the tendons and wrists caused tendinitis,
inflammation and impingement of the median nerve at the wrists, which is CTS as well as the
ulnar nerve at the wrists, which is Guyon’s canal syndrome. Appellant’s repetitive data entry
also caused hypertrophy of the carpometacarpophalangeal joint of both thumbs and traumatic
arthritis in both thumbs. Dr. Ellis opined that she could not return to any type of work where she
would be doing data entry or repetitive work with her hands. He restricted repetitive pulling,
pushing, gripping or pinching with the fingers and recommended vocational rehabilitation,
retraining and job placement.
By decision dated March 8, 2012, OWCP affirmed the May 6, 2011 decision finding that
the evidence of record failed to establish that appellant’s diagnosed condition was causally
related to factors of her federal employment. It found Dr. Ellis’ conclusions to be based on an
incomplete and inaccurate factual and medical background.
By letter dated July 12, 2012, appellant, through counsel, requested reconsideration of
OWCP’s decision.
In a March 27, 2012 supplemental report, Dr. Ellis stated that an older person with
preexisting conditions and poor ergonomic workplaces would have even more problems and
injuries. He noted that he had not been provided with a written and extensive job description but
based his report on the information provided him by appellant. Dr. Ellis requested OWCP
submit a detailed job description with her duties. He further stated that, though there were
ergonomic modifications, appellant’s initial injuries continued to be aggravated and worsened.
As appellant aged, her work, even under good ergonomic conditions, would cause the conditions
set forth in Dr. Ellis’April 25, 2011 report.
By decision dated August 16, 2012, OWCP affirmed the March 8, 2012 decision finding
that the evidence of record failed to establish that appellant’s diagnosed condition was causally
related to factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.7

6

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

7

Michael E. Smith, 50 ECAB 313 (1999).

5

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.8 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.10 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.11
ANALYSIS
OWCP accepted appellant’s factors of federal employment as a claim representative. It
denied her claim, however, on the grounds that the evidence failed to establish a causal
relationship between those activities and her diagnosed conditions. The Board finds that the
medical evidence of record is insufficient to establish that appellant developed additional
bilateral shoulder, hand, wrist and neck conditions causally related to factors of her federal
employment as a claim representative.
In medical reports dated September 14 to October 19, 2007, Dr. Schwartzman reported
that appellant sustained a whiplash injury from a nonemployment-related motor vehicle accident
on July 6, 2006.
He diagnosed cervical sprain and recurrent bilateral CTS.
While
Dr. Schwartzman provided a diagnosis, none of his reports mentioned a work-related cause or
aggravation of her injuries. His statement that appellant’s pain and numbness were aggravated
8

Elaine Pendleton, supra note 6 at 1143.

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005);Ruby I. Fish, 46 ECAB 276, 279 (1994).

10

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

11

James Mack, 43 ECAB 321 (1991).

6

by repetitive motion is not sufficiently rationalized to establish that her employment factors
caused or aggravated her conditions. Moreover, Dr. Schwartzmanstated that her pain and
numbness continued when she was not working and performing repetitive tasks. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.12
Dr. Moore stated that appellant no longer had clinical CTS and noted that a positive EMG
was normal following CTS release surgeries.He speculated that her EMG was suspicious for a
C5-6 radiculopathy, which could potentially explain her symptoms. Appellant’s permanent
restrictions remained the same with a 30-minute typing restriction, 30-minute 10 key restriction
and a 4-hour hand use restriction. Dr. Moore’s report finds her CTS resolved and that any current
symptoms could be a result of C5-6 radiculopathy but failed to provide a firm medical diagnosis.
As he failed to provide any kind of diagnosis or detail regarding appellantcurrent symptoms, it
fails to establish causal connection to her employment factors.13
In his April 25, 2011 medical report, Dr. Ellis reviewed appellant’s medical history,
provided findings on physical examination and reviewed her description of her employment
workstation and work duties and opinedthat her injuries arose out of and in the course of her
employment and that employment factors and work duties contributed to, aggravated and/or
caused her stated injuries, disabilities and impairments set forth in his report. He opined that she
could not return to any type of work where she would be doing data entry or repetitive work with
her hands. Dr. Ellis restricted repetitive pulling, pushing, gripping or pinching with the fingers
and recommended vocational rehabilitation, retraining and job placement.
The Board finds that the opinion of Dr. Ellis is not well rationalized. Dr. Ellis provided a
list of diagnoses including muscle tendon unit strain of the neck, deranged discs in the neck,
muscle tendon unit strain of the shoulders with traumatic arthritis and impingement syndrome in
both shoulders, bilateral mild brachial plexus impingement, bilateral medial epicondylitis with
ulnar nerve impingement and cubital tunnel syndrome, bilateral radial tunnel tendinitis and radial
tunnel syndrome, bilateral deQuervain’sstenosing tenosynovitis, bilateral tendinitis in the wrists
with CTS and median nerve impingement, bilateral tendonitis in the wrists with Guyon’s canal
syndrome and ulnar nerve impingement and traumatic arthritis of the carpometacarpophalangeal joint of the right and left thumb. He opined, based solely on appellant’s
description of her duties, that her injuries arose out of and in the course of her employment and
that employment factors and work duties contributed to, aggravated and/or caused her stated
injuries.
Dr. Ellis made no mention of the fact that appellant voluntarily chose to stop using the
software, which was provided to accommodate her conditions or that she rarely worked a full
day after April 5, 2010. He attributed repetitive data entry to the cause of her condition but she
was provided accommodations which eliminated repetitive movements. While Dr. Ellis stated
that appellant’s repetitive work duties contributed to her preexisting conditions, he was not
12

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009) and C.B.,
Docket No. 08-1583 (issued December 9, 2008).
13

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

7

provided an accurate history of her employment factors or the duties she was required to
perform. Hewas unaware how often she was required to perform certain tasks or the frequency
of other physical movements. Dr. Ellis provided multiple diagnoses and generally found that all
of appellant’s conditions were causally related to her employment. He failed to provide a
sufficient understanding of her employment factors to make a determination of causal
relationship. Dr. Ellis’ report is therefore of limited probative value.14
Although Dr. Ellis requested more information as to the specifics of appellant’s
employment duties, he admitted in his March 27, 2012 supplemental report that he had not been
provided with a written and extensive job description. As he did not have a proper
understanding of her employment factors, his opinion on causal relationship is speculative and of
little probative value. Furthermore, Dr. Ellis failed to address Dr. Moore’s September 3, 2010
report, which stated that her bilateral CTS had resolved or address Dr. Schwartzman’s findings
that her condition continued to worsen even when she was off work and not performing
repetitive tasks. The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established factors of employment.15 Dr. Ellis’ report
does not meet that standard and is insufficient to meet appellant’s burden of proof.16
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Wolf’s diagnostic report interpreted an MRI scan of the cervical spine with no other
details or findings regarding her condition and factors of federal employment. Dr. Prostic’s
May 17, 2010 report provided a diagnosis of bilateral CTS but failed to provide any opinion on
the cause of appellant’s condition. Dr. Moore’s January 27, 2009 report provided appellant with
permanent work restrictions with no findings on causation. While all of appellant’s physicians
provided a firm medical diagnosis, they failed to state any opinion on causal relationship.17
Thus, the additional medical reports are of limited probative value.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a claims representative and her
bilateral CTS, shoulder, wrist, hand and neck conditions. Thus, appellant has failed to meet her
burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

14

S.W., Docket 08-2538 (issued May 21, 2009).

15

See Lee R. Haywood, 48 ECAB 145 (1996).

16

Supra note 12.

17

Supra note 11.

8

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
bilateral CTS, shoulder, wrist, hand and neck conditions are causally related to factors of her
federal employment as a social insurance specialist claims representative.
ORDER
IT IS HEREBY ORDERED THATthe August 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2013
Washington, DC

Richard J. Daschbach, 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
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Corpus Christie, TX, Employer
)
___________________________________________ )
D.O., Appellant

Appearances:
Juan Mũnoz, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0676
Issued: May 18, 2016

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 February 22, 2016 appellant, through her representative, timely appealed an
October 29, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 As more than 180 days has elapsed from January 30, 2015, the date of the most
recent merit decision, 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 appellant’s claim.
ISSUE
The issue is whether OWCP properly found that appellant abandoned her request for a
hearing.
1

Appellant’s representative indicated that he was appealing a January 30, 2015 OWCP merit decision. However,
an appeal of office decisions issued on or after November 19, 2008 must be filed with 180 days of the decision.
20 C.F.R. § 501.3(e). The 180th day following January 30, 2015 was July 29, 2015. As this appeal was filed on
February 22, 2016, the Board lacks jurisdiction over the January 30, 2015 merit decision.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 3, 2014 appellant, then a 41-year-old mail carrier, filed a traumatic injury
claim (Form CA-1), alleging that on November 22, 2014 she was side swiped by a truck and
sustained lower and upper back stiffness and pain while in the performance of duty. She did not
initially stop work. The employing establishment noted that appellant never complained of back
problems, was seen by the emergency room physician, and was medically cleared.
By letter dated December 22, 2014, OWCP advised appellant that the evidence failed to
establish an injury in the performance of duty. It allotted her 30 days to submit appropriate
factual and medical evidence. OWCP mailed this to appellant’s address of record. Appellant did
not respond within the allotted time.
In a January 30, 2015 decision, OWCP denied appellant’s claim, finding that the
evidence of record did not establish that the injury occurred as alleged. It explained that
appellant did not complete the questionnaire describing how her injury had occurred or otherwise
provide any factual evidence of an injury occurring at work.
On February 26, 2015 appellant timely requested a telephonic hearing before an OWCP
hearing representative. She argued that she had submitted the proper paperwork for her claim.
Appellant also indicated that she did not receive the questionnaire or she would have provided
the requested information.
In an August 27, 2015 letter, OWCP notified appellant that a telephone hearing was
scheduled for October 14, 2015 at 10:45 a.m. Eastern Standard Time (EST). It instructed her to
call a toll-free number and enter a pass code to connect with the hearing representative. The
record reflects that the notice was mailed to appellant’s address of record.
Appellant did not call at the appointed time for the scheduled hearing.
By decision dated October 29, 2015, OWCP found that appellant abandoned her
requested hearing. The decision noted that the hearing was scheduled for October 14, 2015, but
she failed to appear as instructed. OWCP further found that there was no indication that
appellant contacted it either prior or subsequent to the scheduled hearing to explain her failure to
participate. Based on these factors, it concluded that she abandoned her hearing request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claimant, the hearing representative will mail a notice of the

3

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

time and place of the hearing to the claimant and any representative at least 30 days before the
scheduled date.4
A claimant who fails to appear at a scheduled hearing may request in writing within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing. Where good cause is shown for failure to appear at
the second scheduled hearing, review of the matter will proceed as a review of the written
record.5 Where it has been determined that a claimant has abandoned his or her request for a
hearing, OWCP’s Branch of Hearings and Review will issue a formal decision.6
ANALYSIS
By decision dated January 30, 2015, OWCP denied appellant’s claim for a traumatic
injury. On February 26, 2015 appellant timely requested a telephone hearing.
In an August 27, 2015 letter, OWCP notified appellant that a telephone hearing was
scheduled for October 14, 2015 at 10:45 a.m. EST. It mailed the notice to her address of record.7
OWCP instructed appellant to call a toll-free number and enter a pass code to connect with the
hearing representative. Appellant did not call at the appointed time. She did not request a
postponement of the hearing or explain her failure to appear at the hearing within 10 days of the
scheduled hearing date of October 14, 2015.8 The Board therefore finds that she abandoned her
request for a hearing.
On appeal appellant argues the merits of her claim. She also argues that she did not
receive OWCP’s December 22, 2014 development letter advising her of the deficiencies in her
claim. However, the only issue before the Board is whether OWCP properly found that
appellant abandoned her request for a hearing. The Board does not have jurisdiction over the
merits of the claim.
CONCLUSION
The Board finds that appellant abandoned her request for a hearing.

4

20 C.F.R. § 10.617(b).

5

Id. at § 10.622(f).

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
6

See Jeffrey M. Sagrecy, 55 ECAB 724 (2004) (in the absence of evidence to the contrary, a letter properly
addressed and mailed in the due course of business, is presumed to have arrived at the mailing address in due course.
This is known as the “mailbox rule”).
7

8

Id. See also supra note 5.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 29, 2015 is affirmed.
Issued: May 18, 2016
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

4