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

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

Docket No. 14-609
Issued: June 6, 2014

Case Submitted on the Record

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

JURISDICTION
On January 24, 2014 appellant filed a timely appeal from the January 10, 2014 nonmerit
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 to review this decision.
ISSUE
The issue is whether appellant abandoned his hearing request.
FACTUAL HISTORY
On April 3, 2013 appellant, a 59-year-old customer service supervisor, filed an
occupational disease claim alleging that he injured his back, hips and knees as a result of
constantly walking the work floor.

1

5 U.S.C. § 8101 et seq.

In a decision dated July 3, 2013, OWCP denied appellant’s claim, noting that he had
failed to establish fact of injury.
In a letter postmarked July 15, 2013, appellant requested an oral hearing before an
OWCP hearing representative. He indicated that he preferred a telephone hearing.
On November 5, 2013 OWCP notified appellant that a hearing would be held on
December 11, 2013. It provided the scheduled time, telephone number, pass code and
directions.2
In a decision dated January 10, 2014, OWCP found that appellant abandoned his hearing
request. Appellant failed to appear, and there was no evidence that he contacted OWCP either
before or after the scheduled hearing to explain his failure to appear.
On appeal, appellant contends that he had rotator cuff surgery on November 4, 2013 and
the medications he was taking made him unavailable for the interview. He indicated a
willingness for the hearing to be rescheduled and stated that he would like to be afforded the
opportunity to be rescheduled later in the day. Appellant also indicated that he was enclosing a
copy of medical reports.3
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.4 Unless otherwise directed in writing by the claimant, OWCP’s
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.5 It has the burden of proving that it
mailed to appellant and his representative a notice of a scheduled hearing.6
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

2

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. See James A. Gray, 54 ECAB 277 (2002). The November 5, 2013 letter was sent
to appellant’s address of record.
3

The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its
final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).
4

20 C.F.R. § 10.616(a).

5

Id. at § 10.617(b).

6

K.D., Docket No. 11-77 (issued August 18, 2011); Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

2

claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing.7
ANALYSIS
After OWCP denied his injury claim, appellant filed a timely request for an oral hearing.
OWCP properly notified him that a telephone hearing would be held on December 11, 2013 and
provided information by which to make contact with the hearing representative.8
There is no evidence in the record that appellant requested a postponement of the
scheduled hearing or evidence that he wrote to OWCP within 10 days of the scheduled hearing to
show good cause for his failure to appear. Accordingly, the Board finds that appellant
abandoned his hearing request. The Board will therefore affirm OWCP’s January 10, 2014
decision.
On appeal, appellant offered an explanation for his failure to appear and noted his
willingness for it to be rescheduled. As OWCP’s November 5, 2013 notice of hearing spells out,
no further opportunity for a hearing will be provided but this does not leave appellant without an
avenue to pursue his claim. Appellant should review the appeal rights attached to the July 3,
2013 OWCP decision.
CONCLUSION
The Board finds that appellant abandoned his hearing request.

7

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011).
8

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. K.R., Docket No. 13-1412 (issued December 11, 2013); James A. Gray, 54 ECAB
277 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Anaheim, CA, Employer
__________________________________________

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Appearances:
Kevin Card, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1310
Issued: April 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On June 18, 2018 appellant, through her representative, filed a timely appeal from a
January 24, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

On the application for review (Form AB-1), appellant’s representative timely requested an oral argument pursuant
to 20 C.F.R. § 501.5(b). By order dated March 1, 2019, the Board exercised its discretion and denied appellant’s
request finding that the appeal could be adequately addressed in a decision based on a review of the case record. Order
Denying Request for Oral Argument, Docket No. 18-1310 (issued March 1, 2019).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish a cervical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 8, 2016 appellant, then a 57-year-old letter carrier, filed an occupational disease
claim (Form CA-2) for a neck condition that she attributed to “years of repetitive motion at work.”
She noted that she first became aware of her condition in May 2014, and related to factors of her
federal employment on November 18, 2015.5 On the reverse side of the claim form, the employing
establishment reported that appellant had not been at work.
In a statement dated November 18, 2015, appellant indicated that she worked for the
employing establishment for the past 27½ years and had several bilateral upper extremity
conditions that were accepted by OWCP. She related that she had experienced neck soreness while
at work, but the pain in her arms overshadowed her neck discomfort until May 2014 when the neck
pain became excruciating. Appellant reported that the duties of a letter carrier required repetitive
use of her fingers, hands, wrists, arms, torso, shoulders, neck, and back for 8 to 10 hours a day.
In a September 25, 2014 report, Dr. Roy J. Caputo, a Board-certified orthopedic surgeon,
provided examination findings, related appellant’s complaints of left shoulder pain, and diagnosed
left shoulder impingement syndrome, left shoulder rotator cuff tear, and multilevel cervical
degenerative disc disease -- “symptomatic nonindustrial.” He reported a May 14, 2011 date of
injury. Because appellant was planning to undergo cervical fusion, Dr. Caputo deferred treatment
of her left shoulder.
In a March 11, 2016 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim.6 It advised her of the type of factual and medical
3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the January 24, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
5

The present claim was assigned OWCP File No. xxxxxx558. Under OWCP File No. xxxxxx313, appellant has
an accepted occupational disease claim for right shoulder calcifying tendinitis, right shoulder sprain, right biceps
tendon rupture, and bilateral lateral epicondylitis, which arose on or about August 18, 2007. Under File No.
xxxxxx967, OWCP accepted left shoulder rotator cuff sprain, which arose on or about May 14, 2011.
6

OWCP referenced appellant’s prior upper extremity claims and noted that under File No. xxxxxx313 she had
worked modified duties from 2008 onward and under File No. xxxxxx967 appellant had been off work entirely since
June 2015.

2

evidence necessary to establish her claim and provided a questionnaire for completion. OWCP
afforded appellant 30 days to respond.
In a March 24, 2016 response to the development letter, appellant listed the dates when she
sought medical treatment for her neck, along with the names and addresses of her physicians. She
also described the activities she performed outside of her federal employment.
A June 4, 2014 cervical spine magnetic resonance imaging (MRI) scan showed severe
multilevel cervical spondylosis, a significant amount of soft tissue pannus formation around the
dens, a widening of the pre-dental space with anterior subluxation of C1 in relation to C2, and mild
basilar invagination. An October 28, 2014 cervical spine x-ray showed postoperative changes of
removal of portions of the spinal process at C3 and C4. A December 18, 2015 cervical spine
computerized tomography (CT) scan showed moderately severe degenerative changes and disc
disease at C2-3, C3-4, C4-5, C5-6, and C6-7 and prominence of the atlantoaxial joint anteriorly.
The report also noted that appellant was postlaminectomy from C2 through C6, with evidence of
fixation hardware at C2-3. A December 18, 2015 cervical spine x-ray showed a 4 mm anterior
subluxation of C2 and multilevel severe disc degeneration at C3-7.
In a narrative report dated January 8, 2016, Dr. Edward Mittleman, a family practitioner,
related that appellant had worked as a letter carrier for the employing establishment for the past 27
years. He noted that appellant worked a combination of duties throughout her career.
Dr. Mittleman described in detail appellant’s letter carrier duties, including casing mail,7 pushing
the loaded hamper to her long life vehicle (LLV), and loading her vehicle with the sorted mail. He
also outlined the physical requirements of various delivery routes, including mounted delivery,
dismount delivery, apartment delivery, Express Mail, and the “collection run.” Dr. Mittleman
noted that appellant worked 8 hours, and sometimes 10 hours per day.
Dr. Mittleman described appellant’s medical history. He related that appellant started to
experience cervical pain more consistently in May 2014 and later underwent cervical spine fusion
surgery and laminectomy on October 18, 2014. Upon examination of appellant’s cervical spine,
Dr. Mittleman observed tenderness and muscle spasm on the right upon palpation of the bilateral
posterior paravertebral cervical tissues and trapezii. He related range of motion findings of rotation
to the left 60/80 and to the right of 30/80. Dr. Mittleman diagnosed cervical spondylosis, cervical
degenerative disc disease, and status post cervical surgery.
Under a section in his report noted as “Causation,” Dr. Mittleman described that casing
mail required appellant to “rotate her head from side-to-side as well as upward and downward,
placing rotation, flexion, and extension forces upon the cervical spine.” He related that appellant
then loaded the full trays of mail, weighing 10 to 20 pounds, in her gurneys and pushed the gurneys
to her LLV. Dr. Mittleman explained that pushing the gurneys required “greater force being
transferred into the cervical tissues … the forces are through the trapezii at the shoulder level that
intertwined with the cervical tissues and connect with the nuchal ridge of the skull.” He reported
that unloading the mail and parcels from the gurneys required forward flexion of the cervical spine
Dr. Mittleman reported that since appellant became an “unassigned regular” in 2008 she no longer cased mail.
He also explained that appellant’s daily assignment and delivery route changed depending on the needs of
management.
7

3

and then extension as she returned to an upright position. Dr. Mittleman noted that lifting the
parcels, weighing up to 70 pounds, also placed significant forces into the cervical axial skeletal
system and excessive contraction forces upon the cervical tissue. He further explained that when
driving her LLV, appellant had to rotate her neck from side to side in order to observe traffic
behind her and through the side-view mirrors, which can produce excessive cervical tissue
stretching forces. Dr. Mittleman related that extracting mail from the LLV involved repetitive
lifting of the arms, which can cause a repetitive stress injury of the neck.
Dr. Mittleman opined that it was the repetitive movement of the cervical spine that
produced the development of degenerative changes in appellant’s cervical axial skeletal system.
He explained that with flexion, there is a discs disengagement of the facets, which then adds to
irritation of these bony joints as well as changing the physiologic position of the cervical vertebrae
and other tissues directly connected to the cervical axial skeletal system. Dr. Mittleman also
reported that appellant had developed severe bilateral facet arthropathy in her cervical spine, which
was secondary to the repetitive motions that were required in the activities that he described. He
further explained: “with this movement, pressures are placed upon the intervertebral discs, which
then protrude beyond their normal physiologic position. The combination of this protrusion and
the development of degenerative changes (osteophytes) there becomes a narrowing of the canals
within which the spinal nerves traverse. There then becomes pressure upon the nerves producing
pain, numbness, and tingling. In addition, with the bulging of the discs … there is pressure upon
the nerves that are in the covering of the discs.”
By decision dated July 28, 2016, OWCP denied appellant’s occupational disease claim. It
accepted her duties as a letter carrier and that a medical condition had been diagnosed, but denied
her claim because the medical evidence of record failed to establish that her diagnosed cervical
conditions were causally related to the accepted employment factors.
On January 5, 2017 appellant requested reconsideration and submitted additional medical
evidence.
In a December 23, 2016 letter, Dr. Mittleman again described appellant’s employment
duties and their effect on her cervical spine. He explained that degeneration of the intervertebral
discs narrow the space between the vertebrae and nerves, which is a process known as cervical
degenerative disc disease. Dr. Mittleman related that once the intervertebral discs degenerate and
wear down, the disc is not as effective in resisting motion of the spine, which is a condition termed
“micromotion” instability and often caused neck pain and stiffness, which appellant had
experienced. He reported that appellant’s bending, lifting, twisting, and turning had adversely
affected appellant’s neck.
By decision dated January 19, 2017, OWCP denied modification of the July 28, 2016
decision.8

8

OWCP noted that Dr. Caputo had indicated in a September 25, 2014 report that appellant’s cervical condition was
“nonindustrial.” It determined that Dr. Mittleman’s opinion did not address the difference of medical opinions nor
adequately explain how appellant’s degenerative cervical condition resulted from appellant’s employment.

4

On July 10, 2017 appellant requested reconsideration and submitted additional medical
evidence.
In a letter dated June 28, 2017, Dr. Mittleman referenced various medical studies and
research which found a correlation between high levels of repetitive movement of the shoulder,
hand, and wrist and neck musculoskeletal disorders. He opined: “the repetitive stress activities
that a city letter carrier performs on a daily basis for the [employing establishment] place
significant forces upon the various tissues of their body…. This is consistent with the pathology
that [appellant] has in her cervical spine.” Dr. Mittleman recommended that appellant’s claim be
accepted for cervical degenerative disc disease and cervical spondylosis.
In a February 23, 2017 report, Dr. Caputo explained that his use of the phrase
“symptomatic nonindustrial” in his previous report meant that appellant’s cervical spine surgery
was being handled by her private insurance. He noted that the statement was not a reflection of
his opinion regarding causation as he was not evaluating appellant to determine the cause of her
neck injury. Dr. Caputo added that he had “no opinion” as to the causation of appellant’s cervical
spine injury.
OWCP also received an October 28, 2014 operative report, which indicated that appellant
underwent posterior cervical fusion of C1-2 and decompressive laminectomy at C3 through C7.
An operative report dated May 10, 2017 further demonstrated that appellant underwent a
second cervical surgery for cervical degenerative disc disease and kyphosis with postlaminectomy
syndrome.
By decision dated September 27, 2017, OWCP denied modification of the January 19,
2017 decision.
On October 26, 2017 appellant requested reconsideration and submitted additional
evidence.
In a letter dated October 19, 2017, Dr. Basimah Khulusi, Board-certified in physical
medicine and rehabilitation, indicated that she reviewed OWCP’s September 27, 2017 decision
and would address how appellant’s neck condition resulted from her job. She referenced that
medical reports from 1998 showed that appellant tested positive for chronic degenerative joint
disease/arthritis in her neck. Dr. Khulusi explained that the findings in the x-ray examination were
not to be expected for a then 38-year-old individual. She related that medical studies had shown
that activities similar to the ones performed by appellant at her job caused acceleration of
degeneration of the neck. Dr. Khulusi opined that as appellant continued to do the same activities
on the job, her condition deteriorated with time and became aggravated to the point where she
required two cervical surgeries. She requested that appellant’s claim be accepted for acceleration
of cervical spondylosis, permanent aggravation of cervical degenerative disc disease, status post
cervical surgery, and status post second cervical surgery.
OWCP received various hospital records dated May 13, 1998, which noted a past medical
history of chronic degenerative joint disease/arthritis in the neck. A May 14, 1998 cervical x-ray
showed degenerative disc changes at C4-5 and C5-6 with encroachment upon the neural foramina
bilaterally.
5

By decision dated January 24, 2018, OWCP denied modification of the September 27,
2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA9 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,10 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.11 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.12
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.13
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.14 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.15 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).16
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

9

Supra note 3.

10
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
11

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
12

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
13

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

15

M.V., Docket No. 18-0884 (issued December 28, 2018).

16

Id.

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.17
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant submitted various reports and letters by Dr. Mittleman dated January 8, 2016
through June 28, 2017. In a January 8, 2016 narrative report, Dr. Mittleman reviewed appellant’s
history and related that appellant’s employment duties required casing mail, placing trays of mail
into a hamper, pushing the loaded hamper to her LLV, and loading her vehicle. He also described
the physical duties required with various delivery routes, including mounted delivery, dismount
delivery, apartment delivery, Express Mail, and the “collection run.” Dr. Mittleman provided
examination findings and diagnosed cervical spondylosis, cervical degenerative disc disease, and
status post cervical surgery. He opined that the repetitive movement of appellant’s cervical spine
produced the degenerative changes in appellant’s cervical spine. Dr. Mittleman further described
the process of how each of appellant’s employment duties placed significant external forces on
appellant’s cervical spine, which accelerated the degeneration of her spine.
Dr. Mittleman reasoned that with flexion, there was discs disengagement of the facets
which added to irritation of these bony joints and changed the physiologic position of the cervical
vertebrae and other tissues directly connected to the cervical skeletal systems. Regarding
appellant’s facet arthropathy in her cervical spine, he noted that pressures were placed upon the
intervertebral discs which then protruded beyond their normal physiologic position and that this
protrusion and degenerative changes became a narrowing of the canals within which the spinal
nerves traverse. In subsequent letters, Dr. Mittleman continued to recommend that appellant’s
claim be accepted for cervical degenerative disc disease and cervical spondylosis as related to her
employment. He addressed the deficiencies of his previous reports as outlined in OWCP’s
decisions and again described the effect of appellant’s employment on her cervical spine.
Dr. Mittleman has unequivocally stated that appellant’s degenerative cervical conditions
were accelerated by appellant’s employment duties as a letter carrier. His opinion is also supported
by Dr. Khulusi who opined in an October 19, 2017 letter that appellant’s employment caused an
acceleration or aggravation of her cervical conditions. The Board finds that, although
Dr. Mittleman and Dr. Khulusi’s opinions were not sufficiently rationalized to meet appellant’s
burden of proof to establish her claim, they are sufficient to require further development of the
case by OWCP.18

17

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

18
See C.M., Docket No. 17-1977 (issued January 29, 2019); see also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).

7

It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.19 OWCP has an obligation to see that justice is done.20
Therefore, the Board finds that the case shall be remanded to OWCP. On remand, OWCP
shall prepare a statement of accepted facts concerning appellant’s working conditions and refer the
matter to an appropriate medical specialist, consistent with OWCP’s procedures, to determine
whether appellant’s employment duties caused or aggravated her degenerative cervical conditions.
Following this, and any other further development as deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
action consistent with this decision.
Issued: April 16, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
19

See e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978);
William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).
20

William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

8


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

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

Docket No. 18-1223
Issued: December 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 30, 2018 appellant filed a timely appeal from a May 10, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish modification of the
August 1, 2011 loss of wage-earning capacity (LWEC) determination.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 10, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 12, 2006 appellant, then a 47-year-old custodian, filed a traumatic injury
claim (Form CA-1) alleging that on August 28, 2006 he experienced right-sided back pain while
in the performance of duty. OWCP accepted his claim for lumbar and thoracic sprain, lumbar or
thoracic neuritis or radiculitis, and lumbar spondylosis with myelopathy. Following his injury,
appellant worked with restrictions.
OWCP accepted that appellant sustained a recurrence of disability on March 11, 2010. It
paid him wage-loss compensation for total disability beginning March 17, 2010.
By decision dated August 1, 2011, OWCP reduced appellant’s wage-loss compensation to
zero as his actual earnings as a labor custodian, effective August 10, 2010, fairly and reasonably
represented his wage-earning capacity. It noted that his current wages met or exceeded those of
his date-of-injury position.
Appellant, on October 7, 2017, filed a claim for wage-loss compensation (Form CA-7) for
the period September 16 to 28, 2017.
OWCP, on October 16, 2017, requested that appellant submit evidence supporting that he
was disabled during the period claimed.
Thereafter, appellant submitted reports from a nurse practitioner dated September 25 and
October 2, 2017. He also submitted an October 9, 2017 attending physician’s report (Form
CA-20) from Dr. Javaria Jabeen, an osteopath. Dr. Jabeen provided the International Statistical
Classification of Diseases and Related Health Problems (ICD-10) diagnosis codes for
chondromalacia patella of the left knee (M22.42) and an unspecified subluxation of the left knee
(S83.102s). She checked the box marked “yes” that the condition was caused or aggravated by
the described employment activity of appellant sustaining low back strain after lifting. Dr. Jabeen
advised that he was totally disabled from October 9 to 22, 2017.
On October 19, 2017 appellant filed a CA-7 form requesting wage-loss compensation for
the period September 30 to October 13, 2017.
By decision dated November 21, 2017, OWCP found that appellant had not established
that he was unable to work beginning September 16, 2017. It determined that the medical evidence
submitted was insufficient to establish that he was disabled from employment.
Appellant, by letter postmarked December 14, 2017, requested a review of written record
by an OWCP hearing representative.
By decision dated May 10, 2018, OWCP’s hearing representative affirmed the
November 21, 2017 decision. She found that appellant had not submitted sufficient evidence to
establish modification of the August 1, 2011 LWEC.
On appeal appellant requests payment for time lost from work, noting that his case remains
open and he could not work due to his injury.

2

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.3 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
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.5
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish modification of
the August 1, 2011 LWEC determination.
OWCP accepted that appellant sustained lumbar and thoracic sprain, lumbar or thoracic
neuritis or radiculitis, and lumbar spondylosis with myelopathy. By decision dated August 1,
2011, it reduced his compensation to zero based on its finding that the position of labor custodian
fairly and reasonably represented his wage-earning capacity and that the wages for the position
met or exceeded those of his date-of-injury position. Appellant stopped work on September 16,
2017 and filed a claim for wage-loss compensation. He has the burden of proof to establish that
modification of the LWEC determination is warranted.6
Appellant has not alleged that the original determination was in error or that he was
vocationally rehabilitated. The issue is whether he has established a material change in his workrelated condition that would render him unable to perform the duties of his position as laborer
custodian.7 The Board finds that the medical evidence submitted is insufficient to establish
modification of the LWEC determination.8
Appellant submitted September 25 and October 2, 2017 reports from a nurse practitioner.
These reports do not constitute competent medical evidence because a nurse practitioner is not

3

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

4

See M.K., Docket No. 17-1852 (issued August 23, 2018).

5

See J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

6

See L.P., Docket No. 17-1624 (issued March 9, 2018).

7

OWCP is not precluded from adjudicating a limited period of employment-related disability when a formal LWEC
determination has been issued. See J.B., Docket No. 15-1817 (issued April 1, 2016).
8

See R.L., Docket No. 15-1337 (issued January 27, 2016); J.I., Docket No. 15-0516 (issued September 21, 2015).

3

considered a physician as defined under FECA.9 Consequently, this evidence is insufficient to
meet appellant’s burden of proof.10
In an October 9, 2017 form report, Dr. Jabeen diagnosed chondromalacia patella of the left
knee and an unspecified subluxation of the left knee. She checked a box marked “yes” that the
condition was caused or aggravated by the described employment activity of appellant sustaining
low back strain after lifting. Dr. Jabeen opined that appellant was totally disabled from October 9
to 22, 2017. OWCP, however, accepted appellant’s claim for a back condition and not a left knee
condition. Appellant has the burden of proof to establish that any condition not accepted by OWCP
is causally related to the employment injury through the submission of rationalized medical
evidence.11 The Board has held that when a physician’s opinion on causal relationship consists
only of checking “yes” to a form question, without supporting medical rationale, it is of diminished
probative value.12 Consequently, Dr. Jabeen’s opinion is insufficient to meet appellant’s burden
of proof.13
As the medical evidence fails to establish that appellant sustained a material worsening of
his accepted employment-related condition such that he was precluded from performing his duties
as a laborer custodian, he has not met his burden of proof to show that his condition has materially
changed or worsened such that the LWEC determination should be modified.14
On appeal appellant argues that he missed work due to his injury and notes that he has an
“open claim.” For the reasons noted above, however, the Board finds that he has not met his
burden of proof to support a material change in the nature and extent of his injury-related
condition.15
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish modification of
the August 1, 2011 LWEC determination.

9

5 U.S.C. § 8101(2); see also R.A., Docket No. 17-1498 (issued August 1, 2018).

10

See P.D., Docket No. 17-1885 (issued September 17, 2018).

11

See C.S., Docket No. 18-0952 (issued October 23, 2018); JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

12

See C.M., Docket No. 18-0146 (issued August 16, 2018).

13

See D.R., Docket No. 18-0232 (issued October 2, 2018).

14

See S.J., Docket No. 17-0449 (issued May 7, 2018).

15

See J.A., Docket No. 17-0236 (issued July 17, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 11, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W.
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS
ADMINISTRATION MEDICAL CENTER,
Tampa, FL, Employer
__________________________________________

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

Docket No. 20-0111
Issued: September 21, 2020

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 October 17, 2019 appellant filed a timely appeal from an August 23, 2019 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the August 23, 2019 decision. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence
for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective September 15, 2019, based on her capacity to earn wages in the constructed
position of appointment clerk.
FACTUAL HISTORY
On October 23, 2014 appellant, then a 30-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on October 17, 2014 she heard something pop in the middle part
of her right leg when she stood up too fast after bending down to empty a foley bag while in the
performance of duty. She was placed on sedentary modified work. OWCP accepted the claim for
right knee unspecified site sprain, and subsequently expanded acceptance of the claim to include
deep vein thrombosis of right leg popliteal vein. It paid appellant wage-loss compensation on the
supplemental rolls as of December 3, 2014 and on the periodic rolls as of January 8, 2017.3
In a February 22, 2017 work capacity evaluation (Form OWCP-5c), Dr. Babatola Durojaiye,
a physician specializing in internal medicine, indicated that appellant was permanently disabled
from any type of work.
On September 5, 2017 OWCP referred appellant, together with a statement of accepted facts
(SOAF), medical records, and list of questions, to Dr. Eniola Owi, a Board-certified occupational
medicine physician, for a second opinion evaluation to determine the extent of appellant’s accepted
employment injury and work capacity.
In an October 12, 2017 report, Dr. Owi, based on a review of the SOAF, history of injury,
and medical treatment and physical examination, concluded that appellant was capable of working
with restrictions. She diagnosed resolved right knee unspecified site sprain and right leg deep vein
thrombosis of the popliteal vein. On examination Dr. Owi found appellant had right leg swelling
when compared with the left leg, nontender right knee and thigh, no effusion, tender distal foreleg
half, 1+ pitting edema in the distal foreleg, hyperpigmentation, and tenderness above right medial
malleolus, normal bilateral knee strength. A review of a March 29, 2017 popliteal vein ultrasound
showed right common femoral vein to right popliteal vein nonocclusive thrombosis. Dr. Owi
concluded that, due to swelling of appellant’s right leg, prolonged standing, and walking should be
avoided. In an attached Form OWCP-5c, she found appellant capable of working with restrictions
that included up to 6 hours of sitting, up to 1 hour of walking, standing, bending/stooping, and
operating a motor vehicle at work, up to 40 pounds of pushing for 1 hour, up to 20 pounds of pulling
for 1 hour, up to 20 pounds of lifting for 6 hours, no squatting, kneeling, or climbing, and 5-minute
breaks every 30 minutes.
On March 12, 2018 OWCP, based on Dr. Owi’s report, referred appellant for vocational
rehabilitation services.

3

Appellant was a probationary employee at the time of the accepted October 17, 2014 employment injury. The
employing establishment terminated appellant’s employment, effective July 8, 2015, due to her failure to maintain a
regular work schedule.

2

On October 29, 2018 appellant’s vocational rehabilitation counselor determined that she was
capable of working as a customer service representative or customer (order) clerk or appointment
clerk and that state labor market surveys on that date showed that these positions were reasonably
available in appellant’s commuting area. The appointment clerk position, under the Department of
Labor, Director of Occupational Titles (DOT) #237.367-010, was characterized as sedentary in
nature and involved such duties as scheduling appointments with employer or other employees for
customers or clients by telephone, mail, or in person, recording time and date of appointment in an
appointment book, noting when appointments have been filled or cancelled, operating a
switchboard, receiving payments for services performed and recording them in a ledger, and writing
or telephoning clients to remind them of appointments.4 The vocational rehabilitation counselor
indicated that appellant met the specific vocational preparation (SVP) for the position based on
reported work experiences and transferrable work skill. On November 5, 2018 she recommended
online computer courses for further training in administrative assistant fundamentals and Microsoft
Word 2016 at the University of Georgia.
Appellant took short-term online training in basic Windows, Microsoft Office, and Word to
update her computer and typing skills from November 14, 2018 through January 4, 2019. Shortly
thereafter, OWCP provided her with 90 days of job placement assistance from January 7 through
April 7, 2019.
On March 14, 2019 OWCP referred appellant, together with a SOAF, medical record, and
list of questions, to Dr. William Dinenberg, a Board-certified orthopedic surgeon, for an assessment
of her employment-related conditions, extent of disability, and appropriate treatment. In an April 5,
2019 report, Dr. Dinenberg provided examination findings and reviewed appellant’s medical record.
He opined that appellant’s right knee condition had resolved, but that her deep venous thrombosis
had not resolved, and had resulted in chronic right lower extremity venous insufficiency with
intermittent pain, swelling, and ulceration. Dr. Dinenberg found appellant was capable of working
in a sedentary position requiring sitting for up to six hours in an eight-hour day. In an attached Form
OWCP-5c, he listed permanent work restrictions of up to one hour of walking and standing and up
to 20 pounds of squatting, kneeling, and climbing for one hour.
On April 15, 2019 OWCP closed vocational rehabilitation services following an
unsuccessful placement effort. It noted the customer service representative, appointment clerk and
other similar positions identified by the vocational rehabilitation counselor were performed in
sufficient numbers within her commuting area with weekly wages of $511.20 to $580.00.
In progress notes covering the period March 15 through May 9, 2019, Dr. Loan Kim Lam, a
podiatrist, noted appellant’s history of injury, and treatment provided. He diagnosed right leg pain,
chronic venous insufficiency, right medial ankle venous stasis wound, right leg cellulitis, leg
swelling, secondary lymphedema, and right leg venous stasis ulcer and inflammation.
On June 24, 2019 OWCP proposed to reduce appellant’s wage-loss compensation to $483.00
every four weeks based on her capacity to earn wages in the constructed appointment clerk position
4

Sedentary work, according to the DOT, involves occasionally exerting up to 10 pounds of force and sitting most of
the time, but may involve walking or standing for brief periods of time. See C.M., Docket No. 18-0742 (issued
March 12, 2020); G.E., Docket No. 18-0663 (issued December 21, 2018); P.J., Docket No. 15-0295 (issued May 20,
2015)

3

at the rate of $511.20 per week. It found that the position was medically and vocationally suitable
and represented her wage-earning capacity. OWCP provided its application of the Shadrick formula
finding that the weekly pay rate on the date of injury, October 17, 2014, was $629.31 and that the
current pay rate for job and step when injured was $675.49, effective May 6, 2019. It afforded
appellant 30 days to respond to the proposed reduction in her compensation.5
By decision dated August 23, 2019, OWCP reduced appellant’s wage-loss compensation,
effective September 15, 2019, based on her capacity to earn wages as an appointment clerk.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6 OWCP’s burden
of proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.7
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if
the employee has no actual earnings, the wage-earning capacity is determined with due regard to
the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.8 Wageearning capacity is a measure of the employee’s ability to earn wages in the open labor market under
normal employment conditions.9 The job selected for determining wage-earning capacity must be
a job reasonably available in the general labor market in the commuting area in which the employee
lives.10 The fact that an employee has been unsuccessful in obtaining work in the selected position
does not establish that the work is not reasonably available in his or her commuting area.11
OWCP must initially determine a claimant’s medical condition and work restrictions before
selecting an appropriate position that reflects his or her wage-earning capacity. The medical
evidence upon which OWCP relies must provide a detailed description of the condition.12
5

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

6
C.F., Docket No. 19-0595 (issued September 9, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005).
7

S.N., Docket No. 17-1589 (issued January 3, 2018); Del K. Rykert, 40 ECAB 284 (1988).

8

5 U.S.C. § 8115(a); K.S., Docket No. 19-0678 (issued October 25, 2019); E.W., Docket No. 14-0584 (issued July 29,
2014); 5 U.S.C. § 8115(a).
9
See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).
10

C.M., Docket No. 18-1326 (issued January 4, 2019).

11

Id.; see also Leo A. Chartier, 32 ECAB 652 (1981).

12

Z.W., Docket No. 18-1000 (issued June 24, 2019); see William H. Woods, 51 ECAB 619 (2000).

4

Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.13
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by
OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in the
DOT or otherwise available in the open labor market, that fits that employee’s capabilities with
regard to her physical limitations, education, age, and prior experience. Once this selection is made,
a determination of wage rate and availability in the open labor market should be made through
contact with the state employment service, local Chamber of Commerce, employer contacts, and
actual job postings.14 Lastly, OWCP applies the principles set forth in Albert C. Shadrick15 as
codified in section 10.403 of OWCP’s regulations,16 to determine the percentage of the employee’s
LWEC.
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective September 15, 2019, based on her capacity to earn wages in the
constructed position of appointment clerk.
Dr. Durojaiye, in a February 22, 2017 Form OWCP-5c, opined that appellant was
permanently disabled. However, he offered no medical rationale supporting his opinion. Where no
such rationale is present, the medical opinion is of diminished probative value.17
In a report dated October 17, 2017, Dr. Owi, an OWCP second opinion physician, found that
appellant was capable of working a sedentary position with restrictions including no more than six
hours of sitting, no more than one hour of walking, standing, bending/stooping, and operating a
motor vehicle at work, pushing no more than 40 pounds for up to 1 hour, pulling no more than 20
pounds for up to 1 hour, lifting nor more than 20 pounds for up to 6 hours, no squatting, kneeling,
or climbing, and 5-minute rest breaks every 30 minutes. The Board, thus, finds that OWCP properly
referred appellant for vocational rehabilitation as the medical evidence established that she was no
longer totally disabled due to residuals of her employment injury based on the report of Dr. Owi.18
Following appellant’s referral for vocational rehabilitation services, on March 14, 2019
OWCP referred appellant to Dr. Dinenberg for an assessment of her employment-related conditions
and extent of disability. In an April 5, 2019 report, Dr. Dinenberg opined that appellant’s right
knee condition had resolved, but that her deep venous thrombosis had not resolved, and had resulted
13

See Z.W., id.

14

Supra note 9 at Chapter 2.816.6(a) (June 2013).

15

Supra note 5.

16

20 C.F.R. § 10.403.

17

See J.M., Docket No. 19-1169 (February 7, 2020).

18

C.M., Docket No. 18-0742 (issued March 12, 2020).

5

in chronic right lower extremity venous insufficiency with intermittent pain, swelling, and
ulceration. He determined that appellant was capable of working in a sedentary position requiring
sitting for up to six hours in an eight-hour day. Appellant’s restrictions included up to one hour of
walking and standing and up to 20 pounds of squatting, kneeling, and climbing for one hour.
The Board finds that the selected position of appointment clerk is within the physical work
restrictions as detailed by Dr. Dinenberg. As noted, the appointment clerk is defined as sedentary
in nature, meaning that appellant would primarily sit and could walk or stand for brief periods of
time. Dr. Dinenberg determined that appellant could perform sedentary work for up to eight hours
a day, while sitting six hours a day, walking and standing for one hour each, a day. The Board finds
that the opinion of Dr. Dinenberg was reasoned and based on a complete and accurate history and,
thus, constitutes the weight of the evidence and establishes that appellant had the physical ability to
earn wages as an appointment clerk.19
In progress notes covering the period March 15 through May 9, 2019, Dr. Lam, a podiatrist,
noted treating appellant for right leg pain, chronic venous insufficiency, right medial ankle venous
stasis wound, right leg cellulitis, leg swelling, secondary lymphedema, and right leg venous stasis
ulcer and inflammation. He did not, however, address the relevant issue of whether she could
perform the constructed position of appointment clerk and, thus, his opinion is of diminished
probative value.20
In assessing the employee’s ability to perform the selected position, the vocational
rehabilitation counselor considered not only appellant’s physical limitations, but also considered her
work experience, age, mental capacity, and educational background.21 In her October 29, 2018
report, she described appellant’s transferable skills and completed labor market surveys for the
position of appointment clerk. The vocational rehabilitation counselor noted that the appointment
clerk position was sedentary in nature and available for full-time and/or part-time work in
appellant’s commuting area. As the rehabilitation counselor is an expert in the field of vocational
rehabilitation, OWCP may rely on his or her opinion in determining whether a job is vocationally
suitable and reasonably available.22
The Board finds that OWCP considered the proper factors, including the availability of
suitable employment, appellant’s physical limitations, and employment qualifications in
determining that she had the capacity to perform the position of appointment clerk.23 OWCP also
properly applied the Shadrick formula, as codified in section 10.403 of its regulations,24 in
determining her LWEC.

19

C.M., id.; C.M., supra note 10

20

See C.M., id; M.K., Docket No. 18-0907 (issued February 7, 2019).

21

C.M., supra note 18.

22

C.H., Docket No. 19-0136 (issued May 23, 2019).

23

T.B., Docket No. 17-1777 (issued January 16, 2019).

24

5 ECAB 376 (1953); supra note 9 at Chapter 2.816.6(b) (June 2013).

6

Appellant may request modification of the LWEC determination, supported by new evidence
or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective September 15, 2019, based on her capacity to earn wages in the constructed
position of appointment clerk.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2020
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
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 09-599
Issued: June 3, 2009

Case Submitted on the Record

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

JURISDICTION
On December 31, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 25, 2008 nonmerit decision denying his request for merit
review of his claim on the grounds that his request was untimely filed and failed to demonstrate
clear evidence of error. Pursuant to 20 C.F.R. § 501.2(c) and 501.3(e), the Board has jurisdiction
over this nonmerit decision. The last merit decision of record was the Board’s July 6, 2004
decision affirming the denial of appellant’s emotional condition claim. Because more than one
year elapsed between the last merit decision and the filing of this appeal on December 31, 2008,
the Board lacks jurisdiction to review the merits of this claim.1

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d). Appellant requested an oral argument before the Board in connection
with his appeal. In an April 23, 2009 order, the Board denied appellant’s request for an oral argument.

ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
This is the fourth appeal in this case. In the first appeal,2 the Board issued a decision on
July 6, 2004 finding that the Office properly denied appellant’s emotional condition claim on the
grounds that he had not submitted sufficient evidence to establish any compensable employment
factors. In an April 3, 2003 decision, the Office initially denied appellant’s emotional condition
claim and, in a December 31, 2003 decision, an Office hearing representative affirmed the
Office’s April 3, 2003 decision.3 In the second appeal,4 the Board issued a decision on July 5,
2006 finding that the Office properly denied appellant’s request for further review of the merits
of his claim pursuant to 5 U.S.C. § 8128(a). In the third appeal,5 the Board issued a decision on
August 4, 2008 finding that the Office properly denied appellant’s request for further review of
the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error. The facts and the circumstances of the case up to that point
are set forth in the Board’s prior decisions and are incorporated herein by reference.
In a reconsideration request dated June 12, 2008,6 appellant argued that several witness
statements of coworkers and other documents he previously submitted to the Office showed that
he was harassed by Mr. Gant. Appellant repeated a number of his previous claims that certain
incidents involving Mr. Gant and Ms. Manies constituted harassment. He also asserted that
2

Docket No. 04-796 (issued July 6, 2004).

3

On June 13, 2002 appellant, then a 50-year-old mail handler, filed a claim alleging that he sustained depression
and anxiety due to various incidents and conditions at work. He indicated that on July 5, 2001 Mary Ann Manies, a
supervisor, called him into a room in the presence of other supervisors and accused him of lying in his injury report
and threatened to report him to the postal inspector for investigation. Appellant stated that, prior to July 5, 2001, he
was harassed by his supervisor, Benny Gant, and that two postal managers he complained to did not do anything
about the situation. He claimed that on July 6, 2001 Mr. Gant gave him an investigative interview and told him that
it could lead to a disciplinary action. Appellant asserted that he received unfair disciplinary letters, including a
July 19, 2001 letter of warning regarding the July 5, 2001 incident, a September 5, 2001 letter of warning for
unsatisfactory attendance and a May 8, 2002 letter of warning for arriving late to work. He alleged that Phil Perry, a
supervisor, harassed him by saying that Ms. Manies had indicated that she did not want to talk to him after he had
asked to speak to her. Appellant claimed that he sustained stress when Gary Banlowe, a supervisor, gave him an
investigative interview on March 21, 2002. He asserted that he was wrongly prohibited from flossing his teeth in the
restroom and from going to the health clinic and that Mr. Gant discriminated against him by not taking his seniority
into consideration when assigning duties and by talking to coworkers about his health and work habits. Appellant
also asserted that Mr. Gant harassed him by following him into the restroom and questioning him about his breaks.
4

Docket No. 05-1529 (issued July 5, 2006).

5

Docket No. 08-445 (issued August 4, 2008).

6

Although the statement was addressed to the Board, the Office interpreted it as a request for reconsideration of
its prior merit decisions. In an August 30, 2008 letter, appellant stated that the June 12, 2008 statement was
intended to show clear evidence of error in the Office’s prior merit decisions.

2

medical evidence of record showed that he sustained an employment-related emotional
condition. Appellant argued that statements of Mr. Gant and Ms. Manies in the record were not
accurate.
In a November 25, 2008 decision, the Office denied appellant’s request for further review
of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.7 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.8
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes “clear evidence of error.”9 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.11 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.13 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.14 This entails a limited review by the Office of how the
7

20 C.F.R. § 10.607(a).

8

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.
11

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

12

See Leona N. Travis, 43 ECAB 227, 240 (1991).

13

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

14

See Leona N. Travis, supra note 12.

3

evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.15
ANALYSIS
In its November 25, 2008 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on June 12,
2008, more than one year after the Board’s July 6, 2004 merit decision.16 Therefore he must
demonstrate clear evidence of error on the part of the Office in issuing its prior decisions.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
the Office in issuing its prior decisions concerning his emotional condition claim. He did not
submit the type of positive, precise and explicit evidence which manifests on its face that the
Office committed an error.
In his June 12, 2008 statement, appellant argued that several witness statements and other
documents he previously submitted to the Office showed that he was harassed by Mr. Gant. He
took issue with the accuracy of statements from Mr. Gant and Ms. Manies. Appellant repeated a
number of his previous claims that certain incidents involving Mr. Gant and Ms. Manies
constituted harassment.
These arguments, however, are not relevant to the main issue of the present case, i.e.,
whether appellant established any compensable employment factors in his emotional condition
claim. Appellant has restated the nature of some of his alleged employment factors and has
generally asserted that the evidence of record (such as the statements of coworkers) supported his
claim and that the statements of Mr. Gant and Ms. Manies did not support the Office’s findings.
These mere assertions do not establish that the Office erred in its previous decision. Appellant
also asserted that medical evidence of record showed that he sustained an employment-related
emotional condition, but this argument is not relevant as appellant has not established any
compensable employment factors.17
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of the Office’s prior decisions. The Office properly
determined that appellant did not establish clear evidence of error in those decisions.

15

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16

According to Office procedure, the one-year period for requesting reconsideration begins on the date of the
original Office decision, but the right to reconsideration within one year also accompanies any subsequent merit
decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3b (January 2004).
17

If a claimant has not established any compensable employment factors, the Office need not consider the
medical evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

4

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 25, 2008 decision is affirmed.
Issued: June 3, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOUSING & URBAN
)
DEVELOPMENT, OFFICE OF FAIR HOUSING )
& EQUAL OPPORTUNITY, Los Angeles, CA,
)
Employer
)
__________________________________________ )
D.B., Appellant

Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0443
Issued: November 15, 2019

Case Submitted on the Record

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

JURISDICTION
On December 21, 2018 appellant, through counsel, filed a timely appeal from a June 27,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On June 29, 2017 appellant, then a 50-year-old equal opportunity specialist, filed a
traumatic injury claim (Form CA-1) alleging that on June 5, 2017 she sustained an emotional
condition due to actions of G.C., her first-line supervisor. She related that on June 5, 2017 G.C.
informed her by e-mail that she was being investigated for a workplace violation. G.C. provided
no other details and informed her that a meeting would be held in four days. Appellant reported
that she felt violated by her supervisors who had previously denied her reasonable
accommodations request one month earlier despite having provided two doctor’s notes. On the
reverse side of the claim form, J.B., a supervisor, controverted the claim noting that appellant was
claiming an emotional reaction to an e-mail notice which requested a meeting. She argued that
appellant’s emotional reaction was self-generated and did not arise out of or in the course of
employment.4
In support of her claim, appellant submitted medical reports dated May 4 through July 7,
2017 which discussed her psychiatric conditions in relation to employment-related factors.
By development letter dated July 17, 2017, OWCP informed appellant that the evidence of
record was insufficient to support her claim. It advised appellant of the factual and medical
evidence needed. OWCP requested that she clarify whether she was claiming a traumatic injury
or occupational disease and provided a questionnaire for completion. It afforded appellant 30 days
to submit the necessary evidence.
In an August 12, 2017 narrative statement, appellant responded to OWCP’s development
letter and reiterated that she was claiming a traumatic injury which occurred on June 5, 2017. She
reported while the continued mistreatment from her supervisors was both unfair and stressful, she
filed a Form CA-1 due to the e-mails and other events that occurred on June 5, 2017. Appellant
2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the June 27, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

The Board notes that appellant has a prior occupational disease claim which had been separately adjudicated under
OWCP File No. xxxxxx818. In that claim appellant alleged an eye strain and post-traumatic stress disorder (PTSD)
due to her managers’ failure to provide accommodation and to stereo-type her as lazy. By decision dated
December 18, 2017 appellant’s occupational disease claim was denied. This file has been combined with File No.
xxxxxx224 with File No. xxxxxx818 serving as the master file.

2

explained that about a year ago, she had filed an Equal Employment Opportunity (EEO) claim
against her first, second, and third-line supervisors for failure to promote her and the preferential
hiring of G.C. Her first-line supervisor was G.C. and her second-line supervisor was D.Q.
Appellant explained that since G.C. became her supervisor, he had routinely sent her threatening
e-mails and randomly subjected her to acts of disparate treatment when compared to her peers.
She stated that she had recently requested a medical transfer from G.C.’s unit based on his lack of
understanding and inability to accommodate her severe anxiety and depression. Appellant
reported that she was working from home and awaiting the transfer. However, she went into the
office on Friday, June 2, 2017 because G.C. insisted. Appellant reported that on Monday, June 5,
2017 at 10:30 a.m., she was working from home on her regularly scheduled tour of duty when she
received an e-mail from G.C. informing her that he needed to meet with her on June 8, 2017 to
conduct an investigation and ask her questions regarding a workplace matter. He further informed
her that she had a right to have a union representative present. Appellant stated that employees
who were teleworking were not usually bothered unless it was a serious matter. She related that
she did not understand the purpose of the meeting and why G.C. was contacting her at home since
she had just been in the office on Friday. Appellant further contended that working for the
employing establishment over the course of nine years, she could not recall ever receiving a notice
of possible discipline which related that she could have a union representative present. She
reported that because she was advised that a union representative could be present, she was terrified
that she was in trouble, even though she had done nothing wrong, and feared that this was some
new form of retaliation for her transfer request. Appellant responded to G.C.’s e-mail at 11:46
a.m. and asked him when the matter to be discussed occurred. G.C. responded to her stating that
the details of the matter would be discussed at the meeting on Thursday. Appellant then e-mailed
G.C. at 11:56 a.m. informing him that this was triggering her anxiety and major depression and
that four days was too long to wait to address the issue. She asked that he please provide her
details so that she could know what the matter was about and prepare as not knowing was
aggravating her disability and triggering her PTSD. Appellant reported that she received no
response to her last e-mail. She tried to continue to work but her anxiety kept mounting as she
could not figure out what she had done, and she felt all of the past abuse by her supervisors rush
back to her. Appellant reported that this caused a panic attack as her face began to burn and
became numb, her breathing was short and quick, her chest tightened, and her head hurt. At 1:45
p.m. she again e-mailed G.C. informing him that he had triggered a panic attack and she needed to
go to urgent care. G.C. responded that if she was in need of urgent care then she should go seek
medical assistance. Appellant went to urgent care at Facey Medical Center and informed them
that she was having a nervous breakdown due to actions of the employing establishment. The
treating providers told her that because she alleged her condition was caused by the employing
establishment, they could not treat her unless the employing establishment agreed. Appellant
provided them with the contact information for her second-line supervisor, D.Q. However, D.Q.
refused to authorize her treatment, despite appellant protesting that it was a medical emergency.
Appellant reported leaving urgent care without medical treatment and self-medicated with her own
anti-depressants and anti-anxiety medications. She reported that she had previously been treated
for general anxiety disorder, major depressive disorder, and beginning in 2016, PTSD as a result
of interacting with rogue supervisors G.S., D.Q., and A.Q. who discriminated against her in hiring,
promotions, reasonable accommodations, and other retaliatory actions. Appellant reported that
she had never been hospitalized for an emotional condition. She further stated that she was
previously prescribed anti-depressants in 2005 after her son was born but stopped taking the

3

medication around 2008. Appellant had a period of wellness with no medication for several years
but then had to resume taking medication after she began working for the employing establishment
and the stress mounted from her job. She further stated that many of her medications were not
prescribed until after she began working for the employing establishment due to depression,
anxiety, prolonged stress, high blood pressure, and sleep deprivation.
In support of her claim, appellant provided the June 5, 2017 e-mail correspondence with
G.C. The record reflects that on June 5, 2017 at 11:02 a.m., G.C. e-mailed appellant relating that,
“I need to meet with you on Thursday, June 8, 2017 at 10:30 a.m. to conduct an investigation and
ask questions regarding a workplace matter. Please note that you have a right to have a union
representative present. Thursday is one of your telework days, therefore I will provide you with a
call-in number.” At 11:37 a.m., appellant responded to G.C. and asked, “When did the matter
occur?” G.C. replied at 11:46 a.m. and stated, “The details of the matter will be discussed at the
meeting on Thursday.”
At 11:54 a.m., appellant replied to G.C. and stated:
“You are creating anxiety. I didn’t want to come into the LA Office because of the
drama that you guys create. I requested 100% telework. I came because you
directed me to. Now you are triggering anxiety and major depression that is going
to require me to take additional medication. Four days is too long to wait to address
the issue. Please provide details, so that I can know what is going on and be
prepared. At this point you are aggravating my disability and triggering PTSD, with
your ‘secrets.’” No reply was received and appellant replied again at 1:45 p.m.
stating, “You have triggered a panic attack. I need to go to urgent care.” G.C.
replied at 1:55 p.m. stating, “Yes, if you are in need of urgent care, please go seek
medical assistance right away.”
Appellant also submitted medical reports documenting treatment for her emotional
condition.
In a July 28, 2017 report from Facey Medical Foundation, Vanessa Jimenez, the workers’
compensation coordinator, explained that appellant visited their urgent care facility on June 5,
2017 but that there was no medical report available as she was not seen by the provider. She
reported that appellant came into the office on that date with complaints of chest pain, shortness
of breath, stress, and anxiety. Appellant was provided with a short form to complete with the
reason for the visit, which included whether the visit was for a work-related condition. The
receptionist noticed that it was not checked off and she verbally asked appellant if her illness was
work related to which appellant responded “yes.” At that time the receptionist explained the
workers’ compensation process and let her know that, in order to treat her, they needed to obtain
authorization from her supervisor. If she was not able to obtain authorization, she would have to
be referred to the nearest emergency department for treatment as her insurance would not cover
work-related visits and she would end up with a bill. The receptionist then called appellant’s
supervisor in an attempt to get the veriﬁcation needed for treatment. The supervisor informed her
that he would not be able to authorize it at that moment since the authorization had to come from
Washington and it was already too late. She reported that appellant was very frustrated and clearly

4

having a hard time. Nurses were in the receptionist area trying to assist her, as well making sure
that she was stable enough to go to the emergency department.
By decision dated October 26, 2017, OWCP denied appellant’s traumatic injury claim
finding that her alleged June 5, 2017 injury did not occur in the performance of duty. It accepted
that on June 5, 2017 she received an e-mail from G.C. regarding a June 8, 2017 investigation.
However, OWCP found that this event was not a compensable factor of employment because the
e-mail was administrative and the employing establishment had the right to perform the
investigation absent abuse.
On November 25, 2017 appellant requested an oral hearing before an OWCP hearing
representative.
A hearing was held on May 16, 2018. During the hearing, appellant described prior
interactions with her supervisors who discriminated against her and treated her unfairly, her
requests for reasonable accommodations, and the circumstances surrounding the June 5, 2017
employment incident.
Counsel subsequently submitted a brief in support of appellant’s emotional condition
claim, along with additional factual and medical evidence, including a July 10, 2017 final decision
from the employing establishment’s reasonable accommodations committee (RAC). The RAC
responded to appellant’s May 5, 2017 request to be reassigned and to telework full time, which
D.Q. and G.C had previously denied. The RAC approved in part appellant’s request to telework,
but found that she had to appear in the office one day per week. It further denied her request for
reassignment.
By decision dated June 27, 2018, OWCP’s hearing representative affirmed the October 26,
2017 decision finding that appellant failed to establish a compensable employment factor in the
performance of duty.
LEGAL PRECEDENT
A claimant has the burden of proof to establish by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.5 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
5

See Pamela R. Rice, 38 ECAB 830 (1987).

6

See C.M., Docket No. 17-1076 (issued November 14, 2018); S.J., Docket No. 12-1512 (issued February 12, 2013).

5

has some connection with the employment but nevertheless does not come within the concept or
coverage of workers compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.7 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 or her frustration from not being permitted to work in a particular environment or to hold a
particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer, not the regularly or specially assigned
work duties of the employee, and are not covered under FECA.9 However, the Board has held
that, where the evidence establishes error or abuse on the part of the employing establishment in
what would otherwise be an administrative matter, coverage will be afforded.10 In determining
whether the employing establishment has erred or acted abusively, the Board will examine the
factual evidence of record to determine whether the employing establishment acted reasonably.11
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.12 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor.13 When the matter asserted is
a compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.14
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.15 The nonadversarial policy of proceedings

7

Lillian Cutler, 28 ECAB 125 (1976).

8

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005).

9
B.S., Docket No. 19-0378 (issued July 10, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
10

O.G., Docket No. 18-0359 (issued August 7, 2019); William H. Fortner, 49 ECAB 324 (1998).

11

E.M., Docket No. 16-1695 (issued June 27, 2017); Ruth S. Johnson, 46 ECAB 237 (1994).

12
K.S., Docket No. 18-0845 (issued October 26, 2018); D.L., 58 ECAB 217 (2006); Jeral R. Gray, 57 ECAB
611 (2006).
13

B.B., Docket No. 19-0682 (issued September 9, 2019); David C. Lindsey, Jr., 56 ECAB 263 (2005).

14

K.J., Docket No. 17-1851 (issued September 25, 2019); Robert Breeden, 57 ECAB 622 (2006).

15

K.S., supra note 12.

6

under FECA is reflected in OWCP’s regulations at section 10.121.16 Once OWCP undertakes to
develop the evidence, it has the responsibility to do so in a proper manner.
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board notes initially that appellant’s allegations do not pertain to her regular or
specially assigned duties on June 5, 2017, under Lillian Cutler.17
The record reflects that on June 5, 2017 appellant’s supervisor G.C. advised her of a
meeting on June 8, 2017 in order to conduct an investigation and ask questions regarding a
workplace matter. G.C. further advised appellant that she had a right to have a union representative
present. Appellant requested that G.C. provide further information regarding the matter but he
declined and stated that the matter would be discussed in the meeting on Thursday. She again
requested that he provide some information pertaining to what the investigation was about and
stated that she could not wait four days as this was triggering her anxiety and major depression.
However, instead of advising appellant as to why she was part of an investigation regarding a
workplace matter, G.C. refused to provide her any information despite her repeated requests. This
refusal was contemporaneous with appellant’s treatment for stress-related conditions on June 5,
2017 as evidenced by the medical reports. Appellant further alleged that supervisor D.Q. denied
authorization of her medical treatment on that date when asked by the medical provider. She
provided a June 5, 2017 report from Facey Medical Foundation validating her claim that she
attempted to seek treatment on that date but could not be treated as authorization for medical
treatment was denied by her supervisor. Appellant submitted evidence which revealed that the
employing establishment was aware of her previously diagnosed emotional condition through her
requests for reasonable accommodations. When an employing establishment’s actions in an
administrative matter are shown to be erroneous or abusive, the claim is compensable.18 OWCP,
however, failed to obtain further information from the employing establishment regarding these
June 5, 2017 allegations before denying appellant’s claim.
In B.G., widow of M.G.,19 the Board set aside OWCP’s decision finding that appellant had
not established a compensable employment factor. The record revealed that on May 1, 2014 a
supervisor advised the employee that an investigation of his behavior was complete and informed
him of a meeting on May 5, 2014 regarding potential disciplinary action. However, the supervisor
refused to inform the employee of the results of the investigation and made him wait until May 5,
2014, the following Monday for a meeting. This refusal was contemporaneous with the
employee’s treatment for stress-related conditions. The Board found that there was sufficient

16

20 C.F.R. § 10.121.

17

Supra note 7; see also F.V., Docket No. 19-0006 (issued September 19, 2019).

18

Id.

19

Docket No. 18-1080 (issued March 26, 2019).

7

evidence of record to establish that the actions of the supervisor from May 1 to 5, 2014 constituted
error or abuse on the part of the employing establishment.20
In this instance, appellant has submitted evidence which supports that the employing
establishment was aware of her emotional condition through her previous requests for reasonable
accommodations and EEO complaints. She submitted evidence which established that on June 5,
2017, her supervisor notified her of a workplace investigation to be held on June 8, 2017, and that
she had a right to have a union representative present. The corresponding e-mails also showed
that the supervisor refused to provide her any information regarding the investigation despite her
repeated requests and alerting him that this was triggering her anxiety and depression. Medical
evidence establishes that appellant went to urgent care that same date but that her supervisor
refused to authorize the medical treatment, causing her to go home untreated.
OWCP’s procedures recognize that in certain types of claims, such as a stress claim, a
statement from the employer is imperative to properly develop and adjudicate the claim.21
Although it is appellant’s burden to establish her claim, OWCP is not a disinterested arbiter, but
rather, shares responsibility in the development of the evidence, particularly when such evidence
is of the character normally obtained from the employing establishment or other government
source.22 OWCP failed to develop the evidence by requesting information from the employing
establishment regarding appellant’s allegations of abuse. It also did not request that the employing
establishment submit evidence of its policy regarding notifying employees of meetings regarding
investigations and possible disciplinary actions.
The Board finds that because OWCP failed to send a claim development letter to the
employing establishment requesting the required information, the present claim has not been
properly developed.23 Based on the case record before it, the Board cannot determine whether the
administrative actions on the part of the employing establishment amounted to error or abuse.
For these reasons, the case will be remanded to OWCP to obtain additional information
from the employing establishment regarding the June 5, 2017 work-related incident.24 After
carrying out such further development, OWCP shall issue a de novo decision, containing adequate
findings of fact and a statement of reasons, with respect to appellant’s emotional condition claim.25

20

See M.C., Docket No. 14-1135 (issued June 7, 2016) (the Board found error or abuse on the part of the employing
establishment where a security officer testified that another security officer did not follow its own de-escalation policy
when he placed the claimant in a control hold and escorted her off the premises).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2)
(June 2011).
22
C.F., Docket No. 18-1607 (issued March 12, 2019); D.M., Docket No. 14-0460 (issued February 11, 2016); C.S.,
Docket No. 14-1994 (issued January 21, 2015).
23

C.S., Docket No. 18-1733 (issued May 24, 2019).

24

L.B., Docket No. 17-1671 (issued November 6, 2018).

25

L.B., Docket No. 15-0905 (issued September 19, 2016).

8

CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision.26
Issued: November 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

26

Upon remand OWCP shall administratively combine File No. xxxxxx209 (accepted for unspecified subjective
visual distances (eye strain) and aggravation (temporary) of convergence insufficiency) with File Nos. xxxxxx818 and
xxxxxx224.

9