United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, FLORENCE VILLA
STATION, Winter Haven, FL, Employer
__________________________________________

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

Docket No. 09-954
Issued: November 4, 2009

Case Submitted on the Record

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

JURISDICTION
On February 27, 2009 appellant filed a timely appeal from an April 28, 2008 decision of
the Office of Workers’ Compensation Programs denying her claim for an emotional condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that her emotional
condition is causally related to a compensable employment factor.
FACTUAL HISTORY
On October 26, 2007 appellant, then a 58-year-old mail processing clerk, filed a claim for
an emotional condition. She alleged that her condition was caused by harassment from the
station manager. Appellant alleged that the manager was constantly “on her case” and was a
“control freak.” She alleged that an Equal Employment Opportunity (EEO) complaint was

decided in her favor and supported her allegations.1 However, the station manager continued to
assign appellant additional duties. Appellant alleged that she was not treated with dignity and
respect, was required to work outside her medical restrictions and was not allowed to take
adequate breaks from work. She alleged that she was given new job tasks in the August 2007
job offer and had specific time deadlines for certain tasks that she had difficulty meeting.
The Office asked appellant to submit additional evidence including a detailed description
of the work situations or incidents that contributed to her emotional condition and a
comprehensive medical report from her treating physician with a rationalized medical opinion as
to how the condition was causally related to factors of her employment.
Appellant submitted medical reports dated September 22 to December 5, 2007 which
diagnosed work-related anxiety disorder and major depressive disorder.
In a September 17, 2007 letter, Janet Clayton, an employing establishment human
resources specialist, advised the Office that appellant was a rehabilitated employee performing a
rehabilitation job since July 1995. In August 2007, the employing establishment presented an
updated and revised job offer within her work restrictions. Appellant indicated that she was
stressed because of the revised job offer and would see her attending psychiatrist, Dr. Robin N.
Wooten on August 31, 2007. In a September 21, 2007 report, Dr. Wooten placed appellant off
work effective August 30, 2007 due to work-related anxiety and depression. On October 30,
2007 Ms. Clayton challenged appellant’s emotional condition claim. She stated that the job
offered to appellant involved an administrative matter and was not a compensable factor of
employment. Ms. Clayton noted that the employing establishment offered her a list of tasks that
she could perform within her physical restrictions either on a daily basis or as needed by
management.
On October 29, 2007 David Lessa, the customer relations manager, noted that appellant
alleged that she was picked on at work but provided no specific details. He worked with her for
11 months before she stopped work due to her claimed emotional condition. Mr. Lessa did not
observe any behavior by management or coworkers that could be construed as picking on her.
He stated that appellant felt imposed upon because she had been offered a modified position that
included new tasks. Despite assurances from Mr. Lessa and the injury compensation staff to the
contrary, appellant mistakenly believed that she was required to perform every single task on the
list every day. Mr. Lessa explained that this was not the case. On December 11, 2007 he further
explained that appellant’s revised job offer in 2007 included new tasks that were within her
physical restrictions and which she had the time to perform on an occasional, not daily, basis.
Mr. Lessa explained that the responsibilities of the postal service were always changing due to
new technology and new services offered. Consequently, the tasks of employees sometimes
needed to be revised as well. Mr. Lessa and the employing establishment injury compensation
specialist explained this to appellant. Regarding appellant’s allegation that he was constantly on
1

Of record is a document titled EEO Settlement Agreement Pre-complaint in which appellant voluntarily agreed
to withdraw her claims that she was working outside her restrictions and was not treated with dignity and respect.
The settlement agreement indicated that the agreement was reached knowingly and voluntarily by appellant and
management and the settlement agreement did not constitute an admission of discrimination or wrongdoing on the
part of the employing establishment.

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her case, Mr. Lessa denied that he monitored appellant too closely. He noted that her assigned
workstation was in close proximity to his office. Mr. Lessa indicated that appellant might have
perceived that he was watching her too closely, but it was the proximity of their work spaces that
created frequent interaction during the workday. He stated that every task on appellant’s job
offer could be performed within the restrictions provided by her physician. To ensure that she
did not work outside her restrictions, she was asked to monitor the time she spent on various
tasks and self-limit her tasks so as not to exceed her physical restrictions. Regarding appellant’s
allegations of low morale among employees, Mr. Lessa noted that there was a staffing shortage
that had not been resolved. He noted that her EEO complaint, regarding allegations that she was
required to work outside of her physical restrictions and was not treated with dignity and respect
by management, was resolved through mediation between the parties, not on the merits of her
allegations.
By decision dated April 28, 2008, the Office denied appellant’s claim on the grounds that
she failed to establish that her emotional condition was causally related to a compensable
employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 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 her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.4
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment, which may be considered by a physician when
providing an opinion on causal relationship, and which are not deemed compensable factors of
employment and may not be considered.5 When an employee fails to establish a compensable
factor of employment, the Office should make a specific finding in that regard. If an employee
2

5 U.S.C. §§ 8101-8193.

3

Lillian Cutler, 28 ECAB 125 (1976).

4

Michael Thomas Plante, 44 ECAB 510 (1993).

5

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

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does establish a compensable factor of employment, the Office should then determine whether
the evidence of record substantiates that factor.6 As a rule, allegations alone by an employee are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by other evidence.7 Where the employee alleges compensable factors of
employment, he must substantiate such allegations with probative and reliable evidence.8 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, then the Office must base its decision on an analysis of the
medical evidence.9
ANALYSIS
Several of appellant’s allegations are not substantiated by the record. She alleged that her
emotional condition was caused by harassment from Mr. Lessa, the station manager. Appellant
asserted that Mr. Lessa was constantly on her case and was a control freak. She indicated that an
EEO complaint was decided in her favor and supported her allegations. However, the EEO
settlement agreement states that appellant voluntarily agreed to withdraw her claims that
management required her to work outside her restrictions and did not treat her with dignity and
respect. The settlement agreement stated that the agreement reached between appellant and
management was not an admission of discrimination or wrongdoing on the part of the employing
establishment. Mr. Lessa noted that appellant’s EEO complaint was resolved through mediation
between the parties, not on the merits of her complaint. He denied that he monitored appellant
too closely. Mr. Lessa explained that her assigned workstation was in close proximity to his
office. Appellant might have perceived that he was watching her too closely, but it was just the
proximity of their work spaces that created frequent interaction during the workday. She alleged
that her new tasks were outside her work restrictions. However, Mr. Lessa stated that every task
in the job offer could be performed within the restrictions provided by her physician. To ensure
that she did not work outside her restrictions, she was asked to monitor the time she spent on
various tasks and self-limit her tasks to meet her physical restrictions.
Several of appellant’s allegations involve administrative or personnel matters. The Board
has held that an administrative or personnel matter will be considered to be an employment
factor only where the evidence discloses error or abuse on the part of the employing
establishment.10 In determining whether the employing establishment erred or acted abusively,
the Board has examined whether the employing establishment acted reasonably.11 Appellant
alleged that she was given new tasks in the August 2007 job offer and had specific deadlines for
certain tasks but had difficulty meeting the deadlines. She felt imposed upon because she had
6

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

7

See Charles E. McAndrews, 55 ECAB 711 (2004).

8

Joel Parker, Sr., 43 ECAB 220 (1991).

9

See Charles D. Edwards, 55 ECAB 258 (2004).

10

Id.

11

Janice I. Moore, 53 ECAB 777 (2002).

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been offered a modified position in August 2007 with new tasks. Despite assurances from
Mr. Lessa and the injury compensation staff to the contrary, appellant believed that she was
required to perform every task on the list every day. Mr. Lessa explained that appellant’s revised
job offer in August 2007 included new tasks that were within her physical restrictions. He noted
that she had the time to perform the tasks on an occasional, not daily, basis. Mr. Lessa explained
that the responsibilities of the postal service were always changing due to new technology and
new services. For this reason, the tasks of employees needed to be revised. Mr. Lessa and the
injury compensation specialist explained this to appellant. Ms. Clayton, the human resources
specialist, confirmed that the employing establishment offered appellant a list of tasks that she
could perform within her physical restrictions, either on a daily basis or as needed by
management. There is no evidence in the record, that appellant’s job duties actually exceeded
her restrictions.
Appellant’s allegations regarding the assignment of new tasks and the deadlines in her
August 2007 revised job offer involve administrative matters. She has not established error or
abuse by management in the handling of these matters. Complaints regarding the manner in
which a supervisor performs his or her duties fall outside the scope of the Act, absent error or
abuse.12 Mere disagreement or dislike of a supervisory or managerial action will not be
compensable, absent error or abuse.13 Appellant failed to establish error or abuse in
management’s assignment of new tasks and in setting deadlines for the completion of tasks.
Therefore, these allegations do not constitute compensable factors of employment.
The Board finds that appellant failed to establish that her emotional condition was
causally related to a compensable factor of employment. Therefore, the Office properly denied
her emotional condition claim.14
CONCLUSION
The Board finds that appellant failed to establish that her emotional condition was
causally related to a compensable factor of employment.

12

See Marguerite J. Toland, 52 ECAB 294 (2001).

13

Id.

14

See supra note 10 (in the absence of compensable factors of employment, there is no need to address the
medical evidence).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 28, 2008 is affirmed.
Issued: November 4, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mobile, AL, Employer
__________________________________________

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

Docket No. 10-1578
Issued: February 2, 2011

Case Submitted on the Record

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

JURISDICTION
On May 25, 2010 appellant filed a timely appeal from an April 13, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a cervical condition causally related to
factors of his federal employment.
FACTUAL HISTORY
On August 12, 2009 appellant, then a 48-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that he sustained a cervical herniated disc causally related to
repetitive motion in his federal employment. He stopped working on April 15, 2009, returned to
work on July 14, 2009 and was currently working part time, four to five hours a day.1
1

The record contains a May 1, 2008 job offer for a modified mail processing clerk position.

In a report dated June 18, 2009, Dr. Andre Fontana, an orthopedic surgeon, stated that
appellant remained under his care for a work-related cervical herniated disc problem. He noted
the results on a March 13, 2009 magnetic resonance imaging (MRI) scan. Dr. Fontana stated
that appellant had been totally disabled for the past two months.
By form report (CA-20) dated July 10, 2009, Dr. Fontana diagnosed cervical herniated
disc and checked a box “yes” that he believed the condition was caused or aggravated by
employment. He stated, “Continuous and repetitive motion [and] activity.” In a July 25, 2009
work capacity evaluation (Form OWCP-5c), Dr. Fontana indicated that appellant could work
four hours a day with restrictions. He listed a diagnosis of cervical spondylosis with
myelopathy.
In a report dated September 8, 2009, Dr. Fontana stated that appellant had a history of a
work-related injury to the cervical spine. He reported that appellant “was working with the mail
boxes and was using repetitive movements and also working at the window region and pushing
for the mail when he became more symptomatic in his neck associated with disc problems.”
By decision dated October 8, 2009, the Office denied the claim for compensation. It
found that the medical evidence was insufficient to establish the claim.
Appellant requested a telephonic hearing with an Office hearing representative, which
was held on January 13, 2010. He indicated that there was another claim filed for a neck
condition. Appellant discussed his job duties and the repetitive motions required. He submitted
a report dated December 22, 2009 from Dr. Fontana, who again stated that appellant remained
under his care for a work-related cervical herniated disc.
By decision dated April 13, 2009, the Office hearing representative affirmed the
October 8, 2009 Office decision. The hearing representative found that the medical evidence
was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, 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;

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the 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 factors.7
ANALYSIS
At the January 13, 2010 hearing, appellant indicated that there was another compensation
claim for a neck injury. It is not clear what specific work factors he had alleged with respect to
the other claim. In this case, appellant filed a claim for a new injury that he attributed to
repetitive motion when working the box section and when he worked the window grabbing
parcels and keeping his arm extended. The issue is whether the medical evidence is sufficient to
establish causal relationship between his cervical condition and the identified work factors.
The attending physician, Dr. Fontana, diagnosed cervical herniated disc, as well as
cervical spondylosis with myelopathy. As noted, the medical evidence must provide a
rationalized medical opinion on causal relationship, based on a complete background.
Dr. Fontana noted a “work-related” cervical herniated disc, without providing a rationalized
medical opinion enplaning how this diagnosis was caused or contributed to by the work factors
identified. The checking of a box “yes” in a form report, without additional explanation or
rationale, is not sufficient to establish causal relationship.8
In a September 8, 2009 report, Dr. Fontana briefly noted repetitive motions and pushing
mail in appellant’s employment. He did not provide a complete factual background, describing
appellant’s work history or the duties performed. In addition, there was no medical history
discussing any prior neck conditions or the development of the diagnosed conditions.
Dr. Fontana did not provide a rationalized medical opinion explaining how the identified work
factors contributed to a appellant’s neck condition. In the absence of probative medical
evidence, the Board finds that appellant did not meet his burden of proof in this case.

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

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CONCLUSION
The Board finds that appellant did not establish a cervical condition causally related to
identified employment factors.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 13, 2010 is affirmed.
Issued: February 2, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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Appearances:
Brock D. Stiles, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 05-15
Issued: July 10, 2007

Case Submitted on the Record

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

JURISDICTION
On September 23, 2004 appellant, through her attorney, filed a timely appeal from a
September 10, 2003 merit decision of the Office of Workers’ Compensation Programs reducing
her compensation to zero for failing to cooperate with vocational rehabilitation and nonmerit
decisions of the Office dated February 5 and August 9, 2004 denying her request for
reconsideration under 5 U.S.C. § 8128.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case and over the February 5 and August 9, 2004 nonmerit
decisions.2

1

Appellant’s appeal was postmarked September 9, 2004, thereby rendering it timely filed pursuant to 20 C.F.R.
§ 501.3(d)(2)(ii).
2

The Board previously issued a decision on April 25, 2005 affirming the Office’s February 5 and August 9, 2004
nonmerit decisions. The Board found that it did not have jurisdiction over the Office’s September 10, 2003 decision
based on the filing date of the appeal. Appellant requested reconsideration and argued that her appeal was
postmarked September 9, 2004. The Board granted her petition for reconsideration on October 18, 2005 and
vacated its April 25, 2005 decision. Order Granting Petition for Reconsideration, Docket No. 05-15 (issued
October 18, 2005).

ISSUES
The issues are: (1) whether the Office properly reduced appellant’s monetary
compensation to zero under 5 U.S.C. § 8113(b) effective July 10, 2003 on the grounds that she
did not cooperate with the preliminary stages of vocational rehabilitation; (2) whether the Office,
in its February 5, 2004 decision, properly denied her request for further review of the merits of
her claim pursuant to 5 U.S.C. § 8128; and (3) whether the Office, in its August 9, 2004 decision,
properly denied appellant’s request for merit review under section 8128.
FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board reversed
Office decisions dated March 4, 1999 and November 20, 1998 terminating appellant’s
compensation benefits on the grounds that she had no further employment-related condition or
disability.3 The Board found that the opinion of Dr. Roy D. Clark, Jr., a Board-certified
psychiatrist and Office referral physician, was insufficient to support that she had no further
disability due to her accepted condition of anxiety disorder. The findings of fact and conclusions
of law from the prior decision are hereby incorporated by reference.
The Office returned appellant to the periodic rolls effective November 22, 1998. On
July 9, 2001 the Office referred her to Dr. Robert I. Fink, a Board-certified psychiatrist, for an
impartial medical examination. The Office requested that he determine whether appellant
continued to have an anxiety disorder, its relationship to her employment and whether she had
any further disability from employment.
In a work restriction evaluation dated July 20, 2001, Dr. Kristin K. Schaaf, a licensed
clinical psychologist and appellant’s new attending physician, opined that she was unable to
resume her usual employment.4 On July 23, 2001 Dr. Schaaf diagnosed anxiety disorder with
symptoms of post-traumatic stress disorder. She attributed the diagnosed conditions to her work
injury.
In a report dated September 17, 2001, Dr. Fink diagnosed panic disorder with mild
agoraphobia and an anxiety disorder not otherwise specified. He found that it was “impossible at
this time to go back and indicate that her anxiety disorder is absolutely unrelated to the accepted
facts in this case.” Dr. Fink determined that appellant had “an intermittent mild anxiety disorder
which does not affect her unless she is involved with issues relating to the [Office] or [the
employing establishment].” He recommended a settlement of her workers’ compensation claim
to facilitate resolution of her symptoms. Dr. Fink asserted:
“[Appellant] is not capable of working at the [employing establishment] ever
again. She will become increasingly anxious and have a situation not dissimilar
to what she had in her last years of intermittent work with the [employing
establishment]. [Appellant] is not able to return to the job that she had at the time
3

Flora E. Rush, Docket No. 99-1460 (issued November 1, 2000).

4

Dr. Schaaf began treating appellant subsequent to the Office’s identification of the conflict in medical opinion.

2

of the injury and she is not capable of returning to any kind of modified work
within the [employing establishment]. I do believe that she could work virtually
anywhere else but is still potentially subject to similar reactions to similar
situations if they would occur.”
Based on Dr. Fink’s findings, on November 8, 2001 the Office referred appellant for
vocational rehabilitation. On December 7, 2001 the Office called appellant, who declined to
participate in vocational rehabilitation services based on her physician’s advice.5
By letter dated February 12, 2002, the Office acknowledged appellant’s refusal to
participate in vocational rehabilitation and directed her to comply with vocational rehabilitation
in good faith or provide reasons for her refusal within 30 days. Appellant advised the Office that
she was not participating based on the recommendation of Dr. Schaaf. She provided a report
dated February 7, 2002 from Dr. Schaaf, who concurred with Dr. Fink’s finding that appellant
would not improve until resolution of her workers’ compensation claim. She opined:
“I believe that vocational rehabilitation services will not be helpful and could
actually be harmful. [Appellant] reported that she felt ‘harassed’ and her anxiety
symptoms increased when she was called at home and told that her participation
in the program was mandatory. Any efforts by your [O]ffice to return her to work
will be viewed as ‘an attempt to control [her]’ and her intense distrust will make
those efforts extremely difficult.”
In a decision dated April 15, 2002, the Office reduced appellant’s compensation to zero
under 5 U.S.C. § 8113(b) for failing to participate in the initial phases of vocational
rehabilitation. Appellant, through her representative, requested reconsideration. By decision
dated August 15, 2002, the Office vacated its April 15, 2002 decision after finding that it had
issued the decision prematurely. The Office noted that it had not considered appellant’s reasons
for failing to participate in vocational rehabilitation. The Office also indicated that Dr. Fink had
not specifically found that she could participate in vocational rehabilitation and that Dr. Schaaf
opined that rehabilitation would be unhelpful.
In a memorandum dated April 18, 2003, a claims examiner noted that the Office did not
need a specific opinion from Dr. Fink that appellant could participate in vocational rehabilitation
given his finding that she could perform any position outside the employing establishment.
On April 22, 2003 the Office requested that Dr. Schaaf clarify why she believed that
vocational rehabilitation would not be helpful to appellant. In an April 23, 2003 response,
Dr. Schaaf diagnosed anxiety disorder not otherwise specified. She asserted, “I believe that, if
[appellant] were forced to participate in vocational rehabilitation, she would not benefit due to
her distrust and resistance, and she could potentially be harmed as it is likely to cause her
symptoms to flare up again.” Dr. Schaaf also expressed concern that she might lose control and
hurt someone if she felt she was being controlled or manipulated.

5

In a report dated December 13, 2001, Dr. Schaaf requested that the Office contact appellant in writing rather
than by telephone because she was concerned about her anxiety level and its effect on her pregnancy.

3

The Office referred appellant for vocational rehabilitation on May 21, 2003. The Office
noted that she could not return to work for the employing establishment. In a report dated
June 20, 2003, Cathy Cottingham, the rehabilitation counselor, indicated that she had written to
the employing establishment to inquire about possible positions. Appellant met with
Ms. Cottingham on June 23, 2003. In a closing report dated June 30, 2003, Ms. Cottingham
informed the Office that, during the meeting on June 23, 2003, appellant stated that she would
hurt the counselor if she “was pushed too far.” The rehabilitation counselor stated:
“Based on the medical information in the file indicating that the claimant cannot
return to work at her job of injury, the claimant’s lack of transferable skills and
the preponderance of medical information indicating that the claimant’s condition
will never improve until her claim is settled, this [rehabilitation counselor] is
recommending that this claimant is not appropriate to participate in vocational
services.”
On July 22, 2003 appellant, through her attorney, informed the Office that she would not
meet with the rehabilitation counselor as her attending physician believed that it would cause “a
significant flare of her psychiatric symptoms.” By letter dated July 23, 2003, the Office notified
appellant that it had terminated the services of Ms. Cottingham because she had “violated our
directive not to seek” employment for her with the employing establishment. The Office
referred appellant to Carl Gann for rehabilitation services.
In another letter dated July 23, 2003, the Office noted that appellant had cancelled her
meeting with the rehabilitation counselor and advised her of the provisions of section 8113(b) of
the Federal Employees’ Compensation Act.6 The Office provided appellant 30 days within
which to meet with the rehabilitation counselor or submit reasons for her refusal. The Office
informed her that if she failed to cooperate without good cause her monetary compensation
benefits could be reduced on the assumption that the vocational rehabilitation effort would have
resulted in a return to work with no loss of wage-earning capacity.
In a letter dated August 18, 2003, appellant’s attorney argued that the Office had
inappropriately switched to another rehabilitation counselor because Ms. Cottingham had
determined that appellant should not be vocationally rehabilitated. He submitted progress
reports dated June 18 and July 30, 2003 from Dr. Schaaf. In the progress reports, Dr. Schaaf
described appellant’s feelings regarding vocational rehabilitation.
By decision dated September 10, 2003, the Office reduced appellant’s compensation to
zero effective July 10, 2003 under section 8113(b) of the Act on the grounds that she failed to
cooperate with vocational rehabilitation and failed to provide sufficient reasons for her failure to
cooperate.7

6

5 U.S.C. §§ 8101-8193.

7

In a letter dated September 15, 2003, the Office warned appellant against making threats toward her
rehabilitation counselor.

4

In a letter dated October 8, 2003, appellant, through her attorney, requested
reconsideration of her claim. The attorney argued that Dr. Fink’s opinion “did not address
whether [appellant] was able to participate in a VR program” and that her attending physician,
Dr. Schaaf, “continues to state that [she] is unable to return to work on a permanent basis due to
her anxiety disorder.” He further noted that the rehabilitation counselor opined that she was
unable to participate in vocational rehabilitation.
In support of her request for reconsideration, appellant resubmitted medical reports
already of record and additional progress reports from Dr. Schaaf. In a progress note dated
August 21, 2003, Dr. Schaaf discussed appellant’s complaints regarding her ongoing “battle over
vocational services” and found she had increased anxiety. In a progress note dated
September 17, 2003, she related that appellant stated that receiving letters from the Office
increased her anxiety. In a progress note dated October 27, 2003, Dr. Schaaf found her condition
unchanged. On December 17, 2003 she related that appellant provided a history of her
supervisor at the employing establishment forcing her to lift 80 pounds while laughing at her and
also reported “being threatened [and] harassed by other supervisors as well….” In a progress
note dated January 21, 2004, Dr. Schaaf discussed appellant’s complaints of stress due to the
employing establishment and waiting on a decision from the Office. She indicated that
appellant’s level of functioning was unchanged.
By decision dated February 5, 2004, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant review of
its September 10, 2003 decision.
In a letter dated June 3, 2004, appellant, through her attorney, again requested
reconsideration. She submitted progress reports dated February through May 2004 from
Dr. Schaaf, who described her current complaints and found her condition unchanged. Appellant
also submitted progress notes from Dr. Schaaf already of record.
On March 24, 2004 Dr. Schaaf found that appellant was unable to work or participate in
vocational rehabilitation due to her anxiety disorder. She related:
“[Appellant] remains unable to return to work on a permanent basis due to her
anxiety disorder. As I have stated in the past, she has become extremely
defensive and distrustful of people in supervisory and management roles as a
result of her experiences at the [employing establishment]. In any employment
situation where her work is supervised, she will respond as she responded at the
[employing establishment]. She will perceive that she is being controlled or
harassed, her symptoms will increase, and she will be unable to perform her job
duties. Dr. Fink agreed that if she returned to work, she would be ‘subject to
similar reactions to similar situations.’”
Dr. Schaaf further found that she could not participate in vocational rehabilitation
because she would view it as “an ‘attempt to control’ her” and “she would not benefit due to her
distrust and resistance….”

5

Appellant also submitted a letter dated April 6, 2004 from Ms. Cottingham, who
indicated that she did not feel threatened by appellant.
By decision dated August 9, 2004, the Office denied appellant’s request for
reconsideration as the evidence submitted was insufficient to warrant review of the merits under
section 8128 of the Act.
LEGAL PRECEDENT -- ISSUE 1
Section 8104(a) of the Act8 pertains to vocational rehabilitation and provides: “The
Secretary of Labor may direct a permanently disabled individual whose disability is compensable
under this subchapter to undergo vocational rehabilitation. The Secretary shall provide for
furnishing the vocational rehabilitation services.” Under this section of the Act, the Office has
developed procedures which emphasize returning partially disabled employees to suitable
employment and determining their wage-earning capacity.9 If it is determined that the injured
employee is prevented from returning to the date-of-injury job, vocational rehabilitation services
may be provided to assist in returning the employee to suitable employment.10
Section 8113(b) of the Act further provides, “If an individual without good cause fails to
apply for and undergo vocational rehabilitation when so directed under section 8104” the Office,
after finding that in the absence of such failure the wage-earning capacity of the individual
would likely have increased substantially, “may reduce prospectively the monetary
compensation of the individual in accordance with what would probably have been [her] wageearning capacity in the absence of the failure, until the individual in good faith complies” with
the directions of the Office.11 Office procedures require that prior to reduction of compensation
a claimant be notified of the provisions of section 8113(b) and provided an opportunity to either
resume participation in vocational rehabilitation or provide reasons for not continuing
participation.12 Under section 8104 of the Act, the employee’s failure to willingly cooperate

8

5 U.S.C. § 8104(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813 (August 1995).
10

Id. The Office’s regulations provide: “In determining what constitutes ‘suitable work’ for a particular disabled
employee, [the Office] considers the employee’s current physical limitations, whether the work is available within
the employee’s demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.” 20 C.F.R. § 10.500(b).
11

5 U.S.C. § 8113(b).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(b) (November 1996).

6

with vocational rehabilitation may form the basis for terminating the rehabilitation program and
the reduction of monetary compensation.13 The Office’s implementing regulations state:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows:”
***
(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early, but necessary stages of a vocational
rehabilitation effort (that is, meetings with the [Office] nurse, interviews,
testing, counseling, functional capacity evaluations, and work
evaluations), [the Office] cannot determine what would have been the
employee’s wage-earning capacity.
(c) Under the circumstance identified in paragraph (b) of this section, in
the absence of evidence to the contrary, [the Office] will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity and [the Office] will reduce the
employee’s monetary compensation accordingly (that is, to zero). The
reduction will remain in effect until such time as the employee acts in
good faith to comply with the directions of [the Office].”14
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.15 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.16 Where there exist opposing medical reports of virtually equal weight and rationale
and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.17

13

See Wayne E. Boyd, 49 ECAB 202 (1997) (the Board found that the Office properly reduced the claimant’s
wage-loss compensation benefits as he failed to cooperate with the early and necessary stages of developing an
appropriate training program).
14

20 C.F.R. § 10.519.

15

5 U.S.C. § 8123(a).

16

20 C.F.R. § 10.321.

17

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

7

ANALYSIS -- ISSUE 1
The Office determined that a conflict existed on the issue of whether appellant had any
further residuals of her accepted condition of anxiety disorder. The Office referred her to
Dr. Fink, a Board-certified psychiatrist, for an impartial medical examination.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.18 The Board has reviewed the opinion of Dr. Fink
and finds that it has reliability, probative value and convincing quality with respect to its
conclusions regarding appellant’s work ability. In a report dated September 17, 2001, Dr. Fink
diagnosed panic disorder and anxiety disorder. He found that it was not possible at this point to
find that her anxiety disorder was unrelated to work factors. Dr. Fink opined that appellant could
not work for the employing establishment but “could work virtually anywhere else.” He
provided rationale for his opinion by explaining that her anxiety disorder was mild and did “not
affect her unless she is involved with” the Office or employing establishment. While Dr. Fink
indicated that she remained subject “to similar reactions to similar situations” than those she
encountered at the employing establishment, the Board has consistently held that the possibility
of a future injury does not form a basis for compensation under the Act.19 Dr. Fink’s opinion is
based on a proper factual and medical history and is well rationalized. His opinion is entitled to
special weight and establishes that appellant is not totally disabled from employment.
Based on Dr. Fink’s September 17, 2001 report, the Office referred appellant to
vocational rehabilitation. On December 17, 2001 she declined to participate in vocational
rehabilitation, citing the advice of her physician. Appellant submitted a report dated February 7,
2002 from Dr. Schaaf, her attending physician, who opined that rehabilitation would be harmful
to her because she would view it as an attempt at control. In a report dated April 23, 2003,
Dr. Schaaf diagnosed anxiety disorder not otherwise specified. She again opined that vocational
rehabilitation would be of no benefit and that appellant “could potentially be harmed as it is
likely to cause her symptoms to flare up again.” Dr. Schaaf also noted that appellant believed
that she might harm someone else if “she felt she was being controlled or manipulated.” The
Board finds, however, that the Office reasonably referred appellant to vocational rehabilitation
given the finding of Dr. Fink that she could work anywhere but the employing establishment.
Dr. Schaaf has not adequately explained the basis for her conclusion that vocational
rehabilitation would not benefit appellant in view of Dr. Fink’s findings. Additionally, her
finding that appellant “could potentially be harmed” by vocational rehabilitation is a fear of
future injury and, as discussed above, is not compensable.20 Consequently, Dr. Schaaf’s opinion
is insufficient to overcome the weight accorded Dr. Fink’s opinion as the impartial medical
examiner.

18

Id.

19

See Manuel Gill, 52 ECAB 282 (2001).

20

Id.

8

On June 23, 2004 appellant met with Ms. Cottingham, a vocational rehabilitation
counselor. She told the rehabilitation counselor that she would “hurt her” if she “was pushed too
far.” Ms. Cottingham recommended against further rehabilitation efforts. On July 22, 2003
appellant, through her attorney, refused vocational rehabilitation based on the opinion of her
attending physician. On July 23, 2003 the Office referred appellant to a new rehabilitation
counselor, Mr. Gann. The Office advised her that it had terminated Ms. Cottingham’s services
because she had sought employment for her with the employing establishment. In a letter dated
July 23, 2003, the Office acknowledged appellant’s refusal to cooperate with vocational
rehabilitation and informed her that she had 30 days to participate in such efforts or provide good
cause for her refusal. The Office notified her that her compensation would be reduced if she did
not comply with its instructions. In a response dated August 13, 2003, appellant’s attorney
contended that the Office improperly switched rehabilitation counselors. The Office, however,
properly terminated Ms. Cottingham’s services as she requested information about placement
with the employing establishment against the Office’s explicit instructions. The attorney also
submitted progress reports dated June 18 and July 30, 2003 from Dr. Schaaf; however, these
progress reports merely summarized treatment sessions and did not contain an opinion on
disability. These progress reports are insufficient to meet appellant’s burden of proof to show
good cause for failing to participate in vocational rehabilitation.
Appellant failed to cooperate in the early stages of vocational rehabilitation. The Act’s
implementing regulation provides that when an employee fails to participate in the early stages
of vocational rehabilitation, it cannot be determined what his or her wage-earning capacity would
have been had there been no failure to participate.21 It is thus assumed, absent evidence to the
contrary, that the vocational rehabilitation effort would have resulted in a return to work with no
loss of wage-earning capacity.22 Appellant did not submit any evidence to refute this
assumption. The Office therefore properly found that she had no loss of wage-earning capacity
and reduced her monetary compensation to zero.
LEGAL PRECEDENT -- ISSUES 2 & 3
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,23 the Office’s regulations provide that a claimant may obtain review of the merits of the
claim by either: (1) showing that the Office erroneously applied or interpreted a specific point of
law; (2) advancing a relevant legal arguments not previously considered by the Office; or
(3) constituting relevant and pertinent new evidence not previously considered by the Office.24
Section 10.608(b) provides that when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.25
21

20 C.F.R. § 10.519(b).

22

20 C.F.R. § 10.519(c).

23

5 U.S.C. § 8128(a).

24

20 C.F.R. § 10.606(b)(2).

25

20 C.F.R. § 10.608(b).

9

ANALYSIS -- ISSUE 2
The medical evidence submitted by appellant in support of her October 8, 2003 request
for reconsideration does not constitute relevant and pertinent new evidence not previously
considered by the Office. Appellant submitted numerous medical reports and progress notes
already of record; however, the Board has held that the submission of evidence which repeats or
duplicates evidence already in the case record does not constitute a basis for reopening a case.26
Appellant also submitted progress notes from Dr. Schaaf dated August through
December 2003. The progress notes, however, do not address the relevant issue of whether
appellant has established that she had good reason for failing to cooperate with vocational
rehabilitation. The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.27
Appellant, through her attorney, contended that the impartial medical examiner, Dr. Fink,
did not address whether she could participate in vocational rehabilitation. He further argued that
Dr. Schaaf found appellant disabled from all employment and that the initial rehabilitation
counselor found that she was not a suitable candidate for rehabilitation. Appellant’s attorney’s
arguments fail to show that the Office erroneously applied or interpreted a point of law and are
repetitious of his arguments previously considered by the Office. Evidence which repeats or
duplicates evidence already of record has no evidentiary value and does not constitute a basis for
reopening a case.28
As appellant has not shown that the Office erroneously applied or interpreted a point of
law, advanced a point of law not previously considered or submitted relevant and pertinent new
evidence, the Office, in its February 5, 2004 decision, properly refused to reopen appellant’s
claim for a review on the merits.
ANALYSIS -- ISSUE 3
In support of her June 3, 2004 request for reconsideration, appellant submitted progress
notes from Dr. Schaaf dated February 18, March 10, April 14 and May 12, 2004, who described
her current symptoms and found her condition unchanged. As Dr. Schaaf did not address the
relevant issue of whether appellant could participate in vocational rehabilitation, her progress
notes are not relevant to the issue at hand.29

26

Arlesa Gibbs, 53 ECAB 204 (2001).

27

Ronald A. Eldridge, 53 ECAB 218 (2001).

28

Id.

29

Judy L. Kahn, 53 ECAB 321 (2002).

10

Appellant further resubmitted progress notes from Dr. Schaaf dated June 2001 through
January 2004. As this evidence duplicated that already of record, it has no evidentiary value and
is insufficient to warrant a reopening of appellant’s claim on the merits.30
In a letter dated April 6, 2004, Ms. Cottingham, the initial rehabilitation counselor,
indicated that she had not felt threatened by appellant during their meeting. Ms. Cottingham’s
letter does not address the relevant issue of whether appellant had good reason for failing to
participate in vocational rehabilitation and thus does not constitute a basis for reopening her
case.31
In a report dated March 24, 2002, Dr. Schaaf opined that appellant was disabled from
work due to her anxiety disorder. She maintained that if appellant were supervised she would
“perceive that she is being controlled or harassed, her symptoms will increase and she will be
unable to perform her job duties.” Dr. Schaaf stated that she could not participate in vocational
rehabilitation because she would believe it was an attempt at control and “would not benefit due
to her distrust and resistance.” She also noted that the impartial medical examiner, Dr. Fink,
found that if appellant resumed employment she might be “subject to similar reactions in similar
situations.” Dr. Schaaf’s March 24, 2002 opinion, however, is cumulative in nature as she
previously expressed this opinion in her prior report dated April 23, 2003; therefore, her report
does not constitute relevant and pertinent new evidence.32
As appellant has not shown that the Office erroneously applied or interpreted a point of
law, advanced a point of law or fact not previously considered or submitted relevant and
pertinent new evidence, the Office, in its August 9, 2004 decision, properly refused to reopen
appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that the Office properly reduced appellant’s monetary compensation to
zero under 5 U.S.C. § 8113(b) of the Act effective July 10, 2003 on the grounds that she did not
cooperate with the preliminary stages of vocational rehabilitation. The Board further finds that
the Office, in its February 5 and August 9, 2004 decisions, properly denied her requests for
further review of the merits of her claim under section 8128.

30

Vincent Holmes, 53 ECAB 468 (2002).

31

Kevin M. Fatzer, 51 ECAB 407 (2000).

32

Patricia G. Aiken, 57 ECAB ___ (Docket No. 06-75, issued February 17, 2006).

11

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 9 and February 5, 2004 and September 10, 2003 are
affirmed.
Issued: July 10, 2007
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
PUGET SOUND HEALTH CLINIC, Seattle, WA, )
Employer
)
__________________________________________ )
R.L., Appellant

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

Docket No. 20-0098
Issued: March 17, 2022

Case Submitted on the Record

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

JURISDICTION
On October 16, 2019 appellant filed a timely appeal from a July 18, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 13, 2015 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she developed emotional distress and severe anxiety on December 18,
2014 at 11:00 a.m. when the employing establishment police improperly arrested her with an
unwarranted display of force while she was engaged in union duties.
In a January 21, 2015 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence needed and provided a factual
questionnaire for her completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide additional information regarding appellant’s alleged
emotional condition claim, including comments from a knowledgeable supervisor regarding the
accuracy of her allegations and an explanation of any areas of disagreement, a copy of her position
description, and the results of any investigation. It afforded both parties 30 days for response.
On January 15, 2015 Dr. Keith Sonnanburg, a licensed clinical psychologist, opined that
appellant was totally disabled due to a work-related psychological injury. On February 2, 2015 he
diagnosed work-related stress and anxiety. Dr. Sonnanburg, in an attending physician’s report
(Form CA-20) dated February 4, 2015, checked a box marked “Yes” to indicate that her condition
was caused or aggravated by her employment activity and added that her condition was directly
related to episodes at her place of work.
By decision dated February 24, 2015, OWCP denied appellant’s emotional condition
claim, finding that the evidence of record was insufficient to establish that the claimed incident
occurred, as alleged. It noted that she had not submitted a factual statement outlining specific
details of the alleged December 18, 2014 employment incident. Thus, OWCP concluded that the
requirements had not been met to establish an injury as defined by FECA.
On March 4, 2015 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review. She provided additional information in support of
her request. In a March 3, 2015 statement, appellant noted that she was a union vice-president and
was responsible for representing employees in meetings and hearings with management, filing
grievances, and protecting employees’ rights. She explained that in the course of representing an
employee, R.G., a pathologist, she met with him on December 18, 2014 to discuss a fact-finding
interview scheduled on that date. Appellant had consulted via telephone with J.M., a physician
who was also the national union representative, who confirmed that R.G. was entitled to union
representation at the scheduled fact-finding interview. She and the chief union steward, A.T., met
S.L, the Acting Director of the employing establishment, and R.N., an employing establishment
official, in the hallway and S.L. informed them that R.G. did not have representation rights for the
interview. Appellant disagreed and noted that R.G. had requested her presence during the
interview. She attended the interview with the permission of the interviewer and took notes.
2

Docket No. 18-1375 (issued May 1, 2019).

2

Shortly after the interview began, R.N. interrupted the meeting and insisted that appellant and A.T.
leave. After appellant left the room, she informed R.N. that she would file an unfair labor practice
complaint against the employing establishment and requested his name. She remained outside the
conference room in the hallway on her cellphone when two armed and uniformed employing
establishment police officers, Lt. W.C., and Lt. E., began searching the area near the conference
room. They subsequently entered the conference room, returned to appellant, and asked her name.
The officers then informed her that they had been asked to remove her from that area and then that
floor of the employing establishment’s building. Appellant alleged that her removal was solely
because of her protected union activities. She noted that Lt. W.C. became agitated and denied that
there were any charges against her, but asked for her security badge. Appellant informed the
officers that her badge was in her office and led them to her office to retrieve her badge. The
officers again denied that she was under arrest and released her from custody after reviewing her
badge. Appellant alleged that this incident caused her heart palpitations, shock, and fear. She was
unable to continue her work that day and eventually went home. Appellant reported to work the
next day and again experienced heart palpitations and tension. She felt that the stress was too
much. Appellant had to ask coworkers to assist with completing her assigned work. Thereafter,
she began to have nightmares about working at the employing establishment.
Appellant noted that she had filed a Federal Labor Relations Authority (FLRA) complaint
against the employing establishment, but had not yet received a final decision. She alleged that
the employing establishment interfered with protected union activity when it called the police after
she left the interview on December 18, 2014.
Appellant provided a February 19, 2015 witness statement from R.G., who noted that he
had requested that she accompany him to the interview to protect his rights. R.G. noted that he
had invited appellant into the interview and the interviewer had indicated that he did not have a
problem with her presence. He asserted that shortly after the interview began, management
officials, including R.N., entered the room and informed the participants that R.G. did not have
the right to union representation. Appellant then left the room.
In a February 19, 2015 statement, B.A., the union president, described the events of
December 18, 2014 and confirmed that the police officers denied that appellant was under arrest,
but escorted her into her office and examined her badge. She informed B.A. that the officers had
been called to remove her from the area of the meeting. B.A. alleged that an officer advised her
that the “panic button” had been pushed as a means of calling the police to the scene.
A February 20, 2015 e-mail from J.M. indicated that he was aware that appellant was acting
as R.G.’s representative in the scheduled interview. On February 20, 2015 A.T. reported that he
had attended the December 18, 2014 meeting with appellant and R.G. He confirmed that the
interviewer consented to their presence during the interview. A.T. was taking notes when R.N.
entered and asserted that union representation was not allowed. He and appellant then left the
room.
In an undated form report, Dr. Sonnanburg noted that appellant was attending a meeting as
a union representative and was shocked by the employing establishment police who responded to
an improper panic signal and removed her. He diagnosed adjustment disorder with mixed anxiety
and depressed mood with post-traumatic stress disorder symptom pattern.

3

On May 5, 2015 appellant requested reconsideration of the February 24, 2015 OWCP
decision.
In a September 29, 2015 development letter, OWCP requested additional factual
information from the employing establishment including a statement from a supervisor regarding
the accuracy of appellant’s claim, whether her job was stressful, and a copy of her position
description. It afforded 30 days for a response. The employing establishment responded,
contending that R.G. was not entitled to union representation at the December 18, 2014 interview
and that appellant was aware of this fact. It alleged that appellant entered the room where the
interview was scheduled on December 18, 2014 and R.N. had asked her to leave. The employing
establishment asserted that she commented that she would leave the room, but would stand
immediately outside the door. Appellant then demanded information from R.N. in a loud and
aggressive manner. R.N. informed her that her behavior was inappropriate and asked her to leave
the floor. Appellant refused. R.N. then asked the receptionist to summon the police and she
activated the panic button call. The police arrived and asked to see appellant’s identification. They
escorted her to her office to retrieve her badge.
The employing establishment contended that appellant was not arrested, accosted, or
subject to unwarranted display of force. It asserted that R.G. had no right to union representation,
that she was advised of this, that she refused to leave the area when asked, and that she was
therefore acting on her own volition, not as part of protected union activity. The employing
establishment concluded that appellant was not in the performance of duty.
By decision dated January 19, 2016, OWCP modified its February 24, 2015 decision,
finding that appellant had not established a compensable factor of employment and, thus, an injury
was not sustained in the performance of duty. It noted that there was no evidence that the
employing establishment’s actions regarding the December 18, 2014 meeting were abusive,
erroneous, or improper and found that her reactions were self-generated.
On January 18, 2017 appellant requested reconsideration of the January 19, 2016 decision
on January 18, 2017. She provided an additional narrative statement dated January 14, 2017,
wherein she asserted that on December 18, 2014 she attended a meeting on the fifth floor of the
employing establishment in room 523 to represent R.G. Appellant was ordered to leave the room
and did so. She remained in the hallway, outside of the room awaiting R.G. in case her assistance
was needed. Appellant alleged that she was quiet, that she was not disruptive, and that she was
checking her cellphone for the number of J.M. to ask for advice. She noted that she was so quiet
that the police officers did not notice her and had to ask where she was. When appellant asked
what charges were being leveled against her, one of the officers became red -faced and flustered.
The police officer used an angry voice to tell appellant that she had to leave the fifth floor and that
he had to remove her from the area. Appellant believed that she had no choice but to leave with
the police under their escort. The police officers walked on either side and escorted her to her
fourth floor office. While there, they notified appellant that she was free to go.
In a January 3, 2017 letter, B.A. indicated that R.G. requested union help and that on
December 18, 2014 appellant was engaged in representational functions at the time of her injury.
She noted that she was appellant’s supervisor and that appellant was entitled to official time at the
time of her injury.

4

On January 4, 2017 A.B., an employing establishment administrative assistant, provided a
statement noting that on December 18, 2014 she observed appellant enter the conference room.
She asserted that appellant was asked to leave the room and did so. R.N. then asked A.B. to call
security, which she did. A.B. noted that appellant was in the hallway after leaving the conference
room and did not raise her voice or make noise. She contended that appellant did not cause any
commotion or disturbance from the time when she left the conference room until the police
removed her from the area.
Appellant provided a copy of the FLRA-approved settlement agreement signed by the
acting regional director of the employing establishment on January 23, 2016 and the FLRA notice
to employees which was signed by the employing establishment’s medical center director on
January 24, 2016. Under the FLRA settlement agreement, the employing establishment was
required to ensure that all references to the police encounter with appellant o n December 18, 2014
was expunged from its records, and forbidden to rely on this incident in any future action. It was
also required to post the following notice to all employees:
“On or about December 18, 2014, [the employing establishment] police removed
[appellant] from a location where she was waiting for an employee to exit a
meeting. The [FLRA] statute prohibits an agency from interfering with an
employee’s exercise of protected activity and/or taking an action against an
employee because of the exercise of protected activity.”
The notice further provided that the employing establishment would not interfere with the exercise
of protected activity or take an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
On March 17, 2017 the employing establishment responded to appellant’s January 18,
2017 request for reconsideration. In a statement dated November 3, 2015, A.B., noted that she
was sitting at her desk on December 18, 2014 near room 523 at the employing establishment. She
indicated that appellant was standing right in front of her desk and that she was shaken by her
disruptive behavior, including yelling and screaming. A.B. asserted that appellant was asked to
leave the area and refused to go. R.N. requested that she contact the police.
In an e-mail dated May 28, 2015, R.N. asserted that the December 18, 2014 meeting was
not associated with personnel issues, that the union had no vested interest in attending, and that
both R.G. and the union were made aware of these facts prior to the meeting. He indicated that
the union presence was disruptive and unnecessary. R.N. asked the union officials to leave. He
alleged that appellant became confrontational and initially refused to leave the room. Appellant
then agreed to leave the room, but asserted that she would stand immediately outside the door in
an outer office area. Once in the office area, she then demanded identification from R.N. R.N.
asserted that appellant’s demeanor was loud and aggressive. He informed her that this behavior
was inappropriate and again asked her to leave, but she refused. A.B. was asked to summon the
police and activated a panic button. When the police arrived, they asked to see appellant’s
identification. Appellant did not have identification, and the officer escorted her out of the area.

5

R.N. asserted that she was not engaged in protected union activity and that her disruptive behavior
in the outer office work environment was inappropriate.
In an e-mail dated November 23, 2015, Lt. W.C. noted that on December 18, 2014 he was
called to room 523 due to a disruptive situation. He indicated that he contacted someone in the
office who informed him that they were conducting a meeting, that appellant was being disruptive,
and that person requested that she be escorted out of the office as the meeting did not require union
presence. Lt. W.C. asserted that she was argumentative toward the staff, loud, and disruptive. He
advised appellant that she needed to leave the area and she became argumentative toward him and
told him that it was her right to be in the office. Lt. W.C. escorted her to the union office and
directed her actions to the union president. He alleged that appellant accused him of not knowing
how to do his job.
On April 26, 2017 OWCP provided appellant with a copy of the employing establishment’s
responses and afforded her 20 days to submit comments. On May 15, 2017 appellant responded
and asserted that in the FLRA posting, the employing establishment admitted to interfering with
protected activity and interfering with appellant’s exercise of her rights in accordance with FLRA
statute. She further noted that the settlement agreement included that her interactions with the
employing establishment police on December 18, 2014 would be expunged from the employing
establishment’s records.
By decision dated June 27, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
her reconsideration request was received on January 20, 2017. In a memorandum of telephone
call (Form CA-110) dated September 7, 2017, OWCP’s claims examiner noted reviewing
appellant’s claim file and found that her requests for reconsideration were entered into the
Integrated Federal Employees’ Compensation System (iFECS) on January 18, 19, and 20, 2017.
The claims examiner directed her to either appeal to the Board or to make an additional request
for reconsideration which would not be timely, but noted that the date of her original request for
reconsideration would establish clear evidence of error.
On September 20, 2017 appellant requested reconsideration of the January 19, 2016
decision. She noted that her initial request for reconsideration was received by OWCP on
January 18, 2017 and therefore, was timely.
By decision dated January 8, 2018, OWCP reviewed the merits of appellant’s claim but
denied modification of its January 19, 2016 decision. It found that she had submitted no evidence
to demonstrate that the employing establishment acted in an abusive or improper manner in regard
to the accepted December 18, 2014 employment incident. OWCP further found that the FLRA
settlement agreement did not include an admission of error or abuse on the part of the employing
establishment. It determined that appellant’s emotional reaction was self-generated and not due
to a compensable factor of her employment.
Appellant appealed to the Board, and in its May 1, 2019 decision, 3 the Board set aside the
January 8, 2018 decision and remanded the case for OWCP to request that the employing
3

Id.

6

establishment address her use of official time at 11:00 a.m. on December 18, 2014, when she
alleged that her injury occurred. The Board further directed OWCP to require that the employing
establishment provide documentation establishing whether she was performing a representational
function at the fact-finding interview on December 14, 2018. The Board determined that if the
employing establishment found that appellant was not on official time, she should be advised of
this finding and provided an opportunity to submit relevant evidence on the issues. Following any
further development, OWCP was to issue a de novo decision.
In a May 22, 2019 development letter, OWCP requested that the employing establishment
address appellant’s use of official time on December 18, 2014 at 11:00 a.m. and to provide
documentation establishing her representational function. It further requested that the employing
establishment provide documentation, in the form of appropriate regulations, executive order, or
union agreement covering the specific situation. OWCP noted that in the absence of a full reply
from the employing establishment, it could accept appellant’s allegations as factual.
In a June 28, 2019 letter, the employing establishment responded and asserted that
appellant was not performing a union representational function during the time of her alleged
workplace injury on December 18, 2014 at 11:00 a.m. It noted that prior to the alleged incident,
appellant had represented R.G. in a grievance filed on December 1, 2014. In addressing this
grievance, R.G. also raised quality of medical care concerns. On December 12, 2014 W.C., the
Chief of Staff and the employing establishment deciding official, partially accepted the grievance
and directed the employing establishment to initiate an independent fact-finding by a qualified
pathologist into the issues raised by R.G. regarding validation of laboratory studies which resulted
in the medical quality review scheduled on December 18, 2014. The employing establishment
asserted that on December 18, 2014 it was addressing R.G.’s concerns to ensure improvement in
quality medical care at the facility in accordance with 5 U.S.C. § 7114; 38 U.S.C. §§ 5705, 7311,
and 7422, and its medical bylaws, Article IX. It further asserted that the medical quality review
was conducted for the sole purpose of addressing concerns in medical quality raised by R.G. and
that anything he disclosed during the medical quality review was protected information and could
not be used for any purpose other than improving medical quality of care. The employing
establishment asserted that there was no right to union representation as the medical quality review
was not about R.G., his practice, performance, conduct, or any issues specified as a ba sis for the
grievance.
The employing establishment noted that as union vice president, appellant was authorized
80 percent official time to perform union duties. However, it asserted that on December 18, 2014
at 11:00 a.m. R.G. was not entitled to union representation and appellant was not authorized to
attend the medical quality review. The employing establishment asserted that under 5 U.S.C.
§ 7114, representational rights were limited to formal discussion of a grievance or personnel
policy, practices or general condition of employment, or any examination of an employee in
connection with an investigation if the employee reasonably believes that the examination could
result in disciplinary action and if the employee requests representation. It contended that R.G.
had no reasonable expectation of disciplinary action from the December 18, 2014 medical quality
review. The employing establishment asserted that, therefore, it was under no obligation to allow
union representation during the medical quality review as it was in no way an investigation of R.G.

7

The employing establishment provided copies of Article 49 of the union ’s rights and
privileges, the Bylaws and Rules of the Medical Staff of the employing establishment, Article IX;
5 U.S.C. § 7114, 30 U.S.C. §§ 5705, 7311, and 7422, the grievance filed by R.G. on December 1,
2014, and the response dated December 12, 2014 from W.C.
In a July 5, 2019 response, appellant asserted that she was performing union representation
for R.G. on December 18, 2014. She noted her prior representation of R.G. which had begun with
written counseling he received on October 7, 2014 during his probationary period. Appellant
noted that beginning on November 10, 2014 R.G. was undergoing a Focused Professional Practice
Evaluation (FPPE) which evaluated his ability to communicate effectively with staff, his
productivity in areas requiring close interaction with colleagues, and his professional behavior.
The FPPE required him to institute implementation of calculated ionized calcium in the laboratory
test menu, implemental qualitative confirmation assays for amphetamine, benzodiazepine, and
opiates, as well as correlate immunosuppressant drug testing. She asserted that each of these areas
was directly implicated during the December 18, 2014 medical quality review. Appellant asserted
that while the employing establishment contended that her answers during the medical quality
review could not be used against him, he was asked to resign shortly thereafter. She further
asserted that at the time of the medical quality review he had a reasonable belief that his
participation in this investigation could result in disciplinary action.
Appellant provided a May 3, 2012 letter from the union president indicating that beginning
September 2012 appellant would be on 100 percent official time.
In an undated and unsigned statement, R.G. noted that on October 9, 2014 a critical
component on chemistry analyzers, the indirect ion selective electrodes (ISE) which allowed
measurements of serum, plasma sodium, potassium, and chloride was updated, but not properly
validated. He formulated a plan to repair to the validation of ISE and on December 3, 2014 alerted
W.C. to his concerns about the quality of laboratory testing. W.C. commenced a 38 U.S.C. § 5705
medical quality assurance program review scheduled for December 18, 2014 with the interviewer.
R.G. was informed that his disclosures would not and could not result in a punitive action against
him or other employees so he attended the meeting with union representation which was removed
during the course of the meeting. He alleged that he was then subjected to retaliation for disclosing
a medical quality assurance issue in the December 18, 2014 meeting, for which he was explicitly
told he could not be punished.
By decision dated July 18, 2019, OWCP again denied appellant’s emotional condition
claim finding that the quality review was not associated with a grievance, a change in work
conditions or an investigation where a potential disciplinary action could have been imposed of
misconduct. It determined that she, therefore, was not on official time as a union representative at
the time her alleged emotional condition occurred. OWCP concluded, therefore, that appellant
had not sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’

8

compensation. When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable. 4
However, disability is not compensable when it results from factors such as an employee’s fear of
a reduction-in-force, or frustration from not being permitted to work in a particular environment,
or to hold a particular position. 5
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.6 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.7 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor. 8
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 9 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 10
The Board has recognized an exception to this general rule. Employees performing
representational functions which entitle them to official time are considered to be in the
performance of duty if injured during the performance of those functions. 11 The underlying
rationale for this exception is that an activity undertaken by an employee in the capacity of a union
official may simultaneously serve the interest of the employer. 12 OWCP’s procedures indicate that
representational functions include authorized activities undertaken by employees on behalf of

4

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
5

Lillian Cutler, id.

6

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
7

C.M., Docket No. 17-1076 (issued November 14, 2018); David C. Lindsey, Jr., 56 ECAB 263, 268 (2005)
Thomas D. McEuen, id.
8

Id.

9

J.G., Docket No. 17-1948 (issued September 13, 2018); Jimmy E. Norred, 36 ECAB 726 (1985).

10

J.G., id.; C.M., Docket No. 10-0753 (issued December 15, 2010).

11
J.G., supra note 9; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing
activities related to the internal business of a labor organization such as soliciting new members or collecting dues are
not considered to be in the performance of duty. The singular fact that one is on paid official time for union
representation is not enough to establish that every interaction during such official time is within the performance of
duty).
12

J.G., supra note 9; Marie Boylan, 45 ECAB 338, 342-43 (1994).

9

other employees pursuant to such employees’ right to representation under statute, regulation,
executive order, or terms of a collective bargaining agreement.13
OWCP’s procedures discuss union representational functions and official time. 14 There
are specific guidelines for case development when union activity may be involved:
“When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether
the employee had been granted official time or, in emergency cases, would have
been granted ‘official time’ if there had been time to request it. If so, the claimant
should be considered to have been in the performance of duty. 15
“If [an] agency states that the employee was not performing an activity for which
official time is allowed, [OWCP] should issue a letter warning [appellant] that the
case will be denied unless additional information is provided, and allowing [30]
days for a response. If there is no timely response from [appellant], a formal
decision should be issued on the grounds that [appellant] is not in the performance
of duty.
“If [appellant] provides evidence contradicting the [employing establishment’s]
position, the official superior should be asked to reply to this evidence, providing
documentation in the form of appropriate regulations, executive order or union
agreement covering the specific situation. [OWCP] will accept the ruling of the
[employing establishment] as to whether a representative was entitled to official
time unless the ruling is later overturned by a duly authorized appellate body.”16
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained an emotional condition when the employing
establishment demanded that she leave a medical quality review meeting and the employing
establishment police escorted her from the hallway outside of the meeting while she was
performing representational union activities on December 18, 2014.
The first issue is whether appellant was in the performance of duty at the time of the alleged
employment incident. In its June 28, 2019 letter, the employing establishment acknowledged that
she utilized official time for 80 percent of her time. It did not specifically address appellant’s
official time schedule and whether or not she was on official time at 11:00 a.m. on
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997).

14

Id.

15

Id.

16

Id.

10

December 18, 2014. Appellant submitted a May 3, 2012 letter from the union president indicating
that, beginning September 2012, she would be on 100 percent official time and a January 3, 2017
letter from B.A., the union president, in which she noted that she was appellant’s supervisor and
that appellant was entitled to official time at the time of her injury. The Board thus finds that the
weight of the evidence of record establishes that appellant was on official time on December 18,
2014 at the time of the alleged employment incident.
The Board has held that the singular fact that one is on paid official time is not enough to
establish that every interaction during such official time is within the performance of duty. 17 The
Board has also required that a claimant be performing a mutually beneficial activity such as a
representational function. 18 The facts of this case establish that the nature of the activity in which
appellant was engaged was representational and therefore of mutual benefit to the union and her
employer.19 Representational functions include authorized activities undertaken by employees on
behalf of other employees pursuant to such employees’ right to representation under statute,
regulation, executive order, or terms of a collective bargaining agreement. 20
The alleged employment incident occurred when appellant was instructed to leave the
medical quality review meeting on December 18, 2014 after she indicated that she would file an
unfair labor practice complaint against the ejecting official, R.N. Appellant further alleged that
while she was waiting outside the meeting room for R.G. to emerge, and checking her cellphone
for J.M.’s telephone number to request advice, the employing establishment police escorted her
back to her office on a different floor. Further, the FLRA-approved settlement agreement indicated
that appellant was acting in a representational capacity when the employing esta blishment police
removed her from the meeting location. As appellant was on official time and performing
representational functions, the Board finds that she was in the performance of duty at the time of
the December 18, 2014 employment incident. 21
While the Board finds that appellant was in the performance of duty at the time of the
December 18, 2014 incident, she must also establish a compensable factor of employment.
Appellant has not attributed her emotional condition to any of the regular or specially
assigned duties of her position as a nurse. Rather, she has alleged error and abuse in administrative
matters by the employing establishment. As a general rule, a claimant’s reaction to administrative

17

J.S., Docket No. 14-1532 (issued December 4, 2015).

18

J.G., supra note 9; Ray C. Van Tassell, Jr., 44 ECAB 316 (1992).

19

See Bernard Redmond, 45 ECAB 298 (1994); Ray C. Van Tassell, Jr., id. (the Board has adopted a mutual benefit
approach to determining if union activities occurred in the performance of duty, therefore activities related to the
internal business of a labor organization, such as soliciting new members or collecting dues are not included).
20

Marie Boylan, 45 ECAB 338 (1994).

21

Wayne F. Therrien, Docket No. 97-2604 (issued December 9, 1999). See also Kelly Y. Simpson, 57 ECAB 197
(2005) (the Board found that the claimant was in a representational status at the time of her injury despite, the
employing establishment’s disagreement).

11

or personnel matters falls outside the scope of FECA. 22 Absent evidence establishing error or
abuse, a claimant’s disagreement or dislike of a managerial action is not a compensable factor of
employment. Appellant has submitted corroborative evidence of error or abuse in the
administrative actions of the employing establishment demanding that she leave the medical
quality review meeting and the employing establishment police escorting her from the hallway. In
this regard, the FLRA-approved settlement agreement required the employing establishment to
expunge all references to the encounter between appellant and its police from its records and
forbade it to rely on this incident in any future action. It also required the employing establishment
to post a notice that on or about December 18, 2014, the employing establishment police had
removed appellant from a location where she was waiting for an employee to exit a meeting. It
noted that its statute prohibited an agency from interfering with an employee ’s exercise of
protected activity and/or taking an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
The Board thus finds that appellant has submitted sufficient evidence to establish error or
abuse by the employing establishment in demanding that she leave the medical quality review
meeting and escorting her from the hallway on December 18, 2014. As appellant has established
a compensable employment factor the case presents a medical question regarding whether her
emotional condition resulted from the compensable employment factor. OWCP determined that
there were no compensable employment factors and thus did not analyze or develop the medical
evidence. The case will be remanded to OWCP for this purpose. 23 After such further development
as deemed necessary, it should issue a de novo decision on this matter.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

E.M., Docket No. 19-0156 (issued May 23, 2019),

23

Id.; see also K.J., Docket No. 17-1851 (issued September 25, 2019); T.F., Docket No. 12-0439 (issued
August 20, 2012).

12

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2019 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent with
this decision of the Board.
Issued: March 17, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL OFFICE, San Francisco, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1434
Issued: February 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 18, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ decision dated April 28, 2009, which suspended his compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly suspended appellant’s compensation benefits
effective April 12, 2009 for failing to submit a Form CA-1032, as required.
FACTUAL HISTORY
On February 18, 1982 appellant, then a counseling psychologist, filed an occupational
disease claim alleging that he suffered a stress reaction due to threats of bodily harm and loss of
life. He listed the date of injury as January 19, 1982, noting that he was threatened with violence
by a disabled veteran who had been diagnosed with paranoid schizophrenia. The Office
accepted appellant’s claim for post-traumatic stress disorder and paid medical and wage-loss
benefits.

On November 3, 2008 the Office sent appellant a Form CA-1032 for completion to his
address of record in Dallas.1 It informed him that federal regulations required him to make an
affidavit of any earnings or employment during the previous year and that the form was enclosed
for that purpose. The Office notified appellant that he had to completely answer all questions
and return the statement within 30 days, otherwise his benefits would be suspended. Appellant
did not respond.
On December 11, 2008 the Office sent appellant another Form CA-1032 to complete. It
again advised him that federal regulations required him to make an affidavit of any earnings or
employment and requested information with regard to wages. The Office reiterated that
appellant had to completely answer all questions and return the statement within 30 days,
otherwise his benefits would be suspended. No response was received. This form was also sent
to his address of record.
By decision dated April 28, 2009, the Office suspended appellant’s compensation
benefits, effective April 12, 2009, for failing to submit the CA-1032 form as requested. It noted
that appellant did not respond to its requests for completion of the form. The Office noted that,
when appellant completed the Form CA-1032, his compensation benefits would be restored
retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of the Federal Employees’ Compensation Act authorizes the Secretary of
Labor to require a partially disabled employee to report his earnings from employment or selfemployment, by affidavit or otherwise, in the manner and at the times the Secretary specified.
Pursuant to this authority, as well as her authority under 5 U.S.C. § 8149 to prescribe the rules
and regulations necessary for the administration and enforcement of the Act, the Secretary
promulgated the following regulations at 20 C.F.R. § 10.528:
“[The Office] periodically requires each employee who is receiving compensation
benefits to complete an affidavit as to any work or activity indicating an ability to
work, which the employee has performed for the prior 15 months. If an employee
is required to file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage loss under 5 U.S.C. § 8105
[total disability] or 8106 [partial disability] is suspended until [it] receives the
requested report. At that time, [the] Office will reinstate compensation retroactive
to the date of suspension if the employee remains entitled to compensation.”
ANALYSIS
On November 3 and December 11, 2008, the Office provided appellant with a Form CA1032 and notified him that federal regulations required him to complete the forms and answer
questions concerning any employment and earnings for the prior year. It properly notified

1

The record reflects that by letter dated October 29, 2007 appellant notified the Office of his address change in
Dallas. Between February 9, 2004 to January 8, 2008, appellant completed and returned six CA-1032 forms as
requested.

2

appellant that if he did not completely answer all questions and return the statement within 30
days, his benefits would be suspended. The forms were sent to appellant’s address of record.2
Notwithstanding such notice, appellant did not return the forms within 30 days as
requested. The Board finds that the Office properly suspended his right to compensation for
wage loss under section 10.528 of the implementing regulations.3 The Board will affirm the
Office’s April 28, 2009 decision.
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits for
failing to submit information on a Form CA-1032, as required.
ORDER
IT IS HEREBY ORDERED THAT the April 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

2

Under the mailbox rule, it is presumed, absent evidence to the contrary, that notice mailed to an individual in the
ordinary course of business was received by that individual. The presumption arises when the record shows that the
notice was properly addressed and mailed. See Levi Drew, Jr., 52 ECAB 442 (2001); Kimberly A. Raffle, 56 ECAB
243 (1999).
3

See F.D., Docket No. 08-2499 (issued September 9, 2009).

3