United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF AGRICULTURE, CASUAL
FIREFIGHTERS, San Bernardino, CA,
Employer
__________________________________________

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

Docket No. 08-310
Issued: June 23, 2008

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 November 8, 2007 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs dated February 22 and October 9, 2007 that denied certain
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate of appellant’s
compensation benefits effective August 15, 2006; (2) whether appellant established that he had
any continuing disability or residuals relating to his accepted conditions after August 15, 2006;
and (3) whether appellant met his burden of proof in establishing that he was totally disabled
from June 16 to December 28, 2004 and October 27, 2005 to February 18, 2006.

FACTUAL HISTORY
On August 23, 2003 appellant, then a 41-year-old casual firefighter, sustained injury
when he twisted his left knee and ankle while walking to a fire. The Office accepted the claim
for left knee strain and left ankle sprain and paid appropriate compensation benefits. Appellant
stopped work on August 25, 2003 and his assignment ended September 1, 2003.
Appellant came under the care of Dr. Albert Simpkins, a Board-certified orthopedic
surgeon, who first treated him on November 5, 2003. Dr. Simpkins diagnosed left knee and
ankle sprain, rule out internal derangement. In a June 16, 2004 report, he noted that a left knee
magnetic resonance imaging (MRI) scan revealed intra-meniscal degeneration of the posterior
horn of the medial meniscus with no evidence of ligamentous rupture or meniscal tear. On
August 25, 2004 Dr. Simpkins noted examination findings of intact reflexes in the upper and
lower extremities and no sensory deficits. He indicated that appellant appeared to give less than
full effort which he attributed to pain. However, Dr. Simpkins opined that appellant’s
complaints were disproportionate to the minimal findings on x-rays of the neck, back and
shoulder and the fact that the injury occurred some time prior.
On December 7, 2004 the Office referred appellant to Dr. Laurence Meltzer, a Boardcertified orthopedic surgeon, for a second opinion. In a December 28, 2004 report, Dr. Meltzer
discussed appellant’s work history and indicated that the physical examination revealed normal
station and gait, no evidence of swelling, redness, increased heat or deformity of the lower
extremities or knees, full range of motion of the knees and an intact motor and sensory
examination. He opined that, although appellant had subjective complaints of his knees locking,
swelling and pain, there were no objective findings upon examination. Dr. Meltzer opined that
appellant did not have an orthopedic problem but might be pursuing his claim for secondary
gain. He noted that appellant was partially disabled until September or October 2003 and that
his accepted conditions were resolved and he had no continuing residuals. Dr. Meltzer opined
that appellant could return to work full time without restrictions.
On November 3, 2005 the Office authorized a change in physicians to
Dr. Daniel Kharrazi, a Board-certified orthopedic surgeon, who first treated appellant on
October 27, 2005. Dr. Kharrazi noted a history of injury and diagnosed internal derangement of
the left knee, possible meniscal tear, chondromalacia and synovitis and possible chronic
anterolateral sprain of the left ankle. He opined that appellant was temporarily totally disabled
due to his work injury. In reports dated November 30 and December 8, 2005, Dr. Kharrazi noted
that the neurological examination was intact with tenderness in the peripatellar, medial and
lateral meniscus and diagnosed internal derangement of the left knee and possible tear. He
recommended conservative treatment and advised that appellant was temporarily totally disabled
for six weeks. A January 10, 2006 left knee MRI scan revealed no abnormalities.
Appellant submitted a Form CA-7, claim for compensation for total disability, for the
period June 16 to December 28, 2004 and from October 27, 2005 to February 16, 2006. On
February 22, 2006 the Office requested that he submit additional medical evidence to support
total disability.
Appellant submitted reports from Dr. Kharrazi dated January 5 to
March 30, 2006. Dr. Kharrazi diagnosed internal derangement of the left knee, possible

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meniscal tear, chondromalacia and synovitis and possible chronic anterolateral sprain of the left
ankle. He recommended arthroscopic surgery and advised that appellant was totally disabled.
The Office found a conflict in medical opinion between Dr. Kharrazi, for appellant, and
Dr. Meltzer, for the Office, regarding whether appellant had on going disability or residuals of
his work-related injuries. To resolve the conflict the Office referred appellant to Dr. Gary L.
Painter, a Board-certified orthopedic surgeon, selected as the impartial medical specialist.
In a May 15, 2006 report, Dr. Painter reviewed the record, noted a history of appellant’s
work-related injury and set forth findings of examination. He stated that appellant presented
wearing a locking brace for the left knee that prevented full flexion. Dr. Painter advised that
appellant reported having constant severe pain in his left knee that was aggravated by walking.
Examination of the left knee revealed tenderness to palpation, no effusion, no increased skin
temperature or redness, range of motion was restricted due to pain, no crepitation and no gross
ligamentous instability or unusual alignment. The anterior drawer test was negative but caused
pain. Dr. Painter said that appellant was too sensitive to touch to perform Lachman’s test and
that MacMurray’s test could not be performed due to restricted range of motion. With regard to
the left ankle, he noted tenderness on palpation, no effusion, limited range of motion due to pain,
no gross instability or swelling and no circulatory abnormalities. Dr. Painter diagnosed left knee
strain and left ankle sprain and opined that these injuries had resolved. He stated that there was
no objective physical evidence to support ongoing disability related to appellant’s left ankle or
knee and opined that appellant did not have residuals of the August 23, 2003 work injury.
Dr. Painter explained that the “lack of any residual disability would be consistent with the
relatively mild nature of his injury as reflected in the initial medical records.”
Dr. Painter indicated that there was no medical documentation of a torn meniscus or
ligament of the knee or ankle and no physical findings which would justify proceeding with
arthroscopic surgery. He stated that appellant’s ongoing symptomologies and complaints were
“far out of proportion” to both the objective findings and to the nature of the initial injury.
Dr. Painter added that, even if a ligamentous injury had occurred, appellant should have had
much greater painless range of motion than what he exhibited on examination. He explained that
patients with “severe” fractures and ligamentous reconstruction had better motion and less pain
than exhibited by appellant. Dr. Painter advised that “not only are abnormal objective factors
absent, but objective findings suggest he is using the left leg pretty much normally, since there is
a lack of any atrophy of the left thigh musculature or left calf musculature” and there was
“absolutely no increase in size about the knee itself or the ankle to suggest there is inflammation,
compared to the opposite side.” He remarked that Dr. Kharrazi’s initial report of October 27,
2005 indicated that appellant had reported pain under the kneecaps, which was not the area
where he had most recently complained of pain. Dr. Painter also advised that appellant’s left
knee range of motion, as recorded by Dr. Kharrazi was much greater than the range of motion
that he recorded. He opined that appellant had no residuals of his accepted injury and that he
could return to work full time without restrictions.
On June 14, 2006 the Office proposed to terminate compensation benefits for appellant’s
accepted left knee strain and left ankle sprain on the grounds that Dr. Painter’s report dated
May 15, 2006 established no residuals of the work-related employment injury.

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In a letter dated June 29, 2006, appellant resubmitted a copy of Dr. Simpkins’ August 25,
2004 report and Dr. Kharrazi’s March 30, 2006 report. In a May 11, 2006 report, Dr. Kharrazi
asserted that appellant’s knee condition was employment related and required surgery.
By decision dated August 15, 2006, the Office terminated appellant’s compensation
benefits on the grounds that the weight of the medical evidence established that appellant had no
continuing disability resulting from his accepted employment injury. The Office further denied
appellant’s claim for total disability for the period June 16 to December 28, 2004 and from
October 27, 2005 to February 18, 2006.
Appellant requested an oral hearing which was held on December 12, 2006. He
resubmitted reports from Dr. Simpkins and also submitted reports from Dr. Kharrazi dated
June 22 to August 3, 2006, who disagreed with Dr. Painter. Appellant again recommended left
knee arthroscopic surgery and supported total disability. An MRI scan of the left knee dated
August 28, 2006 revealed small knee joint effusion with primary consideration to an active
synovitis.
On February 22, 2007 an Office hearing representative affirmed the August 15, 2006
decision.
On July 9, 2007 appellant requested reconsideration and he submitted reports from
Dr. Simpkins. He also submitted a September 14, 2006 report from Dr. Kharrazi, who diagnosed
left knee effusion and prescribed pain medication.
In an October 9, 2007 decision, the Office denied modification of its February 22, 2007
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.1 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.2 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.3
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for left knee strain and left ankle sprain. The
Office subsequently developed the medical evidence and determined that a conflict in medical
1

Gewin C. Hawkins, 52 ECAB 242 (2001).

2

Mary A. Lowe, 52 ECAB 223 (2001).

3

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

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opinion arose between Dr. Kharrazi appellant’s attending physician, who disagreed with
Dr. Meltzer, an Office referral physician, regarding whether appellant had on going residuals of
his work-related injuries and whether he could return to work full time.4 Where there exists a
conflict of medical opinion and the case is referred to an impartial specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, is entitled to special weight.5
The Board finds that the opinion of Dr. Painter is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight and establishes that
appellant’s work-related conditions have ceased. In a May 15, 2006 report, Dr. Painter reviewed
appellant’s history, reported findings and noted that both subjective and objective medical
evidence established that his physical injuries had resolved. He noted findings upon physical
examination of left knee tenderness, no effusion, no increased skin temperature or redness, range
of motion was restricted due to pain, no crepitation and no gross ligamentous instability. With
regard to the left ankle, Dr. Painter noted tenderness upon palpation, no effusion, limited range
of motion due to pain and no gross instability or swelling. He diagnosed left knee strain and left
ankle sprain and opined that these injuries were resolved. Dr. Painter noted that there was no
objective physical evidence to support ongoing disability related to appellant’s left ankle and
knee and opined that appellant did not have residuals of the August 23, 2003 work injury. He
indicated that there was no medical documentation of a torn meniscus or ligaments and no
physical findings which would justify proceeding with arthroscopic surgery. Dr. Painter
indicated that appellant’s ongoing symptomologies and complaints were disproportionate to the
objective findings and to the nature of the initial injury which suggested symptom magnification.
He gave reasons for his opinion, noting, for example, that “objective findings suggest he is using
the left leg pretty much normally, since there is a lack of any atrophy of the left thigh
musculature or left calf musculature” and there was “absolutely no increase in size about the
knee itself or the ankle to suggest there is inflammation, compared to the opposite side.”
Dr. Painter concluded that appellant’s accepted injuries had resolved without residuals and that
appellant could return to work full time without restrictions.
Appellant submitted a report from Dr. Simpkins dated August 25, 2004, who diagnosed
left knee and ankle sprain. However, this report predated the period in which the Office
terminated appellant’s compensation benefits and did not otherwise not support that he would
have an ongoing chronic condition due to his accepted injuries. Instead, Dr. Simpkins noted that
appellant appeared to give less than full effort due to reported pain and he found appellant’s
complaints disproportionate to the minimal findings on the x-rays of the neck, back and shoulder
and the fact that the injury occurred some time ago.
Appellant also submitted a reports from Dr. Kharrazi dated March 30 and May 11, 2006.
He diagnosed left knee and ankle conditions, recommended arthroscopic surgery and advised
that appellant remained totally disabled. However, Dr. Kharrazi failed to adequately address the
reasons why any continuing orthopedic condition or disability was causally related to the
accepted August 23, 2003 employment injury. Dr. Kharrazi was on one side of a conflict that
4

See 5 U.S.C. § 8123(a).

5

Solomon Polen, 51 ECAB 341 (2000).

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was resolved by Dr. Painter and his report does not otherwise provide new findings or medical
rationale sufficient to establish that any continuing condition or disability was causally related to
the August 23, 2003 work injury.6
The Board finds that Dr. Painter had full history of the relevant facts and evaluated the
course of appellant’s condition. Dr. Painter is a specialist in the appropriate field. At the time
benefits were terminated, he clearly opined that appellant had no residuals or disability
attributable to his accepted orthopedic conditions. Dr. Painter’s opinion, as set forth in his
May 15, 2006 report, is found to be probative evidence and reliable. The Board finds that his
opinion represents the weight of the medical evidence and is sufficient to justify the Office’s
termination of appellant’s benefits for the accepted conditions of left knee strain and left ankle
sprain effective August 15, 2006.
LEGAL PRECEDENT -- ISSUE 2
If the Office meets its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that he had continuing disability causally related to his
accepted employment injury.7 To establish a causal relationship between the condition, as well
as any disability claimed and the employment injury, the employee must submit rationalized
medical opinion evidence, based on a complete factual background, supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that he has any continuing residuals or
disability causally related to his accepted employment injuries on or after August 15, 2006.
Appellant submitted reports from Dr. Simpkins dated November 5, 2003 to August 25, 2004,
predate the time that the Office terminated benefits. These reports are of no value in establishing
that he had continuing residual of the work injuries on or after August 15, 2006 since they
predate the time of the termination of benefits.

6

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992);
Dorothy Sidwell, 41 ECAB 857 (1990).
7

Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 424, 430 (1992).

8

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

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Reports from Dr. Kharrazi dated June 22 and September 14, 2006, diagnosed internal
derangement of the left knee, possible meniscal tear, chondromalacia and synovitis and possible
chronic anterolateral sprain of the left ankle. Dr. Kharrazi recommended arthroscopic surgery
and advised that appellant was totally disabled. However, he, as noted above, were on one side
of a conflict that was resolved by Dr. Painter9 and his reports do not otherwise provide new
findings or medical rationale sufficient to establish that any continuing condition or disability
was causally related to the August 23, 2003 work injury. Thus, Dr. Kharrazi’s reports are
insufficient to overcome that of Dr. Painter or to create a new medical conflict.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between his current condition and his
accepted work-related injury of August 23, 2003. Consequently, he did not establish that he had
any employment-related condition or disability after August 15, 2006.
LEGAL PRECEDENT -- ISSUE 3
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.10 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.11 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.12 The Board will not require the Office to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so, would essentially allow an employee to self-certify his or
her disability and entitlement to compensation.13
ANALYSIS -- ISSUE 3
The Office also found that appellant had not established his claim for total disability for
the period June 16 to December 28, 2004 and from October 27, 2005 to February 18, 2006. The
Board finds that the medical evidence is insufficient to establish that the claimed period of total
disability was caused or aggravated by the accepted employment injury.
Appellant submitted reports from Dr. Simpkins dated June 16 and August 25, 2004, who
treated him for work injuries sustained on August 23, 2003 and diagnosed left knee and ankle
sprain. However, Dr. Simpkins did not specifically address whether appellant had any
employment-related disability beginning June 16 to December 28, 2004 causally related to his

9

See Michael Hughes, supra note 6.

10

See Fereidoon Kharabi, 52 ECAB 291 (2001).

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Id.

12

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

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

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August 23, 2003 employment injury.14 As noted, his August 25, 2004 report noted that
appellant’s symptoms and complaints were disproportionate with his minimal findings.
Therefore, these reports are insufficient to meet appellant’s burden of proof.15
Appellant also submitted reports from Dr. Kharrazi from October 27, 2005 to
September 14, 2006. Dr. Kharrazi opined that appellant was temporarily totally disabled.
Although he noted that appellant was still experiencing symptoms of left knee and ankle pain
and was disabled, Dr. Kharrazi failed to provide a specific and reasoned opinion on causal
relationship directly addressing the specific dates of disability claimed and explaining the
reasons why any such disability would be due to the accepted left ankle sprain and knee strain
sustained on August 23, 2003.
The remainder of the medical evidence also does not provide a specific opinion on causal
relationship addressing the claimed period of disability and the accepted employment injury of
August 23, 2003. Consequently, the medical evidence does not establish that appellant was
disabled during the claimed period as a result of his August 23, 2003 work injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
August 15, 2006 and that appellant failed to establish that he had any continuing disability due to
his accepted condition after August 15, 2006. It further finds that the evidence does not establish
that appellant was totally disabled from June 16 to December 28, 2004 and October 27, 2005 to
February 18, 2006 due to his accepted employment conditions.

14

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
15

The evidence also does not show that there was any wage loss during the period claimed which was incidental
to treatment for an accepted injury. See 5 U.S.C. § 8103(a); Daniel Hollars, 51 ECAB 355 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 9 and February 22, 2007 are affirmed.
Issued: June 23, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL
CORRECTION CENTER, Coleman, FL,
Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0670
Issued: April 30, 2020

Case Submitted on the Record

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

On February 5, 2019 appellant, through counsel, filed a timely appeal from a November 30,
2018 decision of the Office of Workers’ Compensation Programs (OWCP) under File No.
xxxxxx127. The Clerk of the Appellate Boards docketed the appeal as No. 19-0670.
On April 7, 2015 appellant, then a 54-year-old correctional counselor, filed a traumatic
injury claim (Form CA-1) alleging that, on April 5, 2015 he injured his lower back when he
reached for a box of printer paper, twisted, and placed the box on a table while in the performance
of duty. He reported experiencing lumbar pain radiating into the bilateral lower extremities.
OWCP accepted the claim for lumbar facet joint syndrome, lumbar facet degeneration, lumbar
spondylosis without myelopathy or radiculopathy, and a sacroiliac joint sprain under File
No. xxxxxx127.

1

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

Appellant also had previously accepted claims for lumbago related to a July 10, 2005
incident under OWCP File No. xxxxxx220, and a left meniscal tear on September 11, 2011 under
OWCP File No. xxxxxx386. By decision dated September 27, 2016 under File No. xxxxxx386,
OWCP granted appellant a schedule award for 24 percent permanent impairment of the left lower
extremity due to the accepted meniscal tear.
On July 6, 2017 appellant filed a schedule award (Form CA-7) claim in the instant case,
OWCP File No. xxxxxx127. He submitted an impairment rating discussing lumbar radiculopathy
affecting the left lower extremity under OWCP File No. xxxxxx127 and OWCP File No.
xxxxxx220.2 OWCP routed the present case to Dr. Michael M. Katz, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), and noted that appellant had previously been
awarded compensation for 24 percent permanent impairment of the left lower extremity under File
No. xxxxxx386.
In an October 26, 2017 report, Dr. Katz opined that an impairment rating of the left lower
extremity under OWCP File No. xxxxxx127 required consideration of the left meniscal tear
accepted under OWCP File No. xxxxxx386, but he had not reviewed medical evidence from the
prior claim. He assessed 34 percent permanent impairment of the left lower extremity due to
sensory and motor deficits of the L4 nerve root. Dr. Katz combined the prior schedule award for
24 percent permanent impairment of the left lower extremity under OWCP File No. xxxxxx386 to
equal 10 percent additional impairment of the left lower extremity under the present case.
By decision dated November 2, 2017 under File No. xxxxxx127, OWCP granted appellant
a schedule award for an additional 10 percent permanent impairment of the left lower extremity.
Following counsel’s May 30, 2018 request for reconsideration, OWCP affirmed its November 2,
2017 schedule award determination by decision dated November 30, 2018.
The Board has duly considered the matter and finds that the case is not in posture for
decision. OWCP’s procedures provide that cases should be combined where correct adjudication
depends on cross-referencing between files and where two or more injuries occur to the same part
of the body.3 Appellant sustained two accepted employment injuries to the lumbar spine, including
one injury affecting the lower extremities, and a traumatic injury to his left lower extremity. For
a full and fair adjudication, the claims in OWCP File Nos. xxxxxx127, xxxxxx220, and xxxxxx386
should be administratively combined.
Under its procedures, OWCP has determined that cases should be combined where a new
injury case is reported for an employee who previously filed an injury claim for the same part of

2

Appellant filed a formal schedule award claim (Form CA-7) under OWCP File No. xxxxxx220 on February 11,
2019, denied by decision dated August 21, 2019. This claim is not before the Board on the present appeal.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

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the body and where correct adjudication depends on cross-referencing between files.4 This will
allow OWCP to consider all relevant claim files in developing this schedule award claim. 5
Accordingly, the Board will remand the case to OWCP to administratively combine the
case records for File Nos. xxxxxx127, xxxxxx220, and xxxxxx336. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo merit decision on
appellant’s schedule award claim.
IT IS HEREBY ORDERED THAT the November 30, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board. 6
Issued: April 30, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

4

Id. at Chapter 2.400.8(c)(1); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos.
17-1863, 17-1867, 17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket
No. 14-1576 (issued March 9, 2015).
5

Id.

6

The Board notes that, by decision dated August 21, 2019 under File No. xxxxxx220, OWCP denied appellant’s
claim for a schedule award for permanent impairment of the lower extremities caused by spinal nerve root impairment.
However, appellant, through counsel, filed an appeal to the Board on February 5, 2019, prior to the August 21, 2019
decision. The Board notes that as OWCP issued its August 21, 2019 decision during the pendency of this appeal that
decision is null and void as the Board and OWCP may not simultaneously have jurisdiction over the same issue. See
Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770
(1992); Douglas E. Billings, 41 ECAB 880 (1990).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE,PROCESSING &
DISTRIBUTION CENTER, Long Beach, CA,
Employer
__________________________________________

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Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1665
Issued: September 12, 2014

Case Submitted on the Record

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

JURISDICTION
On July 3, 2013 appellant, through her attorney, filed a timely appeal from a March 8,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
her emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On June 21, 2011 appellant, then a 40-year-old maintenance support clerk, filed an
occupational disease claim alleging that she developed an emotional condition in the
1

5 U.S.C. § 8101 et seq.

performance of duty. She alleged that she first became aware of her condition, and first realized
it was work related, on November 1, 2010.
Appellant explained that she was subjected to sexual harassment and discrimination by
her immediate supervisor, Donald Logsdon. She added that other managers either encouraged
his behavior or failed to properly intercede. Appellant’s allegations included the following:


B.J. Williams, a custodian, started a rumor in November 2003 that she had sex in the
women’s restroom with three black men. She worked as a custodian at the time and
had to interact with Mr. Williams frequently. He and another coworker, Ernest Paul,
would call her a “bitch” or “whore” in passing.



Mr. Williams, as an acting supervisor, talked negatively about her during a safety
meeting, with encouragement from a supervisor. She filed an Equal Employment
Opportunity (EEO) complaint, which resulted in a settlement that she was not to be
negatively discussed during any stand-up talk.



In 2006 Mr. Williams demanded to be detailed to the Tool and Parts Office, where
she worked. She complained that she was unable to work with him, after all that
happened. Mr. Williams was later transferred.



Mr. Logsdon became appellant’s supervisor in 2006. Beginning in 2007, he made
suggestive comments to her and would frequently leer at her body or raise his
eyebrows suggestively.
This persisted almost daily, making her extremely
uncomfortable in his presence and afraid of her job.



After she filed her EEO complaint, Mr. Logsdon gave her a special assignment
outside of her normal responsibilities and job description. She felt that this
constituted retaliation.



In January 2009, before she was about to leave for a vacation with coworker José
Martinez, Mr. Logsdon and a male coworker, Jun Versoza, crudely teased her about
the vacation, making rude and suggestive comments about her private activities with
men. This pattern continued every time she went on vacation.



In July 2009 she requested a change in schedule to accommodate a vacation. On
July 21, 2009 Mr. Logsdon sent her an e-mail asking if she was planning to join Rito
Palencia in the Philippines. Mr. Palencia was a married coworker with whom
appellant had no relationship outside of work. She asked Mr. Logsdon to stop
discussing her personal life. He made several rude, extremely explicit and suggestive
sexual innuendos forecasting her private activities with men.



On August 4, 2009 Mr. Versoza made several snide sexual innuendos to her, echoing
almost the same langue that Mr. Logsdon had used earlier concerning her private
relationship with Mr. Martinez. Mr. Logsdon was present and did nothing to stop
these comments. She asked him to intervene, but he shrugged and walked away with
a laugh.

2



In December 2009 Mr. Logsdon posted a holiday schedule with the following
comment next to appellant’s name: “Enjoy your Sat off ho, ho, ho.” She felt this
referred to her as a “ho” or whore. She confronted him, and he did not deny it or
apologize, and he did not change the posting or take it down.



On December 15, 2009 after she returned from vacation, Mr. Logsdon again made
snide comments about her love life. He told her she should change her last name to
Martinez to redeem herself.



On February 3, 2010 after returning from a week off, a coworker told her that
Mr. Logsdon and Mr. Versoza had discussed her relationship with Mr. Martinez in a
loud, rude and suggestive manner clearly intended to be overheard by others. Tommy
Grayson was present and heard these comments. The coworker added that
Mr. Logsdon did this every time appellant went on vacation.



On March 30, 2010 she told Mr. Logsdon that she was upset with Mr. Versoza and
asked Mr. Logsdon to control his behavior. Mr. Logsdon called her a “Latina
Elizabeth Taylor.” She asked for an apology, but he did not offer one.



In September 2010 Lorenzo Carter, a supervisor, told Mr. Martinez that appellant was
being discussed in a maintenance manager’s meeting. Shelly Weir, a supervisor, had
commented on statements made by Mr. Logsdon about whether appellant was having
an affair or was Mr. Martinez’s girlfriend.



Following this meeting, Ms. Weir denied leave requests and work schedule requests
from appellant and Mr. Martinez, while approving similar requests from other
employees. Mr. Carter informed Mr. Martinez that Mr. Logsdon had instructed him
to deny the requests due to his relationship with appellant. Appellant argued that the
selective denial was error or abuse and a way to target her. When she temporarily
worked for another manager, she had no trouble getting leave requests or schedule
changes approved.



In October 2010 Mr. Logsdon refused to furnish Family Medical and Leave Act
(FMLA) forms when she requested them. After she advised that he was required to
provide, she received them in the mail. She felt this was retaliation.



On October 10, 2010 Mr. Logsdon loudly and angrily chastised her regarding her
FMLA absences, as witnessed by Jacqueline Jeffrey and Mr. Versoza.



After an EEO meeting with a counselor on October 28, 2010, the counselor advised
that Mr. Logsdon be removed from the office or at least separated from appellant, but
the counselor’s advice was not followed.



In late 2010 appellant attempted to obtain a restraining order against Mr. Logsdon. A
postal service attorney, Joanna Hull, intervened and moved to dismiss the complaint
on the grounds that Mr. Logsdon had immunity because this happened at work. The
attorney called appellant at home and told her she could not win the complaint, and
that if she sought EEO relief or a restraining order against her supervisor, she would
3

lose her job. Appellant withdrew her request for a restraining order for fear of losing
her job.


On February 9, 2011 appellant agreed to a settlement that would have resulted in a
transfer away from Mr. Logsdon and would have ended the harassment, but the
settlement was not approved. Mr. Logsdon, who had been off work due to an injury,
returned to his regular position on February 14, 2011, and Supervisor Tracey Jones
refused to assign appellant to a different supervisor. Instead, Mr. Jones moved
Mr. Logsdon to a location close to appellant, where she would have daily contact with
him.



During a meeting called to settle a union grievance for a contractual violation, a
postal service attorney, Ayesha Mahapatra, repeatedly badgered appellant to drop her
EEO complaint without first giving notice to appellant’s attorney, even though the
employing establishment was fully aware the claimant was represented by counsel.
Appellant filed an ethics complaint with the California Bar Association.



Supervisor Logsdon refused to approve appellant’s request for holiday hours on
Columbus Day and Veterans Day following the filing of her EEO complaint.
Appellant felt this was retaliation, as this had been approved in the past.
Mr. Martinez submitted a statement alleging the following:



On February 3, 2010 Mr. Logsdon approached him and rudely asked if he and
appellant were having an affair.



On October 28, 2010 he and appellant met with Supervisor Jones to discuss
appellant’s EEO complaint. Appellant showed Mr. Jones an e-mail that illustrated
Mr. Logsdon’s inappropriate behavior.
Although Mr. Jones indicated that
Mr. Logsdon would be removed from the office, it never occurred.
Mr. Logsdon provided a statement addressing the following:



Appellant was not given extra work in retaliation for her EEO complaint. She and
other employees were assigned the task based on operational needs.



He denied making inappropriate comments, gestures or advances to appellant. He
stated it was the other way around. In May or June 2009, appellant came to his office
and said, “I can get anything I want from any man except you,” to which he replied
that he followed the rules to be fair to all employees. In June 2010 she asked him if
he would date anyone in the post office. He replied he never would.



Appellant shared numerous details about her personal life. While on vacation by the
pool with her then-husband, she called Mr. Versoza at work. She told how she sweet
talked an inspector to get some items passed when her home was under repair. She
talked about flirting with a representative to get reduced electrical rates. She once
came back from a trip with a picture of her sitting on a boulder and said, “See, Jun, I
got bigger balls than you.” Many times she said she wanted to go to the Philippines
4

with Mr. Versoza. He would reply, “Good, then I can sell you.” When Mr. Palencia
said he was going to the Philippines, Mr. Versoza told appellant she could go with
him. Appellant never indicated she was being harassed or felt uncomfortable due to
these statements. Mr. Logsdon saw nothing inappropriate, as she and Mr. Versoza
teased each other for months about the Philippines.


He denied harassing or retaliating against appellant. He would not risk his job by
violating the policy prohibiting retaliation. He denied gossiping about appellant when
she was on vacation or making snide remarks about her love life. Appellant made
such remarks, however. She used to tell Mr. Versoza that she had his balls hanging
on a chandelier in her bedroom.



He has never seen the e-mail that appellant alleges she has from him.



He denied that the “ho ho ho” comment was meant to harass appellant. He explained
that this was the last schedule of the year, and appellant had pleaded and begged for
the day off. Another coworker agreed to cover the shift. Since it was almost
Christmas, he added “ho ho ho.” He argued that appellant falsely portrayed this as an
insult. She never questioned the comment at the time.



He had a meeting with appellant and Mr. Versoza concerning a dispute whether
people were talking about appellant while she was on vacation with Mr. Martinez.
She accused Mr. Versoza. He called her a liar. Mr. Logsdon indicated that the
possibility of appellant and Mr. Martinez taking vacation together was discussed. He
stated to appellant: “We just don’t want to see you do a Liz Taylor on us.” She asked
what that meant. He explained that Elizabeth Taylor had gotten married and divorced
several times. When she said she resented the comment, he apologized and said he
would never do it again. An hour later, she and Mr. Versoza were talking like
nothing happened.



On October 28, 2010 Supervisor Jones advised that appellant had made charges of
sexual harassment. After an interview, Mr. Jones let Mr. Logsdon work in his office.



Supervisor Jones stopped approving revised schedules for appellant in late July or
early August 2010 because there was no justification for it, except that appellant
wanted to carpool. Appellant begged, but he explained he could not justify it. She
went to Supervisor Jones, but he left it up to Mr. Logsdon. Mr. Martinez asked for
the approval several times. He explained he and appellant were married and asked if
Mr. Logsdon would help out a married couple. Mr. Logsdon explained that the only
way he could approve a schedule revision was if appellant had a special reason, like a
project, to come in early. At a manager meeting, Mr. Logsdon was advised that
carpooling was not sufficient justification for a revised schedule. Someone asked if
they were dating, and Mr. Logsdon advised that Mr. Martinez said they were married.
This someone added he did not know why temporary supervisors had approved any
revised schedules, as Mr. Jones had instructed not to approve long-term schedule
revisions.

5



Appellant did not request FMLA leave. She requested sick leave three consecutive
weeks, each time placing her request on his desk when he was out of the office. He
told her that he was submitting the requests under FMLA because it appeared to be an
ongoing situation. She approved and after receiving an FMLA number asked to have
all her slips changed to FMLA.
Addressing the written statement of Mr. Martinez, Mr. Logsdon alleged the
following:



He did not encourage people to gossip about appellant while she was on vacation. A
couple of times he heard someone ask if appellant and Mr. Martinez were off work at
the same time. That was all he heard, so there was nothing to stop.



He denied saying that appellant was a loose woman or a Latina Elizabeth Taylor.



He did not inquire about the relationship between appellant and Mr. Martinez on
February 3, 2010.



He confirmed that he was removed from his work area for an investigative interview
with Mr. Jones. When he returned to work, he was placed in another office to review
videos on harassment. He also had a discussion with Mr. Jones about policies on
harassment.
Supervisor Jones provided a statement alleging the following:



Mr. Williams and Mr. Paul denied appellant’s allegations of harassment. They were
instructed not to speak or look at appellant, not to speak about her to coworkers, and
to avoid unnecessary contact with her.



Mr. Williams asked that appellant not take lunch in the north end of the building,
where he worked.



In 2006 Mr. Williams requested a detail to the Tool and Parts Office because of racial
discrimination. His request was denied.



Appellant reported no further incidents with Mr. Williams. As recently as
November 2010, appellant stated everything was fine with Mr. Williams.



Appellant’s special assignment was within her regular duties, and no overtime was
required.



In 2009 and 2010 management changed the start time of a large number of
employees. Some, including appellant, asked for revised schedules. All requests
were denied. A temporary manager approved some revised schedules for appellant
that he believed were temporary requests; he had no knowledge of prior requests.



Appellant made no complaint about Mr. Logsdon to Supervisor Jones prior to
October 28, 2012, following the denial of one of her requests for a schedule revision.
6



When appellant complained on October 28, 2010 that Mr. Logsdon was harassing
her, Mr. Jones moved him to another location pending an investigation. When
appellant still complained that they shared a printer, she was given a printer in
another location. Mr. Jones stated that he did not ignore the advice of the EEO
counselor to separate appellant and Mr. Logsdon.



The only statements received in the investigation were from appellant and
Mr. Martinez. Appellant submitted no other pertinent information. Appellant was
advised that the investigation had found that Mr. Logsdon’s actions were not
considered harassment and that he would be returning to his position when he
recovered from an injury.



On February 9, 2011 appellant asked to be transferred to a different supervisor. This
request was denied, as management determined it would be too disruptive and too
destructive to Mr. Logsdon.



At a meeting that same day, employing establishment Attorney Mahapatra made it
clear to appellant that she had the right to discuss the meeting with her
representatives. Appellant’s union representative was at the meeting, and she did not
mention that she had another representative.

Appellant responded to the statements of Mr. Logsdon and Mr. Jones as follows:


Emails from Jacqueline Jeffrey proved that she was not being treated fairly with work
assignments.



Brian Moyer proved that Mr. Jones took steps that forced her to interact with
Mr. Logsdon, such as using a printer in front of her office.



The letter of warning from the California State Bar Association had confirmed the
misconduct of employing establishment Attorney Mahapatra at the February 9, 2011
meeting.



The special assignment list supported it was an unfair workload, and documentation
showed the EEO complaint was filed before the assignment.



Mr. Logsdon was aware of her divorce in October 2008, when he signed paperwork,
of record, acknowledging it. He also admitted that he overheard Mr. Versoza making
remarks to her and would not stop it; and an e-mail, of record, showed that he wrote
to appellant about meeting a married man in the Philippines.



Mr. Logsdon falsely denied calling appellant a Latina Elizabeth Taylor, and contrary
to his statement, she and Mr. Versoza did not speak after the meeting.



She filed the EEO complaint because in September 2010 Mr. Logsdon discussed her
personal life in a maintenance meeting, that is, whether Mr. Martinez was her lover.

7



Email evidence to Rito Palencia proved that Mr. Logsdon was interested in her
personal life.

Appellant submitted several letters she had written, some as far back as 2003, as well as
statements from coworkers and other evidence. This included a July 21, 2009 e-mail from
Mr. Logsdon regarding her request for a 5:00 a.m. revised schedule. Mr. Logsdon replied by
asking whether this was so she could be with Mr. Palencia sooner before going to the
Philippines, and that Mr. Palencia would just have to wait until she got off work at 3:30 p.m.
“lol.” But on a serious note, he would not approve a revision without justification. A coworker
confirmed that when appellant questioned Mr. Logsdon on October 20, 2010 about FMLA
absences, his voice started out loud and got louder. The tone of his voice angered. And when
appellant refused to argue, his attitude softened. Appellant submitted a holiday schedule from
December 26, 2009 to January 1, 2010, which included the following comment next to her name:
“Enjoy your last Sat off ho ho ho.”
In an August 8, 2011 statement, Deborah Mastren, a cowoker, reported that in
November 2003 she attended a safety talk regarding the rules of conduct related to gossip. She
heard a coworker say, “This must be because of [appellant] having sex in the bathroom.”
Another coworker replied, “That rumor is not true,” and another coworker stated, “Yes, it is.”
According to Ms. Mastren, the meeting spread the rumor about appellant, and it was not until she
was contacted by appellant on August 8, 2011 that she was convinced the story was a lie. In
October-November 2009 she heard maintenance employees continuing to make sexual jokes
about appellant.
By decision dated May 18, 2012, OWCP found that appellant failed to establish a
compensable factor of employment. It denied her claim on the grounds that the evidence was not
sufficient to establish that she was injured in the performance of duty.
By decision dated March 8, 2013, an OWCP hearing representative affirmed. He found
that appellant failed to establish a compensable work factor through probative and reliable
evidence.
On appeal, counsel contends that appellant submitted sufficient evidence to establish that
she was subjected to harassment in a hostile workplace and suffered as a result of the derogatory
name-calling, teasing, false gossip and slander to her reputation.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 As the Board explained in Lillian Cutler,3
workers’ compensation does not cover each and every illness that is somehow related to the
employment. When an employee experiences emotional stress in carrying out his or her
employment duties or has fear and anxiety regarding his or her ability to carry out his or her
duties, and the medical evidence establishes that the disability resulted from his or her emotional
2

5 U.S.C. § 8102(a).

3

28 ECAB 125 (1976).

8

reaction to such situation, the disability is generally regarded as due to an injury arising out of
and in the course of employment. By contrast, there are disabilities having some kind of causal
connection with the employment that are not covered under workers’ compensation because they
are not found to have arisen out of employment, such as when disability results from 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.
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA. However,
the Board has held that where the evidence establishes error or abuse on the part of the
employing establishment in an administrative matter, coverage will be afforded.4 In determining
whether the employing establishment has erred or acted abusively, the Board will examine the
factual evidence of record to determine whether the employing establishment acted reasonably.5
It is well settled that an employee’s reaction to supervision is not a compensable factor of
employment under Cutler.6 Complaints about the manner in which a supervisor performs his
duties or the manner in which a supervisor exercises his discretion fall, as a rule, outside the
scope of coverage provided by FECA. This principle recognizes that a supervisor or manager
must be allowed to perform his duties and that employees will, at times, dislike the actions taken.
Mere disagreement or dislike of a supervisory or managerial action is not compensable, absent
evidence of error or abuse.7
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.8 In claims for a mental disability attributed to work-related stress,
the claimant must submit factual evidence in support of her allegations of harassment or
discrimination. The claimant must specifically delineate those factors or incidents to which the
emotional condition is attributed and submit supporting factual evidence verifying that the
implicated work situations or incidents occurred as alleged. Vague or general allegations of
4

Thomas D. McEuen, 42 ECAB 566, 572-73 (1991).

5

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

6

Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable,
whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke,
51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor
spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable,
as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an
administrative capacity and as such, are outside the coverage of FECA); Frank A. Catapano, 46 ECAB 297 (1994)
(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of
managerial error or abuse); Rudy Madril, 45 ECAB 602 (1994) (where the employee questioned his supervisor’s
instructions to move from belt number five to belt number six and unload mail and became upset because he felt he
was being pushed and picked on, the Board found that the incident was not a compensable factor of employment).
7

T.G., 58 ECAB 189 (2006).

8

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).

9

perceived harassment, abuse or difficulty arising in the employment are insufficient to give rise
to compensability under FECA. Based on the evidence submitted by the claimant and the
employing establishment, OWCP is required to make factual findings which are reviewable by
the Board. The primary reason for requiring factual evidence from the claimant in support of her
allegations of stress in the workplace is to establish a basis in fact for the contentions made, as
opposed to mere perceptions of the claimant, which in turn may be fully examined and evaluated
by OWCP and the Board.9
Thus, for harassment or discrimination to give rise to a compensable disability under
FECA, there must be evidence introduced which establishes that the acts alleged or implicated
by the employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination
are not determinative.10 Grievances and EEO complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.11 The Board has generally held that being
spoken to in a raised or harsh voice does not in itself constitute verbal abuse or harassment.12
The issue is whether the claimant has submitted sufficient evidence under FECA to establish a
factual basis for the claim by supporting her allegations with probative and reliable evidence.13
ANALYSIS
When appellant filed her occupational disease claim, she did not attribute her emotional
condition to her assigned duties under Cutler. The statement she submitted in support of her
claim made clear that she was not alleging emotional stress in carrying out her employment
duties or fear and anxiety regarding her ability to carry out those duties. Instead, she explained
that she was subjected to sexual harassment and discrimination by her immediate supervisor,
Mr. Logsdon. And she added that other managers either encouraged his behavior or failed to
properly intercede.
Appellant did implicate a special assignment given her after she filed her EEO complaint,
but she argued this was evidence of retaliation. She added that the assignment’s workload was
unfair, as the task was outside her regularly assigned duties and she had to do more than other
workers, but this raised the issue of discrimination, not whether she found the duties of the
assignment so stressful that she developed an emotional condition in attempting to discharge
them.14 Appellant’s claim, therefore, is not generally regarded as compensable under Cutler. By
attributing her emotional condition to the actions of her immediate supervisor, other supervisors,
and employing establishment attorneys, appellant’s claim is largely based on error or abuse in
administrative or personal matters under McEuen.
9

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

10

Michael Ewanichak, 48 ECAB 364 (1997).

11

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

12

Beverly R. Jones, 55 ECAB 411, 418 (2004).

13

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

14

Supervisor Jones advised that the task was within appellant’s regularly assigned duties and that no overtime
was required.

10

As stated earlier, however, the Board has recognized an exception when error or abuse or
unreasonable conduct on the part of managers or supervisors is established by the evidence.
Having reviewed the extensive evidence in this record, the Board finds that appellant has
established two compensable factors of employment.
Mr. Logsdon, the focal point of appellant’s claim, became her immediate supervisor in
2006, and it was the following year that she alleged some difficulty working with him. Earlier,
in 2003, appellant alleged that Mr. Williams had started a rumor about her having sex in the
women’s bathroom with several men. She alleged that Mr. Williams and Mr. Paul would call
her “bitch” or “whore” in passing. It appears from Mr. Jones’ statement that both denied the
allegations. Further, Coworker Mastren identified someone else as having started the rumor, a
woman who had walked into the bathroom and allegedly saw appellant with a male coworker.
Appellant’s allegations are rather distant in time, and the various statements are not sufficiently
probative to establish this as a compensable factor. A settlement agreement, without prejudice to
the position of the parties and with the understanding that it would not be cited in other
proceedings, does not establish that Mr. Williams committed error in negatively discussing
appellant at a stand-up meeting.
On July 21, 2009 appellant asked Mr. Logsdon if she could revise her Friday schedule for
5:00 a.m. Mr. Logsdon replied: “Is this so you can be with Rito [Palencia] sooner before going
to the Philippines? Rito will just have to wait until you get off from work at 15:30 lol.”
Although it appears he intended to strike a light-hearted tone, the nature of the comment was
erroneous and unwarranted for communication between a supervisor and his subordinate.15 The
Board finds this to be a compensable factor of employment.
On March 30, 2010 Mr. Logsdon met with appellant and her coworker, Mr. Versoza,
about a dispute they were having about people talking behind her back while she was on vacation
with Mr. Martinez. After a long silence between the two, Mr. Logsdon told appellant that he did
not want her “doing a Liz Taylor on us.” Asked what that meant, he explained that Elizabeth
Taylor had gotten married and divorced several times. Appellant resented the comment, and
Mr. Logsdon stated he apologized, saying it would never happen again. The Board again finds
that the nature of this comment was erroneous for a supervisor and constitutes a compensable
factor of employment.
As appellant has met her burden to establish compensable factors of employment, the
Board finds that this case is not in posture for decision on whether she sustained an emotional
condition in the performance of duty. The Board will set aside OWCP’s March 8, 2013 decision
and remand the case for further development on the issue of causal relationship and an
appropriate final decision on her claim for compensation.16
Appellant made many other allegations, of course, but they are either disputed,
unsubstantiated by evidence, or simply do not fall within the scope of workers’ compensation.
She has filed an EEO complaint concerning these same matters, and if she is able to obtain a
favorable decision on the merits of her complaint or any finding by the EEOC that confirms
15

See Carolyn S. Philpott, 51 ECAB 175 (1999).

16

E.g., Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

11

administrative error or abuse with respect to management’s treatment of her, she may submit
such evidence to OWCP in further support of her claim for compensation.
Appellant alleged that in 2007 Mr. Logsdon began to make suggestive comments and
would frequently leer at her body or raise his eyebrows suggestively. The allegation is not
specific as to time and place, and Mr. Logsdon disputed the allegation. Mr. Logsdon denied
making inappropriate comments, gestures or advances. Indeed, he stated it was the other way
around, and that contrary to her assertion, appellant had shared numerous details about her
personal life with other staff.
Appellant alleged retaliation in being given a special assignment following the filing of
her EEO complaint, but Mr. Logsdon denied retaliation, noting that she and other employees
were assigned the task based on operational needs. Whether the distribution of work was in fact
discriminatory is not established by the record. Again, if the EEOC should find retaliation or
discrimination in this regard, appellant may submit such evidence to OWCP in further support of
her claim.
Appellant has made a number of allegations concerning administrative matters, such as
the denial of leave requests, the denial of a new starting time or temporary schedule change, the
denial of requests for holiday hours, the denial of a transfer to a new supervisor, the furnishing of
FMLA forms, or the failure to agree to a settlement that would have transferred Mr. Logsdon. In
the absence of independent evidence establishing administrative error or abuse in such matters,
as opposed to appellant’s mere perception of error or abuse, the record does not establish a
compensable factor of employment.
The Board will discuss matters relating to the employing establishment attorneys. On
February 9, 2011 employing establishment Ms. Mahapatra communicated with appellant, outside
the presence of her attorney and without his knowledge or consent, about settling her EEO
complaint. Ms. Mahapatra explained, and Mr. Jones confirmed, that appellant did not indicate
she was represented by counsel, nor did she supplement or append any paperwork to note she
had retained an attorney. The California State Bar Association determined there was substantial
evidence Ms. Mahapatra’s conduct amounted to a violation of a rule of professional conduct, and
therefore she was issued a warning letter as notice that the specified conduct was prohibited and
to refrain from such conduct in the future. The State Bar Association wrote to appellant and
advised her that the warning letter was not considered public discipline; the letter was
confidential, and it was not to be disclosed to anyone besides her and Ms. Mahapatra. Further,
the Bar made clear to appellant: “The letter cannot be offered to or considered by a court or
other proceeding as evidence of professional misconduct.” But this is just what appellant
attempted to do when she disclosed the matter to OWCP and argued that the action taken by the
Bar substantiated her allegation of compensable administrative error. Appellant’s allegation
concerning the EEO proceeding and settlement communication by Ms. Mahapatra lies outside
the scope of coverage under McEuen. Her remedy was provided by the California State Bar
Association which has jurisdiction to consider issues of professional misconduct.17

17

Compare Isabel R. Pumdido, 51 ECAB 326 (2000).

12

In late 2010 appellant attempted to obtain a restraining order against Mr. Logsdon. An
employing establishment attorney, Ms. Hull, called appellant at home and told her she could not
win the complaint, and that if she sought EEO relief or a restraining against her supervisor, she
would lose her job. Appellant allegedly withdrew her request for fear of losing her job. The
Board notes that the hearing representative accepted that Ms. Hull called her at home and made
such representations. The Board finds this to be a compensable factor under McEuen as it was
inappropriate and in error
In other matters, the record establishes that in December 2009 Mr. Logsdon posted a
holiday schedule with the following comment by appellant’s name: “Enjoy your last Sat off ho
ho ho.” Although she felt this referred to her as a “ho,” he stated that it was Christmas and
denied that it was meant to harass her. She alleged that she confronted him about it, but he
denied that she ever questioned the comment. The evidence of record does not establish a
compensable factor in this regard.
On October 10, 2010 Mr. Logsdon spoke to appellant loudly about her FMLA absences.
This was witnessed. As the Board noted earlier, being spoken to in a raised or harsh voice does
not in itself constitute verbal abuse or harassment. Without evidence that Mr. Logsdon used
inappropriate language in addressing appellant, his loud or angry tone is not a compensable
factor of employment.18
Appellant’s alleged that others were talking about her behind her back. For example, on
February 3, 2010, after she returned from a week off, a coworker told appellant that Mr. Logsdon
and Mr. Versoza had discussed her relationship with Mr. Martinez in a manner that could be
heard by others. The coworker told appellant that Mr. Logsdon did this each time she went on
vacation. Appellant was embarrassed when she was informed of this. This was not an incident,
however, that appellant experienced first-hand. Mr. Logsdon and Mr. Versoza did not speak to
her directly or in her presence.19 If it occurred, it occurred in her absence. Her emotional
reaction was to hearing about it from someone else. The Board had held that an emotional
reaction to gossip in the workplace represents a personal frustration unrelated to one’s duties and
is not compensable.20 In Gracie A. Richardson,21 the claimant had become romantically
involved with a coworker. She alleged, among other things, that she was devastated to think that
coworkers were gossiping behind her back regarding her marital and other personal
relationships. The Board found that an emotional reaction to gossip was not a compensable
factor of employment.
The Board finds two compensable employment factors. The case will be remanded for
development on the medical issue of causal relationship.
18

See Joe M. Hagewood, 56 ECAB 479 (2005).

19

See Mary A. Sisneros, 46 ECAB 155 (1994) (the claimant learned that a coworker had called her a bitch).
Appellant has also alleged that Mr. Logsdon and Mr. Versoza had made snide remarks to her directly about her
private relationship with Mr. Martinez, but these allegations are disputed and unsubstantiated by other evidence.
20

S.A., Docket No. 11-171 (issued January 9, 2012).

21

42 ECAB 850 (1991).

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CONCLUSION
The Board finds that the case is not in posture for decision on whether appellant sustained
an emotional condition in the performance of duty. Further development is warranted.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: September 12, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

14


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

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)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1234
Issued: September 26, 2014

Case Submitted on the Record

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

JURISDICTION
On May 5, 2014 appellant, through her attorney, filed a timely appeal from a
November 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on March 6, 2013.
FACTUAL HISTORY
On December 14, 2009 appellant, then a 51-year-old letter carrier, slipped and fell to the
ground, injuring his low back. He filed a claim for benefits, which OWCP accepted for lumbar

1

5 U.S.C. § 8101 et seq.

strain. Appellant stopped work and received temporary total disability compensation from
OWCP. He returned to full-time light duty with restrictions on March 16, 2010.
In an April 13, 2010 report, Dr. Marc J. Levine, a treating physician Board-certified in
orthopedic surgery, stated that appellant continued to experience back pain with some radiation
down his right leg. Appellant tried physical therapy but did not attain any lasting relief. He was
not able to walk as much as he did in the past but was still working light duty. Dr. Levine
advised that radiographic tests showed no evidence of significant instability at the L5-S1 level,
though they did indicate that he had grade 1 to 2 L5-S1 spondylolisthesis. He recommended that
appellant undergo a course of epidural steroid injections.
In order to determine appellant’s residuals from his accepted condition, OWCP referred
him for a second opinion examination to Dr. David Rubinfeld, Board-certified in orthopedic
surgery. In an October 13, 2010 report, Dr. Rubinfeld reviewed the medical history and the
statement of accepted facts and listed findings on examination. He opined that the objective
findings on examination did not support any continuing disability from the accepted lumbar
strain and that the accepted condition had resolved. Dr. Rubinfeld advised that appellant had
degenerative disease and spondylolisthesis of the low back but these conditions were not
causally related to the accepted condition. He found that appellant had no work restrictions
stemming from the December 14, 2009 work injury and required no additional medical treatment
or diagnostic tests for the accepted lumbosacral sprain condition.
In a report dated December 23, 2010, Dr. Levine advised that appellant continued to
work light duty at the employing establishment with restrictions. He experienced an
exacerbation of his lower back discomfort the previous day and was awaiting approval for back
surgery. Dr. Levine reiterated that the diagnoses of L5 bilateral spondylolysis and grade 1 to 2
L5-S1 spondylolisthesis. He placed appellant off work until January 4, 2010 and prescribed
medication for his back spasms.
On January 24, 2011 OWCP issued a notice of proposed termination of appellant’s
medical benefits and eligibility for receipt of disability compensation. It found that the weight of
the medical evidence was represented by Dr. Rubinfeld’s opinion and established that the
accepted lumbar strain condition had resolved without any work-related residuals.
By decision dated March 2, 2011, OWCP terminated appellant’s compensation.
On March 10, 2011 appellant, through his attorney, requested an oral hearing which was
held on June 10, 2011.
In a May 20, 2011 report, Dr. Levine reviewed x-rays, a computerized axial tomography
scan and a magnetic resonance imaging scan of the lumbar spine. He opined that appellant had
an L5 bilateral spondylolysis with a grade 1 to 2 L5-S1 spondylolisthesis. Dr. Levine disagreed
with Dr. Rubinfeld’s opinion, stating that his December 23, 2010 report did not reveal a thorough
understanding of appellant’s medical condition. He asserted that Dr. Rubinfeld described an L5
bilateral spondylosis condition, which referred to a degenerative process and/or arthritic process
of the spine. Dr. Levine stated that appellant actually had an L5 bilateral spondylolysis, a
different pathology. He advised that a spondylolysis was a defect or abnormality in the pars

2

interarticularis and was responsible for appellant’s grade 1 to 2 L5-S1 spondylolisthesis.
Dr. Levine stated that this was the pathology that was causing appellant’s current pain complex.
He stated that this condition existed for many years prior to appellant’s current injury but was
asymptomatic until the December 14, 2009 work injury. Dr. Levine advised that Dr. Rubinfeld
did not take into consideration the full extent of this condition in rendering his opinion, did not
review all of appellant’s diagnostic tests and incorrectly opined that this condition was not
causally related to appellant’s work injury. He stated:
“In summary, it is my belief with a reasonable degree of medical certainty and
based upon the information that has been provided that [appellant] is having
ongoing pain from an injury that he sustained at the workplace when he fell down
steps while carrying mail. [Appellant’s] diagnosis is that of an L5 bilateral
spondylolysis and a grade 1 to 2 spondylolisthesis. While this pathology was
present prior to his injury, it was asymptomatic and did not become symptomatic
until he injured himself at the workplace. It is my belief that [appellant] has made
every effort to utilize pain management and physical therapy techniques to
alleviate his ongoing discomfort. If he chooses to proceed with surgical
intervention, I do believe that this would be causally related to his workers’
compensation injury.”
By decision dated September 7, 2011, an OWCP hearing representative set aside the
March 2, 2011 termination decision. He found a conflict in medical opinion between Dr. Levine
and Dr. Rubinfeld as to whether appellant had residuals of his accepted lumbar strain injury. The
hearing representative remanded the case for referral to an impartial medical specialist to resolve
the conflict.
OWCP referred appellant to Dr. Gregory S. Maslow, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. In a report dated December 20, 2011, Dr. Maslow
stated that appellant sustained a lumbar sprain in the presence of a preexistent lumbar
spondylosis on December 14, 2009. While appellant continued to be symptomatic, his present
symptom complex was causally related to the preexistent spondylosis. Dr. Maslow opined that,
while appellant had no evidence of a neurologic deficit, but his back condition would not be
cleared without surgical intervention. He concluded that appellant could perform full-time work,
with lifting restrictions. On January 5, 2012 OWCP requested that Dr. Maslow clarify his report
as to whether appellant’s accepted lumbar sprain had resolved, his spondylosis was aggravated
by the employment incident and whether appellant had any disability remaining due to the
December 14, 2009 injury. On January 12, 2012 Dr. Maslow responded that appellant had a
preexisting lumbar spondylolysis which was aggravated by the December 14, 2009 incident;
however, the aggravation was temporary. He concluded that appellant’s work restrictions were
due the structural spinal abnormality that existed prior to December 14, 2009.
By decision dated March 7, 2012, OWCP terminated appellant’s compensation benefits.
It found that the report of Dr. Maslow, the impartial medical examiner, was well reasoned and
established that appellant’s accepted lumbar condition had ceased without disability causally
related to the December 14, 2009 injury.

3

On March 12, 2012 appellant requested a hearing before an OWCP hearing
representative.
By decision dated September 13, 2012, an OWCP hearing representative set aside the
March 7, 2012 termination of appellant’s compensation benefits, for referral to a new impartial
medical specialist. He found that Dr. Maslow’s report was not well rationalized or sufficient to
establish that appellant’s current condition was unrelated to the work injury and that there were
no objective findings to support continuing disability.
OWCP referred appellant to Dr. Thomas J. O’Dowd, Board-certified in orthopedic
surgery, for a referee medical examination. In a December 11, 2012 report, Dr. O’Dowd stated
that appellant sustained a lumbar strain/sprain as noted by the statement of accepted facts which
had long since resolved and also had a preexisting, chronic, underlying spinal defect which made
him prone to recurrent episodes of back pain with little or no inciting causes. He stated that the
condition of spondylolysis at L5 which resulted in a grade 1 to 2 spondylolisthesis was
previously symptomatic and most likely the reason for appellant’s continuing ongoing symptom
complex. Dr. O’Dowd noted Dr. Levine’s opinion that this was an exacerbation of his
underlying problem, but stated that without studies showing a worsening of the problem or
progression of the problem directly after the injury, it did not constitute an exacerbation of the
accepted injury. He stated that it was difficult to blame appellant’s ongoing symptoms to a
single episode of trauma.
Dr. O’Dowd explained that appellant’s lumbar strain/sprain and underlying
spondylolisthesis were different conditions. The ongoing symptom complex was related to
appellant’s underlying spinal deformity, while the lumbar strain had long since resolved. This
was especially true given that the patient had previous symptoms and previous trauma. With
regards to his work-related lumbar strain/sprain, appellant was capable of returning to his
previous employment, but his present right knee condition, together with his underlying
spondylolisthesis, caused him to be out of work for the past year; the right knee problem was
severe enough that he was being considered for a knee replacement and was the main reason
appellant was currently not able to perform light-duty work. Dr. O’Dowd reiterated that, while
the spondylolisthesis was persistently symptomatic, it was not caused by a single episode of
trauma. He also had a residual symptom complex which was primarily due his underlying
spondylolysis and spondylolisthesis at L5-S1, resulting in mechanical back pain which was not
work related and not due to his December 2009 work injury. Dr. O’Dowd recommended surgery
to ameliorate appellant’s persistent discomfort and underlying, preexisting spinal deformity.
On February 4, 2013 OWCP issued a notice of proposed termination of compensation. It
found that the weight of the medical evidence, as represented by Dr. O’Dowd’s impartial
opinion, established that his accepted lumbar strain condition had ceased and he had no
work-related residuals from this condition.
By decision dated March 6, 2013, OWCP terminated appellant’s medical benefits and
eligibility for wage loss, finding that Dr. O’Dowd’s impartial opinion represented the weight of
the medical evidence.

4

On April 3, 2013 appellant, through his attorney, requested an oral hearing, which was
held on August 13, 2013.
By decision dated November 12, 2013, an OWCP hearing representative affirmed the
March 6, 2013 termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.2 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability. To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
requires further medical treatment.3
Section 8123(a) provides that, if there is a 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.4 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.5
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits.
In a December 11, 2012 report, Dr. O’Dowd found that appellant’s December 14, 2009
lumbar strain had resolved. Appellant had a preexisting, chronic, underlying spinal defect which
made him prone to recurrent episodes of back pain with little or no inciting causes; a
spondylolysis at L5-S1 which resulted in a grade 1 to 2 spondylolisthesis. Dr. O’Dowd opined
that, without studies showing a worsening or progression of the problem immediately following
the injury, there was no exacerbation of appellant’s preexisting lumbar condition by the accepted
lumbar strain injury. He did not believe that the spondylolisthesis was related to a single episode
of trauma; as the lumbar strain and the underlying spondylolisthesis were different conditions.
Dr. O’Dowd’s ongoing symptom complex was related to his underlying spinal deformity, while
the lumbar strain had long since resolved. With regard to his work-related lumbar strain,
appellant was capable of returning to his previous employment, but he was disabled due to a
right knee condition and the underlying spondylolisthesis. OWCP relied on Dr. O’Dowd’s

2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

I.J., 59 ECAB 408 (2008).

4

Regina T. Pellecchia, 53 ECAB 155 (2001).

5

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

5

opinion in its March 6, 2013 decision, finding that appellant had no continuing disability or
residuals causally related to his lumbar strain condition.
On appeal, counsel argues that Dr. O’Dowd’s impartial medical report was insufficiently
rationalized and does not merit the special weight of a referee medical examiner. He contends
that Dr. O’Dowd was not provided with the proper legal framework to determine causation under
FECA and failed to thoroughly analyze the factual and medical evidence within the proper legal
context. Counsel asserts that appellant’s December 2009 work injury aggravated his underlying
spondylolysis and spondylolisthesis conditions and that Dr. O’Dowd should have found that
these conditions were work related. He attributes appellant’s continuing disability and residuals
to the December 2009 employment injury. Counsel asserted that OWCP should have requested
clarification from Dr. O’Dowd on this issue.
The Board finds that Dr. O’Dowd’s impartial opinion negates the causal relationship
between appellant’s spondylolisthesis defeat and disability related to his employment. The
medical evidence establishes that appellant no longer has any residuals from his accepted lumbar
strain condition. The issue of causation must be based on the medical evidence of record.
Dr. O’Dowd’s opinion is sufficiently probative, rationalized and based upon a proper factual
background. OWCP properly accorded his opinion the special weight of an impartial medical
examiner.6 The Board finds that Dr. O’Dowd’s opinion constituted the weight of medical
opinion and supports OWCP’s March 6, 2013 decision to terminate appellant’s compensation
benefits.
The Board will affirm OWCP’s hearing representative’s November 12, 2013 decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits.

6

Gary R. Seiber, 46 ECAB 215 (1994).

6

ORDER
IT IS HEREBY ORDERED THAT the November 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2014
Washington, DC

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

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

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

7