United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of the Solicitor, for the Director

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Docket No. 11-334
Issued: October 26, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 23, 2010 appellant filed a timely appeal from a September 20, 2010 merit
decision of the Office of Workers Compensation Programs (OWCP) denying her emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On September 16, 2009 appellant, then a 49-year-old collections representative, filed a
traumatic injury claim for a July 17, 2009 stress-related condition. She alleged an anxiety attack
1

5 U.S.C. § 8101 et seq.

caused by harassment and stress by her manager and a team leader as well as depression from a
previous grievance. No evidence was submitted with the claim. On September 21, 2009 OWCP
advised appellant that the evidence submitted was insufficient and requested that she specify if
she was claiming an occupational disease or traumatic injury and provide additional factual and
medical evidence.
In an October 13, 2009 statement, appellant attributed her condition to incidents
occurring in 2009. On February 12, 2009 Daphne Donlow, the in-charge manager, wrote her up
for threatening another employee but did not ask if she made the threat. She screamed that she
could see the union. Appellant filed a grievance, which was settled on June 23, 2009.
Management did not respond to her version of events except for the grievance response. She
alleged harassment and retaliation during the grievance process, which contributed to a hostile
work environment. In March 2009, appellant requested a meeting with Patty Carmen, the acting
operations manager, to discuss interactions with manager Kim Ward but appellant was not
included in a meeting with Ms. Carmen and Owen Smith, a union president. She alleged that
Ms. Ward told her that she was seen standing at a coworker’s desk for 15 minutes at the end of
the day. Appellant sent an explanatory e-mail to Ms. Ward but received no response while the
coworker and others who did the same were not disciplined. Ms. Donlow separately alleged that
appellant was visiting during work hours but did not address the other coworker. In April 2009,
she wrote her up for inventory work taking too long. When appellant left Ms. Donlow’s office,
the acting lead, Terressa Cooper, went into Ms. Donlow’s office where they both loudly laughed.
Ms. Donlow and Ms. Cooper were aware that appellant had not performed inventory work due to
surgery that kept her off work from September to November 2008 and on “read time” in
December 2008.
In January 2009, appellant requested refresher courses but management did not respond.
She alleged that Ms. Donlow left her sticky notes with sarcastic remarks such as, “I bet you
thought you were in trouble again.” Appellant notified the union about the harassment and
Deandre Jones, a union official, asked Ms. Donlow to have a union official present when
appellant was called into her office. Ms. Donlow ignored the request. Appellant alleged that she
was singled out when she was called into the manager’s office for talking to other employees and
was never asked if she was on break or discussing work. She could not ask questions in team
meetings without receiving a smart response or rolling of the eyes. Ms. Donlow and Ms. Ward
advised appellant’s team not to sit by her in team meetings or speak with her. Appellant over
heard Ms. Donlow tell Kim Britton, a coworker, that she needed to stay away from her but
Ms. Britton stated that she would not be told who she could associate with. Ms. Britton would
not provide a statement as she feared retaliation. She felt threatened by Ms. Ward who had
approached her on several occasions and accused her of talking about her. Appellant reported
her treatment to the union, EEO officer and Ms. Ward’s manager. She stated that Ms. Ward
would not utilize her career learning path (CLP). Ms. Ward returned appellant’s CLP to her four
times and she sent it to the approving official to get her paperwork on file. Appellant was not
allowed to fill in as lead, “perform manager approval,” or be an on the job instructor for new
hires, although she qualified.
On July 17, 2009 appellant had an anxiety attack. Upon returning to work, she gave
Ms. Ward a medical note allowing her to work in a different department. Ms. Ward came to
appellant’s desk, in the presence of others, and loudly asked if her doctor was requesting a team

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or a department change. Appellant found this embarrassing. While she was in the union office,
Ms. Ward yelled and screamed over the telephone saying, “I want to know why she lied to me
over and over again.” Ms. Ward indicated that appellant had told her that she was going to the
EEO office but appellant was not there when she called. The union president advised Ms. Ward
that appellant stopped by the union office to get representation and was going to her meeting at
the EEO office. Ms. Ward later summoned appellant and asked her why she did not tell her that
she was going to the union first. On August 6, 2009 appellant’s doctor took her off work for 30
days. On September 17, 2009 EEO officer Larry Kennedy contacted Ms. Ward and advised that
appellant’s doctor asked that she be taken off the telephones due to her anxiety attack. Appellant
asserted that Ms. Ward ignored this. She stated that once Derrick Davis, her department
manager was notified, she was provided light-duty work.
Copies of materials related to the grievance regarding the February 12, 2009 incident
were submitted. Appellant stated that she would spray an air cleaner if anyone was coughing but
denied asking the coworker to fight if she did not like it. A June 22, 2009 settlement made no
finding on management error. The settlement noted that the counseling on a critical job element
would be removed and the counseling memorandum of February 12, 2009 would be reworded to
omit a sentence pertaining to appellant’s challenge to fight. The memorandum would remain in
appellant’s file for six months.
Appellant submitted materials pertaining to her attempt to speak with management with
e-mails from her to management and management responses. In a July 7, 2009 response to
Ms. Ward’s e-mail inquiring how appellant spent her last 20 minutes of work on July 2, 2009,
she advised that she was performing work duties. In a July 17, 2009 e-mail, Ms. Donlow
informed appellant about not signing off her telephone on July 16, 2009. Appellant submitted
statements about Ms. Ward’s behavior at meetings and medical records.
In an August 7, 2009 report, Dr. Washington Muro, a Board-certified internist, and
Dr. Douglas Greenens, a psychiatrist, diagnosed post-traumatic stress disorder; major depression
and anxiety due to work-related stress arising on or about July 20, 2009. Appellant was noted to
be totally disabled from July 20 until August 20, 2009.
On October 27, 2009 the employing establishment submitted responses by Ms. Donlow
and Ms. Ward regarding incidents up to July 16, 2009. Ms. Donlow denied screaming at
appellant on February 12, 2009. She allowed appellant to meet with the union at which written
statements from appellant and other employees were exchanged. Ms. Donlow and Ms. Ward
indicated that all responses regarding the February 12, 2009 incident were sent to the union
steward handling appellant’s case and that the union should have informed her of the various
responses. Ms. Donlow noted responding to appellant’s e-mails when necessary. Both
Ms. Donlow and Ms. Ward denied harassing or retaliating against appellant and advised that it
was their job as managers to address appellant’s behavior and performance as needed.
Regarding the meeting between Ms. Carmen and Mr. Smith, they noted that appellant’s
representative, Mr. Smith, should have informed her of the meeting. Ms. Ward acknowledged
meeting with appellant to discuss why she was not at her desk for the last 20 minutes of her shift
on March 12, 2009. Appellant had been observed by management standing at a coworker’s desk
and talking during the last 15 minutes of her shift and was informed of expectations for
employees at the end of a shift. Both appellant and the coworker were counseled. Appellant

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sent an e-mail about the incident but did not request a response. On March 18, 2008
Ms. Donlow noted meeting with appellant about the last 20 minutes of her shift on
March 12, 2009. Appellant stated that she was trying to locate some missing jewelry.
Ms. Donlow explained to appellant that she needed to attend to her work during the last minutes
of the workday. Ms. Donlow also spoke to appellant about the e-mail Ms. Carmen replied to, in
which appellant asked for a meeting. She explained that appellant could not just walk into
Ms. Carmen’s office without checking with administration. She also suggested appellant take
Skill-Soft classes at home. After the meeting, Ms. Donlow allowed appellant to check out and
see if the jewelry found was hers.
Ms. Donlow noted meeting with appellant about inventory work performed April 16,
2009, but denied that Ms. Cooper entered her office when appellant left. She stated that
appellant was on medical leave from August 22 through November 4, 2008 and read appropriate
updates and did inventory after returning to work. Appellant started calls on December 1, 2008
and inventoried on certain dates from December 2008 to March 2009. She had performed the
same job since June 26, 2006 and her inventory review was not until April 16, 2009.
Ms. Donlow trained the team on March 12, 2009 and provided other training on occasion.
Ms. Cooper did the training during team meetings and they both kept the team informed of
changes. Ms. Donlow provided appellant with a written outline of how to assist with questions
and procedures. She confirmed leaving sticky notes on appellant’s desk when she needed to see
her, but denied any sarcastic remarks. When coming to Ms. Donlow’s office, appellant would
say “what” in a nasty tone, which was reflected in the three-month progress review and discussed
with appellant about workplace interaction. When she summoned appellant about an interview,
Ms. Donlow noted asking appellant why she always thought she was in trouble when she was
called. She stated that appellant stated that she was about to go home and did not want any bad
news. Ms. Donlow denied that Ms. Jones ever stated that a union official had to be present for
write-ups. She informed appellant that the union contract did not require a union official when
management spoke to an employee. Ms. Donlow and Ms. Ward denied advising employees on
appellant’s team not to sit by her or speak with her. She stated that appellant asked questions at
team meetings and sometimes challenged her inappropriately or talked and passed notes back
and forth with Ms. Britton. Ms. Donlow denied advising Ms. Britton to avoid appellant. She
explained that appellant overheard her discussion with Ms. Britton about Ms. Britton’s attitude.
Ms. Ward denied approaching appellant’s employees inappropriately and denied asking whether
appellant had talked about her. When she called appellant to her office, it was to discuss workrelated matters. Ms. Ward stated that she returned appellant’s CLP once so appellant could add
additional information, and a second time to correct target dates. She asked that appellant return
it to her before she went on medical leave but it was not returned until January 2009, when
appellant was on a six-month detail. Ms. Ward stated that appellant was used as an on the job
instructor and worked with new hires as needed, which Ms. Donlow verified. Ms. Donlow stated
that appellant was given the necessary information if she wanted to be trained as a lead but she
did not attend the all employee meetings for pursuing advancement.
Regarding a doctor’s note requesting that appellant be moved to a different department,
Ms. Ward stated that on July 27, 2009 she informed appellant that she needed to discuss the
request and appellant replied “what about it.” She explained that clarification was needed from
the physician as to whether she should move to another department. Ms. Ward explained where
appellant could be moved but appellant replied that her doctor had advised her that his note was
4

sufficient. She denied raising her voice and stated that no additional medical information was
provided. When Mr. Kennedy contacted her on September 17, 2009, Ms. Ward informed him
that she was no longer appellant’s manager. She denied ever being advised to take appellant off
the telephones.
Ms. Donlow stated that in a July 16, 2009 team meeting, appellant became disruptive
when she brought up personal issues about a work error she made. Later that day, Ms. Cooper
informed Ms. Donlow that appellant sought to put an item regarding the error under her door but
was told to place it in an inbox to avoid a tripping hazard. Appellant put the item under
Ms. Donlow’s door anyway. When appellant later came into her office screaming, Ms. Donlow
noted going over the information three times with appellant and then told her that she did not
want to argue anymore. On July 17, 2009 she placed a note on appellant’s desk because she did
not sign off the telephones when she left on July 16, 2009. Ms. Donlow stated that appellant
came into Ms. Ward’s office and noted having chest pains. A nurse was called. Ms. Ward stated
that appellant did not ask to go to the union office. After appellant left, she received a call from
the EEO office asking if she was coming to the EEO meeting. Ms. Ward went to appellant’s
desk and was informed that appellant went to the union office. She noted calling the union office
asking to speak to appellant but the union president put her on speaker phone. Ms. Ward denied
yelling during the conversation. She stated that, as appellant’s manager, she needed to know her
whereabouts and appellant just needed to ask to go to the union office. Ms. Donlow stated that
her desk was near Ms. Ward’s doorway and there was no loud conversation. Ms. Ward denied
any pattern of harassment or abuse. She reiterated that addressing an employee’s performance
and conduct was part of her job.
In a November 2, 2009 decision, OWCP denied appellant’s traumatic injury claim for
events of July 17, 2009.
On November 16, 2009 appellant requested an oral hearing and asserted that her
information was not considered. On May 25, 2010 OWCP’s hearing representative found the
case not in posture for hearing and vacated the November 2, 2009 decision. The hearing
representative found appellant’s claim was for an occupational disease caused by the events and
circumstances described from February to August 2009. The case was remanded to OWCP for
further development.
In a September 8, 2010 statement, the employer disagreed with appellant’s allegations.
Ms. Carmen stated that on March 16, 2009 appellant had pushed her way into her office when
her door was propped closed but not locked. Appellant left when Ms. Carmen told her that she
was on the telephone. Ms. Carmen denied yelling at appellant. Ms. Ward stated when she called
appellant into her office on February 12, 2009, she asked appellant what happened and appellant
denied making a statement about fighting. Appellant then requested to go to the union office,
which was granted. Ms. Ward indicated that appellant’s job duties did not change after her
medical leave from September to November 2008. Appellant was given time to read all
procedure updates and her manager and team lead were available for questions.
By decision dated September 20, 2010, OWCP denied appellant’s claim. It found no
compensable work factors.

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LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.8 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
2

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

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

4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Id.

8

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42 ECAB
556 (1991).

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establishment in what would otherwise be an administrative matter, coverage will be afforded.9
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.10
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.11
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.12
ANALYSIS
Appellant alleged an emotional condition as a result of harassment and discrimination on
the part of her managers. OWCP denied her emotional condition claim on the grounds that she
did not establish any compensable employment factors. The Board must review whether the
alleged incidents are established as compensable factors under FECA. The Board notes that
appellant’s allegations do not pertain to her regular or specially assigned duties under Cutler.13
Rather, she alleged error and abuse in administrative matters and harassment and discrimination
on the part of her managers, Ms. Donlow and Ms. Ward.
Appellant alleged that the employing establishment committed error and abuse with
respect to various administrative and personnel matters. This included the handling of the
February 12, 2009 write-up for threatening another employee and the April 16, 2009 discipline
for inadequate inventory work, her discussions with and monitoring by management, and her
lack of training. These matters are administrative as they relate to discipline, investigating and
monitoring an employee’s activities and training.14 The manner in which a supervisor exercises
his or her discretion generally falls outside FECA’s coverage. This principle recognizes that
supervisors must be allowed to perform their duties and at times employees will disagree with
their supervisor’s actions. Mere dislike or disagreement with certain supervisory actions will not

9

William H. Fortner, 49 ECAB 324 (1998).

10

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

11

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

12

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

13

See supra note 2.

14

See V.W., 58 ECAB 428 (2007) (the handling of disciplinary actions and the monitoring of work activities are
generally related to the employment but are administrative functions of the employer and not duties of the
employee); James E. Norris, 52 ECAB 93 (2000) (training of employees is an administrative matter); C.F., Docket
No. 08-1102 (issued October 10, 2008) (investigations and reactions to disciplinary matters are administrative in
nature and not compensable unless it is established that management erred or acted abusively).

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be compensable absent error or abuse on the part of the supervisor.15 An employee’s dislike of
her job duties or the desire for a different position is not a compensable factor of employment.16
With respect to the February 12, 2009 write-up for threatening another employee,
appellant alleged Ms. Donlow yelled at her, that she was never asked if she made the threatening
statement, and management never responded to her side of the story. Ms. Donlow denied yelling
at appellant. The record indicates appellant filed a grievance in this matter and, during a meeting
with Ms. Donlow, appellant and a union official, statements from appellant as well as employees
in the team were exchanged concerning the incident. Numerous e-mails of record reflect
management followed the appropriate lines of communication with regards to the grievance
process and appellant received responses to her e-mails from management. While appellant did
not attend a meeting between Ms. Carmen and the union, it was the union’s responsibility, as
appellant’s representative, to advise her of the meeting and whether she should attend. The
grievance she filed was settled June 22, 2009 but it did not make a finding that management
erred in its administrative action. Appellant presented no corroborating evidence to support that
the employing establishment acted unreasonably. Thus, she has not established a compensable
factor regarding her allegations.
With respect to the April 16, 2009 discipline for inadequate inventory work, the evidence
reflects appellant was on medical leave from August 22 through November 4, 2008 and, when
she returned to work, she was on read time and did inventory. Starting December 2008,
appellant resumed call duty and worked inventory. There is no evidence that her April 16, 2009
inventory review was in error or abusive. Appellant had been performing the same job since
June 26, 2006 and management explained how accorded her adequate time to catch-up on all the
changes before starting inventory. Ms. Donlow denied appellant’s assertion that, after the writeup, she and Ms. Cooper laughed about the matter. The record has no evidence otherwise
supporting this or that the write-up was unreasonable in view of appellant’s performance.
Accordingly, no error or abuse has been shown in these allegations.
Appellant alleged unfair treatment with regards to discussions with and monitoring by
management. This pertained to discussions about her whereabouts, her work and work attitude,
and being told she needed to arrange an appointment with Ms. Carmen and that she should not
slip documents under office doors. Appellant alleged whenever she was unfairly summoned by
management to discuss her whereabouts when other employee were not summoned. The
evidence reflects the employing establishment monitored all employees regarding schedules and
all employees who were not on task were addressed when appropriate. The record indicates that
when management talked to appellant about where she was during the last 20 minutes of her shift
on March 12, 2008, this issue was also addressed with the other employee. Management also
later discussed with appellant her whereabouts at the end of her shift when she went to sought to
locate lost jewelry. Ms. Donlow explained to appellant that she needed to attend to her work
during the last 20 minutes of the workday but, after this talk, she allowed appellant to see if the
jewelry found was hers. There was no further evidence of error or abuse. Additionally there is
no evidence that appellant was the only employee restricted from walking into Ms. Carmen’s
15

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

16

Katherine A. Berg, 54 ECAB 262 (2002).

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office unannounced. The employer provided a reasonable explanation that documents were not
to be slipped under Ms. Donlow’s door for safety reasons. This transpired after appellant
brought up an error she was charged with during a team meeting on July 16, 2009. There is no
evidence to establish that management erred in these administrative matters.
Appellant also claimed Ms. Donlow unfairly monitored her by leaving sticky notes on her
desk to come see her. She also claimed she was embarrassed over Ms. Ward’s discussion
pertaining to her doctor’s note for a reasonable accommodation. The evidence reflects
Ms. Donlow and Ms. Ward explained that they left sticky notes on appellant’s desk as a means to
communicate with her regarding work matters if appellant was on the telephone or away from
her desk. Ms. Donlow denied making sarcastic remarks to appellant in their discussion but
rather advised that appellant often made sarcastic remarks. She admitted to asking appellant why
she always thought she was in trouble when she was summoned but explained that she sought
appellant on that date to inform her that she had been selected for an interview for which
Ms. Donlow helped appellant to prepare. Ms. Ward also denied acting inappropriately in her
meetings with appellant. She noted how she explained to appellant on July 17, 2009 why her
doctor’s note needed clarification and advised that she did not raise her voice. Appellant has
submitted no evidence corroborating her allegation that Ms. Donlow or Ms Ward acted
unreasonably in these matters. Thus, she has not established a compensable employment factor.
Appellant alleged she was not properly trained, denied the appropriate training and
management did not utilize her CLP. The evidence reflects that during team meetings, the teams
were trained on several issues and were updated on a regular basis regarding changes.
Ms. Donlow further outlined in writing how she would assist appellant regarding questions and
review case processing procedures. The record indicates that appellant’s working skills were
utilized as she served as OJI and worked with new hire teams when needed. Management also
provided her with training information. While Ms. Ward had returned appellant’s CLP to her on
two occasions she explained that she did this so that it could be improved and corrected. The
record also indicates that appellant did not promptly return her CLP to Ms. Ward as requested.
Thus, there is no evidence that appellant was not trained or denied appropriate training or did not
utilize her work skills. Appellant has not submitted sufficient evidence to show the employer
committed error or abuse in these matters and she has not established a compensable work factor.
Appellant also alleged that her supervisors created a hostile work environment and
performed their duties inappropriately. As noted, for harassment and discrimination to give rise
to compensable disability, there must be evidence that harassment or discrimination did in fact
occur. Mere perceptions of harassment or discrimination are not compensable. A claimant must
substantiate allegations of harassment and discrimination with probative and reliable evidence.17
Appellant alleged that she could not comfortably ask questions in team meeting as she would
receive inappropriate responses or rolling of the eyes from coworkers. She also alleged that
Ms. Ward inappropriately called the union office after she was given permission to go to the
EEO office; that she ignored appellant’s physician’s order to provide her with a reasonable
accommodation; that Ms. Ward would address her with attitude and say she was talking about
her; that Ms. Donlow told the employees on her team as well as her coworker, Ms. Britton, to
17

Robert Breeden, 57 ECAB 622 (2006).

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stay away from appellant. Ms. Ward and Ms. Donlow denied treating appellant inappropriately
in meetings and noted that appellant sometimes was inattentive or disruptive at meetings. They
also emphasized that it was part of their jobs as managers to be aware of the whereabouts and
activities of their employees. Ms. Donlow stated that she never told Ms. Britton to stay away
from appellant and explained that it was likely that appellant overheard her talking to Ms. Britton
about Ms. Britton’s situation. Appellant did not submit sufficient factual evidence supporting
her allegations that she was treated disparately or unfairly in these matters..
To the extent appellant is alleging that she was verbally abused, the Board has generally
held that being spoken to in a raised or harsh voice does not of itself constitute verbal abuse or
harassment.18 In the instances she described above, the Board notes that the fact that a
supervisor may have questioned her in a raised tone of voice is insufficient, by itself, to warrant a
finding that her actions amounted to verbal abuse as she did not show how a possible loud or
raised voice in allowing appellant to sign out and see the union or inquiring where appellant was
when she was expected to be at a certain place, would rise to the level of verbal abuse or
otherwise fall within the coverage of FECA.19
Additionally, appellant presented no
corroborating evidence of any yelling by Ms. Donlow on February 12, 2009. Also, Ms. Donlow,
who sat outside of Ms. Ward’s doorway on July 16, 2009, denied that Ms. Ward raised her voice
in the conversation between Ms. Ward and the union concerning appellant’s whereabouts.20
Ms. Carmen also denied yelling at appellant. There is no specific evidence of any other
particular occasions in which management was verbally abusive with appellant. Therefore,
appellant has not established that any of her conversations with management rose to the level of
compensable verbal abuse.
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

18

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

19

See Peter D. Butt, Jr., 56 ECAB 117 (2004).

20

See David C. Lindsey, Jr., 56 ECAB 263 (2005) (the mere fact that the employee’s supervisor raised his voice
during the course of the conversation with appellant and both appellant and the supervisor spoke in tones that
allowed others to overhear their conversation was insufficient to find that his actions amounted to verbal abuse).
21

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

10

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 21-1075
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On July 7, 2021 appellant filed a timely appeal from a June 17, 2021 nonmerit decision of
the Office of Workers’ Compensation Program (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated May 11, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 27, 2020 appellant, then a 79-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed actinic keratosis and basal cell carcinoma
1

5 U.S.C. § 8101 et seq.

due to factors of his federal employment, including exposure to the ultraviolet rays from the sun.
He noted that he first became aware of the condition on September 26, 2007 and realized its
relationship to his federal employment on February 18, 2020. In an attached February 28, 2020
statement, appellant detailed his exposure to the sun, both on and off the job . He also cited to prior
Board decision pertaining to causal relationship.
In a February 23, 2020 report, Dr. Suzette Sanchez, an osteopath specializing in
dermatology, noted that appellant had worked for the employing establishment for over 30 years
and had spent most of his eight-hour workday outside delivering mail. She reported that appellant
had previously been treated for actinic keratosis and basal cell carcinoma on his upper mid
forehead in 2017 and was seen on February 18, 2020 for recurring actinic keratosis on his right
forehead. Dr. Sanchez indicated that actinic keratosis and basal cell carcinoma is a skin cancer,
which directly correlates with high amounts of past sun exposure. She noted that appellant had a
lifetime of sun exposure and opined, with a reasonable degree of medical certainty, that his
extensive time spent outside in the sun delivering mail contribu ted to the development of actinic
keratosis and basal cell carcinoma. An April 28, 2017 dermatopathology laboratory report was
attached, which identified appellant’s biopsied specimen as basal cell carcinoma.
In an April 2, 2020 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of evidence needed to establish his claim and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In an April 6, 2020 letter, appellant responded to OWCP’s April 2, 2020 development
letter. He also resubmitted his previous correspondence and evidence.
By decision dated May 11, 2020, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish that the claimed medical conditions were causally
related to the accepted work events.
On June 1, 2021 appellant requested reconsideration an appeal request form. In an
accompanying May 27, 2021 letter, he argued that OWCP never mentioned nor considered his
April 6, 2020 submission, which contained relevant information. Appellant further argued that
Dr. Sanchez was not required to delineate the percent of non-federal or federal exposure
contribution to his skin cancer, only that his federal employment contributed to the development
of his skin cancer. In support of his argument, he again cited to the same Board precedent as cited
in his February 28, 2020 statement.
By decision dated June 17, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
2

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

2

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 3 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 4
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 6 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.7 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence, which does not raise a
substantial question concerning the correctness of OWCP’s decision, is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.10
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report, which if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 September 2020).

5

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

See 20 C.F.R. § 10.607(b); D.M., Docket No. 21-0261 (issued September 29, 2021); M.H., Docket No. 18-0623
(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990).
7

D.M., id.; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued
April 15, 2010). See also 20 C.F.R. § 10.607(b).
8

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

9

See D.M., supra note 6; S.C., Docket No. 18-0126 (issued May 14, 2016).

10

C.M., Docket No. 19-1211 (issued August 5, 2020).

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error.11 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On June 1, 2021 appellant filed a request for reconsideration. As this request was received
more than one year after the latest merit decision, dated May 11, 2020, the request for
reconsideration was untimely filed pursuant to 20 C.F.R. § 10.607(a). 13 As such, appellant must
demonstrate clear evidence of error with respect to OWCP’s last merit decision. 14
In support of his untimely reconsideration request, appellant argued that OWCP did not
review all the documents he submitted. He also argued that Dr. Sanchez was not required to
delineate the percent of non-federal or federal exposure contribution to his skin cancer, but that
she need only to opine that his federal employment contributed to the development of his skin
cancer. In support of his argument, appellant cited to Board precedent for the proposition that it
is not necessary to show a significant contribution of employment factors to a diagnosed condition
to establish causal relationship.15 His argument, however, failed to sufficiently explain how this
legal precedent in conjunction with Dr. Sanchez February 23, 2020 report raises a substantial
question as to the correctness of OWCP’s May 11, 2020 merit decision.16
The Board, thus, finds that appellant has not raised an argument or submitted an y evidence
that manifests on its face that OWCP committed an error in denying his occupational claim.17 As
such, his untimely request for reconsideration failed to demonstrate clear evidence of error.18

11

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (September 2020).

12

D.S., Docket No. 17-0407 (issued May 24, 2017).

13

20 C.F.R. § 10.607(a).

14

20 C.F.R. § 10.607(b); see D.M., Docket No. 21-0261 (issued September 29, 2021); R.T., Docket No. 19-0604
(issued September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
15

C.H., Docket No. 20-0194 (issued August 26, 2021); F.K., Docket No. 19-1804 (issued April 27, 2020; J.B.,
Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017); Beth C. Chaput, 37
ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a diagnosed
condition to establish causal relationship).
16

See O.K., Docket No. 21-0708 (issued September 29, 2021); T.C., Docket No. 19-1709 (issued June 5, 2020);
B.W., Docket No. 19-0626 (issued March 4, 2020).
17

O.K., id., S.C., Docket No. 19-1424 (issued September 15, 2020).

18

Id.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., claiming as widow of M.S., Appellant
and
DEPARTMENT OF THE ARMY, PICATTINY
ARSENAL, Dover, NJ, Employer
__________________________________________

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Appearances:
Congresswoman Sue Kelly, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1882
Issued: January 4, 2007

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 August 10, 2006 appellant, through her representative, filed a timely appeal from a
decision of the Office of Workers’ Compensation Programs dated May 23, 2006 which denied
modification of its January 25, 2006 denial of compensation on the grounds that the claim had
been untimely filed. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(1), the Board has
jurisdiction over the timeliness issue of this case.
ISSUE
The issue is whether appellant filed a timely claim for death benefits under section
5 U.S.C. § 8122 of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On September 22, 2005 appellant filed a Form CA-5, claim seeking compensation for the
death of her husband, a chemical engineer. She indicated that the employee died in 1986, at the
age of 62, from cancer (multiple myeloma). Along with the claim form, appellant included a
letter indicating that the physician’s report requested on the back of the form could not be

completed because the attending physicians would not remember the employee as his death
occurred almost 20 years previously.
On December 23, 2005 the Office requested additional information from appellant,
including a comprehensive narrative medical report from the treating physician giving a reasoned
medical opinion on the direct cause of the employee’s death and an explanation of why she had
waited so long to file a claim. Appellant responded with a written statement, medical records
and employment records.
In her statement, appellant indicated that she had not filed a claim at the time of the
employee’s death because “the government would not acknowledge that chemicals and radiation
could cause cancer.” She alleged that, because the employee performed classified weapon
development work he could not tell her exactly what he was doing and that she did not realize
the extent of his chemical and radioactive exposure until receiving his personnel files much later.
Appellant did indicate that she was aware from early in her marriage that the employee was
exposed to potentially dangerous substances because of the odor on his clothes when he returned
from work. She alleged that she washed his clothes separately because she was afraid of
contamination.
On September 22, 2005 appellant filed a claim for death benefits for her husband’s
December 19, 1986 death. She provided medical records dating from September 23, 1982 to
August 6, 1985 and a death certificate.
On October 27, 1982 Dr. C. Richard Minick, a Board-certified anatomic pathologist,
diagnosed the employee with bone marrow plasmacytosis and stated that the “number and
characteristics of plasma cells is not sufficient for a diagnosis of multiple myeloma.” The
October 23, 1982 bone marrow aspiration report from Dr. Morton Coleman, Board-certified in
hematologist and medical oncologist, stateded that the findings were “highly suggestive and
consistent with myeloma.”
On May 16, 1983 Dr. Coleman conducted another bone marrow aspiration and found that
the results were “consistent with lymphoplasmacytic disease.” On March 8, 1984 Dr. Nathan
Poker, currently a Board-certified radiologist, conducted a metastatic survey and found no
definite evidence of bone metastatic disease. On August 6, 1985 Dr. Minick diagnosed the
employee with “smoldering myeloma” [stage I myeloma]. The death certificate listed malignant
melanoma as the immediate cause of death on December 9, 1986.
Appellant provided job descriptions from 1951 and 1960 and commendations from 1975
related to the employee’s duties as a chemical engineer developing solid rocket propellants. She
also provided a letter from Jacob Swotinsky, the employee’s supervisor from 1950 to 1975.
Mr. Swotinsky alleged that the employee was in weekly contact with the chemicals used to
manufacture rocket propellants.
On January 25, 2006 the Office issued a decision denying appellant’s claim because it
was not timely filed. It found that she should have been aware of the relationship between the
employee’s employment and the claimed condition by December 9, 1989, three years after his
death. The Office noted that the bone marrow aspiration reports “clearly showed a medical

2

problem in the early 1980s,” that the last date of the employee’s exposure to the chemicals would
have been before his date of death and that appellant had stated that she realized that there was a
possible relationship between the employee’s condition and employment early in their marriage.
The Office found that all of these factors required a filing within three years of the employee’s
death.
On February 6, 2006 the Office received a letter from the employing establishment
stating that there were no disability or injury claims on file for the employee.
Appellant filed a request for review of the written record on February 17, 2006. In an
accompanying letter, she provided new reasons for waiting until 2005 to file her claim.
Appellant alleged that the employee displayed no symptoms of disease until 1981 and that he
continued working until 1983. She claimed that she did not receive the employee’s personnel
and classified records until the latter part of 2004. Appellant also indicated that she filed a claim
under the Energy Employee’s Occupational Illness Compensation Program Act (EEOICPA), “as
soon as [she] received the forms on August 8, 2001.” Presumably as part of the EEOIPCA
process, the National Institute for Occupational Safety and Health conducted a dose
reconstruction for the employee on December 23, 2003.
On May 23, 2006 an Office hearing representative affirmed the Office’s denial of the
claim on the grounds that the claim was untimely. The hearing representative found that
appellant had not provided evidence to support her contentions that she was unable to file a claim
prior to 2005 because the employee’s records were classified and that the government did not
recognize chemical and radiation exposure as a cause of cancer. He also noted that appellant had
admitted that she realized a possible relationship between the employee’s condition and his
employment prior to 1986. Finding that she must have been aware of the relationship between
the employee’s disease and his position as a chemical engineer by the time of his death, the
hearing representative concurred that appellant’s 2005 claim was untimely.
LEGAL PRECEDENT
Under the Act,1 an original claim for compensation for injury or death must be filed
within three-years after the injury or death of an employee.2 In the case of death due to a latent
condition, the time for filing a death claim does not begin to run until the employee has died and
his survivors are aware of or by the exercise of reasonable diligence should have been aware of,
the causal relationship of the employee’s death to factors of his employment.3
The three-year limit on filing a claim for compensation does not apply in the following
limited circumstances: (1) the employee’s direct supervisor had actual knowledge that created
reasonable notice of an on-the-job injury or death within 30 days;4 (2) an employee or survivor
1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8122(a).

3

5 U.S.C. § 8122(b); Lucile B. Shores, 49 ECAB 219 (1997).

4

5 U.S.C. § 8122(a).

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gave formal written notice within 30 days of becoming aware that the injury or death was
causally related to the federal employment;5 (3) the employee filed a timely disability claim for a
work-related injury or disability and the employee’s death is based on the same injury;6 and
(4) the claimant is under 21 years old, the claimant is incompetent and has no legal
representative, or the claimant is prevented from giving notice by exceptional circumstances.7
Lack of awareness of possible entitlement, lack of information or ignorance of the law or one’s
rights and obligations under it do not constitute exceptional circumstances that excuse a failure to
file a timely claim.8
ANALYSIS
Appellant claims that the employee died three years after retiring because of a cancer
caused by the harmful substances to which he was exposed during his employment as a chemical
engineer. A latent disability requires appellant to show that she filed her claim within three years
of the time she was aware or with reasonable diligence could have been aware, that the
employee’s death was due to factors of his federal employment.
Appellant’s statement that she first became aware of the relationship between the
employee’s condition and his employment early in her marriage is not dispositive as there is no
evidence that he had a diagnosed disease until 1981.9 Additionally, the Board has held that mere
concern about a history of exposure to dangerous substances without positive medical evidence
does not begin the three-year period for filing a claim.10 Even if appellant were aware at that
time or at any time before the employee’s death, as a survivor, she would still have three years
from the date of his death to file her claim.11
The question is whether appellant was aware or should have been aware of the
connection by the time of the employee’s death in 1986. The medical evidence of record
indicates that the employee was diagnosed with smoldering myeloma, the first stage of the
5

5 U.S.C. § 8122(a) and (b).

6

5 U.S.C. § 8112(c).

7

5 U.S.C. § 8112(d).

8

Roger W. Robinson, 54 ECAB 846 (2003) (government’s failure to recognize for several years that Gulf War
personnel were exposed to potentially dangerous chemicals not exceptional circumstances did not constitute
exceptional circumstances); see also Gwenda Brown, Docket No. 05-1375 (issued November 10, 2005) (late receipt
of Office determination that appellant’s injury may be covered under the Act did not extend limits on filing a claim).
9

See Arbie L. Hampton, Docket No. 05-1179 (issued August 16, 2005). (“It is inconsequential that appellant
indicated on his April 12, 2002 claim form that he first became aware of his asbestos disease on May 24, 1985
[when some dust fell on his face] or that this was the date he first realized that his asbestos disease was causally
related to his federal employment. Based on the medical evidence, appellant did not have an asbestos-related
disease in 1985, nor was it reasonable for him to believe that he had such a compensable disability, as that phrase is
used in the act.”)
10

Edward C. Horne, 43 ECAB 834 (1992).

11

Lucile B. Shore, supra note 4.

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disease, 16 months prior to his death. The medical diagnoses in the record draw no connection
between the employee’s disease to his employment, therefore, it is unclear whether appellant and
the employee were aware of one. Because cancer may not be the type of disease that is
obviously linked to any particular job activity, it is not clear whether the cancer diagnosis was
sufficient to establish that by exercise of reasonable diligence the employee or appellant could
have been aware of a causal connection.12
From the record, it is difficult to determine exactly when appellant became aware of the
potential relationship between the employee’s job as a chemical engineer and his death.
However, it is certain that she knew there might be a connection by August 8, 2001, when she
filed her claim under EEIOCPA. Assuming that this was the first time appellant had an
awareness of the possible relationship, the three-year limitation would have started running from
that point. She would have thus, been obligated to file her claim for compensation by August 8,
2004 to meet the statutory requirements.
Appellant argued that she could not have filed earlier because she was unable to access
the employee’s personnel records until late 2004. However, these records, though helpful to
developing her claim, ultimately have little bearing on whether or not appellant was aware or
should have been aware of a possible relationship between the employment and death of the
employee. Appellant was clearly aware of a possible connection, even if she did not know all
the details of the employee’s duties when she filed her EEOICPA claim in 2001.
The Board finds that appellant did not file her claim for compensation within three years
of becoming aware of the causal connection between factors of the employees federal
employment and his death.
Though appellant has not met the burden of proving that she filed within the three-year
limitation, her claim could be considered timely if she met any of the statutory exceptions. The
Board finds that these exceptions do not apply to her claim. There is no evidence in the record
that the employee’s immediate supervisor had actual knowledge that the employee’s death was
related to his employment. There is also no evidence that appellant or the employee provided
written notice to the employing establishment within 30 days of becoming aware of the
possibility that the employee’s death or illness was causally related to his employment.
Additionally, the employing establishment has verified that the employee filed no disability
claims related to his federal employment.
None of the exceptions relating to a claimant’s ability to file a claim apply in this case.
Appellant was not a minor, has not alleged that she was incompetent and has not provided
evidence of an exceptional circumstance that would excuse her failure to timely file the claim.
Her unsupported contention that the government did not recognize exposure to chemicals and
radiation as a cause of cancer does not qualify as an exceptional circumstance. In Roger W.
Robinson, an employee alleged that for several years the Army did not acknowledge that
12

Compare Virginia D. King, 57 ECAB __ (issued October 14, 2005) (finding that a diagnosis of asbestositis
started running the three-year filing limit for an employee exposed to asbestos) with Kathryn L. Cornett, 54 ECAB
812 (2003) (autopsy that did not clearly link the employee’s cause of death to his employment was not a basis for
establishing that the claimant should have been aware of the causal relationship).

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personnel had been exposed to potentially harmful chemicals during the time he was in Saudi
Arabia. He also claimed that he was not told he could file a claim on injuries arising from that
exposure until 1999, eight years after he left Saudi Arabia.13 The Board held that this lack of
access to information and unawareness of possible entitlement did not constitute an exceptional
circumstance. The Holding in Roger W. Robinson forecloses appellant’s argument in this case.14
It should be noted that even if these circumstances did create an excuse, appellant did not file her
claim until 2005, four years after the alleged change in policy that removed her barrier to filing.
CONCLUSION
The Board finds that appellant did not file a timely claim for death benefits in accordance
with 5 U.S.C. § 8122.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2007
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

13

Roger W. Robinson, 54 ECAB 846 (2003), supra note 4.

14

Id. at 851 (footnote 6 notes that “being held as a prisoner of war is the type of situation recognized by the
Office as an exceptional circumstance).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Levittown, NY, Employer
__________________________________________
Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-0845
Issued: December 27, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On March 6, 2017 appellant, through counsel, filed a timely appeal from a February 8,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal
was docketed as No. 17-0845.
The Board finds that the case is not in posture for decision. Appellant filed an
occupational disease claim (Form CA-2) on December 29, 2015, identifying repetitive motion in
his job as a letter carrier. The medical evidence submitted diagnosed carpal tunnel syndrome and
noted that appellant had prior carpal tunnel surgeries. In a March 22, 2016 decision, OWCP
indicated that appellant had a prior claim for carpal tunnel syndrome. According to OWCP, the
claim at that time had been denied. OWCP also referred in the decision to evidence from the
employing establishment controverting the current claim as appellant had preexisting carpal
tunnel syndrome. The current case record provides a February 4, 2016 statement from the
1

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

employing establishment describing appellant’s job duties, but does not discuss carpal tunnel
syndrome. It is unclear whether relevant evidence was placed in the prior claim file.
In the February 8, 2017 decision, OWCP does not acknowledge that appellant had a prior
claim for carpal tunnel syndrome, nor does OWCP acknowledge any further development of the
prior claim or any relevant evidence from that claim.
The two claims have not been administratively combined. The Board finds that a proper
adjudication of the current claim must include the prior claim. OWCP procedures provide that
cases should be combined when necessary for correct adjudication of the issues.2 It should
combine the case records and provide a proper history of the case and discuss any accepted
conditions. By combining the case records and reviewing all of the evidence, OWCP may
properly review the issues presented with respect to the claim filed on December 29, 2015. It
should then issue an appropriate merit decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 8, 2017 is set aside and the case is remanded to OWCP
for further action consistent with this order of the Board.3
Issued: December 27, 2017
Washington, DC

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

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

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
3

Colleen Duffy Kiko, Judge, participated in the preparation of this order, but was no longer a member of the
Board effective December 11, 2017

2


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

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

Docket No. 15-1064
Issued: June 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 15, 2015 appellant filed a timely appeal of October 22, 2014 and
March 24, 2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation benefits, effective November 5, 2014, as her work-related disability had ceased;
and (2) whether appellant met her burden of proof to establish any continuing work-related
disability on and after November 5, 2014.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 24, 2015 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See
20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G.,
58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant argues that OWCP erred in terminating her wage-loss compensation.
FACTUAL HISTORY
On March 20, 2013 appellant, then a 40-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 18, 2013 she sustained insect bites on the right side of
her neck while delivering mail. She alleged that, when she opened a mailbox, a swarm of wasps
came out and flew into her truck and she began to fan them away. Appellant put the truck in
park and got out, moving around to avoid being stung. She then continued to work and noticed a
pull from her neck to her right shoulder when she raised her right arm. OWCP accepted the
claim for right neck sprain and sprain of the right upper arm, shoulder, and other unspecified
sites. By letter dated May 30, 2013, it placed appellant on the periodic rolls for temporary total
disability.
In an April 25, 2013 report, Dr. Yusuf A. Mosuro, a treating Board-certified
anesthesiologist and pain specialist, diagnosed right neck sprain and right upper arm and
shoulder sprains. A physical examination revealed tenderness on palpation of the right trapezius
and posterior neck, reduced cervical spine motion, moderate right shoulder tenderness on
palpation, and negative Hawkin’s and empty can tests. Range of motion for the right shoulder
included 160 degrees forward flexion and abduction and 60 degrees internal rotation. A review
of an April 22, 2013 functional capacity evaluation (FCE) reflected that appellant was capable of
sedentary work.
On May 23, 2013 Dr. Mosuro diagnosed right neck sprain and right upper arm and
shoulder sprains. A review of a magnetic resonance imaging (MRI) scan revealed C4-5 disc
protrusion, C5-6 bulging disc, right shoulder tendinitis, and less than grade 1 partial rotator cuff
thickness tear. Dr. Mosuro noted that appellant complained of right shoulder and neck reduced
motion, discomfort, stiffness, and pain. He opined that appellant was disabled from work as she
was unable to lift more than 10 pounds.
On June 24, 2013 OWCP referred appellant for a second opinion evaluation with
Dr. James E. Butler, III, a Board-certified orthopedic surgeon, to determine appellant’s disability
status. In his July 8, 2013 report, Dr. Butler, based upon a review of appellant’s history of
injury, objective findings, and physical examination, diagnosed cervical sprain, right C4-5
cervical disc disorder with stenosis, right shoulder sprain, right shoulder adhesive capsulitis, and
right shoulder partial rotator cuff thickness tear. He related that physical examination revealed
right C4-7 tenderness, right trapezius spasms, decreased cervical range of motion, and right
shoulder tenderness on palpation. Dr. Butler noted that appellant’s C4-5 cervical disc disorder
and right shoulder partial rotator cuff thickness tear were unrelated to the accepted employment
injury as they were preexisting. Based on a review of a July 8, 2013 FCE, Dr. Butler found that
appellant was disabled from her date-of-injury job as she tested at a sedentary demand level. He
related that appellant’s functional capacity evaluation (FCE) showed that she had a limitation of
no lifting more than 10 pounds.
In a July 8, 2013 FCE appellant was evaluated by Dr. Butler to determine her work
capability. The report stated that she provided reliable effort and declined to perform tests
involving carrying 20 and 50 pounds, pushing and pulling carts up to 40 pounds and up to 100

2

pounds, full, mid, low and high lifts, immediate right reach, right reach overhead, and right
handling. Based on the testing performed, Dr. Butler determined that appellant was unable to
perform the duties of a city mail carrier as her physical capacity was determined to be medium
and she tested at a sedentary job level.
In reports dated September 9 and 17, 2013, Dr. Louis Train, an examining physician
Board-certified in family practice, provided a history of injury, reviewed diagnostic tests, and
performed a physical examination. Review of a May 8, 2013 MRI scan study revealed right
shoulder cuff grade 1 partial thickness tear and tendinitis while an April 25, 2013 cervical MRI
scan revealed a C5-6 disc bulge and C4-5 disc protrusion. Physical examination findings from
September 12 and 30, 2013 included cervical paravertebral muscle tenderness, right dermatones
for C4-8 and T1 had decreased pinprick sensation, and tenderness on the longhead biceps tendon
and supraspinatus tendon which were more tender on the September 17, 2013 examination.
Dr. Train opined that in addition to spraining appellant’s neck and cervical discs, she sprained
her right scalenous muscle which pinched her thoracic outlet nerves resulting in thoracic outlet
syndrome. Diagnoses included right cervical sprain and right upper arm and shoulder sprain.
Dr. Train concluded that appellant continued to be disabled from work. In his September 17,
2013 note, he found that she tested positive for fibromyalgia and opined that she also injured the
right wrist long flexors due to swelling which was causing right carpal tunnel syndrome.
In an October 2, 2013 initial evaluation report, Dr. James D. Key, a Board-certified
orthopedic surgeon, noted that appellant was seen for neck and right shoulder pain complaints.
He provided a history of the employment injury and her duties as a mail carrier. A review of a
September 25, 2013 MRI scan revealed a supraspinatus tendon partial articular surface tear.
Diagnoses included right shoulder internal derangement and cervical disc displacement as the
result of her accepted March 18, 2013 employment injury.
In an October 14, 2013 report, Dr. Train’s physical examination findings were unchanged
from prior reports. He diagnosed thoracic outlet syndrome which was causing deltoid
epicondylar and thenar muscle weakness and reducing the nerve supply to the right hand
muscles. Dr. Train requested that OWCP upgrade appellant’s accepted conditions to include
right shoulder internal derangement and thoracic outlet syndrome based on the abnormal right
shoulder physical examination findings, abnormal neurological findings, and history of the
injury.
On November 11 and December 9, 2013 Dr. Train opined that appellant continued to be
disabled from work and provided physical examination findings similar to those provided in his
prior reports. He diagnosed bilateral carpal tunnel syndrome.
On January 8, 2014 OWCP received a January 3, 2014 preliminary investigative report
by the employing establishment’s Office of Inspector General. It noted that surveillance video of
appellant during the period October 29 to December 12, 2013 showed her driving, jogging,
walking, entering and exiting her truck, sitting for extended periods of time in her truck, carrying
bags and boxes, after shopping carrying a large bag and large box upstairs to her apartment, and
walking without using the guard rails or any other type of assistance. The report related that the
activities she was seen performing were consistent with Dr. Butler’s report and recommendation
that she was capable of working an eight-hour day with restrictions.

3

On January 16 and 23 and February 3, 2014 OWCP received Dr. Train’s January 6, 2014
progress report which opined that appellant continued to be disabled due to her employment
injuries which included thoracic outlet syndrome. Physical examination findings were
unchanged.
On January 10, 2014 OWCP referred appellant to Dr. James Hood, a Board-certified
orthopedic surgeon, to resolve a conflict in the medical opinion evidence between Drs. Mosuro
and Butler regarding appellant’s ability to return to work.
In a January 29, 2014 report, Dr. Hood, based upon a review of appellant’s history of
injury, statement of accepted facts, and physical examination diagnosed resolved cervical spine
sprain without radiculopathy, right shoulder aggravation or bursitis/impingement syndrome, and
right shoulder supraspinatus syndrome/partial rotator cuff tear. He related that appellant’s
physical examination revealed no trapezial or paracervical spasm, normal upper extremities
strength, and slight give-way right deltoid weakness secondary to pain complaints. Cervical
range of motion was 40 degrees extension/flexion, 60 degrees right rotation, and 80 degrees left
rotation. Range of motion for the right shoulder was 90 degrees abduction, 30 degrees adduction
and extension, and 80 degrees flexion, internal rotation, external rotation, and passive motion.
Dr. Hood opined that appellant continued to have residuals of her right shoulder condition due to
limited range of motion, tenderness, and pain complaints. He further opined that she was
disabled from her date-of-injury job, but was capable of working an eight-hour day with
restrictions for her right upper extremity. Restrictions included occasional lifting from floor to
waist of up to 10 pounds, no overhead lifting or repetitive work, and no other type of overhead
activity.
In a February 3, 2014 report, Dr. Train provided a history of the work injury, reviewed
diagnostic tests, and performed a physical examination. Physical examination findings were
unchanged from prior reports. Dr. Train opined that appellant continued to be totally disabled
from working due to her employment injuries.
By decision dated March 21, 2014, OWCP denied appellant’s request to expand her
claim to include the conditions of carpal tunnel syndrome, cubital tunnel syndrome, cervical
radiculopathy, brachioplexopathy or other muscle, or peripheral nerve pathology as being
causally related to the accepted March 18, 2013 injury based upon the medical opinions of
Dr. Hood.
In a March 26, 2014 report, Dr. Train reiterated physical examination findings from prior
reports and his opinion that appellant was totally disabled due to injuries sustained on
March 18, 2103. He noted that the plan was to upgrade her accepted conditions to include
thoracic outlet syndrome and rotator cuff tear.
On April 4, 2014 OWCP received Dr. Train’s February 27, 2014 report which was
unchanged from prior reports concerning appellant’s continued total disability from work and
which opined that she also sustained thoracic outlet syndrome and rotator cuff tear due to the
March 18, 2013 employment injury. It thereafter received his March 31, 2014 report which
reiterated opinions and findings from his prior reports.

4

In April 7 and 28, May 15, and 27, 2014 reports, Dr. Train continued to find appellant
totally disabled due to her employment injuries which he opined should be expanded to include
additional conditions. Physical examination findings were unchanged. Diagnoses included right
neck strain and right shoulder sprain.
In a letter dated July 18, 2014, OWCP informed appellant that a copy of the January 3,
2014 investigative report, including a video, had been provided to Dr. Hood for review and
addendum to his March 3, 2014 report.3
In an August 5, 2014 addendum, Dr. Hood noted that he reviewed a transcript and video
provided by OWCP. Based on his review of the video, he concluded that it appeared appellant
no longer had any significant residuals from her accepted employment injuries and she was
capable of performing the duties of city carrier with no restrictions.
In an August 8, 2014 work capacity evaluation (Form OWCP-5c), Dr. Hood indicated
that appellant was capable of returning to her job as a city mail carrier with no restrictions.
In an August 13, 2014 report, Dr. Train described how the March 18, 2013 employment
injury occurred and reviewed the prior MRI scans. He opined that, based on review of MRI scan
cervical findings, physical examination, and employment injury history, that appellant’s accepted
conditions should be expanded to include cervical herniated nucleus pulposus. Dr. Train
explained that as a result of her attempting to defend herself from the wasp attack that she
sustained a cervical herniated nucleus pulposus in addition to the accepted neck sprain and right
shoulder sprain.
On September 12, 2014, OWCP received a July 28, 2014 FCE study, conducted by
Dr. Pleshette Wiggins-Johnson, a chiropractor, which found that appellant was capable of
performing a job in the medium physical demand category. The report related that the job of
mail carrier is classified as in the heavy physical demand.
On September 18, 2014 OWCP issued a notice proposing to terminate appellant’s wageloss compensation benefits because her work-related disability had ceased. It found the weight
of the medical opinion evidence rested with the opinion of Dr. Hood, an impartial medical
examiner.
Following the proposal to terminate her benefits, OWCP received a September 23, 2014
report by Dr. Novarro C. Stafford, a treating physician, who diagnosed compensable injuries of
right neck strain, right shoulder/arm sprain, and right rotator cuff syndrome. Physical
3

By letter dated February 28, 2014, appellant requested copies of the documents from her case record. On
March 27, 2014 OWCP sent appellant a copy of the imaged portion of her case record, which would have included
the January 3, 2014 OIG report. As the Board noted in F.S., Docket No. 11-863 (issued September 26, 2012) and in
P.S., Docket No. 13-1018 (issued June 19, 2014) the investigative practices of an employing establishment’s
inspection service, including obtaining surveillance videos, are not within the jurisdiction of the Board. However,
the Board has noted that although video footage may be of some value to a physician asked to render a medical
opinion, it may also be misleading if material facts are omitted. Thus, OWCP is obliged to notify the claimant when
such footage is given to a physician and, upon request, provide a copy of the recording, and a reasonable opportunity
to respond to its accuracy. A.P., Docket No. 13-30 (issued March 18, 2013).

5

examination findings included tenderness in the cervical and trapezius areas, significant
tenderness in the right shoulder anterior girdle, and unable to abduct on active movement beyond
the horizon plane. Dr. Stafford opined that appellant sustained significant right shoulder and
neck injuries from the March 18, 2103 employment injury, which was confirmed by MRI scan
studies.
In duty status reports (Form CA-17) dated September 23 and October 17, 2014,
Dr. Stafford found appellant totally disabled from work. In an October 7, 2014 report, he
reported right trapezius, right cervical, and right deltoid area spasm with tenderness and inability
to adduct the right shoulder beyond the horizontal plane. Dr. Stafford diagnosed neck strain,
right shoulder strain, partial supraspinatus tendon tear, and subacute deltoid bursitis.
By decision dated October 22, 2014, OWCP finalized the termination of appellant’s
wage-loss compensation benefits, effective November 5, 2014. It found that the special weight
of the medical evidence rested with Dr. Hood, the impartial medical examiner, who reported that
she was no longer disabled as a result of the March 18, 2013 employment injury.
In a November 3, 2015 report, Dr. Train opined that appellant’s neck strain caused her
thoracic outlet syndrome and resulting right upper extremity disability. He noted that her
accepted conditions should be expanded to include right carpal tunnel syndrome. In an
accompanying Form CA-17, Dr. Train noted that appellant was disabled from working.
Appellant requested reconsideration of the October 22, 2014 termination decision on
November 25, 2014.
In a November 25, 2014 Form CA-17, Dr. Stafford indicated that appellant was able to
work with restrictions for her right shoulder and arm. In a November 25, 2014 work capacity
evaluation form, he diagnosed right rotator cuff strain, neck sprain, and right arm/shoulder
sprain. Dr. Stafford found that appellant was capable of working with restrictions for her right
shoulder. He also found that she was “pending an upgrade for carpal tunnel syndrome.”
In a December 16, 2014 report, Dr. Stafford diagnosed neck strain, right shoulder strain,
subacute deltoid bursitis, bilateral carpal tunnel syndrome, and partial supraspinatus tendon tear.
He noted the decreased range of motion of the right shoulder and concluded that the continuing
problems with the right side of appellant’s neck and right shoulder resulted from the March 18,
2013 employment injury. Dr. Stafford added that she continued treatment with a pain
management doctor. He concluded that appellant was disabled from work due to neck strain,
right shoulder strain, partial tear of supraspinatus tendon, and subacute deltoid bursitis.
On January 8 and 20, 2014 OWCP received copies of a November 17, 2014 report from
Dr. Train, who reported that appellant continued to be off from work due to right shoulder and
neck problems, which affected her daily living.
By decision dated March 24, 2015, OWCP denied modification of the decision which
terminated appellant’s wage-loss benefits as the newly submitted evidence was insufficient to
overcome the special weight of the medical evidence represented by Dr. Hood, the impartial
medical examiner.

6

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
Section 8123(a) of FECA provides in pertinent part: 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.7 Where 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.8
ANALYSIS -- ISSUE 1
OWCP referred appellant to Dr. Hood to resolve the conflict in medical opinion between
her treating physician, and its second opinion physician, regarding her return to work with
restrictions related to her accepted conditions. The Board finds that OWCP properly determined
that a conflict existed regarding her capacity to work and that Dr. Hood resolved the conflict in
the medical evidence.
Dr. Hood, in his initial January 29, 2014 report, diagnosed resolved cervical spine sprain
without radiculopathy, right shoulder aggravation or bursitis/impingement syndrome, and right
shoulder supraspinatus syndrome/partial rotator cuff tear. He further opined that appellant was
disabled from her date-of-injury position, but was capable of working an eight-hour day with
restrictions for her right upper extremity. In an August 5, 2014 addendum, Dr. Hood, based on
his review of the video and transcript, concluded that she no longer had any significant residuals
from her accepted employment injuries and she was capable of performing the duties of city
carrier with no restrictions. In an August 8, 2014 work capacity evaluation form, he indicated
that appellant was capable of returning to her job as a city mail carrier with no restrictions.
OWCP terminated appellant’s wage-loss compensation benefits, effective November 5, 2014,
based on Dr. Hood’s referee opinion, which it found constituted the weight of the medical
evidence.

4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

8

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

7

The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Hood, who based his opinion on the complete medical record, a statement of accepted facts,
and a thorough physical examination.
The Board further finds that the additional medical evidence submitted by appellant prior
to the termination of wage-loss compensation is insufficient to overcome the weight accorded to
Dr. Hood or to create a new medical conflict. Dr. Stafford opined that appellant sustained
significant neck and right shoulder injuries as a result of the accepted March 18, 2013
employment injury. Dr. Train provided numerous reports with detailed physical findings and
opining that her claim should be expanded to include additional conditions. Dr. Key noted that
appellant was seen for right shoulder and neck pain and diagnosed right shoulder internal
derangement and cervical disc displacement due to the accepted March 18, 2013 employment
injury. Dr. Butler provided physical findings including right C4-7 tenderness, right trapezius
spasms, decreased cervical range of motion, and right shoulder tenderness on palpation. No
opinion was offered regarding disability. None of the reports from Dr. Train, Dr. Key,
Dr. Butler, or Dr. Stafford provide any medical rationale explaining how appellant’s disability
was attributable to her accepted employment injuries.9 Thus, this evidence is of limited
probative value as the physicians did not address the relevant issue of whether appellant
remained totally disabled due to her accepted March 18, 2013 employment injury.
For the above reasons, the Board finds that OWCP properly terminated appellant’s wageloss compensation, effective November 5, 2014, as the weight of the medical evidence
established that she had no disability due to her March 18, 2013 employment injuries.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative, and substantial evidence
that she had an employment-related disability which continued after termination of compensation
benefits.10
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value, and its convincing quality. The factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested and the medical rationale expressed is support of the physician’s
opinion.11

9

F.T., Docket No. 09-919 (issued December 7, 2009); Richard A. Neidert, 57 ECAB 474 (2006) (a medical
opinion not fortified by medical rationale is of little probative value). See also Virginia Davis-Banks, 44 ECAB 389
1993) (opinions not addressing the relevant issue of the case are of diminished probative value).
10

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

11

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

8

ANALYSIS -- ISSUE 2
The Board finds that appellant has not established any disability causally related to her
work-related conditions on or after November 5, 2014.
Following OWCP’s termination of appellant’s wage-loss compensation, effective
November 5, 2014, the burden of proof shifted to appellant to demonstrate that she continued to
be disabled from work on and after November 4, 2014 due to the accepted injuries.12
Subsequent to the October 22, 2014 decision terminating her wage-loss compensation,
appellant submitted reports from Drs. Stafford and Train. In a November 3, 2015 report,
Dr. Train diagnosed thoracic outlet syndrome and requested expansion of her claim to include
right carpal tunnel syndrome. He also opined that she was totally disabled in an attached
November 3, 2015 CA-17 form and in a November 17, 2014 report. In his report, Dr. Train
attributed appellant’s disability to neck and right shoulder problems. Dr. Stafford, in a
November 25, 2014 CA-17 form, concluded that appellant was capable of working with
restrictions. He subsequently changed his opinion and concluded, in a December 16, 2014
report, that appellant was totally disabled from working. Dr. Stafford attributed the disability to
partial supraspinatus tendon tear, subacute deltoid bursitis, and right shoulder and neck strain.
The Board notes that OWCP has not accepted the conditions of partial supraspinatus tendon tear,
subacute deltoid bursitis, thoracic outlet syndrome, or right carpal tunnel syndrome as due to the
March 18, 2013 employment injury. Neither Dr. Stafford nor Dr. Train offered any rationale
explaining how appellant’s disability was causally related to her accepted March 18, 2013
employment injury. To be of probative value, a physician’s opinion on causal relationship
should be one of reasonable medical certainty.13 As neither Dr. Stafford nor Dr. Train provided
any rationale or opinion explaining how the conditions they diagnosed and resulting disability
were causally related to the accepted March 18, 2013 employment injury, their reports are
insufficient to support disability or create a conflict with Dr. Hood.
The Board finds that OWCP properly denied her claim for wage-loss compensation on
and after November 5, 2014. Appellant has not submitted any reasoned medical opinion
evidence showing that her disability on or after November 5, 2014 was the result of her accepted
right neck sprain and sprain of the right upper arm, shoulder, and other unspecified sites.
Consequently, the Board finds that appellant did not establish that she had any employmentrelated disability after November 5, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

12

Virginia Davis-Banks, supra note 9.

13

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

9

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation, effective November 5, 2014, as she had no work-related disability. The Board
further finds that appellant failed to meet her burden of proof to establish any continuing workrelated disability on or after November 5, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 24, 2015 and October 22, 2014 are affirmed.
Issued: June 15, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10