United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-22
Issued: February 27, 2007

Case Submitted on the Record

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

JURISDICTION
On October 4, 2006 appellant filed a timely appeal of an August 24, 2006 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a left hand or wrist condition causally
related to her federal employment.
FACTUAL HISTORY
On June 29, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a left hand and wrist injury as a result of casing
mail. Appellant indicated that the injury occurred on June 14, 2006 when she experienced
increasing pain. She submitted a report dated June 30, 2006 from Dr. Susan Eisenman, a
specialist in occupational medicine, diagnosing carpal tunnel syndrome.

By letter dated July 21, 2006, the Office requested that appellant submit additional
information regarding her claim. The Office noted the definitions of a traumatic injury and an
occupational disease and requested that appellant clarify the nature of her claim.
In a report dated July 19, 2006, Dr. Janice Ribaudo, a family practitioner, diagnosed
carpal tunnel syndrome and “exacerbation of preexisting condition resolved.” Dr. Ribaudo
stated that appellant complained about her arm, which was injured on June 14, 2006 and also
noted that appellant reported she progressively injured her left hand and wrist over a period of
time. The record contains an investigative report from the employing establishment’s Office of
Inspector General dated July 12, 2006. The report indicated that appellant had filed a claim for a
right wrist injury on October 4, 2005 and she had filed a recurrence of disability claim in
March 2006.
By decision dated August 24, 2006, the Office denied the claim for compensation. The
Office noted that appellant had not responded to the July 21, 2006 letter.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are essential
elements of each compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
ANALYSIS
Appellant filed a traumatic injury claim alleging that she sustained a left hand and wrist
injury while casing mail on June 14, 2006. It appears, however, that appellant was claiming an

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Delores C. Ellyett, 41 ECAB 992 (1990).

4

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

2

occupational injury that occurred over a period of time.5 She reported to Dr. Ribaudo that her
injury was a progressive injury over time rather than a traumatic injury. The Office asked
appellant to clarify her claim in a July 21, 2006 letter, but there is no indication that appellant
responded to the letter. Appellant did not adequately provide a factual basis for her claim by
clearly identifying the alleged employment factors and explaining the nature of her claim.6
In addition, appellant failed to submit probative medical evidence. Dr. Ribaudo referred
to an exacerbation of a preexisting condition, without providing a detailed history and a
rationalized opinion on causal relationship between a diagnosed left arm condition and an
employment factor.7 Appellant did not meet her burden of proof to submit factual and medical
evidence sufficient to establish an employment-related injury in this case.
The Board notes on appeal that appellant refers to the filing of a recurrence and her
October 2005 claim. The only decision before the Board on this appeal is the August 24, 2006
decision with respect to a claim for a left wrist or hand injury.
CONCLUSION
Appellant did not establish a left hand or wrist condition causally related to her federal
employment.

5

An occupational disease or illness is a condition produced by the work environment over a period longer than a
single workday or shift. 20 C.F.R. § 10.5(q).
6

Any evidence submitted after the Office’s August 24, 2006 decision cannot be reviewed by the Board since it
was not before the Office at the time of its final decision; see 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB
35 (1952).
7

Rationalized medical opinion evidence is medical evidence that includes a physician’s rationalized opinion on
the issue of whether there is a causal relationship between a diagnosed condition and the identified employment
factors. The opinion of the physician must be based on a complete factual and medical background, must be of
reasonable medical certainty and supported by medical rationale explaining the nature of the relationship between
the diagnosed condition and the specific employment factors identified by the claimant. Allen C. Hundley,
53 ECAB 551, 552 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 24, 2006 is affirmed.
Issued: February 27, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woodbridge, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1296
Issued: November 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 31, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 13, 2008 regarding his pay rate. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined appellant’s pay rate for
compensation purposes.
FACTUAL HISTORY
The Office accepted that appellant sustained right ankle and foot sprains in the
performance of duty on January 9, 1999. The reverse of the claim form stated that appellant was
a part-time flexible carrier working two to four hours per day. A claim for compensation (Form
CA-7) dated February 19, 1999 reported an hourly wage of $13.61 and stated that appellant had
worked 25 hours per week. The employing establishment checked a box “no” as to whether

appellant had worked for the prior 11 months, and “no” as to whether the position would have
afforded employment for the prior 11 months if not for the injury.
By decision dated July 20, 2005, the Office issued a schedule award for a 53 percent
permanent impairment to the right lower extremity. The period of the award was February 12,
2002 to January 15, 2005. The pay rate was $340.25 per week, which represents an hourly wage
of $13.61 at 25 hours per week.
By letter dated November 28, 2005, appellant requested reconsideration of the claim on
the pay rate issue. His representative indicated that appellant worked 40 hours per week prior to
his injury. Appellant submitted a pay stub from pay period 21 of 1998 that showed he worked
40 hours one week, and 36 hours another week of the pay period.
By decision dated March 9, 2006, the Office denied modification of the July 20, 2005
decision. It found appellant had not furnished enough information regarding his allegation of an
incorrect pay rate.
Appellant requested an appeal before the Board. By order dated April 17, 2007, the
Board remanded the case as the Office had not timely submitted the case record.1 By decision
dated March 13, 2008, the Office denied modification, mailing the same findings as provided in
the March 9, 2006 decision.
LEGAL PRECEDENT
Under 5 U.S.C. § 8101(2), “‘monthly pay’ means the monthly pay at the time of injury,
or the monthly pay at the time disability begins, or the monthly pay at the time compensable
disability recurs, if the recurrence begins more than 6 months after the injured employee resumes
regular full-time employment with the United States, whichever is greater.…”
Office
regulations state that “pay rate for compensation purposes” means the employee’s pay as
determined under 5 U.S.C. § 8114.2
5 U.S.C. § 8114(d) provides:
“Average annual earnings are determined as follows:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for particular employment, or the average
thereof if the daily wage has fluctuated, by 300 if he was employed on the
1

Docket No. 06-1955 (issued April 17, 2007).

2

20 C.F.R. § 10.5(s).

2

basis of a 6-day workweek, 280 if employed on the basis of a 5½ -day
week, and 260 if employed on the basis of a 5-day week.
“(2) If the employee did not work in employment in which he was employed at
the time of his injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are as um equal to the
average annual earnings of an employee of the same class working substantially
the whole immediately preceding year in the same or similar employment by the
United States in the same or neighboring place, as determined under paragraph
(1) of this subsection.
“(3) If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which he was working at the time of the injury having regard
to the previous earnings of the employee in federal employment, and of other
employees of the United States in the same or most similar employment in the
same or neighboring location, other previous employment of the employee, or
other relevant factors. However, the average annual earnings may not be less that
150 times the average daily wage the employee earned in the employment during
the days employed within 1 year immediately preceding his injury.”
ANALYSIS
Appellant has raised the issue of whether his pay rate for compensation purposes was
properly determined. The Office found appellant’s pay rate as of January 9, 1999, the date of
injury and the date disability began, was $340.25 per week. This represented a pay rate based on
$13.61 per hour at 25 hours per week. The employing establishment indicated on a February 19,
1999 claim for compensation that appellant was working 25 hours per week. Appellant,
however, alleged that he worked more than 25 hours per week and submitted a pay stub from
1998.
As noted, the issue must be properly determined pursuant to 5 U.S.C. § 8114. The Office
did not explain how the pay rate was calculated under the relevant provisions of the Federal
Employees Compensation Act. The record is not clear how long appellant was working in the
position or how many hours he worked. If he did not work in the position for 11 months prior to
January 9, 1999, and the position would not have afforded employment for the preceding 11
months, then 5 U.S.C. § 8114(d)(3) would apply. The Office would have to determine pay rate
taking into account the relevant factors discussed in that section.
The Office must secure relevant evidence from the employing establishment and issue a
decision with proper findings on the pay rate issue.3 The case will be remanded to the Office for
additional development and a clear explanation of how the pay rate for compensation purposes
3

See Paul M. Colosi, 56 ECAB 294 (2005).

3

was determined under 5 U.S.C. § 8114. After such further development as the Office deems
necessary, it should issue an appropriate decision.
CONCLUSION
The case will be remanded for a proper decision as to pay rate for compensation purposes
as determined by the relevant provisions of 5 U.S.C. § 8114.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 13, 2008 is set aside and the case remanded for further
action consistent with this decision.
Issued: November 21, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, RANSON POST
OFFICE, Ranson, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1155
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 21, 2021 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 8, 2018 appellant then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 30, 2018 she sustained a strained left hip/buttock when she
was startled by a snake and fell backwards when delivering mail while in the performance of duty.
She stopped work on the filing date of her claim. On June 8, 2018 OWCP initially accepted the
claim for strain of the muscle, fascia, and tendon of the left hip, and unspecified strain of the left
hip. It later expanded acceptance of the claim to include trochanteric tendinitis/bursitis of the left
hip and strain of the gluteus medius. OWCP paid appellant wage-loss compensation on the
supplemental rolls as of June 23, 2018 and on the periodic rolls commencing January 6, 2019. It
again paid her intermittent wage-loss compensation on the supplemental rolls as of September 15,
2019, following her return to part-time limited-duty work on September 23, 2019.
Appellant filed several claims for compensation (Form CA-7) for disability from work for
the period February 27 through April 9, 2021. On March 29, and April 2 and 13, 2021 she filed
an accompanying time analysis form (Form CA-7a) wherein she claimed that she used leave
without pay (LWOP) as follows: eight hours each on February 27, March 13, 16, 20, 23, and 30,
and April 2, and 3, 2021 due to her days off work; two hours on March 1, 2021; 1.34 hours on
March 3, 2021; 4.20 hours on March 4, 2021; eight hours each on March 5 and 6, 2021 to receive
an injection in her physician’s office; 3.48 hours on March 8, 2021; 2.35 hours on March 9, 2021;
eight hours on March 11, 2021 due to being placed off work by her physician; eight hours each on
March 12, 15, 19, 22, 29 and April 8 and 9, 2021 due to hip pain; 1.46 hours on March 24, 2021;
3.08 hours on March 25, 2021; 2.02 hours on March 31, 2021; 2.85 hours on April, 1, 2021; 2.59
hours on April 6, 2021; and 4.45 hours on April 7, 2021.
In support of her claim, appellant submitted medical reports dated March 4 and 24, 2021
from Juris Eyler, a physician assistant. Mr. Eyler diagnosed pain, unilateral primary osteoarthritis,
other articular cartilage disorders of the left hip; sacroiliitis, not elsewhere classified; difﬁculty in
walking, not elsewhere classiﬁed, and trochanteric bursitis of the left hip. He advised that appellant
could continue to perform sedentary work with restrictions and indicated that her absences from
work for a partial day on March 4, 2021 and a full day on March 5, 2021 should be excused due
to a hip injection she received on March 4, 2021. On March 24, 2021 Mr. Eyler restricted her to
work four-to-six hours per day, three- to four-hour days per week, due to flare-ups of pain and
other symptoms effective March 3, 2021.
OWCP, in a development letter dated March 29, 2021, informed appellant that the evidence
submitted was insufficient to establish her claim for wage-loss compensation. It advised her of
the type of medical evidence necessary to establish her disability claim and afforded her 30 days
to submit the requested evidence.

2

In a separate letter dated March 29, 2021, OWCP requested that the employing
establishment indicate whether work was available for appellant on February 27 and March 5, 6,
11, and 12, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the period February 13 through 26 and March 8 and 9, 2021.
OWCP received an April 3, 2020 left hip arthrogram report by Dr. Taik-Kun Kim, a Boardcertified diagnostic radiologist. Dr. Kim noted that the arthrogram was performed prior to a
magnetic resonance imaging (MRI) scan. He provided an impression that the arthrogram was
successful and uncomplicated.
On April 6, 2021 the employing establishment responded to OWCP’s March 29, 2021
letter, noting that no work was available on February 27, 2021 and eight hours of work was
available on March 5, 6, 11, and 12, 2021.
In an April 16, 2021 letter, OWCP requested that the employing establishment provide
whether limited-duty work was available for appellant on intermittent dates during the period
March 13 through April 9, 2021.
In an initial response dated April 22, 2021, the employing establishment indicated that up
to six hours of limited-duty work per day was available on March 13, 15, 16, 19, 20, 22, 23, 29,
30, 31 and April 2, 3, 8, and 9, 2021. It indicated that medical evidence dated March 24, 2020
provided that appellant could work four-to-six hours per day, three-to-four days per week as
tolerated.
On April 28, 2021 the employing establishment further responded that appellant had days
off from work and was off work based on her physician’s order during the period March 13 through
April 9, 2021. It noted that her days off from work were March 13, 16, 20, 23, and 30 and
April 2, 2021. The employing establishment also noted that appellant was off from work on
March 15, 19, 22, and 29 and April 6 and 9, 2021 based on her physician’s order. Appellant
worked 5.98 hours on March 31, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the periods March 13 through 26, 2021 and March 31 through
April 7, 2021.
OWCP continued to receive medical evidence. In an April 3, 2021 left hip MRI arthrogram
report, Dr. John M. Filigenzi, a Board-certified diagnostic radiologist, provided an impression of
mild left hip chondromalacia. Dr. Filigenzi related that appellant had a complex tear of the
acetabular labrum extending from the anterior-superior labrum through the posterior-superior
labrum, more severe anteriorly as detailed in his report. He also provided impressions of mild
degenerative changes of the sacroiliac joints and pubic symphysis, based on review of an April 1,
2020 pelvis MRI scan.
Dr. S. Shar Hashemi, a Board-certified surgeon, noted in reports dated May 10 and 14,
2021 that appellant’s history of a 2018 employment-related left hip injury. He discussed:
examination findings and diagnosed injury of cutaneous sensory nerve at hip and thigh level, left
3

leg, initial encounter; injury of other nerves at hip and thigh level, left leg, initial encounter; and
causalgia of the left lower limb. Dr. Hashemi placed appellant off work for one month
commencing April 29 and May 14, 2021, respectively.
A May 6, 2021 report by Dr. Raj Parekh, an anesthesiologist, noted appellant’s history of
injury, discussed examination findings, and provided impressions of high risk medication
monitoring narcotics, left hip chronic pain syndrome, unspecified and uncomplicated opioid use,
generalized anxiety disorder, and left hip labral tear. Dr. Parekh related that there was no doubt
that appellant’s left hip pain was causing significant disability and pain. He noted that she reported
that prior to her accepted employment injury, she was quite active, but now she was limited by her
pain and could not adequately perform her work duties.
In a May 21, 2021 decision, OWCP authorized payment of wage-loss compensation for
eight hours on February 27, 2021 and two hours each on March 13, 15, 16, 19, 20, 22, 23, 29, 30,
and 31 and April 2, 3, 8, and 9, 2021. It also noted that appellant had previously received
intermittent wage-loss compensation for March 1, 3, 4, 8, 9, 17, 24, 25, 31, and April 1, 6, and
9, 2021. The claim remained denied, however, as appellant had not provided medical evidence
establishing that she was disabled from work as a result of her accepted work -related medical
conditions for the remainder of the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury. Appellant filed a series of CA-7 forms
for intermittent disability from work commencing February 27, 2021. The record reflects that
OWCP has paid intermittent wage-loss compensation commencing February 27, 2021 for the dates
on which eight hours of work was not made available by the employing establishment and for the
dates on which appellant received authorized medical treatment.
OWCP received reports from medical providers regarding appellant’s disability status
during the relevant period. Several reports were submitted by Mr. Eyler, a physician assistant. In
a report dated March 4, 2021, Mr. Eyler advised that appellant’s absences from work for a partial
day on March 4, 2021 and a full day on March 5, 2021 should be excused due to a hip injection
she received on March 4, 2021. OWCP paid appellant wage-loss compensation for the time she
lost from work to receive the hip injection on March 4, 2021; however, it denied her claim for
wage-loss compensation commencing March 5, 2021 as Mr. Eyler’s opinion regarding appellant’s
disability status was of no probative value. 13 On March 24, 2021 Mr. Eyler restricted her to work
four to six hours per day, three to four hour days per week, due to flare -ups of pain and other
symptoms effective March 3, 2021. The Board has held that the reports of a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and, therefore, is not competent to provide a medical opinion. The reports from Mr. Eyler

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020).
13

D.B., Docket No. 20-0192 (issued November 2, 2020); S.K., Docket No. 19-0272 (issued July 21, 2020).

5

are, therefore, insufficient to establish appellant’s claim, except to establish that appellant received
treatment on the dates he provided authorized medical treatment.14
OWCP also received reports from Dr. Hashemi. In a report dated May 10, 2021,
Dr. Hashemi placed appellant off work for one month commencing April 29, 2021. He noted her
history of injury and diagnosed injury of cutaneous sensory nerve at the hip and thigh level of left
leg and causalgia of the left lower limb. However, Dr. Hashemi did not explain, with rationale,
how or why appellant was unable to perform her regular work on the claimed dates of disability
due to the effects of her accepted conditions. His other May 14, 2021 report also did not address
the relevant period of claimed disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/period of disability has an employment-related cause.15 For these reasons, the
Board finds that Dr. Hashemi’s reports are insufficient to establish appellant’s disability claim.
Appellant also submitted a May 6, 2021 report from Dr. Parekh. Dr. Parekh noted a history
of the April 30, 2018 employment injury. He diagnosed, inter alia, left hip chronic pain syndrome
and left hip labral tear. Dr. Parekh opined that appellant’s hip pain caused her disability from
work. However, he did not offer an opinion as to whether her disability on the claimed dates were
causally related to the accepted condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship. 16 Therefore, this evidence is insufficient to establish
appellant’s disability claim.
Likewise, Dr. Kim’s April 3, 2020 procedure note is insufficient to establish appellant’s
disability claim. In his April 3, 2020 note, he advised that a left hip arthrogram was successful
and uncomplicated. However, Dr. Kim did not provide an opinion addressing whether appellant
had disability on the claimed dates causally related to an accepted condition and, as such, his note
is of no probative value.17
Appellant submitted left hip MRI arthrogram reports from Dr. Kim and Dr. Filigenzi. The
Board has held, however, that diagnostic studies, standing alone, lack probative value on the issue

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
15

See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);
T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
16

See T.S., id.; J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Id.

6

of causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates. 18
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 19 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the claimed period due to her accepted
conditions, the Board finds that she has not met her burden of proof to establish h er claim.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See T.S., id.; D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued
October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020).
19

Supra note 6.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 16-0072
Issued: February 11, 2016

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 October 16, 2015 appellant filed an application for review of a July 22, 2015 decision
of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as
No. 16-0072.
In August 1994, OWCP accepted that appellant, a clerk typist, sustained bilateral carpal
tunnel syndrome due to the repetitive typing required by her job. It later accepted her claim for
work-related bilateral tenosynovitis of the hands/wrists, bilateral localized primary osteoarthritis
of the hands, and left radial styloid tenosynovitis. Appellant initially stopped work in 1994 and
returned to work on September 29, 2014 as a print operator for a private printing business. On
February 6, 2015 a formal loss of wage-earning capacity decision was issued, based upon
appellant’s ability to work in this light-duty job. Appellant stopped working on or about May 15,
2015, but she continued to receive OWCP compensation based on the February 6, 2015 wageearning capacity decision. In mid-May 2015, she claimed that she sustained a recurrence of
disability due to the accepted employment injuries such that she was totally disabled beginning

on or about May 15, 2015.1 In a July 22, 2015 decision, OWCP denied appellant’s ostensible
claim that the sustained a recurrence of disability on or about May 15, 2015.
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.2 OWCP’s procedure manual provides, “If a formal
loss of wage-earning capacity (LWEC) decision has been issued, and the claim is for recurrent
disability, it should be processed in accordance with procedures for modifying a formal
LWEC.”3 Once the wage-earning capacity of an injured employee is determined, a modification
of such determination is not warranted unless there is a material change in the nature and extent
of the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous. The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.4
In this case, OWCP essentially determined that the issue presented was whether appellant
had established a recurrence of disability on or about May 15, 2015. Under the circumstances of
this case, however, the Board finds that the issue presented was whether the February 6, 2015
wage-earning capacity determination should be modified. Appellant stopped work on or about
May 15, 2015 and submitted evidence which indicated that she had worsening symptoms of her
employment injuries. It is clear that the claim in this case was that appellant could not work in
the print operator position, the position that OWCP determined had represented her wageearning capacity, for the foreseeable future. The Board has held that, when a wage-earning
capacity determination has been issued and a claimant submits evidence alleged to show
disability for work, OWCP must evaluate the evidence to determine if modification of wageearning capacity is warranted.5 As noted, OWCP’s procedure manual directs the claims
examiner to consider the criteria for modification when a claimant alleges recurrent disability. If
there is a claim for increased disability that would prevent a claimant from performing the
position that was the basis for a wage-earning capacity decision, then clearly there is an issue of
whether modification is appropriate. The Board finds that OWCP should have considered the
issue of modification of the wage-earning capacity determination.6

1

Appellant also submitted evidence which she believed showed that she could no longer work in her limited-duty
position. For example, she submitted June 20 and 27, 2015 reports in which Dr. John T. Schwartz, an attending
Board-certified orthopedic surgeon, indicated that she had worsening upper extremity problems related to the
injuries she sustained as a clerk typist for her former federal employing establishment.
2

See Sharon C. Clement, 55 ECAB 552 (2004).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12 (February 2013).

4

Sue A. Sedgwick, 45 ECAB 211 (1993).

5

See Katherine T. Kreger, 55 ECAB 633 (2004). The Board notes that consideration of the modification issue
does not preclude OWCP from acceptance of a limited period of employment-related disability, without a formal
modification of the wage-earning capacity determination. See id.
6

See id.

2

The Board finds that appellant’s claim for compensation raised the issue of whether a
modification of the February 6, 2015 wage-earning capacity decision was warranted and the case
must be remanded for an appropriate decision on this issue.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 22, 2015 is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: February 11, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., claiming as widow of R.W., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
IMAGERY & MAPPING AGENCY,
Arnold, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Charles L. Wiest, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 05-1398
Issued: August 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 21, 2005 appellant filed a timely appeal from a July 1, 2004 merit decision of the
Office of Workers’ Compensation Programs denying her claim for death benefits.1 Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she is entitled to death benefits under
5 U.S.C. § 8133.
FACTUAL HISTORY
On November 11, 2002 appellant, widow of the deceased employee, filed a claim for
death benefits. She asserted that the employing establishment committed malpractice responding
to the employee’s heart attack.
1

The appeal was originally dismissed by order dated November 1, 2005. The appeal was later reinstated by order
of the Board.

In an accompanying statement, appellant related that at 9:45 a.m. on November 13, 2000
a contractor who worked for the employing establishment, Russ Coleman, found the employee
lying on the ground of the parking lot. Bill Brown, an employee, joined them. She related:
“[The employee] was bloody from his fall, had urinated on himself and had
difficulty standing. Mr. Brown went to a nearby building and asked secretary
Eileen Sinnwell to call the guards. She did so and the guard to whom she spoke
stated that help was on the way. When the guard arrived, Mr. Brown told him
that [the employee] showed the signs of having suffered a heart attack and 911
EMS [emergency medical services] should be called. The guard said that
Security had been notified and that a nurse from the dispensary had to authorize
EMS help.
“While all waited for the nurses to arrive, [the employee’s] condition worsened.
When the nurses arrived, they failed to provide proper medical assistance. For
example the oxygen apparatus did not work, the tank was essentially empty. The
nurses did not note that the air in a second oxygen tank was exhausted. IV
[intravenous] equipment was left in the dispensary and when one of the nurses
went to retrieve it, she could not locate all components. One of the nurses
attempted CPR [cardiopulmonary resuscitation] but was unable to perform it. A
tracheal tube was improperly inserted. A bystander took this function over. The
nurses did not promptly initiate defibrillator action. When it was started the nurse
failed to note when an AED [automated external defibrillator] shock was advised.
“Even after the nurses authorized the calling of an EMS unit, the request was not
promptly communicated to St. Louis dispatch. The EMS unit arrived about 45
minutes after [the employee] was found in the parking lot suffering from an
apparent heart attack.”
Appellant noted that the employee was alive when EMS arrived on the scene at 10:31
a.m. but died at 10:54 a.m. when he reached the hospital.
An incident/complaint form report dated November 14, 2000 noted that David P. Boyet, a
shift supervisor, called 911 for appellant at 10:15 a.m.
In a statement received on December 20, 2002, appellant alleged that the actions of the
employing establishment constituted negligence. She related:
“There was and is a public policy by federal agencies, in light of the correlation
between rapid intervention in cardiac incidents and the probability of survival, to
timely summon EMS systems, while implementing available interventions. The
[investigation] states that at the time of the [employee’s] cardiac incident [the
employing establishment] purportedly had a ‘policy’ that nurses had to call 911
when they were on duty. The documents produced by [the employing
establishment] under FOIA [Freedom of Information Act] do not support this. A
document called ‘Cardiac Emergencies,’ in fact advises that 911 should
immediately be transported to the hospital.”

2

Appellant asserted that security was informed of the employee’s condition at 9:45 a.m.
but that the nurse “did not authorize the calling of an ambulance until 10:05 a.m.”
A November 28, 2000 death certificate indicated that the employee died on
November 13, 2000 of arteriosclerotic heart disease.
On December 29, 2000 the employing establishment performed an internal assessment of
the November 13, 2000 death of the employee. Christopher S. Azar and James L. Akers stated:
“911 was requested early in the process, at approximately 10:04 hours, by a
Security Officer on the scene, via radio to the Security Control Room in Building
36. [Employing establishment] policy requires a nurse to approve 911 requests, if
a nurse is on duty at the time of an emergency. This information, and the fact that
a nurse was on the way to the scene, was communicated to the scene. The nurse
did request 911 within seconds of her arrival; however, it appears that the initial
call to 911 was not made and had to be requested again at approximately 10:15
hours.”
They noted that it was not known what caused the employee to fall. Messrs. Azar and
Akers concluded that the treatment provided by the nurses was adequate for a workplace
environment and that they brought sufficient medical supplies to the site. They further related:
“The request by the nurse for an ambulance via 911, and the results, are less
apparent. The nurse is certain she requested an ambulance within seconds of her
arrival on the scene of the accident. She also recalls the Security Officer stating
over the radio that the nurse was requesting an ambulance. The Supervisory
Guard in Building 36 monitoring the overall situation states he did not receive a
call from the scene for 911, other than the original call prior to the nurses arrival.
He called 911 at approximately 1015 hours, after hearing radio traffic about the
expectations of an ambulance arrival.
“The assessment can only conclude that the chaos of the moment, and the highly
charged emotional atmosphere of the emergency, resulted in unclear
communication. It appears this call for an ambulance, authorized by the nurse,
was made by radio but not received or confirmed.”
Messrs. Azar and Akers recommended that the employing establishment “immediately
change the procedure to allow the guard force, or the workforce, the discretion to call 911 in an
emergency at any time of the day, whether nurses are available or not.”2
By decision dated March 11, 2003, the Office denied appellant’s claim on the grounds
that she did not establish that the employee’s death was due to his federal employment. It noted
that there was no evidence that the employee was engaged in an activity connected to his

2

In a report dated March 3, 2003, Dr. Enique F. Toro, a Board-certified internist, related that he had been treating
the employee since 1991. He attributed the employee’s death to “coronary arteriosclerosis as per his autopsy report
which could produce sudden death.”

3

employment at the time he was ill. The Office further determined that he was not covered under
the human instincts doctrine.
On April 8, 2003 appellant, through her attorney, requested an oral hearing.3 At the
hearing, held on December 10, 2003, the attorney argued that the matter should be considered
under the Federal Tort Claims Act. He noted that he had filed a tort claim to preserve appellant’s
appeal rights.
On January 30, 2004 appellant’s attorney submitted a memorandum asserting that the
Federal Employees’ Compensation Act did not apply “to the circumstances of [the employee’s]
death.” He further contended that the Office failed to consider that the employing
establishment’s policy prohibiting any employee or security personnel to contact 911 unless
authorized by a nurse constituted a condition of employment and thus brought the employee
within the scope of coverage. The attorney stated:
“[The employing establishment’s] enactment and enforcement of a policy which
delays the calling of needed 911 personnel with certifications to perform EMS
services and procedures until authorized by a nurse was a condition of
employment, presumably promulgated to further some perceived [employing
establishment] business purpose, under which [the employee] was required to
work. As such this prohibition is no different than the coal miner whose
employment terms and conditions limited his prompt access to the proper level of
emergency care or the worker who could not receive help because
communications and transportation between the work site and the source of
emergency care were destroyed for a reason related to employment. The delay in
calling effective 911 emergency services for [the employee] was because of the
regulation, obviously a reason related to his employment…. The regulation
caused [the employing establishment] to withhold medical treatment from [the
employee] by not timely calling 911, even though it was patent that he needed
immediate transport to the hospital.”
The attorney noted that the Board’s initial application of the human instincts doctrine
occurred in Mildred Drisel,4 which cited a New Jersey case, Dudley v. Victor Lynn Lines, Inc.5
In Dudley, the Board noted that the court found that, if conditions of employment contributed to
a condition otherwise unrelated to employment, the injury could be found to arise out of
employment. The attorney contended that appellant did not have to show negligence on behalf
of the employing establishment as the delay in calling 911 resulted from a condition of
employment. He also argued that the requirement that a nurse rather than an employee or guard
telephone 911 was negligence per se.

3

In a statement dated March 17, 2003, the employing establishment related that it was a normal practice for
employees to walk on their break.
4

32 ECAB 82 (1980).

5

32 N.J. 479, 161 A. 2d 479 (N.J. 1960).

4

In a report dated January 30, 2004, Dr. Arthur S. Leon, a Board-certified internist,
reviewed the factual and medical evidence of record. He stated:
“My opinion remains that failure of his employer to promptly contact the EMT
[Emergency Medical Technicians] to provide medical support and transportation
to a major medical center diminished his opportunity to survive a heart attack.
The employee was observed by a fellow employee and a security guard to be
experiencing symptoms clearly recognized by even these lay individuals to be
strongly suggestive of a heart attack at about 9:45 a.m., about a half hour before
there is any documentation that the EMT was successfully contacted (i.e., 10:17
a.m.). Part of this delay was due to an [employing establishment] policy that only
allows a[n] agency nurse to authorize a call for a[n] EMT, such as requested by a
security guard at 9:50 a.m. Thus, a window of opportunity was lost for definitive
medical care to be provided that might have saved his life.”
Dr. Leon described emergency treatment for heart attacks and asserted that “[t]hese
potentially life saving procedures would have been administered about 10:12 a.m. when [the
employee’s] heart was still functioning if he had been promptly transported to the Medical
Center.” He reiterated his conclusion from a prior report that with prompt care the employee
would have had “at least a 50 percent chance of surviving....”
By decision dated July 1, 2004, a hearing representative affirmed the March 11, 2003
decision. He found that there was no evidence that the employing establishment acted
negligently in providing assistance to the employee.
LEGAL PRECEDENT
The United States shall pay compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty.6 An appellant has the burden of
proving by the weight of the reliable, probative and substantial evidence that the employee’s
death was causally related to his or her federal employment. This burden includes the necessity
of furnishing medical opinion evidence of a cause and effect relationship based on a proper
factual and medical background.
An injury or death arises out of employment if it is causally related to the employment.
The fact that a contributing cause of the injury or death was unrelated to the employment is not
sufficient to exclude coverage if the employment was also a contributing factor.7
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature and the Office is not a disinterested arbiter. While the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility to see that justice is done.8

6

5 U.S.C. § 8102(a).

7

Allern M. Winters, 16 ECAB 551 (1965).

8

Jimmy A. Hammons, 51 ECAB 219 (1999).

5

ANALYSIS
The employee died at work on November 13, 2000 as a result of a nonemploymentrelated heart condition. His spouse filed a claim for death benefits alleging that the employing
establishment acted negligently in aiding the employee at the time of his myocardial infarction.
The Office denied the claim after finding that the employing establishment did not act
negligently under the human instincts doctrine. Under the “human instincts” doctrine, adopted
by the Board in Mildred Drisdel,9 an employing establishment’s negligence in rendering or
procuring assistance for an employee may constitute a factor of employment, and if the
employee establishes that any such negligence caused or aggravated the condition or which
compensation is claimed, he may establish entitlement to compensation.10
The Board finds that the case does not need to be analyzed under the human instincts
doctrine as the rule requiring a nurse to contact 911 rather than allowing security or coworkers to
seek emergency assistance constituted a factor of employment, which contributed to the
employee’s death. In Allern M. Winters, the Board held:
“An injury or death ‘arises out of the employment if it is causally connected to the
employment. It does not matter that one of the contributing causes of the injury
or death was a disease or condition unrelated to the employment as long as the
employment was also a contributing factor,’ and ‘whenever conditions attached to
the place of employment or otherwise incidental to the employment are factors in
the catastrophic combination, the consequent injury arises out of the
employment.’”11
The Board finds that the employing establishment’s policy that a nurse must approve any
911 request constituted a condition of employment, which resulted in a delay in the employee’s
obtaining needed medical treatment. On November 13, 2000 at 9:45 a.m. Mr. Coleman, a
contractor, and Mr. Brown, a coworker, found the employee lying in the parking lot in distress.
Mr. Brown sought assistance from a guard and requested that he contact 911. The guard
responded that he had notified security but that a nurse had to authorize a call for emergency
medical services. A nurse authorized a 911 call that was dispatched at approximately 10:15 a.m.
During this period of time the employee’s condition deteriorated. An internal assessment
conducted by the employing establishment on December 29, 2000 recommended that the
employing establishment “immediately change the procedure to allow the guard force, or the
workforce, the discretion to call 911 in an emergency at any time of the day, whether nurses are
available or not.”
The remaining issue is whether the delay in obtaining medical treatment contributed to
the employee’s death. In a report dated January 30, 2004, Dr. Leon found that the employing
establishment’s delay in contacting emergency medical technicians reduced the employee’s
chance of surviving. He noted that a security guard requested an EMT at 9:50 a.m. but that the
9

33 ECAB 409 (1982).

10

Id.; see also Jerry L. Sweeden, 41 ECAB 721 (1990).

11

Allern M. Winters, supra note 6 (citing Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479 , 161 A.2d 479 (1960)).

6

call was not made until 10:12 a.m. It is well established that proceedings under the Federal
Employees’ Compensation Act are not adversarial in nature and that, while the claimant has the
burden to establish entitlement to compensation, the Office shares responsibility in the
development of the evidence.12 Although Dr. Leon’s opinion does not provide sufficient
rationale to discharge appellant’s burden of proving by the weight of the reliable, substantial and
probative evidence that the employee’s death resulted from factors of his federal employment,
his opinion raises an uncontroverted inference of causal relationship sufficient to require further
development by the Office.13 The case will, therefore, be remanded to the Office for further
development of the medical evidence to determine whether factors of employment caused or
contributed to the employee’s death. After such further development as the Office deems
necessary, it shall issue a de novo decision.14
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 1, 2004 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: August 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

Allen C. Hundley, 53 ECAB 551 (2002)

13

Phillip L. Barnes, 55 ECAB 426 (2004); John J. Carlone, 41 ECAB 354 (1989).

14

In view of the Board’s disposition of the merits, it need not address the arguments of appellant’s attorney on
appeal that the employing establishment violated the human instincts doctrine in failing to provide adequate and
timely treatment to the employee.

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
V.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
East Orange, NJ, Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2076
Issued: March 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 11, 2013 appellant, through her representative, filed a timely appeal from a
June 28, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied modification of the July 15, 2010 wageearning capacity determination.
On appeal, appellant asserts that her current employment is a makeshift or odd-lot
position.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 28, 2007 appellant, then a 45-year-old food service worker, injured her left
shoulder due to a fall onto a wet floor. She filed a traumatic injury claim (Form CA-1) on
December 28, 2007. OWCP accepted her claim for compensation on February 5, 2008 for a left
rotator cuff tear. In a decision dated January 21, 2010, it granted appellant a schedule award for
five percent impairment of the right upper extremity.
In a work capacity evaluation (OWCP-5c) dated December 2, 2009, Dr. Andrew M.
Hutter, a Board-certified orthopedic surgeon, found that appellant could return to full-time work
on light duty. He indicated that she had work restrictions of standing and walking for no more
than five hours per day, lifting of no more than 10 pounds and kneeling no more than one hour
per day.
The employing establishment offered appellant a permanent light-duty position on
May 7, 2010 as a food service worker, noting work restrictions of ability to stand and walk for
five hours, ability to lift, pull and push up to 10 pounds, ability to kneel for one hour, and no
reaching above the left shoulder. The duties of the position included working on sections of the
tray line, described as “starter, vegetable, meat/entrée, bread, margarine, jelly, etc.,” and cleaning
in the dish room, described as “sort out silvers, bags silvers, mat trays,” and “wipes down
refrigerators and conveyor belts on tray line.” Appellant accepted this offer on May 10, 2010.
By decision dated July 15, 2010, OWCP determined that appellant’s actual earnings since
May 10, 2010 represented her wage-earning capacity. It found that she had no loss of wageearning capacity, as her earnings were equal to or exceeded her earnings on the date of injury.
On August 18, 2010 appellant, through her representative, requested reconsideration of
the July 15, 2010 decision. Appellant’s representative argued that there was no reason to set a
loss of wage-earning capacity except to allow OWCP and the employing establishment to avoid
paying her if they abolished her limited-duty position.
By decision dated November 17, 2010, OWCP denied appellant’s request for
reconsideration. It found that appellant had not submitted any relevant or pertinent new
evidence, showed that OWCP erroneously applied or interpreted a point of law, or presented a
legal or factual argument not previously considered.
On November 23, 2010 appellant, through her representative, again requested
reconsideration of the July 15, 2010 decision. Appellant’s representative argued that the
decision was erroneous because it was based on an odd-lot or makeshift job. He stated that
appellant’s position was not permanent and that no one else had a job like hers. Appellant’s
representative noted that she assisted in making salads, performing hospitality services and doing
paperwork. He argued that the position had been specially arranged due to her medical
restrictions, and that it was not a regular job, but a limited-duty job designed for her. Appellant
noted that the appeal was not about the creation of her job, but rather attributing a loss of wageearning capacity determination based on the job, because appellant anticipated that the
employing establishment would eventually eliminate the position.

2

By letter dated April 9, 2013, appellant’s representative requested a response from
OWCP regarding the reconsideration request of November 23, 2010, as OWCP had not yet
replied.
On April 18, 2013 OWCP advised the employing establishment that appellant had filed a
timely request for reconsideration, enclosed a copy of the application and requested that it submit
comments within 20 days.
By letter dated April 30, 2013, the employing establishment responded. It stated that the
allegation that appellant’s position was not permanent was incorrect, because it was a full-time,
regular, permanent position, with clearly defined and limited duties in line with appellant’s
medical restrictions. The employing establishment noted that the position would not be deemed
“no longer necessary” and that it was not odd-lot or makeshift. It described her position as a
permanent limited-duty Food Service Worker WG-7408, Grade 3, Step 5.
On May 6, 2013 appellant’s representative responded to the employing establishment’s
letter dated April 30, 2013. He noted that the author of the letter was the workers’ compensation
program manager at the employing establishment and not in a position to state that appellant’s
job was regular, full time and permanent. Appellant’s representative again argued that a loss of
wage-earning capacity determination was not necessary in this case, and that the only reason it
was sought was to abolish appellant’s job in the future and reduce the employing establishment’s
exposure.
By decision dated June 28, 2013, OWCP denied modification of the July 15, 2010
decision regarding her loss of wage-earning capacity. It noted that appellant had worked in the
limited-duty position for almost three years and that she continued to work in that position.
OWCP found that the limited-duty food service worker position was not makeshift or odd-lot,
because it was a classified position, the duties and physical requirements were indicated, and she
was performing specific duties that correlated with the position of a food service worker.
LEGAL PRECEDENT
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. Generally, wages actually earned are the best measure of wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

2

Dennis E. Maddy, 47 ECAB 259, 262 (1995).

3

rehabilitated or the original determination was, in fact, erroneous.3 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.4
OWCP’s procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings. A job that is part-time (when the claimant was a full-time employee at
the time of injury), seasonal in an area where year-round employment is available, or temporary
(when the date-of-injury position was a permanent position) is generally not appropriate for a
wage-earning capacity determination.5
In addition, it is well established that a position that is considered an odd-lot or makeshift
position designed for a claimant’s particular needs is not appropriate for a wage-earning capacity
determination.6 The Board has discussed several factors that may support a finding that the
offered position was makeshift in nature. These factors include: (1) the position did not have an
official title or formal position description; (2) there were strict limitations, such as five-pound
lifting and no casing of mail, which indicated the claimant would not be able to secure a position
in the community at large with such limited duties; (3) the claimant did not perform any
meaningful tasks in the position; and (4) the job appeared to be temporary in nature.7
ANALYSIS
Appellant’s claim was accepted for a left rotator cuff tear. She began work in a modified
food service worker position on May 10, 2010 and continued to work for more than 60 days.
The issue is whether the July 15, 2010 wage-earning determination was erroneous as the position
worked was not suitable for a wage-earning capacity determination. Appellant’s representative
argued that the position was odd-lot or makeshift, and that the employing establishment only
sought a loss of wage-earning capacity determination so that it could avoid future liability when
they eliminated her position.
In reviewing the relevant factors regarding a makeshift position, the Board finds no
evidence to establish that the modified food service worker position was makeshift. The job had
an official title and a detailed job description. The physical restrictions were not overly strict, as
appellant was limited to no more than five hours of standing and walking; no more than 10
pounds of lifting, pulling, and pushing; no more than one hour of kneeling; and no reaching
above the left shoulder, but performed activities associated with that of a food service worker
position. The job involved meaningful tasks, such as working on sections of the tray line to
make meals and cleaning in the dish room. Thus, the food service worker position in this case

3

See Sharon C. Clement, 55 ECAB 552 (2004).

4

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

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4 (June 2013).
6

See A.J., Docket No. 10-619 (issued June 29, 2010).

7

Id.

4

had a detailed job description, was performed without overly strict physical restrictions, and
involved meaningful tasks correlated to that of a food service worker.
With respect to whether the position was temporary, no evidence was presented to
indicate that the position was in fact temporary. The written job offer and job description
contained no indications that the position was temporary. Appellant’s representative merely
asserted that the employing establishment would, at some future time, eliminate her position.
Appellant had worked as a modified food service worker for three years at the time of OWCP’s
June 28, 2013 decision denying modification of the wage-earning capacity determination. Thus,
there is no probative evidence establishing that the position was temporary in nature.
OWCP procedures state that a light-duty position that fairly and reasonably represents an
employee’s ability to earn wages may form the basis of a loss of wage-earning capacity
determination if that light-duty position is a classified position to which the injured employee has
been formally reassigned.8 The position must conform to the established physical limitations of
the injured employee, the employer must have a written position description outlining the duties
and physical requirements, and the position must correlate to the type of appointment held by the
injured employee at the time of injury.9 Appellant’s modified food service worker position is a
classified position and she has been formally reassigned. The physical restrictions of this
position conform to the limitations described by Dr. Hutter in his December 2, 2009 work
capacity evaluation. As noted above, there is a written position description outlining the duties
of this position and physical requirements. Finally, appellant worked in an unmodified food
service worker position at the time of injury.
The Board finds that, based on the evidence of record, the modified food service worker
job performed as of May 10, 2010 was appropriate for a wage-earning capacity determination. It
was not part-time, makeshift or temporary. OWCP found that appellant’s earnings were equal to
her earnings as of the date of injury, noting that she had earned $807.90 per week in her job
before the injury and earned $807.90 in the permanent modified food service worker position
after her injury. The Board finds that OWCP properly determined that appellant had no loss of
wage-earning capacity based on her actual earnings. Appellant may request modification of the
wage-earning capacity determination, supported by new evidence or argument, at any time
before OWCP.
CONCLUSION
The Board finds that OWCP properly denied modification of appellant’s wage-earning
capacity determination.

8

Supra note 5 at Chapter 2.815.5(c) (June 2013).

9

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 28, 2013 is affirmed.
Issued: March 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westlake, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard F. Bilski, for the appellant
Office of Solicitor, for the Director

Docket No. 08-427
Issued: June 3, 2008

Case Submitted on the Record

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

JURISDICTION
On November 23, 2007 appellant filed a timely appeal of an August 23, 2007 decision
wherein the Office of Workers’ Compensation Programs denied her request for reconsideration.
As the last merit decision in this case was issued on January 6, 2006, pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board does not have jurisdiction to review the merits of the
case. The Board will review the nonmerits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 15, 2006 appellant, then a 46-year-old city carrier, filed a traumatic injury claim
alleging that, on that date, while delivering mail to a box, she felt a sharp pain across her lower
back and down her right leg. By letter dated May 22, 2006, the employing establishment
controverted the claim, alleging that she had not established fact of injury. The employing

establishment attached a statement from appellant’s supervisor controverting appellant’s
statement with regard to how the injury occurred. Appellant also submitted a duty status report
dated May 16, 2005 and medical records from St. John West Shore Hospital dated May 15, 2006.
By decision dated July 6, 2006, the Office denied appellant’s claim because the medical
evidence did not establish that the claimed medical condition was causally related to the
established work event.
In a letter dated June 28, 2006, but not received until July 11, 2006, after the Office’s
decision, appellant gave a complete description as to how her injury occurred and she discussed
the aftermath of the injury. She also made comments as to why the injury did not occur in a
different manner and noted that she had filed grievances against certain persons at the employing
establishment who alleged that she made false statements as to how she injured herself.
Appellant also submitted notes and duty status reports by her treating physician, Dr. Manuel A.
Martinez. In a note dated May 16, 2006, Dr. Martinez indicated that appellant was seen
complaining of difficulty with her back. Appellant informed him that when she lifted something
at work she noted pain in the back and radiating down to the right lower extremity. Dr. Martinez
noted no acute fracture or dislocation. In a note following a June 15, 2006 office visit, he noted
that the magnetic resonance imaging scan showed some degenerative changes and stenosis in the
lumbosacral spine with some disc protrusion at the L4-5 level. In a duty status report dated
June 15, 2006, Dr. Martinez indicated that appellant had limitations prohibiting lifting over 20
pounds and restricting kneeling, bending, stooping, twisting, pushing and pulling to one to two
hours a day and fine manipulation and reaching above shoulder to two hours a day.
On July 10, 2007 appellant requested reconsideration. In support, she submitted a letter
by her union representative wherein the union representative argued that appellant’s claim was
denied because it was challenged by false accusations by appellant’s supervisor and that nothing
in appellant’s medical chart indicated that the injury occurred in a different manner than that
which she claimed. Appellant also submitted the supervisor’s statement, a report with regard to
her grievance, statements by other employees, an offer of limited-duty work and leave requests.
By letter dated August 9, 2007, appellant’s union representative submitted new medical
evidence. Specifically, he submitted additional progress notes from Dr. Martinez dated July 12
through September 19, 2006 wherein he noted that appellant’s back was getting better and that
her work activities were increasing.
By decision dated August 23, 2007, the Office denied appellant’s request for
reconsideration without review of the merits of the case.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under 5 U.S.C. § 8128(a), the
Office’s regulations provide that the application for reconsideration must set forth arguments and
contain evidence that either: (1) shows that the Office erroneously applied or interpreted a

2

specific point of law; (2) advances a legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.1
A timely request for reconsideration may be granted if the Office determines that the
employee has represented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and is reviewed on the merits.2
ANALYSIS
In the instant case, appellant did not meet any of the criteria for requiring the Office to
reopen her case for merit review. She did not argue that the Office erroneously applied or
interpreted a specific point of law, nor did she raise legal arguments not previously considered.
Furthermore, appellant did not submit any relevant and pertinent new evidence. Her claim was
denied because the medical evidence failed to establish that she sustained an injury as a result of
the accepted work factors. Accordingly, the nonmedical evidence in this case is not relevant to
the reason that her claim was denied. Furthermore, the medical evidence submitted on
reconsideration, specifically the medical reports and items by Dr. Martinez, do not establish that
appellant sustained a medical condition as a result of established work events, as Dr. Martinez
does not address whether appellant’s complaints were causally related to the May 15, 2006
employment incident. As he does not address causal relationship his reports are irrelevant to the
threshold issue and insufficient to establish causal relationship.
Accordingly, the Board finds that the Office properly determined that appellant was not
entitled to a review on the merits of her claim pursuant to any of the three requirements under
section 10.606(b)(2) and properly denied her request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).

1

20 C.F.R. §10.606.

2

5 U.S.C. §§ 8101-8193, § 8128(a). The Board has found that the imposition of the one-year limitation does not
constitute an abuse of discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act. See Adell Allen (Melvin L. Allen), 55 ECAB 390 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2007 is affirmed.
Issued: June 3, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1512
Issued: February 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On July 5, 2012 appellant filed a timely appeal of the January 20, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal, appellant contends that being hit by a parcel thrown by Lynn Johnson, a
supervisor, caused her emotional condition. She feared Ms. Johnson who followed her to a clinic
where she was treated for her injury. Appellant also feared retaliation from Ms. Johnson as
appellant had reported her to upper management, which caused Ms. Johnson to be removed from
her position, had reported her to the police following this injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 9, 2011 appellant, then a 40-year-old distribution clerk, filed a traumatic
injury claim alleging that on that date she sustained a left wrist and arm injury and experienced
job stress and intimidation as a result of being struck by a parcel thrown by Ms. Johnson. In an
accompanying narrative statement, she contended that previously on February 7, 2011 she had
been hit in the right arm by a parcel thrown by Ms. Johnson. On February 9, 2011 she threw a
parcel at appellant at “full and heavy force” which hit her left wrist. Following the February 9,
2011 incident, she felt threatened by Ms. Johnson who approached her and ordered her to return
to work in a loud and intimidating voice. Ms. Johnson threatened to write her up for failure to
follow instructions. She ignored appellant’s request for a union steward. Ms. Johnson pointed
her finger at appellant and ordered her to get off the telephone with a union steward and report to
her office. Appellant called 911, filed an incident report and drove herself to the clinic for
medical treatment. She became frightened when Ms. Johnson arrived at the clinic.
Appellant submitted witness statements dated February 9, 2011. Robert Taylor, an
employee, related that on February 9, 2011 that he observed Ms. Johnson throwing parcels. An
employee whose signature is illegible observed that Ms. Johnson on February 7, 2011 hit
appellant’s arm with a parcel. Crystal Flynn, a union representative, related that Ms. Johnson
told her that on February 9, 2011 she had unintentionally hit appellant with a parcel.
A police document provided information about obtaining a warrant or summons for
criminal charges. It stated that it was not an official police report.
In medical reports dated February 9 and 11, 2011, Dr. George M. Bridgeforth, a Boardcertified internist, advised that appellant had a left wrist and forearm contusion and anxiety. An
authorization for examination and/or treatment (Form CA-16) dated February 11, 2011 was not
signed by the employing establishment. It was signed by Dr. Bridgeforth who advised that
appellant had a left wrist and forearm contusion.
By letter dated February 24, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the factual evidence she needed to submit to
establish her claim. Also, OWCP requested that the employing establishment submit medical
evidence in response to appellant’s claim.
On March 4, 2011 appellant stated that she did not have a confrontation with
Ms. Johnson on February 9, 2011 and there was no animosity between them. She contended that
Ms. Johnson had a history of misconduct at work which was raised by other employees and
addressed by upper management.
In reports dated February 9 through April 22, 2011, Dr. Bridgeforth reiterated his prior
diagnoses of left wrist and forearm contusions and anxiety. He stated that appellant also had
depression. On February 9, 2011 Dr. Bridgeforth prescribed physical therapy to treat appellant’s
left wrist and forearm contusions.

2

In a February 21, 2011 report, John J. O’Leary, Ph.D., noted appellant’s problems which
included fear of retaliation by her manager. He diagnosed occupational wrist contusions and
adjustment disorder with mixed anxiety and depression mood.
In a March 17, 2011 letter, Ms. Johnson stated that on February 9, 2011 she hit appellant
with a small parcel on her upper arm. She barely noticed what she had done because the package
was light weight. Ms. Johnson stated “oops” and put her hand over her mouth. She had no
indication that there was a problem so she continued to work. About 15 minutes later,
Ms. Johnson noticed that appellant disappeared from her parcel rack assignment. She located her
performing a previously assigned work task. Because appellant did not advise Ms. Johnson
about her injury, she ordered her to report back to the rack assignment. In response, she became
loud and uncooperative. Ms. Johnson then instructed appellant to come to her office. Appellant
called a union representative. When Ms. Johnson arrived at her office, appellant was not there.
She later found her on the telephone with a union representative and saw her red and swollen
wrist. Ms. Johnson stated that employees were instructed to report all accidents to management
immediately. Highly visible signs around the building also provided this instruction. Appellant
told Ms. Johnson that she was afraid to report her injury to her or any other managers because of
previous incidents. Ms. Johnson denied hitting her. She advised two union stewards that she
planned to take disciplinary action against appellant for her one-hour disappearance.
Ms. Johnson stated “oops” apologetically at the time of the hitting incident. She had no idea that
appellant was going to call the police and there was no sign of any injury. Ms. Johnson noted
that two hours before the incident appellant became loud and upset after being informed that she
was not going to be paid for over one week of sick leave because she did not submit adequate
medical documentation. She received a subpoena to appear in court on March 17, 2011
regarding battery charges.
In a March 28, 2011 report, Dr. Anil K. Gandhi, a Board-certified psychiatrist, obtained a
history that a manager threw a parcel and hit appellant on the shoulder and on the left wrist. She
advised that appellant had adjustment disorder with mixed emotional features and a right
shoulder and left wrist injury secondary to occupational stresses.
By letter dated March 31, 2011, OWCP accepted appellant’s claim for contusion of the
left wrist.
In an April 13, 2011 letter, appellant contended that on January 27, 2011 she submitted a
leave slip to Ms. Johnson because she had walking pneumonia. On January 29, 2011 she called
into work to get coverage for her absence through February 5, 2011. Appellant received a
confirmation number for her call. She also received a case number for her request for leave
under the Family and Medical Leave Act (FMLA). Appellant returned to work on February 7,
2011 and submitted medical documentation to Ms. Johnson. She later discovered that
Ms. Johnson had changed her FMLA leave to absent without leave (AWOL) status. Appellant
filed grievances against Ms. Johnson regarding the AWOL charge and the February 7 and 9,
2011 incidents.
In a January 27, 2011 disability certificate, a physician whose signature is illegible
indicated that appellant was totally incapacitated through February 6, 2011.

3

In a June 24, 2011 decision, OWCP denied appellant’s emotional condition claim on the
grounds that she failed to establish any compensable employment factors.
On July 20, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
In a November 21, 2011 report, Dr. O’Leary stated that when he first saw appellant on
February 21, 2011 she presented with depression, anxiety, poor sleep, appetite changes, crying
spells, lack of energy and motivation and panic. Appellant related that she was fearful and afraid
of her manager. She denied suicidal or homicidal thoughts. Appellant had no previous mental
health treatment. Dr. O’Leary reiterated his diagnosis of adjustment disorder with depression
and anxiety. He advised that appellant received mental health treatment for issues arising out of
work-related stress at the employing establishment. In a December 19, 2011 report, Dr. O’Leary
obtained a history that appellant was struck by a package thrown by her manager on February 7
and 9, 2011 at work. The manager followed her to the clinic and became loud with her.
Dr. O’Leary advised that appellant’s depression and anxiety were caused by these incidents.
In a January 20, 2012 decision, an OWCP hearing representative affirmed the June 24,
2011 decision.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.2 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.3
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 his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 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 his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
2

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

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

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

5

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

4

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.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
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.8
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.9 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.10
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several actions
by her supervisor, Ms. Johnson. OWCP denied appellant’s emotional condition claim on the
grounds that she had not established any compensable employment factors. The Board must,
therefore, initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of FECA.
Appellant contended that on February 7 and 9, 2011 Ms. Johnson struck her in the right
and left arm with parcels, threatened in a loud and intimidating voice to write her up for failing
to follow instructions when ordered to return to work following the February 9, 2011 incident
and unexpectedly appeared at the clinic where she was receiving medical treatment for the
accepted February 9, 2011 physical injury. The Board has recognized the compensability of
physical threats and verbal aggression in certain circumstances.11 Regarding verbal aggression,
compensability does not imply that every statement uttered in the workplace will give rise to
6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
7

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

8

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

9

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

10

Id.

11

See Alton L. White, 42 ECAB 666, 669-70 (1991) (recognizing the compensability of physical threats and
verbal aggression).

5

coverage under FECA.12 A raised voice in the course of a conversation does not, in and of itself,
warrant a finding of verbal abuse.13 The statement from Mr. Taylor indicated that on February 9,
2011 he saw Ms. Johnson throw a parcel. However, the Board finds that this statement is general
in nature and does not state whether Ms. Johnson hit appellant. Ms. Flynn’s statement indicated
that Ms. Johnson unintentionally hit appellant with a parcel on February 9, 2011. In the
statement with an illegible signature, an employee witnessed Ms. Johnson throwing a parcel on
February 7, 2011 which hit appellant’s arm. This statement does not suggest Ms. Johnson’s
action was intentional. Ms. Johnson, in a March 17, 2011 letter, acknowledged that she hit
appellant on the upper arm on February 9, 2011 with a small parcel, but she apologized for her
action. She was not aware of appellant’s injury as she had not reported it to her or any other
managers as required. Ms. Johnson denied hitting appellant on any other occasion at work. She
noted that two hours before the February 9, 2011 incident appellant became loud and upset after
being informed that she was not going to receive pay for over one week of sick leave because she
failed to submit adequate medical documentation to support her absence from work. Although
Ms. Johnson received a subpoena to appear in court on battery charges filed by appellant, the
record does not contain a judgment from the court finding her guilty of these charges.
Appellant’s contention that Ms. Johnson had a history of misconduct with other employees
which was addressed by upper management is not specific to her allegation that Ms. Johnson
acted inappropriately towards her on February 7 and 9, 2011. Further, there is no evidence
corroborating that Ms. Johnson spoke to appellant in an unprofessional or a threatening manner
or that, in a situation where she was not cooperating with supervisory instructions, the interaction
with appellant rose to the level of verbal abuse or otherwise fell within the coverage under
FECA. The Board finds that the weight of the evidence, including appellant’s own statement
that she did not have a confrontation with Ms. Johnson on February 9, 2011 or any animosity
towards each other, does not support her allegation of a physical assault or verbal abuse. The
history provided in the reports of Drs. O’Leary and Gandhi of retaliation, physical assault and
verbal abuse by a manager is not supported by the record. The Board finds that appellant has not
established a compensable factor of employment.
Appellant’s allegations that Ms. Johnson ignored her request for union representation,14
requested additional medical documentation,15 charged her with being AWOL,16 threatened to
take disciplinary actions for failing to follow instructions17 and followed her to the clinic are
administrative matters and not compensable absent a showing of error or abuse on the part of the
employing establishment. Ms. Johnson stated that appellant did call a union steward because no
clerk union representatives were located in the station. She had requested additional medical
documentation regarding appellant’s sick leave because appellant previously had submitted
12

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, 42 ECAB 783 (1991).

13

Karen K. Levene, 54 ECAB 671 (2003).

14

Wanda G. Bailey, 45 ECAB 835 (1994).

15

James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

16

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

17

Robert Breeden, 57 ECAB 622 (2006).

6

inadequate medical documentation. Ms. Johnson had planned to take disciplinary action against
appellant because she disappeared at work for one hour. Although appellant filed grievances
regarding the AWOL charge and hitting incidents, the record does not contain a formal finding
of error or abuse to establish these allegations of error or abuse in an administrative matter. She
did not submit any evidence establishing that Ms. Johnson erred in the exercise of her
supervisory duties by going to the clinic. There is no evidence in the record regarding the
termination of Ms. Johnson. As there is no evidence that the employing establishment acted
unreasonably in the above-stated administrative matters, the Board finds that appellant has not
established a compensable factor.
Since appellant has not established a compensable work factor, the Board will not address
the medical evidence.18
On appeal, appellant contended that being hit by a parcel thrown by Ms. Johnson on
February 7 and 9, 2011 caused her emotional condition. She feared Ms. Johnson who followed
her to the clinic where she received treatment for her February 9, 2011 injury. Appellant also
feared retaliation by Ms. Johnson for reporting her to upper management, which removed her
from her position on February 10, 2011, and she feared retaliation for reporting the incident to
police. For reasons noted, the Board finds that appellant has not established a compensable
factor of her employment.
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.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty, as alleged.

18

Karen K. Levene, 54 ECAB 671 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8