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

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 09-881
Issued: January 4, 2010

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 February 17, 2009 appellant filed a timely appeal from February 26, 2008 and
January 9, 2009 merit decisions of the Office of Workers’ Compensation Programs dated that
denied his claim. 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 met his burden of proof to establish that he sustained an
emotional condition in the performance of duty causally related to factors of his federal
employment.
On appeal, appellant’s representative contends that the statement of accepted facts was
sparse and inaccurate which diminished the probative value of the medical evidence that relied
upon it, and that the opinion of the impartial medical referee was not rationalized and insufficient
to be given special weight.

FACTUAL HISTORY
On February 18, 2004 appellant, then a 47-year-old city letter carrier, filed an
occupational disease claim alleging work-related stress caused by intentional administrative
errors and abuse of authority by employing establishment management and retaliation by Boyd
Lambertsen, the postmaster, who had stopped work on November 25, 2003. Beginning on
September 7, 2002, appellant was harassed, intimidated, discriminated against, singled out,
falsely accused of inappropriate acts, unfairly disciplined, denied pay, benefits and contractual
rights and was subjected to a hostile work environment. Appellant noted that he had filed Equal
Employment Opportunity (EEO) Commission complaints and grievances and was under a
physician’s care. He specifically alleged that he was harassed by Mr. Denton beginning on
September 7, 2002, that the employing establishment erred in handling a traumatic injury claim
for a March 19, 2003 knee injury and in failing to timely obtain medical care on March 22, 2003
such that his condition worsened, that Mr. Castenada humiliated him in front of coworkers on
April 1, 2003, that Ms. Hammitt cursed at him on April 4, 2003 and would not provide a form so
that he could file an occupational disease claim for stress, and that he was improperly removed
on November 25, 2003 when he was told no light duty was available for a nonwork-related
condition and was improperly denied leave.
Appellant enclosed a journal beginning on Saturday, September 2, 2002, ending on
Friday, November 28, 2003 in which he recorded that Mr. Denton began to harass him in
September 2002 because of his relationship with Ms. Perkins, that he was micromanaged by
Mr. Denton and Mr. Castenada, and that beginning on October 7, 2002 Mr. Denton ordered him
to perform additional work, which was impossible to complete in the time allotted. He stated
that on October 31, 2002 Mr. Denton inappropriately criticized him for wearing a baseball cap;
Mr. Denton’s continuous harassment on November 1, 2002 culminated in an altercation when he
criticized appellant’s performance and appellant cursed at him, after which he went to see
Mr. Lambertsen, Mr. Denton was already there. Appellant stated that, using profanity, he asked
to see a doctor and that Mr. Lambertsen committed administrative error by ordering him off the
clock instead and denying medical leave. He then went to see his physician, Dr. James Grady,
and upon his return to work on November 6, 2002, Mr. Denton continued his pattern of
harassment. Appellant stated that he was called to a surprise meeting with Mike Hopper
regarding an investigation into appellant’s allegations about Mr. Denton on December 13, 2002,
catching him off guard. He contended that the investigation was a sham, and he heard nothing
further. Appellant stated that, after filing an EEO complaint, he was left alone for three months,
but that the threats, bullying, intimidation and retaliation began anew in February 2003 when he
voluntarily withdrew his EEO complaints. He specifically stated that he was intentionally
harassed by Mr. Castenada who had an arrogant, retaliatory managerial style and targeted
appellant by inappropriately summoning him over the loudspeaker, and questioning him about
how he performed his work, and that Mr. Lambertsen authorized his supervisors to retaliate
against him for filing an EEO complaint, inappropriately observed appellant’s street duties on
February 13, 2003, and accused him of having lunch in an unauthorized area, using unauthorized
mileage for lunch, and for not wearing a satchel; that on February 27 and March 17, 2003 he was
inappropriately counseled by Mr. Castenada without union representation, and that on March 13,
2003 he was given a letter of warning about his failure to carry a satchel and having lunch in an
unauthorized area, and that on March 15, 2003 he and Ms. Perkins met with Mr. Lambertsen and
discussed Mr. Denton’s harassment and other disciplinary matters. Appellant again described
2

the events surrounding the March 19, 2003 knee injury, and stated that on April 1, 2003
Mr. Castenada humiliated him in front of coworkers by informing him he needed to submit a
duty status report before being allowing to work. He noted that on April 2, 2003 the letter of
warning was deleted from his record and that, due to the hostile work environment, his health
had deteriorated, and he contacted the employee assistance program (EAP) and informed the
employing establishment that he was considering filing a stress claim. Appellant stated that on
April 4, 2003 he was cursed at by Ms. Hammitt regarding filing a stress claim and that on
August 23, 2003 he was singled out for a route inspection, although noting that four routes were
inspected. He stated that on August 25, 2003 he was confronted by Mr. Denton, Mr. Castaneda
and Mr. Lambertsen who scrutinized his every move, and that on September 20, 2003 he was
inappropriately denied leave requests, that on November 10, 2003 Mr. Castaneda made a false
statement about him to Mr. Giles regarding removal of third class mail. Appellant noted that on
November 20, 2003 he was diagnosed with epididymitis, and requested light duty. He described
the events of November 25, 2003 when he was ordered off the clock by Mr. Castaneda, who
stated that he had no light duty available. Appellant concluded that the stress he had been
subjected to since September 7, 2002 caused a severe emotional reaction, making sleeping and
eating difficult, and that he had filed EEO complaints, asking that Mr. Lambertsen, Mr. Denton
and Mr. Castaneda be removed. He also described his medical condition, treatment, and
medications for the period December 3, 2003 through March 28, 2004, stating that he was
hospitalized for stress from December 23, 2003 through January 4, 2004. Appellant submitted a
graph of his weight from September 7, 2002 to February 2004, and voluminous documentation
including employing establishment policies, clock ring documentation, street observations, route
inspections, leave forms, medication receipts, evidence regarding his knee claim, that was
accepted for septic supra patellar cellulitis, due to acute injury.
In a February 18, 2004 Step B grievance resolution decision, a dispute resolution team
determined that management violated the employing establishment national agreement when
appellant was not allowed to work light duty on November 24, 2003, finding that he was to be
compensated for all hours of leave without pay during the period November 25 to
December 8, 2003.
In statements dated January 12 to 28, 2004, Diana Perkins, a letter carrier and union
official who was then appellant’s girlfriend and is now his wife, stated that Mr. Denton began
harassing appellant when he realized appellant and Ms. Perkins were seeing each other, noting
that in July 2002 and February 2003 she saw Mr. Denton drive past her house and peer down her
driveway; that while she was talking with appellant on the workroom floor on September 18,
2002, Mr. Denton approached and listened in on their conversation; that on September 30, 2002
Mr. Castenada called appellant a “slug”; that she witnessed Mr. Denton micromanage appellant’s
performance on October 15, 2002 by standing in close proximity and scowling; that on
October 16, 2002 Mr. Denton inappropriately stood too close to her while giving her work
instructions; that on October 19, 2002, Mr. Denton inappropriately changed carriers’ routes; that
sometime in October 2002 Mr. Lambertsen asked her if he should fire appellant because he had
too many accidents. She also described a February 21, 2003 meeting in which she requested
help regarding Mr. Denton’s actions in stalking her and harassing appellant, and stated that while
delivering mail on February 23, 2003, Mr. Castenada reproached her for not using her mail
satchel and that, while she was not disciplined for this offense, she knew that appellant was.
Ms. Perkins reported that on March 15, 2003 a meeting was held with Mr. Lambertsen, in which
3

she and appellant described Mr. Denton’s harassment and stalking and asked that
Mr. Lambertsen stop it. She related that appellant told her on March 19, 2003 that he had
bumped his knee; that on September 6, 2003 she observed Mr. Denton in a grocery store and felt
that he had followed her from work; that on November 24, 2003 she and appellant discussed his
light-duty situation at work, and described a telephone call with appellant on
November 25, 2003.
In a January 15, 2004 statement, Mike Twitty, a letter carrier and union trustee, advised
that on August 25, 2003, he saw three managers observing appellant case his route. In a
January 26, 2004 statement, Bill Campbell, a letter carrier, advised that a meeting was set up in
March 2003 with the postmaster, Ms. Perkins and appellant. In a January 26, 2004 statement,
Jack E. Lopez, a letter carrier, advised that on November 1, 2003 he noticed a confrontation
between appellant, hearing appellant question Mr. Denton, and Mr. Denton replying that he did
not know what appellant was talking about, and that appellant appeared shaken up. David Haro,
union president, described meetings with Mr. Lambertsen, acknowledging that route inspections
for about eight routes were discussed, and a telephone conversation with Mr. Castaneda about
the events of November 2003 when appellant requested light duty. In January 27, 2004
statements, Gerald Giles, a letter carrier and union steward, advised that on February 7, 2003
Mr. Castenada called appellant’s name over the intercom; that on September 7, 2003 Mr. Denton
asked him if appellant and Ms. Perkins were seeing each other, and stated that she could do
better than him; that on November 20, 2003 Mr. Castenada discussed an investigative interview
with appellant regarding why he removed third class and bulk flats from his case; and that during
a meeting held on November 24, 2003, appellant told Mr. Castenada that he was not be able to
carry his route due to a medical condition and needed permission to call his physician
immediately, and that Mr. Castenada granted the request. Mr. Giles stated that on December 8,
2003 he witnessed appellant turn in leave and illness slips, that he and appellant met with
Mr. Castenada where the type of medical documentation needed to support continued leave was
discussed, and that appellant would have to be medically cleared before he could return to work.
On February 15, 2004 Mr. Giles related that on December 9, 2003 Ms. Hammitt refused to make
copies of appellant’s leave slips and other material, stating that he would have to copy it himself.
In statements dated January 12 and February 4, 2004, Kelly Comporato, a letter carrier, advised
that on August 25, 2003 she witnessed three management personnel observing appellant’s work.
Appellant submitted other statements by coworkers who described employing establishment
policies and procedures.
In a November 1, 2002 report, Dr. James Grady, Board-certified in family medicine,
advised that appellant had a stress disorder that he believed was related to work and would need
to be off work for several days. On November 24, 2003 he diagnosed epididymitis and provided
restrictions to appellant’s physical activity for one to two weeks. In reports dated December 2
and 8, 2003, Dr. Grady advised that appellant was being treated for a significant medical
condition and would need to be off work for two weeks. In a January 21, 2004 report, he advised
that he had treated appellant for stress and agitation on November 1, 2002 following a
confrontation at work. Dawn R. Haavisto, M.S., provided progress notes dating from April 7,
2003 to February 12, 2004 describing appellant’s stress condition. Dr. Sahar Elezabi, a Boardcertified psychiatrist, provided a discharge summary dated January 12, 2004, noting that
appellant was hospitalized from December 23, 2003 to January 5, 2004 for complaints of a oneyear history of harassment by a supervisor at work. She diagnosed major depression, severe,
4

with psychosis, single. On March 3, 2004 Dr. Elezabi advised that appellant should be off work
to continue his treatment for approximately 60 additional days.
In statements dated March 1 and 30, 2004, Ms. Hammitt advised that she had never
denied appellant pay, benefits or contractual rights, had never subjected him to a hostile work
environment, and did not recall him asking for a claim form. She contradicted his statement that
she cursed at him, stating that she merely told him about situations with which she had been
involved.
In statements both undated and dated April 12, 2004, Mr. Lambertsen stated that he had
not retaliated against appellant for filing an EEO or harassment complaint, or for speaking with
upper management, had not been aggressive toward him, and did not instruct anyone to harass
appellant or closely observe him, noting that the supervisors’ primary workstation was adjacent
to appellant’s work station. He contradicted appellant’s allegations and stated that it was
employing establishment policy to put employees off the clock when they were stressed, that
they needed a medical release before they could return to duty, and that, if an employee was off
for stress, he or she was to use the leave of choice until the claim was accepted. Mr. Lambertsen
advised that it was employing establishment policy to carry a satchel while delivering mail, and
that appellant was observed going to an unauthorized place for lunch, and that in August 2003 he
conducted four route counts. He concluded that he had never retaliated again appellant or
ordered anyone else to do so and had not intimidated other employees regarding the claim.
In statements dated March 8 and April 15, 2004, Mr. Denton advised that appellant was
transferred to the Lodi facility because of a personal situation that led to workplace violence. He
denied that he had been stalking Ms. Perkins but traveled by her house to attend activities at his
son’s nearby school, and that in September 2002 he advised appellant, who was wearing
headphones, that this was a safety violation. Mr. Denton stated that appellant became
increasingly difficult to deal with when asked to fill out required forms, and that he
unsuccessfully tried to work with appellant, that appellant was aware that he should only put up
as much mail as he could deliver in a regular 10-hour day but that all carriers would occasionally
be asked to work overtime as needed, noting that appellant had signed the overtime list. He
contended that he had never discriminated against or harassed appellant, and that he assigned
work for the best interest of the employing establishment, never singling out appellant to
overwork but merely assigning him work as he did other carriers. Mr. Denton stated that, when
appellant verbally assaulted him on November 1, 2002, he had no idea what appellant was
talking about, and that after the altercation, he discussed it with Mr. Lambertsen and when
appellant claimed stress and needed to go to the doctor, Mr. Lambertsen told him to clock off
and go. He stated that he was then detailed as station manager in Modesto and was asked to
return to Lodi on August 25, 2003 to replace Mr. Lambertsen when he was away on vacation,
and on that day discussed the assignment with Mr. Lambertsen and Mr. Castaneda and did not
harass appellant.
In an April 15, 2004 statement, Mr. Castaneda contradicted appellant’s allegations,
advising that it was common practice to call employees by name over the intercom, stating that
appellant was not singled out, that he had never threatened appellant, and that he would question
appellant when he was not following established procedures. He stated that Mr. Lambertsen had
never instructed him to retaliate against any employee and that appellant was not overly

5

scrutinized or threatened, and that he followed proper procedures regarding a letter of warning
and when scheduling medical care for appellant. Mr. Castaneda stated that on November 25,
2003 appellant was sent home for being insubordinate and for violating his light-duty status, and
concluded that at no time had he discriminated against or harassed appellant.
On September 8, 2004 appellant provided rebuttal remarks, stating that Mr. Lambertsen,
Mr. Denton, Ms. Hammitt and Mr. Castaneda lied and that he was not on the overtime list but on
the “work assignment” list.1 He reiterated his allegations of harassment and retaliation and
charged Mr. Denton with inappropriately bringing appellant’s private life into the claim, noting
again that he was harassed by Mr. Denton due to his jealousy of appellant’s relationship with
Ms. Perkins.
In a statement of accepted facts dated September 27, 2004, the Office found that
appellant established as compensable that on November 25, 2003 the employing establishment
erred in terminating his light-duty position and sending him home, as found by an employing
establishment dispute resolution team. It found as factual that appellant suffered an
employment-related knee injury on March 19, 2003, that the employing establishment did not err
in sending him home on April 1, 2003, and that his additional claims of retaliation, sexual
harassment and discrimination were unsubstantiated.
On October 1, 2004 the Office referred appellant to Jillian Daly, Ph.D., for psychological
testing, and to Dr. Bradley Daigle, a Board-certified psychiatrist, for a second opinion
evaluation. In an October 21, 2008 report, Dr. Daly provided results of psychological testing
that indicated much psychological distress with a significant degree of depression. She advised
that suicidal ideation should be ruled out. By report dated October 26, 2004, Dr. Daigle noted
that appellant presented a very detailed account of problems at work and his medical condition.
He provided results of mental status examination, reviewed the psychological testing performed
by Dr. Daly, and diagnosed major depression, single episode, without psychotic features, treated
and improved; the presence of maladaptive obsessive-compulsive, passive aggressive and
narcissistic personality characteristics; and psychosocial stressors during the past year.
Dr. Daigle advised that, if appellant’s description of work problems was confirmed, his condition
would be employment related, but if his allegations were imaginary or falsified, the depression
would not be attributable to employment factors, and that appellant was totally disabled for the
period November 25, 2003 through the date of his examination on October 18, 2004.
In reports dated October 22 and November 11, 2004, Dr. Glenn G. Hakanson, Boardcertified in psychiatry, noted that appellant was seen for psychological testing and clinical
interviews and diagnosed major depressive disorder, single episode, moderate; generalized
anxiety disorder; occupational problem; and obsessive-compulsive personality traits without
evidence of personality disorder. He advised that it was medically probable that appellant’s
psychiatric conditions and associated psychiatric disability were caused by his “honest
perception of the specific and cumulative alleged industrial stressors” summarized by appellant
and concluded that he was totally disabled for the period November 1 through 5, 2002 and
November 25, 2003 through November 8, 2004, could return to work with accommodations, and
1

This is apparently a list for overtime on specific routes.

6

would need additional medication and psychotherapy. Dr. Hakanson’s reports included
statements by appellant regarding the alleged employment factors, the duties he could perform,
and requests for accommodations.
By decision dated January 20, 2005, the Office accepted that the employing
establishment improperly terminated appellant’s light-duty position on November 25, 2003 and
denied the claim on the grounds that the medical evidence did not support that appellant’s
emotional condition was causally related to the accepted employment factor. On February 3,
2005 appellant requested a hearing, and by decision dated June 17, 2005, an Office hearing
representative remanded the case to the Office on the grounds that the statement of accepted
facts was inadequate. On remand the Office was to prepare an amended statement of accepted
facts and refer it with the medical record to Dr. Daigle for a supplementary report. In a
December 23, 2005 statement of accepted facts, it again accepted that on November 25, 2003 the
employing establishment erred in terminating appellant’s light-duty position for a nonworkrelated condition, as found by an employing establishment dispute resolution team. The Office
found the events surrounding appellant’s March 19, 2003 knee injury and his perception of
harassment, discrimination and retaliation by Mr. Denton were not compensable factors of
employment.
On March 7, 2006 the Office referred appellant to Dr. Robert A. McAuley, Boardcertified in physiatry and psychiatry, for a second opinion evaluation.2 By report dated
March 27, 2006, Dr. McAuley noted the history of the claim as described by appellant, and his
review of the statement of accepted facts. He noted mental status examination findings and
diagnosed, major depressive disorder without psychotic features in full remission and advised
that appellant did not sustain an emotional condition in the performance of his federal duties. On
April 12, 2006 the Office again referred appellant to Dr. Daly for psychological testing, and in an
April 20, 2006 report, she advised that appellant’s testing scores indicated a significant degree of
depression and that he felt mistreated and misunderstood. In a May 2, 2006 report, Dr. McAuley
noted his review of the psychological testing results and advised that, while he agreed with the
diagnosis of major depressive disorder, it was his opinion that appellant was not experiencing a
significant degree of residual symptoms at the time of his evaluation but would now revise his
diagnosis to major depressive disorder without psychotic features in substantial remission with
mild residual features.
By decision dated September 21, 2006, the Office denied the claim on the grounds that
the medical evidence did not support that appellant’s emotional condition was caused by the
single accepted factor.
On October 3, 2006 appellant requested a hearing, held on
April 24, 2007. At the hearing appellant described his work duties, noting that he was back at
work. He argued that the statement of accepted facts was incomplete because it did not discuss
all the alleged factors and stated that five EEO claims had been denied and one was still active.
Appellant submitted an April 16, 2007 report in which Dr. Hakanson noted that appellant
reported considerable improvement in his psychiatric condition, and advised that testing revealed
that he was in the mild depression range. He opined that, although the November 25, 2003
2

Appellant was initially scheduled for an appointment with Dr. Daigle, and then with Dr. Benjamin Kaufman.
There is no indication in the record as to why these appointments were not kept.

7

accepted incident was not the only causal factor in the development of appellant’s major
depressive disorder, it was a contributing factor. Appellant also submitted evidence regarding
his EEO claims and regarding events that occurred after his return to work in November 2004.
The record includes EEO decisions dated May 24, 2004 and February 4, June 2,
August 29, and August 30, 2005 that were either dismissed or found in favor of the defendant
employing establishment.
By decision dated August 8, 2007, an Office hearing representative remanded the case to
the Office, finding that a conflict in medical evidence was created between the opinions of
Dr. McAuley, an Office referral physician, and Dr. Hakanson, an attending psychiatrist,
regarding whether the accepted employment factor caused appellant’s emotional condition. On
September 26, 2007 the Office referred appellant to Dr. Andrea Bates, a Board-certified
psychiatrist, for an impartial evaluation. In a report dated February 15, 2007, [sic] Dr. Bates
noted that she had evaluated appellant on October 22, 2007. She advised that she had reviewed
the medical record, the statement of accepted facts, and the history of events as appellant
understood them. Dr. Bates diagnosed major depressive episode, single episode, in full
remission, rule out major depressive episode, recurrent episode, in full remission; and rule-out
obsessive compulsive personality disorder. She advised that, while appellant had a major
depressive disorder in the past, this had resolved, and that he continued to show personality
dysfunction symptoms that rendered him vulnerable to a plethora of psychiatric troubles such
that he did not process certain types of information or situations well and became overly focused
on details, with paranoid and wooden thinking. Dr. Bates concluded that following her careful
evaluation of the record, the statement of accepted facts, and information gleaned from her
clinical evaluation, appellant’s emotional condition was not due to the accepted employment
factor, stating that his psychological problems resulted in problems at work, not the other way
around.
By decision dated February 26, 2008, the Office credited the opinion of Dr. Bates and
denied the claim. On March 12, 2008 appellant requested a hearing that was held on
October 29, 2008. At the hearing he argued that the statement of accepted facts was inaccurate
and vague and that there were many more factors that should have been accepted. Appellant
testified regarding the events he considered compensable and that had caused his emotional
condition and related events that occurred after his return to work in November 2004. The
hearing representative advised appellant of the evidence needed to support his claim, gave him
30 days to submit new evidence, and noted that he would carefully review the entire record.
On December 2, 2008 the employing establishment submitted a January 9, 2008 EEO
Commission appellate division decision finding that the employing establishment properly
dismissed appellant’s claims and that he failed to state a claim under EEO Commission
regulations regarding events from February 7 to December 3, 2003. By decision dated
January 9, 2009, an Office hearing representative found that appellant did not establish
harassment or abuse regarding his many complaints but found that, as confirmed through the
grievance process, the employing establishment erred in terminating his light-duty assignment on
November 25, 2003. The hearing representative affirmed the February 26, 2008 decision on the
grounds that the weight of the medical evidence established that appellant’s psychiatric condition
was unrelated to the single accepted factor.

8

LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.3 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.4 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.7
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.8 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.9 Allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim.10 Where the claimant alleges compensable factors of employment, he
or she must substantiate such allegations with probative and reliable evidence.11 Personal
perceptions alone are insufficient to establish an employment-related emotional condition.12

3

Leslie C. Moore, 52 ECAB 132 (2000).

4

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

5

Id.

6

28 ECAB 125 (1976).

7

5 U.S.C. §§ 8101-8193.

8

See Robert W. Johns, 51 ECAB 137 (1999).

9

Lillian Cutler, supra note 6.

10

J.F., 59 ECAB ____ (Docket No. 07-308, issued January 25, 2008).

11

M.D., 59 ECAB ____ (Docket No. 07-908, issued November 19, 2007).

12

Roger Williams, 52 ECAB 468 (2001).

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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 the Act.13 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.14
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.15
With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEO Commission, which is charged with statutory authority to investigate and evaluate
such matters in the workplace. Rather, in evaluating claims for workers’ compensation under the
Act, the term “harassment” is synonymous, as generally defined, with a persistent disturbance,
torment or persecution, i.e., mistreatment by co-employees or workers. Mere perceptions and
feelings of harassment will not support an award of compensation.16
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.17 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.18 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.19
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary

13

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

14

Kim Nguyen, 53 ECAB 127 (2001).

15

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

16

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

17

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

18

Leslie C. Moore, supra note 3; Gary L. Fowler, 45 ECAB 365 (1994).

19

Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

shall appoint a third physician who shall make an examination.20 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.21
ANALYSIS
The Board finds that appellant established a compensable factor of employment because
the employing establishment committed administrative error by withdrawing appellant’s light
duty on November 25, 2003. Appellant, however, failed to establish an additional compensable
employment factor.
Regarding his contention that he was singled out or micromanaged by employing
establishment management including Mr. Lambertsen, Mr. Denton, Mr. Castenada and
Ms. Hammitt by having to undergo route inspections, for being disciplined for wearing
unauthorized clothing, writing on a sidewalk, not carrying a satchel, and taking lunch at an
unauthorized location, the manner in which a supervisor exercises his or her discretion falls
outside the coverage of the Act. This principal recognizes that a supervisor or manager must be
allowed to perform his or her duties and that employees will at times disagree with actions taken.
Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.22 Mr. Lambertsen and the supervisors
explained that appellant was disciplined for ignoring safety regulations and employing
establishment policy and denied that he was singled out or micromanaged by noting that other
carriers underwent route inspections, which Mr. Haro, the union president, also recognized.
While appellant submitted statements from coworkers and union officials, the statements do not
describe any instance of administrative error or abuse and merely note witnessing appellant
being observed by employing establishment management. Appellant’s reaction to these matters
would be considered self-generated, as it resulted from his perception regarding his work
environment and is not a compensable employment factor.23
Regarding the letter of warning and other disciplinary discussions regarding the matters
discussed above, reactions to disciplinary matters pertain to actions taken in an administrative
capacity and are not compensable unless it is established that the employing establishment erred
or acted abusively in such capacity.24 In this case, while the letter of warning was withdrawn,
the mere fact that personnel actions were later modified or rescinded, does not, in and of itself,
establish error or abuse.25 Mr. Denton and Mr. Castenada advised that their discussions with
appellant regarding unsuitable attire, writing on the sidewalk, failure to wear a satchel, and
20

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

21

Manuel Gill, 52 ECAB 282 (2001).

22

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

23

See David S. Lee, 56 ECAB 602 (2005).

24

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

25

Dennis J. Balogh, supra note 4.

11

taking lunch in an unauthorized location were in regard to safety or policy violations. Appellant
did not establish a compensable factor of employment in this regard. Likewise, his contentions
regarding the March 2003 injury would not be compensable as the development of any condition
related to such matters would not arise in the performance of duty as the processing of
compensation claims bears no relation to an employee’s day-to-day or specially assigned
duties.26 Regarding appellant’s contention that he was wrongly denied leave, this relates to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and, absent error and abuse, does not fall within the coverage of the Act.27 In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably,28 and there is no evidence to
substantiate any type of error or abuse in the instant case. Thus, appellant has not established a
compensable employment factor under the Act with respect to administrative matters.
Appellant also alleged that employing establishment management humiliated him and
cursed at him. A verbal altercation, when sufficiently detailed by the claimant and supported by
the evidence, may constitute a compensable employment factor.29 This does not imply, however,
that every statement uttered in the workplace will give rise to coverage under the Act.30 By his
own admission, appellant used profanity in talking with both Mr. Denton and Mr. Lambertsen on
November 1, 2002, and none of the coworker statements support appellant’s contention that he
was verbally abused. Mr. Lopez merely noticed a confrontation between appellant and
Mr. Denton and that appellant appeared shaken up, and Mr. Giles noted that on December 8,
2003 he witnessed appellant have a discussion with Mr. Castenada. The Board has generally
held that being spoken to in a raised or harsh voice does not of itself constitute verbal abuse or
harassment.31 As appellant submitted no evidence corroborating his claim that Ms. Hammitt
cursed at him or that other members of employing establishment management improperly spoke
with him, he did not establish a factual basis for his allegation of verbal abuse.32
Appellant also alleged that he was given too much work to complete in the time allotted.
While the assignment of a work schedule or deadline is an administrative function and not a
work factor and is not compensable absent a showing of error or abuse,33 alleged stress in
meeting a deadline for mail delivery could be a compensable factor of employment.34
Mr. Denton, however, advised that appellant was aware that he should only put up as much work
26

Matilda R. Wyatt, 52 ECAB 421 (2001).

27

Charles D. Edwards, supra note 13.

28

Kim Nguyen, supra note 14.

29

C.S., 58 ECAB ____ (Docket No. 06-1583, issued November 6, 2006).

30

J.C., 58 ECAB ____ (Docket No. 07-530, issued July 9, 2007).

31

T.G., 58 ECAB ____ (Docket No. 06-1411, issued November 28, 2006).

32

C.S., supra note 29.

33

Barbara J. Latham, 53 ECAB, 316 (2002).

34

Helen Casillas, 46 ECAB 1044 (1995).

12

as he could deliver in a regular 10-hour day and that appellant was on a type of overtime list, and
appellant submitted no evidence to document the amount of mail he was required to delivery,
that there was, in fact, a deadline for mail delivery, or sufficiently explain how he had difficulty
meeting the deadline. Consequently, this allegation too was not established by the evidence,35
and would not be a compensable employment factor.
The Board also finds that appellant did not establish that he was harassed by Mr. Denton
due to his relationship with Ms. Perkins, who is now appellant’s wife. Mr. Denton contradicted
the assertion and provided a reasonable explanation for any perceived actions, and the incidents
reported by appellant and Ms. Perkins do not rise to the level of harassment under the act, i.e.
persistent disturbance, torment or persecution.36 Likewise, appellant did not establish that he
was harassed in any way by employing establishment management as his allegations do not
establish as factual a basis for his perceptions of discrimination or harassment. Although he
submitted a number of statements, none provided probative evidence that he was harassed.
Mr. Twitty and Ms. Comporato merely noted witnessing appellant being observed working;
Mr. Giles related that he heard appellant’s name called over the intercom and discussed meetings
held with management regarding appellant’s medical leave requests; and Mr. Campbell
described a meeting. While the record supports that appellant filed a number of EEO claims and
grievances, in assessing the evidence, the Board has held that grievances and EEO complaints,
by themselves, do not establish that workplace harassment or unfair treatment occurred,37 and in
this case all EEO complaints were either dismissed or resolved against appellant, and his
grievance resulted in the accepted employment factor. As appellant did not establish as factual a
basis for his additional perceptions of discrimination or harassment by the employing
establishment, he did not establish that harassment and/or discrimination occurred.38 The
evidence instead suggests that the employee’s feelings were self-generated and thus not
compensable under the Act.39
Nonetheless, as appellant established a compensable factor of employment, that his light
duty was improperly withdrawn on November 25, 2003, the medical evidence must be
analyzed.40 The Office determined that a conflict in medical evidence had been created
regarding whether appellant’s emotional condition was caused by the accepted employment
factor and referred him to Dr. Bates for an impartial evaluation. In her February 15, 2008 report,
Dr. Bates advised that she had reviewed the medical record, statement of accepted facts, and the
history of events as appellant understood them. She diagnosed a major depressive episode that
had resolved and advised that appellant continued to show personality dysfunction symptoms
that rendered him vulnerable to a plethora of psychiatric troubles such that he did not process
35

Bonnie Goodman, 50 ECAB 139 (1998).

36

Beverly R. Jones, supra note 16.

37

Michael L. Deas, 53 ECAB 208 (2001).

38

Id..

39

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

40

See Dennis J. Balogh, supra note 4.

13

certain types of information or situations well and became overly focused on details, with
paranoid and wooden thinking. Dr. Bates concluded that, following her careful evaluation of the
records, the statement of accepted facts, and information gleaned from her clinical evaluation,
appellant’s emotional condition was not due to the accepted employment factor, stating that his
psychological condition caused problems at work, not the other way around.
The Board therefore finds that, contrary to appellant’s assertion on appeal, the statement
of accepted facts provided a clear explanation of the accepted employment factor. Dr. Bates
reviewed appellant’s record including the statement of accepted facts and listened to his recital of
claimed events. She provided a comprehensive, well rationalized opinion in which she clearly
advised that appellant’s emotional condition was not caused by the November 25, 2003
employment factor. Dr. Bates’ report is therefore entitled to the special weight accorded an
impartial examiner and constitutes the weight of the medical evidence,41 and the Office properly
denied the claim.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an employment-related
stress-related condition causally related to the accepted employment factor.

41

See Sharyn D. Bannick, 54 ECAB 537 (2003).

14

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2009 and February 26, 2008
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: January 4, 2010
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

15


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY
& HEALTH ADMINISTRATION,
Pikesville, KY, Employer
__________________________________________

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

Docket No. 06-2085
Issued: May 22, 2007

Case Submitted on the Record

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

JURISDICTION
On September 7, 2006 appellant filed timely appeals from decisions of the Office of
Workers’ Compensation Programs dated September 20, 2005 and August 21, 2006 denying
schedule awards. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merit issue of the case.
ISSUE
The issue is whether appellant has established that he has more than a 10 percent
impairment of his left lower extremity and any impairment of his right lower extremity.
FACTUAL HISTORY
On December 6, 2000 appellant, a 70-year-old career employee, filed an occupational
disease claim alleging severe degenerative joint disease bilaterally of the shoulders and knees
due to crawling and walking in strenuous positions in coal mines. On January 30, 2001 the

Office accepted his claim for aggravation of degenerative joint disease in both of his shoulders
and knees.1
On February 21, 2001 appellant filed a claim for a schedule award.
By letter dated September 20, 2001, appellant forwarded an opinion by Dr. Mark D.
Russ, an orthopedic surgeon, who stated:
“Based on his physical therapy [f]unctional [c]apacity [e]valuation, [appellant’s]
lower extremity involvement does show some weakness. This is not considered
in the guidelines to the impairment rating however. [Appellant’s] [ranges of
motion] are otherwise [within normal limits] and he has no impairment in terms
of lower extremities.
“Based on these findings, I believe [appellant] to be entitled to a [w]hole [b]ody
[i]mpairment of 23 percent based on his objective findings from the [f]unctional
[c]apacity [e]valuation and my examination of him during clinic.”
The Office referred appellant’s case to an Office medical adviser who, in a report dated
February 8, 2002, noted that only the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) may be utilized in determining impairment. He also
indicated that Dr. Russ did not list the date of maximum medical improvement or provide an
impairment rating conforming to the A.M.A., Guides.
By letter dated February 26, 2002, the Office referred appellant to Dr. William M. Platt, a
Board-certified physiatrist, for a second opinion. In a medical report dated March 20, 2002,
Dr. Platt noted that appellant’s flexion in his right knee was 130 degrees and extension was 0
degrees. With regard to the left knee, he found flexion at 120 degrees and extension at 8
degrees. Using the A.M.A., Guides (5th edition), Dr. Platt concluded:
“In the chapter for the evaluation of the lower extremity, numerous models are
evaluated for appropriate description of [appellant’s] impairment. The most
appropriate model for evaluation is felt to be [range of motion]. Utilizing [T]able
17.10 [appellant] is not awarded impairment because of flexion which continues
to be better than 110 degrees.”
On April 19, 2002 the Office medical adviser evaluated Dr. Platt’s report and expressed
his concerns that the ranges of motion reported by Dr. Platt suggested that appellant did not fully
cooperate with testing. He also noted that, if the range of motion of the lower extremities were
true, appellant was “possibly due an impairment rating from Table 17-10 on page 537.” The
Office medical adviser recommended that Dr. Platt clarify his findings on range of motion.

1

On February 21, 2001 appellant filed an occupational disease claim for severe degenerative joint disease
bilaterally of the knees and shoulders and severe spondylosis of the spine. On March 21, 2001 the Office accepted
his claim for aggravation of cervical, thoracic and lumbar spondylosis.

2

Dr. Platt responded on May 6, 2002 indicating that he stood by his calculations. He
stated that appellant had eight degrees in extension lag that, according to Table 17.10, was a four
percent lower extremity impairment. Dr. Platt noted that he had been doing impairment ratings
for 15 years and that he specifically followed the Office medical adviser’s instructions that the
active range of motion be measured. He did note that appellant was independent and able to
drive and that range of motion to some degree was voluntarily controlled.
On August 7, 2002 the Office medical adviser questioned Dr. Platt’s range of motion
findings. He noted that appellant drives a car, yet it would not be possible for him to drive a car
without substantial mechanical adaptation if he had range of motion measurements as noted in
Dr. Platt’s report. The Office medical adviser noted that Dr. Platt rated appellant’s left lower
extremity impairment at four percent. However, he indicated that Dr. Platt was actually applying
the figures for whole person impairment and, pursuant to Table 17-10, appellant would be
entitled to a 10 percent rating of the left lower extremity. The Office medical adviser found a
zero percent impairment of the right lower extremity.
On August 27, 2002 the Office issued a schedule award for a 10 percent impairment of
the left leg. It denied a schedule award for the right lower extremity.
On May 25, 2004 appellant filed another claim for a schedule award. In an April 24,
2004 report, Dr. Howard Mize, stated:
“[Appellant] basically, as far as his lower extremities are concerned, has
significant bilateral degenerative arthritis and basically there is no cartilaginous
space present. This would relate to a 20 percent impairment for each of the lower
extremities according to the A.M.A., Guides.
By letter dated December 7, 2004, the Office stated that it could not consider appellant’s
claim for a schedule award as Dr. Mize did not explain how he arrived at this conclusion.
In a May 11, 2005 report, Dr. Russ indicated that his previous rating in 2002 was based
on the A.M.A., Guides (5th ed. 2001). He addressed appellant’s impairment of the lower
extremities, as follows:
“For [appellant], the anatomic method of assessment of his knee arthritis gives the
most accurate representation of his impairment and is calculated according to
[s]ection 17.2h [a]rthritis, page 544, using Table 17-31 from the same page.
Using data from his most recent knee [x]-rays, from May 2, 2005 and verified by
the radiology report, [appellant] has 2.5 mm [millimeters] of joint space medially
for both knees, which falls in between the 3 mm and 2 mm columns of the table,
which would give a 3 percent (7 percent) versus 8 percent (20 percent), whole
body (extremity) impairment of each knee. Interpolating between these values at
a 13 percent extremity impairment for each, yields a 5 percent whole body
impairment for each knee, from page 527, Table 17-3. Using the Combined
Values Chart on page 604 gives a 10 percent whole body impairment based on the
lower extremities alone.

3

In a report dated August 17, 2005, the Office medical adviser stated that Dr. Russ did not
provide a full history or examination regarding appellant’s knees. His findings with regard to
joint space interval were not acceptable based on the requirements set forth on pages 21, 22 and
544 of the A.M.A., Guides. The Office medical adviser concluded that these findings did not
merit changes in the findings with regard to the lower extremity impairment.
By decision dated September 20, 2005, the Office denied appellant’s claim for an
additional schedule award.
On November 21, 2005 appellant requested reconsideration. He submitted a May 10,
2004 report from Dr. Danny A. Mullins, a Board-certified orthopedic surgeon, who found that he
had degenerative arthritis of the right knee. Dr. Mullins noted that appellant had pain on
extension of the right knee, but did have full extension. Appellant also submitted progress notes
from Dr. Russ dated September 13, 2004 to July 7, 2005. Dr. Russ addressed appellant’s
degenerative joint disease in the knees and shoulders. He also noted that, in order to assess
appellant’s impairment, he would need current x-rays on both knees.
By decision dated December 1, 2005, the Office found that as neither Dr. Mullins, nor
Dr. Russ provided a proper impairment rating pursuant to the A.M.A., Guides, appellant failed to
provide new and relevant evidence and merit review was denied.
By letter dated June 13, 2006, appellant requested reconsideration. He contended that his
right knee impairment was of the same severity as the left knee. Appellant submitted treatment
notes from Dr. Russ dated February 7 to May 23, 2006.
By decision dated August 21, 2006, the Office denied modification after reviewing the
case on the merits. The Office noted that there was no indication that assessments were taken
pursuant to the A.M.A., Guides, nor were there any rating impairments given pursuant to the
A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

See id.; Jacqueline Harris, 54 ECAB 139 (2002).

4

ANALYSIS
On August 27, 2002 the Office issued appellant a schedule award for a 10 percent
impairment of the left leg. It also found that he did not have any impairment of the right leg.
This rating was based on the findings by Dr. Platt who indicated that appellant had extension of
eight degrees on the left side and zero degrees on the right. Dr. Platt stated that, utilizing the
A.M.A., Guides, appellant had a four percent impairment of the left lower extremity.5 However,
the Office medical adviser correctly noted that Dr. Platt misread the A.M.A., Guides table by
utilizing the figure for whole person impairment. He found that appellant had a 10 percent
impairment of his left lower extremity under the A.M.A., Guides. The Office medical adviser’s
conclusion properly applies the A.M.A., Guides.
Therefore, appellant submitted additional medical evidence concerning his impairment.
However, he did not provide sufficient evidence to establish that he has greater impairment of his
lower extremities. Although Dr. Mize stated that appellant had a 20 percent impairment of each
leg pursuant to the A.M.A., Guides, he did not explain how the A.M.A., Guides supported this
conclusion or refer to the specific tables or protocols that he utilized in making this rating.
Dr. Russ stated that he rated impairment to appellant’s lower extremity by using x-rays and
discussing joint space medially for both knees. However, pursuant to the A.M.A., Guides,
impairments of individuals with knee flexion contractures should not be estimated using x-rays
because these measurements are unreliable. The A.M.A., Guides generally recommend utilizing
the range of motion tables.6 The Office medical adviser properly noted this error in Dr. Russ’
report. He also noted that Dr. Russ’ report did not include adequate examination findings
regarding appellant’s knees.7 Appellant also submitted evidence concerning his ongoing medical
treatment, however, this evidence did not provide any impairment rating pursuant to the A.M.A.,
Guides. Accordingly, he has not established that he has more than 10 percent impairment of his
left leg.
CONCLUSION
Appellant has not established that he has more than 10 percent impairment of his left
lower extremity. He has no impairment of his right lower extremity.

5

A.M.A., Guides 537, Table 17-10.

6

Id. at 544.

7

Id. at 21-22.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 21, 2006, December 1 and September 20, 2005 are
affirmed.
Issued: May 22, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Boston, MA, Employer
__________________________________________

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

Docket No. 07-1321
Issued: October 22, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 6, 2006 and March 22, 2007 merit decisions regarding her
entitlement to schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 14 percent permanent impairment of her left arm, for which she received schedule awards.
FACTUAL HISTORY
On February 15, 1994 appellant, then a 42-year-old claims examiner, filed an
occupational disease claim alleging that she sustained injury due to the repetitive duties of her
job which included typing for prolonged periods. She indicated that she had pain, numbness and
tingling in both hands and wrists. The Office accepted that appellant sustained bilateral carpal

tunnel syndrome. She began performing limited-duty work and the Office paid compensation for
periods of disability. On April 20, 1994 appellant underwent a right carpal tunnel release which
was authorized by the Office.
In February 14 and June 4, 1996 reports, Dr. Prescott Cheney, a Board-certified
orthopedic surgeon, who served as an Office referral physician, indicated that on examination
appellant exhibited 45 degrees of dorsiflexion and 60 degrees of palmar flexion in each wrist but
that she did not have any muscle weakness. He indicated that appellant had a Grade 3 or 26
percent sensory loss associated with her median nerves in both arms according to Table 16-10 of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001).
On November 3, 1996 Dr. David D. Zimmerman, a Board-certified orthopedic surgeon,
who served as a district medical adviser, reviewed Dr. Cheney’s findings and stated that
appellant’s 45 degrees of dorsiflexion in each wrist entitled her to a three percent impairment
rating in each arm under Table 16-28 of the A.M.A., Guides. He noted that Dr. Cheney properly
found that appellant had a Grade 3 or 26 percent sensory loss associated with her right and left
median nerves. Dr. Zimmerman multiplied this 26 percent figure times the 39 percent maximum
value for sensory loss associated with the median nerve below the midforearm (according to
Table 16-15) to obtain a 10 percent impairment rating for sensory loss in each arm. He
concluded that appellant had a 13 percent permanent impairment of her left arm and a 13 percent
permanent impairment of her right arm.
In a November 19, 1996 decision, the Office granted appellant a schedule award for a 13
percent permanent impairment of her left arm and a 13 percent permanent impairment of her
right arm. The award ran for 81.12 weeks from February 14, 1996 to September 3, 2007.
On December 17, 1999 appellant underwent a left carpal tunnel release. On August 22,
2002 appellant underwent a repeat left carpal tunnel release with excision of extensive scar tissue
and on September 19, 2002 she underwent a repeat right carpal tunnel release with resection of
scar tissue. All these surgical procedures were authorized by the Office.
In November 2004, the Office accepted that appellant sustained employment-related
bilateral cubital tunnel syndrome. On July 25, 2005 appellant underwent a left submuscular
transposition of the ulnar nerve which was authorized by the Office. On January 5, 2006
Dr. Crawford C. Campbell, an attending Board-certified orthopedic surgeon, stated that in terms
of appellant’s left ulnar nerve submuscular transposition she was improving but did have
occasional dysesthesia and pain. He noted that “the amount of pain and sensory dysfunction that
still exist because of the ulnar neuropathy, results in a five percent upper extremity impairment,
which translates to a three percent whole person impairment.”
The Office referred appellant to Dr. Nabil Basta, a Board-certified orthopedic surgeon,
for evaluation of the permanent impairment of her left arm due to the accepted condition of left
cubital tunnel syndrome. Dr. Zimmerman indicated that he only assembled records pertaining to
appellant’s left cubital tunnel syndrome to give to Dr. Basta. On October 23, 2006 Dr. Basta
provided a brief history of appellant’s upper extremity condition and indicated that she reported
occasional pins and needles sensations and tingling in her left arm. He indicated that, upon

2

examination of the right wrist and hand appellant had negative Tinel’s and Phalen’s tests, no
sensory changes or motor weakness and 5/5 motor power in all the flexors in the hand. Dr. Basta
indicated that elbow motion consisted of flexion of 140 degrees, extension of 0 degrees,
pronation of 80 degrees and supination of 80 degrees but did not indicate whether these findings
were for the right or left elbow. He stated that upon examination of the left wrist and hand
appellant had negative Tinel’s and Phalen’s tests, no motor weakness and positive two-point
discrimination. Appellant was observed to have sensory changes in the form of hypoesthesia
along the ulnar side of the ring finger and one-half of the index finger and, upon ulnar nerve
testing of the left wrist, she had a negative Froman’s test with no clawing of the wrist or any
weakness of the intrinsic or lumbrical muscles. Dr. Basta indicated that there was a negative
Tinel’s test at the level of the left elbow and that there was a negative Tinel’s test anteriorly on
the elbow as well as where the nerve was transposed with no tenderness in the ulnar nerve
groove. He stated:
“Based on my clinical evaluation, history as presented and review of the above
mentioned records from the above mentioned doctors, it is my orthopedic opinion
that as far as the carpal tunnel syndrome is concerned, [appellant] had been
assessed at 15 percent impairment as a result of the first surgeries and there are no
new findings of limitations as far as the carpal tunnel is concerned right now.
There are no motor symptoms, there are no sensory changes and the range of
motion in both wrist was normal as far as orthopedic measurements are
concerned. [Appellant’s] only impairment and residual symptoms at the moment
are focused and geared to the transposition of the left ulnar nerve on the left
elbow. It is my assessment that the only residual symptoms are the sensory
changes and the tingling of the ulnar nerve distribution which in my opinion is
related to the surgery and the transposition. According to the A.M.A., Guides,
appellant is entitled to sensory deficit of one percent of the upper extremity which
is comparable to one percent whole body.”
In October 23 and November 19, 2006 reports, Dr. Zimmerman indicated that Dr. Basta’s
evaluation showed that appellant was only entitled to an additional schedule award for a one
percent permanent impairment of her left arm based on a one percent rating for sensory loss
associated with the left ulnar nerve. He indicated that Dr. Basta did not explain what grade of
sensory loss he used to find this level of total sensory loss impairment, but indicated that a 1
percent sensory loss value could be obtained by multiplying a 15 percent grade for sensory loss
times 7 percent, the maximum impairment for ulnar nerve sensory loss. Dr. Zimmerman stated
that appellant had previously received a schedule award for a 13 percent impairment related to
her carpal tunnel syndrome and was not entitled to any further compensation for this condition.
In a December 6, 2006 decision, the Office granted appellant a schedule award for an
additional one percent permanent impairment of her left arm. The award ran for 3.12 weeks,
from September 27 to October 18, 2006. Appellant submitted a December 8, 2006 report of
Dr. Campbell which contained an impairment rating which was similar to that contained in his
January 5, 2006 report. In a March 22, 2007 decision, the Office affirmed its December 6, 2006
decision.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulation2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.3
It is well established that proceedings under the Act are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.4
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
authorized two carpal tunnel release surgeries on each side. It also accepted that she sustained
bilateral cubital tunnel syndrome and authorized a left submuscular transposition of the ulnar
nerve. Appellant received a November 19, 1996 schedule award for a 13 percent permanent
impairment of her left arm and a 13 percent permanent impairment of her right arm.
In a December 6, 2006 decision, the Office granted appellant a schedule award for an
additional one percent permanent impairment of her left arm such that she was compensated for
a total left arm impairment of 14 percent. It based this award on the opinion of Dr. Basta, a
Board-certified orthopedic surgeon, who served as an Office referral physician. The Board
notes, however, that there are aspects of Dr. Basta’s opinion that require clarification and which
require that the medical evidence be further developed.
In his October 23, 2006 report, Dr. Basta concluded that, according to the A.M.A.,
Guides appellant was entitled to a one percent impairment rating due to sensory deficit
associated with the ulnar nerve.5 However, it is unclear how Dr. Basta applied the relevant
standards found in Tables 16-10 and 16-15 of the A.M.A., Guides to reach this conclusion.6 For
example, he did not provide a grade for appellant’s sensory loss under the specific standards of
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

Dr. Basta indicated that appellant had sensory changes in the form of hypoesthesia along the ulnar side of the
ring finger and one-half of the index finger and that, upon ulnar nerve testing of the left wrist she had a negative
Froman’s test with no clawing of the wrist or any weakness of the intrinsics or lumbrical muscles.
6

See A.M.A., Guides 483, 492, Tables 16-10 and 16-15.

4

Table 16-10. Dr. Zimmerman, a Board-certified orthopedic surgeon, who served as a district
medical adviser, provided a presumed calculation of this impairment but his assumptions
regarding Dr. Basta’s rationale for the impairment rating would not serve as a substitute for
Dr. Basta’s own opinion on the matter.
Dr. Basta also determined that, with respect to appellant’s left carpal tunnel syndrome
“she had been assessed at 15 percent impairment as a result of the first surgeries and there are no
new findings of limitations as far as the carpal tunnel is concerned right now.”7 The Board
notes, however, that it remains unclear whether Dr. Basta reached this conclusion based on his
current evaluation of appellant’s carpal tunnel condition or merely reached this determination
based on the fact that appellant had previously been compensated for this condition. For
example, appellant reported pins and needles sensations and tingling in her left arm but Dr. Basta
did not clearly indicate whether any of these deficits might be associated with residuals of carpal
tunnel syndrome. In addition, Dr. Basta indicated that her left wrist motion was normal, but he
did not provide any actual findings for wrist motion. Therefore, it is not possible to determine
whether appellant might have impairment due to limited wrist motion under the standards found
in Tables 16-28 and 16-31 of the A.M.A., Guide.8 Moreover, it remains unclear whether
Dr. Basta had adequate medical records regarding appellant’s carpal tunnel condition as
Dr. Zimmerman had indicated that he only assembled records pertaining to appellant’s left
cubital tunnel syndrome to give to Dr. Basta.
As noted above, the Office shares responsibility in the development of the evidence and,
therefore, the case should be remanded to the Office for further development to clarify the
above-described matters.9 After such development it deems necessary, the Office should issue
an appropriate decision regarding appellant’s entitlement to schedule award compensation.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she had more than a 14 percent permanent impairment
of her left arm for which she received schedule awards. The case is remanded to the Office for
further development of the medical evidence.

7

The Board notes that appellant actually received compensation for a 13 percent impairment rather than a 15
percent impairment.
8

See A.M.A., Guides, Tables 467, 469, 16-28, 16-31.

9

See supra note 4 and accompanying text.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 22, 2007 and December 6, 2006 decisions are set aside and the case remanded to the
Office for further proceedings consistent with this decision of the Board.
Issued: October 22, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 11-692
Issued: November 18, 2011

Case Submitted on the Record

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

JURISDICTION
On January 26, 2011 appellant, through his representative, filed a timely appeal from an
October 29, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On March 22, 2010 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim alleging that he sustained bilateral knee pain and swelling and a slight medial
meniscal tear due to climbing up and down steps for many years. He became aware of his
1

5 U.S.C. § 8101 et seq.

condition on March 12, 2003 and realized its relationship to his federal employment on
November 24, 2009. Appellant stopped work on February 6, 2010 and returned to duty on
March 2, 2010.
OWCP informed appellant in an April 30, 2010 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a physician’s report explaining how
employment factors caused or aggravated the alleged injury.
In an April 27, 2010 report, Dr. Colin A. Campbell, an osteopathic internist, related that
appellant experienced constant and progressive bilateral knee pain that hampered his ability to
perform activities of employment and daily living. He diagnosed degenerative joint disease on
the basis of a December 10, 2009 x-ray scan performed by Dr. Randall W. Snyder, III, a Boardcertified diagnostic radiologist.2
OWCP advised Dr. Campbell in a May 19, 2010 letter that he did not offer rationalized
medical opinion explaining the cause of appellant’s condition and gave him 15 days to furnish a
narrative report. Dr. Campbell subsequently provided progress notes from March 2 to May 21,
2010 diagnosing internal derangement and adverse effects of the work environment.3
By decision dated June 2, 2010, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that his accepted employment duties caused or aggravated a
bilateral knee condition.
Appellant submitted additional medical evidence. Duty status reports from Dr. Campbell
dated March 2 and 30, 2010 noted that appellant experienced knee symptoms since March 2003.
He observed bilateral edema and tenderness on examination, particularly in the left knee,
diagnosed left knee derangement and released appellant to restricted duty. In a May 24, 2010
report, Dr. Campbell opined, “The bilateral knee degradation that [appellant] is suffering is
directly related to his employment as a postal carrier. His official diagnosis is osteoarthritis of
the knee, bilaterally.”
Appellant’s counsel requested a hearing. Following a preliminary review, an OWCP
hearing representative determined on August 4, 2010 that the June 2, 2010 decision should be set
aside and remanded for further medical development. She found that, while Dr. Campbell did
not provide sufficient rationale in support of his opinion regarding how appellant’s condition was
employment related, his uncontroverted medical opinion was sufficient to establish a prima facie
case for an occupational disease claim. The hearing representative directed OWCP to refer
appellant for a second opinion and, following such further development as deemed necessary,
issue a de novo decision.
An August 23, 2010 statement of accepted facts detailed that appellant filed an
occupational disease claim and that OWCP accepted that he walked up and down steps for many
years in his capacity as a letter carrier.
2

Appellant also submitted Dr. Campbell’s March 2 and April 26, 2010 prescription notes.

3

Dr. Campbell specifically cited ICD-9-CM codes 717.9 and V62.1, respectively.
hypertension, a condition that is not presently before the Board.

2

He also diagnosed

On August 25, 2010 OWCP referred appellant for a second opinion evaluation to
Dr. Lawrence Barr, an osteopath and Board-certified internist. In a September 15, 2010 report,
Dr. Barr related that appellant was descending steps when he felt a pop in his left knee and
thereafter experienced bilateral knee pain. Appellant previously sustained a medial meniscal tear
in 2003 and right knee symptoms in 2006. On examination, Dr. Barr observed parapatellar
tenderness and crepitus of the right knee and parapatellar, medial and lateral joint line
tenderness, patellofemoral joint crepitus and full flexion pain of the left knee. After reviewing
the medical file, he diagnosed degenerative joint disease of the knees. Dr. Barr remarked,
“Based on the Statement of Accepted Facts, it is my opinion that [appellant] has bilateral knee
and degenerative joint disease. On this basis, I did not find causal relationship between either
[sic] knee symptomatology and the work occurrence of March 12, 2003.” He further explained
that “[t]here is no well-done, epidemiologically-sound studies linking [appellant’s] degenerative
joint disease with his occupational duties.”
By decision dated October 29, 2010, OWCP denied appellant’s claim, finding that the
weight of Dr. Barr’s report did not support causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

See S.P., 59 ECAB 184, 188 (2007).

7

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

3

background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
By decision dated June 2, 2010, OWCP accepted that appellant climbed up and down
steps for many years, but denied his occupational disease claim on the grounds that the medical
evidence did not sufficiently demonstrate that this employment factor was causally related to a
bilateral knee condition. Following receipt of Dr. Campbell’s May 24, 2010 report asserting that
appellant’s bilateral knee osteoarthritis was directly related to his postal employment, an OWCP
hearing representative set aside this decision and remanded the case for further medical
development. In a September 15, 2010 report, Dr. Barr conducted a second opinion evaluation
and evaluated appellant’s history of injury, medical records and clinical findings. He concluded
that the “work occurrence of March 12, 2003” did not contribute to appellant’s bilateral knee
symptomatology. By decision dated October 29, 2010, on the weight of Dr. Barr’s report,
OWCP denied the claim once again.
The Board finds that the case is not in posture for decision. To assure that the report of a
medical specialist is based upon a proper factual background, OWCP provides information
through the preparation of statement of accepted facts.9 When an OWCP medical adviser,
second opinion specialist or referee physician renders a medical opinion based on a statement of
accepted facts which is incomplete or inaccurate or does not use the statement of accepted facts
as the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether.10 In the present case, Dr. Barr indicated that he reviewed the
August 23, 2010 statement of accepted facts and concluded that appellant’s degenerative joint
disease could not be attributed to “the work occurrence of March 12, 2003.” The statement of
accepted facts, however, did not refer to a March 12, 2003 employment incident and appellant
does not attribute his claimed condition to a March 12, 2003 incident. Instead, the statement of
accepted facts stated that he filed an occupational disease claim and attributed his bilateral knee
condition to walking up and down stairs over many years in his job. By contrast, Dr. Barr’s
opinion was more consistent with a claim for traumatic injury since he suggested that appellant’s
condition developed over a single day rather than over a period of time.11 To the extent that
Dr. Barr’s report was outside the framework of the August 23, 2010 statement of accepted facts,
it is of diminished probative value.12

8

I.J., 59 ECAB 408 (2008); Woodhams, supra note 5.

9

Mirna Cruz, Docket No. 06-183 (issued April 5, 2006).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
11

See 20 C.F.R. § 10.5(q) and (ee).

12

Cruz, supra note 9. See also M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980) (medical
opinions based on an incomplete or inaccurate history are of diminished probative value).

4

The Board finds that Dr. Barr’s second opinion evaluation report did not sufficiently
address causal relationship as his report is not based on an accurate factual background. Once
OWCP starts to procure medical opinion, it must do a complete job. It has the responsibility to
obtain from its referral physician an evaluation that will resolve the issue involved in the case.13
In the present case, OWCP has not met that responsibility. The case will be remanded for
OWCP to further develop the medical evidence and obtain reasoned medical opinion from a
referral physician, based upon an accurate factual background, which addresses whether
appellant’s years of walking up and down steps in his job caused or aggravated his claimed
condition. Following this and after conducting such further development as it may find
necessary, OWCP shall issue an appropriate decision.14
CONCLUSION
The Board finds that the case is not in posture for decision.

13

Richard F. Williams, 55 ECAB 343 (2004); see Mae Z. Hackett, 34 ECAB 1421, 1426 (1983).

14

The Board notes counsel’s contentions that appellant established a prima facie case based on Dr. Campbell’s
May 24, 2010 report and that OWCP failed to issue a de novo decision with full appeal rights after the hearing
representative’s August 4, 2010 decision. However, where a prima facie claim is established, this does not mean
that the claim must be accepted, only that OWCP has the responsibility to take the next step, either of notifying the
claimant of what additional evidence is needed to establish the claim fully or of developing the evidence in order to
reach a decision. See Robert P. Bourgeois, 45 ECAB 745 (1994). Here, OWCP directed further medical
development. The Board also finds that any error by OWCP in failing to issue a de novo decision with full appeal
rights after the August 4, 2010 remand is harmless in view of the Board’s disposition of the present appeal.

5

ORDER
IT IS HEREBY ORDERED THAT the October 29, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: November 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6