United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Nashville, TN, Employer
__________________________________________

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

Docket No. 19-1088
Issued: November 17, 2020

Case Submitted on the Record

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

JURISDICTION
On April 15, 2019 appellant filed a timely appeal from a November 21, 2018 merit decision
and a March 28, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 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
Appellant timely requested oral argument pursuant to the Board’s Rules of Procedure. 20 C.F.R. § 501.5(b). By
order dated November 12, 2020, the Board exercised its discretion and denied the request, finding that the arguments
on appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket
No. 19-1088 (issued November 12, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 21, 2018 decision, OWCP received additional evidence and that
appellant submitted additional evidence on appeal. 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged; and (2) whether OWCP properly denied
appellant’s request for a hearing before its Branch of Hearings and Review pursuant to 5 U.S.C.
§ 8124(b).
FACTUAL HISTORY
On March 20, 2018 appellant, then a 64-year-old retired loan specialist, filed an
occupational disease claim (Form CA-2) alleging that employment factors caused depression,
anxiety, sleeplessness, sadness, joint pain, and loss of hair. The employing establishment
controverted the claim.
In a March 4, 2016 statement, appellant alleged that the employing establishment
improperly removed her from its telework program. She explained that she initially signed an
April 2013 telework agreement allowing her to telework one day a week, and that she was
promised that, after 90 days, she would be allowed to telework three days a week. Based on this
assurance, appellant began renovations on her home in Georgia, even though her duty station was
in Nashville Tennessee. She explained that she wanted to move to Georgia because she had
custody of a granddaughter, and that in Georgia she could place her granddaughter on her health
insurance, but she could not in Tennessee. Appellant indicated that she had noted on a telework
agreement that she would work from both Tennessee and Georgia, and that her request had been
approved. In July 2013, she increased her request to telework four days a week. Appellant
continued that, on or about the end of July 2013, employing establishment staff received an e-mail
indicating that telework was to be limited to two days a week. Her request to telework four days
was denied in August 2013, and that she then put in a request to telework three days a week. In
September 2013, this request was denied, and appellant was removed from the telework program.
She maintained that she should have been allowed to request two days of telework, instead of being
removed from the telework program. While the reason given for the removal was that appellant’s
telework station must be within two hours of her duty station, this policy had never been enforced
and other employees teleworked from remote locations. She noted that she filed a grievance which
was denied, but that ultimately, following intervention by a senior union official in January 2014,
she was allowed to telework two days a week from Georgia. Appellant noted that, a request in
March 2014 to increase telework to three days a week was denied, therefore in June 2014 she took
a downgrade and transferred to the Atlanta, Georgia office.
Appellant alleged that her telework privileges were withdrawn in retaliation for her union
activities and for questioning management actions, and that the employing establishment
committed error by not allowing her to file a workers’ compensation claim. She maintained that
these were deliberate acts of harassment against her by management.
The employing establishment submitted a December 4, 2015 statement4 in which S.A.,
former deputy chief of the monitoring unit, explained that on April 26, 2013 appellant’s telework
4

The statement was also signed by D.W., chief of the monitoring unit.

2

proposal was approved for telework from both her Nashville, Tennessee address and her Georgia
address one day per week, however, approval of the Georgia address was an oversight. Both the
telework agreement and the telework self-certiﬁcation safety checklist related her Nashville,
Tennessee address, which was the only approved alternative worksite. S.A. continued that on
July 16, 2013 appellant requested a hardship telework schedule because she had obtained custody
of her granddaughter and appellant requested to work from Georgia eight days per pay period. She
indicated that the telework request was denied on August 9, 2013 because employing
establishment policy provided that employees must work within two hours of their official duty
station. Appellant was provided information on how to request a hardship transfer, but that she
did not submit a hardship transfer request. S.A. related that appellant again requested a hardship
telework schedule on August 27, 2013 to work six days per pay period from Georgia. This request
was denied, and appellant was again provided information on how to request a hardship transfer,
but did not submit another hardship transfer request. On September 3, 2013 she once again
requested to telework from both her Nashville and Georgia locations, this time requesting to
telework three days per week (six days per pay period) in conjunction with her compressed
schedule. This request was once again denied since appellant’s work unit was only authorized to
telework a maximum of two days per week (four days per pay period). Once again, she was
provided information on how to request a hardship transfer, but did not submit a transfer request.
S.A. indicated that on September 23, 2013 appellant’s union filed a grievance on behalf of
appellant regarding her telework denial. Step 1 of the grievance was denied on January 9, 2014.
Within the grievance appellant stated that supervisor D.W. told appellant that she would “consider”
allowing her to telework three days per week, clearly indicating no promises were made. The
grievance denial speciﬁcally indicated that the reason for the denial, in part, was because the
requests were for more than two days per week and that employees of appellant’s work unit were
only allowed to telework two days per week. It further stated that workﬂow would be monitored
to determine if two days per week was adequate, or could be adjusted. In Step 2 of the grievance,
dated October 24, 20l3, D.W. denied the grievance which included a request for a remedy of
reimbursement of all expenses incurred by appellant as a result of the denying the telework request.
S.A. asserted that appellant was not maliciously denied telework, and that she had been encouraged
to submit an acceptable agreement. S.A. thereafter noted that on January 9, 2014 appellant was
approved to telework from her Georgia address two days per week in conjunction with her
compressed work schedule. This required appellant to come into the Nashville, Tennessee office
five days per pay period. S.A. further explained that on March 19, 2014 appellant submitted a
proposal requesting to telework three days per week from Georgia, and this was also denied
because her work unit was only authorized to telework a maximum of two days per week (four
days per pay period). On May 20, 2014 appellant requested a hardship transfer to the Atlanta,
Georgia regional office, and the request was approved. S.A. concluded that appellant’s accusations
of mistreatment at the employing establishment were unfounded, that no one had retaliated against
appellant, and that appellant was not forced to move to Georgia due to adverse work conditions,
noting that employing establishment procedures only allowed two days of telework per week. She
wrote that appellant refused to submit a telework proposal that adhered to employing establishment
policies until January 9, 2014 and maintained that appellant knowingly moved to Georgia without
a telework agreement in place that allowed more than two telework days a week.

3

A March 26, 2013 memorandum to employing establishment staff indicated that telework
could be appropriate for a maximum of two to three days per week which could be terminated with
at least two weeks’ notice.
A telework proposal signed by appellant and approved by S.A. on April 26, 2013 indicated
that appellant worked an alternative compressed schedule with the second Monday of each pay
period off. The proposal listed two alternative worksites: one in Tennessee and one in Georgia,
and that appellant was requesting telework each Friday, or two days per pay period. A telework
agreement signed by appellant on April 26, 2013 and J.M., Director of Human Resources, on
April 30, 2013 indicated that the agreement was for a trial period, that appellant would work offsite
each Friday during a pay period, and it only listed her Nashville address as an alternative worksite.
Appellant further submitted a copy of her May 29 and September 13, 2013 grievances
regarding the denials of her telework requests.
By memorandum dated August 9, 2013, S.A. denied appellant’s request to telework eight
days per pay period. She noted that appellant’s work unit had only been authorized to telework
two days a week and that only one address would be considered as an alternative worksite. On
August 29, 2013 S.A. denied appellant’s request to telework six days per pay period, and on
September 9, 2013 she denied appellant’s request to telework three days per week. In these denials
she advised appellant that she did not list an alternative worksite within a commuting distance of
Nashville, Tennessee and reiterated that her work unit was only authorized to telework two days a
week.
On August 28, 2015 J.M. informed appellant that she had reviewed her telework requests
and grievances and found that the employing establishment’s decisions denying appellant’s
telework requests were supported by reasonable explanation in accordance with employing
establishment practices. She noted that it appeared that appellant was requesting to telework, not
only from a different state, but also on more days than had been approved on an organizational
level and, as such, were appropriately denied. J.M. also indicated that appellant’s request to work
from a remote location for 100 percent of the time was considered a request to have appellant’s
position converted to a remote position, which was deemed not suitable. On November 14, 2015
she notified appellant that nothing further could be done about the denial of telework, noting that
it was a privilege not an entitlement.
In an April 20, 2018 statement, W.R., a coworker, indicated that both he and appellant were
initially approved to telework from their homes in Georgia during a 90-day telework trial period
and would only work in the Tennessee office two to four days a month. He wrote that, after her
telework agreement was terminated, she became very depressed. W.R. maintained that the actions
of D.W. and S.A. were retaliatory because appellant had filed grievances against them. He also
noted that D.W. yelled at appellant during staff meetings.
In a treatment note dated December 15, 2016, Dr. LaToya Lee, a Board-certified family
physician, described appellant’s symptoms and diagnosed moderate depression. In treatment notes
dated January 16 and April 17, 2017, Tamaria Dunn, a nurse practitioner, described appellant’s
complaints of depression and insomnia. Her diagnoses included episode of recurrent major
depressive disorder.

4

On April 20, 2017 Steven Snook, Ph.D., a clinical psychologist, noted appellant’s history
of difficulties at work beginning in 2013 and that she was retired. He opined that she would have
difficulty adapting to the stress of a work environment. Dr. Snook diagnosed major depressive
disorder, recurrent episode, and in partial remission.
Nathalie Ellis, a licensed counselor, submitted an April 22, 2018 treatment note in which
she advised that appellant had suffered emotional and psychological distress due to mistreatment
at work and diagnosed major depressive disorder, generalized anxiety disorder, and post-traumatic
stress disorder.
In correspondence dated June 1, 2016, August 11 and 18, 2017, the Office of Special
Counsel (OSC) noted that it did not have the authority to investigate appellant’s claim that her
telework requests were denied in error because she had filed a grievance. Appellant was advised
that she could file a claim with the Merit Systems Protection Board (MSPB).
OWCP received an incomplete copy of a February 27, 2018 MSPB decision dated
February 27, 2018. It indicates that appellant made several disclosures of alleged wrongdoings by
the employing establishment to the OSC. The MSPB found that she had not exhausted
administrative remedies for five of the allegations, that she did not raise four with the OSC, that
two lacked specificity, and that she submitted insufficient evidence to support three of the
disclosures. Appellant submitted an MSPB petition for review, which was dismissed.
A February 8, 2016 document from OWCP indicates that the claim could not be processed
because the injured worker’s signature and/or date was missing on the form, the employing
establishment code needed to be verified, and an employing agency signature and/or date was
missing. A similar document dated March 9, 2016, indicated that the employing establishment
signature and/or date was missing.
In a second statement dated April 25, 2018, appellant reiterated her prior concerns. She
also included a list of supportive documentation with personal comments. Statements from
appellant’s daughter and husband further described appellant’s emotional condition.
On April 27, 2018 J.L. an employing establishment program manager, indicated that the
employing establishment did not concur with appellant’s allegations and referred to the
December 4, 2015 statement from S.A. J.L. wrote that there were no staff shortages or extra
demands placed on employees during the period claimed.
By decision dated June 19, 2018, OWCP denied appellant’s claim. It found that she did
not sustain an injury in the performance of duty.
On June 29, 2018 appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review.5

5

Appellant also requested that certain employees of the employing establishment be subpoenaed. On September 5,
2018 OWCP denied her requests for subpoenas, finding that there was no indication that the parties could not provide
written statements regarding her claim.

5

During the hearing, held telephonically on October 11, 2018 appellant again described the
chronology of events regarding her telework requests and denials.
Following the hearing, appellant submitted evidence previously of record and
“corrections” to the hearing transcript in which she provided a longer chronology of events dated
from April 26, 2013 to October 24, 2014 than she described at the hearing.
On November 6, 2018 appellant submitted additional evidence including a July 31, 2013
memorandum that D.W. sent to the staff indicating that an increase the number of telework days
to two days per week had been authorized, and that each staff member would have to have a new
signed agreement. She appended a note that S.A. had promised that appellant could telework three
days a week. An August 28, 2013 e-mail from S.A. to appellant indicated that appellant had only
been approved for one day a week of telework and noted that D.W. had made a one-time exception
allowing her to telework two days. Appellant appended a note that she was not allowed to submit
a telework agreement for two days of weekly telework until D.P. intervened. She noted that J.M.’s
August 28, 2015 e-mail was incorrect because appellant had never requested to telework 100
percent of the time. Appellant also submitted information regarding her delay in filing her claim.
By decision dated November 21, 2018, an OWCP hearing representative affirmed the
June 19, 2018 decision. She noted that appellant’s primary concern was the denial of telework
outside appellant’s office’s commuting area for the amount of time she wished. The hearing
representative found that this was a function of appellant’s wish to set her own schedule and her
own workplace and was not in the performance of duty. She further found that appellant provided
no evidence to support appellant’s generic statements of harassment.
On March 11, 2019 appellant requested another hearing before an OWCP hearing
representative. She reiterated her concerns and submitted evidence previously of record.
By decision dated March 28, 2019, OWCP denied appellant’s hearing request. It found
that, because she had previously had a hearing, she was not, as a matter of right, entitled to another
review by the Branch of Hearings and Review, and that her request could equally well be addressed
by requesting reconsideration from the district office and submitting evidence not previously
considered. OWCP also indicated that, alternatively, appellant could file an appeal with the Board.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA6 has the burden of proof to establish 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

6

Supra note 2.

6

employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to his or her condition; and (3) rationalized medical opinion evidence establishing
that the identified compensable employment factors are causally related to his or her emotional
condition.9
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,10 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within coverage
under FECA.11 When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable.12
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.13 Where, however, 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 under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.
Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.15
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim. The claim must be supported by probative evidence.16
7

S.Z., Docket No. 20-0106 (issued July 9, 2020); R.C., 59 ECAB 427 (2008).

8

Id.

9

R.B., Docket No. 19-0343 (issued February 14, 2020).

10

28 ECAB 125 (1976).

11

M.A., Docket No. 19-1017 (issued December 4, 2019); Robert W. Johns, 51 ECAB 137 (1999).

12

Supra note 9; Pamela D. Casey, 57 ECAB 160 (2005); supra note 10.

13

D.T., Docket No. 19-1270 (issued February 4, 2020); Thomas D. McEuen, 41 ECAB 387 (1990).

14

M.A., supra note 11.

15

C.R., Docket No. 19-1721 (issued June 17, 2020); Kim Nguyen, 53 ECAB 127 (2001).

16

L.S., Docket No. 18-1471 (issued February 26, 2020).

7

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.
In the present case, appellant has not attributed her emotional condition to the performance
of her regular duties as a loan specialist or to any special work requirement arising from her
employment duties under Cutler.17 Rather, appellant has attributed the crux of her emotional
condition claim to being denied the requested number of days of telework, that her telework
privileges were improperly removed for a period, and that ongoing telework issues forced her to
transfer from Nashville, Tennessee to Atlanta, Georgia and accept a lesser-paying position.
As a general rule, a claimant’s reaction to administrative or personnel matters falls outside
the scope of FECA.18 The Board has held that 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.19 However, the Board has also 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.20
Work assignments including determinations regarding telework,21 are administrative
functions of the employing establishment, and not duties of the employee. In this case, although
an initial telework proposal, signed by appellant and S.A. on April 26, 2013 indicated that telework
from both Tennessee and Georgia was approved during a trial period, the actual telework
agreement at that time, signed by appellant and J.M. on April 30, 2013 indicated that the only
alternative worksite was in Tennessee. The fact that the proposal was denied in the final agreement
does not establish error and abuse. Following the trial period, the employing establishment’s
policy was to allow telework for two days a week. Instead of requesting this, appellant requested
three and then four days of telework weekly. Each proposal was denied because her telework
requests were for a greater number of days than the maximum allowed. This does not establish
error or abuse. Moreover, in each denial, remedies were suggested by employing establishment
management. It is unclear if, when employing establishment’s telework privileges were removed,
that appellant submitted a telework request for two days a week. Appellant submitted a grievance
that was denied, and was allowed to telework two days a week beginning in January 2014.
An emotional condition is not compensable when it results from not being permitted to
work in a particular environment or to hold a particular position.22 Several supervisory statements
17

Supra note 10.

18

R.B., supra note 9; Carolyn S. Philpott, 51 ECAB 175 (1999).

19

S.K., Docket No. 18-0705 (issued July 29, 2020); Thomas D. McEuen, supra note 13.

20

S.K., id.

21

Supra note 16.

22

S.R., Docket No. 19-1591 (issued August 18, 2020); Lillian Cutler, supra note 10.

8

demonstrate that the employing establishment acted reasonably in denying appellant’s requested
telework schedule that was greater than that allowed for her work unit. The Board finds that no
error or abuse was shown. Therefore, appellant did not establish error or abuse in this
administrative function.23
Appellant also maintained that the withdrawal of telework privileges was in retaliation for
her union activities and because she questioned management action. She, however, submitted no
evidence to establish this claim. The record contains no corroborating evidence such as a final
determination from an administrative body, showing that the employing establishment committed
error or abuse in any administrative matter in this case.24 Thus, as appellant has not substantiated
error or abuse by the employing establishment, she has not established a compensable employment
factor with respect to her denial of telework or any other administrative matter.25
Appellant also maintained that the employing establishment committed error by not
allowing her to file a workers’ compensation claim. She maintained that this was a deliberate act
of harassment against her by management. Appellant also indicated that she was berated at
meetings. As noted, for harassment or discrimination to give rise to a compensable disability under
FECA, there must be probative and reliable evidence that harassment or discrimination did in fact
occur. Mere perceptions of harassment, retaliation, or discrimination are not compensable under
FECA.26 Unsubstantiated allegations of harassment, retaliation, or discrimination are not
determinative of whether such conduct occurred. A claimant must establish a factual basis for his
or her allegations that the harassment occurred with probative and reliable evidence.27 While W.R.
maintained that the actions of D.W. and S.A. were in retaliation and that D.W. yelled at appellant
during meetings, he did not describe specific incidents of harassment or evidence of retaliation.
General allegations of harassment are insufficient to establish a compensable factor of
employment.28 The Board finds that appellant has submitted insufficient evidence to substantiate
that she was harassed by employing establishment management.29
For the reasons noted above, appellant has not established a compensable factor of
employment under FECA. She, therefore, has not met her burden of proof to establish an
emotional condition in the performance of duty.

23

Supra note 16.

24

Id.

25

Id.

26

Supra note 15.

27

S.R., supra note 22.

28

Supra note 16; Marlon Vera, 54 ECAB 854 (2003).

29

Id.

9

As appellant has not met her burden of proof to establish an employment-related emotional
condition, it is not necessary to consider the medical evidence of record.30
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP representative, provides in pertinent part: “Before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.31
OWCP’s regulation at 20 C.F.R. §10.616 (a) further provides in pertinent part: “A
claimant, injured on or after July 4, 1966, who has received a final adverse decision by the district
office may obtain a hearing by writing to the address specified in the decision.”
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.32 Although a claimant who has previously sought reconsideration is
not, as a matter of right, entitled to a hearing or review of the written record,33 the Branch of
Hearings and Review may exercise its discretion to either grant or deny a hearing following
reconsideration.34 Similarly, the Board has held that the Branch of Hearings and Review may
exercise its discretion to conduct a hearing or review the written record where a claimant requests
a second hearing or review of the written record on the same issue.35
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s March 11, 2019 request for a
hearing before a representative of OWCP’s Branch of Hearings and Review.
The most recent decision issued by OWCP prior to appellant’s March 11, 2019 decision,
was the November 21, 2018 decision issued by an OWCP hearing representative. As noted, prior
to that decision, a hearing was held on October 11, 2018. By that decision, the hearing
30

Supra note 9.

31

5 U.S.C. § 8124(b)(1).

32

L.S., Docket No. 18-0264 (issued January 28, 2020).

33

20 C.F.R. § 10.616(a).

34

K.L., Docket No. 18-1018 (issued April 10, 2019).

35

Id.

10

representative affirmed a June 19, 2018 denial of appellant’s claim. Consequently, appellant was
not entitled to a second hearing before OWCP’s Branch of Hearings and Review as a matter of
right as she had previously requested a hearing by an OWCP hearing representative.36
A representative of the Branch of Hearings and Review properly exercised its discretion in
denying appellant’s second request for a hearing and found that appellant’s claim could be
adequately addressed during the reconsideration process. The Board has held that the only
limitation on OWCP’s discretionary authority is reasonableness. An abuse of discretion is
generally shown through proof of manifest error, a clearly unreasonable exercise of judgment, or
actions taken which are contrary to logic and probable deduction from established facts.37 In this
case, the evidence of record does not establish that OWCP abused its discretion in denying
appellant’s request for a hearing. Accordingly, the Board finds that OWCP properly denied her
second hearing request.38
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged, and that OWCP properly denied her request for
a hearing before its Branch of Hearings and Review pursuant to 5 U.S.C. § 8124(b).

36

Id.

37

W.H., Docket No. 20-0562 (issued August 6, 2020).

38

Id.

11

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2019 and November 21, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 17, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 13-843
Issued: August 6, 2013

Case Submitted on the Record

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

JURISDICTION
On February 26, 2013 appellant filed a timely appeal from a January 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 the case.
ISSUE
The issue is whether appellant has more than 11 percent loss of hearing in the left ear.
On appeal, appellant contends that he is entitled to more than the amount awarded as the
accepted hearing loss was for both ears and affected him permanently.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 30, 2012 appellant, then a 57-year-old planner and estimator, filed an
occupational disease claim alleging a permanent hearing loss due to exposure to industrial noise
in his employment. He first became aware of his condition and realized that it was caused or
aggravated by his employment on February 2, 2000. Appellant retired from the employing
establishment in February 2000. Audiograms dated 1969 to 2000 were submitted. The
employing establishment stated that appellant was enrolled in the hearing conservation program
while employed.
In a May 2, 2012 report, Dr. Gerald G. Randolph, a Board-certified otolaryngologist,
noted appellant’s history of noise exposure. He indicated that the audiometry revealed a bilateral
high frequency sensorineural hearing loss with speech reception thresholds of 20 decibels (dB) in
the right ear and 25 dB in the left ear. Discrimination scores were measured at 52 percent in the
right ear and 24 percent in the left ear. Tympanogram was normal. Appellant’s hearing loss was
compatible with hearing loss due to past noise exposure. Under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), Dr. Randolph rated 7.5 percent hearing loss in the right ear and 20.625 percent hearing
loss in the left ear or a binaural hearing loss of 9.69 percent. No additional rating for tinnitus
was indicated. Dr. Randolph noted that appellant left his federal employment in 2000 and a
February 2, 2000 audiogram revealed 0 percent hearing loss in the right ear and 11.25 percent in
the left ear, with a binaural hearing loss of 1.88 percent.2 He stated that hearing loss due to noise
exposure occurs at the time of noise exposure and does not get worse at a later date because of
past noise exposure. Dr. Randolph stated that appellant’s hearing loss did increase in severity
after he left his federal employment resulting in his current ratable hearing loss of 9.69 percent.
He also opined that appellant was and still is a candidate for bilateral fitting of appropriate
hearing aids.
In an August 21, 2012 letter, OWCP requested that Dr. Randolph review the enclosed
statement of accepted facts and provide an addendum to his May 2, 2012 report. On
September 17, 2012 Dr. Randolph stated that the 1996 audiogram revealed a bilateral high
frequency sensorineural hearing loss with an audiometric configuration compatible with
preexisting hearing loss. He stated that, between 1966 and February 2, 2000, the audiograms
revealed that appellant’s hearing loss increased in severity in those frequencies affected by noise.
Appellant left his federal employment in 2000. Dr. Randolph reiterated that hearing loss due to
noise exposure occurs at the time of noise exposure and does not get worse at a later date
because of past noise exposure. Between the year 2000 and the audiogram performed on
April 30, 2012, appellant’s hearing loss increased in severity due to factors other than his federal
employment. His workplace exposure was of sufficient intensity and duration to have
aggravated his preexisting hearing loss. Appellant also opined that there were no other
significant contributing factors to his hearing loss other than noise exposure and to some extent
the aging process. He stated that there was no indication of any medical condition such as
acoustic neuroma or Meniere’s disease and that the audiogram reveals hearing loss with an
2

The February 2, 2000 audiometric testing revealed hearing levels of 5, 5, 10 and 70 dB in the right ear and 5, 5,
35, 85 in the left ear at hertz (Hz) levels of 500, 1,000, 2,000 and 3,000, respectively.

2

audiometric configuration compatible with hearing loss largely due to noise exposure and that
appellant’s hearing loss increased in severity in those frequencies affected by noise exposure
during his employment. Dr. Randolph again recommended bilateral hearing aids.
By decision dated September 26, 2012, OWCP accepted appellant’s claim for bilateral
hearing loss.
On October 2, 2012 appellant filed a schedule award claim.
On January 3, 2013 OWCP referred the case file a medical adviser to determine the
extent of appellant’s hearing loss and permanent impairment due to his employment-related
noise exposure.
On January 17, 2013 OWCP’s medical adviser reviewed the audiograms of record and
noted that the February 2, 2000 audiogram was closest to the date of appellant’s federal
retirement. It was used for calculation of hearing loss because hearing loss due to noise exposure
occurs at the time of noise exposure and does not get worse at a later date because of past noise
exposure. The medical adviser applied the audiometric data to OWCP’s standard for evaluating
hearing loss under the sixth edition of the A.M.A., Guides to determine that appellant sustained 0
percent right monaural loss, 11.25 percent left monaural loss and 1.88 percent binaural loss. He
averaged appellant’s right ear hearing levels of 5, 5, 10 and 70 dB at 500, 1,000, 2,000 and 3,000
Hz, which totaled 90 and averaged 22.5. The medical adviser then subtracted the 25-dB fence
and multiplied by 1.5 to find 0 percent right monaural hearing loss. He then averaged appellant’s
left ear hearing levels of 5, 5, 35 and 85 dB at 500, 1,000, 2,000 and 3,000 Hz, which totaled 130
and averaged 32.5. After subtracting out a 25-dB fence, the medical adviser multiplied the
remaining 7.5 balance by 1.5 to calculate a 11.25 percent left monaural hearing loss. He then
calculated 1.88 percent binaural hearing loss by multiplying the lesser right ear loss of 0 percent
by 5, adding the greater 11.25 percent left ear loss and dividing this sum by 6. The medical
adviser concluded that hearing aids were authorized and the date of maximum medical
improvement was February 2, 2000.
By decision dated January 28, 2013, OWCP granted appellant a schedule award for 11
percent monaural hearing loss in the left ear. The award covered a period of 5.72 weeks from
February 2 to March 13, 2000. Appellant’s weekly pay was computed at the 75 percent
augmented rate for employees with dependents.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
3

5 U.S.C. § 8107.

3

has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz the losses at each
frequency are added up and averaged.6 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.7 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.8 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.9
ANALYSIS
In reports dated May 2 and September 17, 2012, Dr. Randolph listed a history that
appellant left his federal employment in 2000. He stated that the February 2, 2000 audiogram
revealed 0 percent hearing loss in the right ear and 11.25 percent in the left ear or a binaural
hearing loss of 1.88 percent. Dr. Randolph addressed how hearing loss due to noise exposure
occurs at the time of noise exposure and does not get worse at a later date because of past noise
exposure. Appellant’s hearing loss increased in severity after he left federal service, resulting in
his current bilateral hearing loss of 9.69 percent. Dr. Randolph found that the increase in
appellant’s hearing loss between 2000 and April 30, 2012, the date of his audiogram, was due to
factors other than his federal noise exposure. He diagnosed bilateral sensorineural loss as a
result of appellant’s federal workplace noise exposure. Hearing aids were recommended.
OWCP properly referred the medical evidence to its medical adviser for a rating of
permanent impairment in accordance with the A.M.A., Guides.10
On January 17, 2013 OWCP’s medical adviser reviewed the audiograms of record and
agreed with Dr. Randolph that the February 2, 2000 audiogram, which was closest to the date of
appellant’s federal retirement, was the most appropriate to use to rate impairment. He concurred
with Dr. Randolph that hearing loss due to noise exposure occurs at the time of noise exposure
and does not get worse at a later date because of past noise exposure.

4

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

A.M.A., Guides 250 (6th ed. 2008).

6

Id.

7

Id.

8

Id.

9

C.C., Docket No. 11-731 (issued October 11, 2011).

10

See Hildred I. Lloyd, 42 ECAB 944 (1991).

4

In Kenneth W. Morgan,11 the Board stated that, in general, a noise-induced sensorineural
hearing loss does not progress after exposure to hazardous occupational noise ceases. However,
the Board did not enunciate this principle as a general rule but based the particular decision on
the opinions of the physicians of record. In Adelbert E. Buzell12 and M.H.13 The Board
cautioned against blanket, unrationalized statements that hearing loss does not progress
following cessation of hazardous noise exposure. In the present case, Dr. Randolph stated that
between the year 2000 and 2012 appellant’s hearing loss increased in severity due to factors
other than his federal employment. There is no medical opinion of record that appellant’s
hearing loss between the years 2000 and 2012 increased due to noise exposure in his federal
civilian employment. The Board therefore finds that OWCP properly utilized the February 2,
2000 audiogram for evaluation of appellant’s employment-related hearing loss.
OWCP’s medical adviser applied the findings of the February 2, 2000 audiogram to rate
0 percent right monaural loss, 11.25 percent left monaural loss and 1.88 percent binaural loss, as
had Dr. Randolph.14 He averaged appellant’s right ear hearing levels of 5, 5, 10 and 70 dB at
500, 1,000, 2,000 and 3,000 Hz, which totaled 90 and averaged 22.5. The medical adviser then
subtracted a 25-dB fence and multiplied by 1.5 to find 0 percent right monaural hearing loss. He
then averaged appellant’s left ear hearing levels of 5, 5, 35 and 85 dB at 500, 1,000, 2,000 and
3,000 Hz, which totaled 130 and averaged 32.5. The medical adviser then subtracted a 25-dB
fence, he multiplied the remaining 7.5 balance by 1.5 to calculate 11.25 percent left monaural
hearing loss. He then calculated 1.88 percent binaural hearing loss by multiplying the lesser
right ear loss of 0 percent by 5, adding the greater 11.25 percent left ear loss and dividing this
sum by 6. The medical adviser agreed that appellant’s hearing loss was caused by his
occupational noise exposure and recommended hearing aids. The Board finds that he applied the
A.M.A., Guides to rate appellant’s impairment. OWCP properly relied on the medical adviser’s
opinion to find that appellant sustained 11 percent hearing loss in the left ear.15 The Board notes
that OWCP policy is to round the calculated percentage to the nearest whole number.16 Thus
appellant’s left ear hearing loss should be rounded to 11 percent.
A schedule award provides for payment of compensation for a specific number of weeks
as prescribed by the statute.17 FECA provides that a claimant is entitled to 52 weeks of
compensation for a 100 percent loss of hearing in one ear and 200 weeks compensation for 100
percent hearing loss in both ears. Multiplying 1.88 percent by the 200 weeks provided for
binaural hearing loss results in a total of 3.76 weeks of compensation. Multiplying 11 percent by
52 weeks provided for monaural hearing loss results in a total of 5.72, the number of weeks
11

28 ECAB 569 (1977).

12

34 ECAB 96 (1982).

13

Docket No. 09-1689 (issued March 10, 2010).

14

Id.

15

See Linda Beale, 57 ECAB 429 (2006).

16

See T.H., Docket No. 12-764 (issued February 26, 2013).

17

5 U.S.C. § 8107.

5

OWCP authorized for payment of appellant’s schedule award. As payment for the left ear
monaural hearing loss results in greater compensation to appellant than the binaural hearing loss
rating, the Board finds that OWCP properly determined the number of weeks of compensation.
In its January 28, 2013 decision, OWCP stated that appellant was entitled to $4,999.48 in
schedule award compensation for the period February 2 to March 13, 2000. This was based on
multiplying appellant’s weekly pay rate of $1,165.38 by the 75 percent augmented compensation
rate which totaled $874.04, resulting in a payment of $4,999.48 for 5.72 weeks of
compensation.18
With respect to the specific period for payment of the 5.72 weeks of compensation, this is
based on the date of maximum medical improvement which occurred on February 2, 2000, based
upon the medical adviser’s opinion. The determination of the date for maximum medical
improvement ultimately rests with the medical evidence.19 It is usually considered to be the date
of the evaluation by the physician who is accepted as definitive by OWCP.20 The Board finds
that OWCP properly determined the period of the award for 5.72 weeks from February 2 to
March 13, 2000.
On appeal, appellant asserts that he is entitled to a greater award as his accepted hearing
loss was for both ears and affected him permanently. As noted, OWCP properly applied the
appropriate grading schemes of the A.M.A., Guides in rating his accepted bilateral hearing loss,
resulting in a 5.72 week schedule award period commencing on February 2, 2000, the date of
maximum medical improvement.21 Appellant did not submit probative medical evidence
establishing a greater percentage of permanent impairment which would have resulted in a
longer payment period.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment at any time.

18

The Board notes that on appeal appellant stated that he should be compensated the full amount based on his
hearing loss and complications associated with his hearing loss. The basic rate of compensation paid under FECA is
66 2/3 percent of the injured employee’s monthly pay. Where the employee has one or more dependents, as in this
case, as defined in FECA, the employee is entitled to have his or her basic compensation augmented at the rate of 8
1/3 percent for a total of 75 percent of monthly pay. 5 U.S.C. § 8110(b). The number of weeks of compensation for
a schedule award is determined by the compensation schedule found in section 8107(c) of FECA. 5 U.S.C.
§ 8107(c); Dennis R. Stark, Docket No. 05-1826 (issued January 10, 2006).
19

L.H., 58 ECAB 561 (2007).

20

Mark Holloway, 55 ECAB 321, 325 (2004).

21

The medical evidence, as explained, establishes that appellant was properly awarded 5.72 weeks of
compensation based on his 11 percent hearing loss in the left ear. This results in a greater compensation amount
than 1.88 percent loss of hearing in both ears.

6

CONCLUSION
The Board finds that appellant has not established that he sustained greater than 11
percent hearing loss to the left ear in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
Fort Campbell, KY, Employer
)
___________________________________________ )
D.K., Appellant

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

Docket No. 09-747
Issued: October 16, 2009

Case Submitted on the Record

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

JURISDICTION
On February 4, 2009 appellant filed a timely appeal from an April 11, 2008 decision of
the Office of Workers’ Compensation Programs which denied merit review. Because more than
one year has elapsed between the most recent merit decision dated February 1, 2008 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 23, 2001 appellant, then a 51-year-old painter, filed a traumatic injury claim
alleging that while lifting signs at work he experienced pain in the left groin area. He stopped
work on April 23, 2001 and returned on April 24, 2001. The Office accepted appellant’s claim
for perineal left-sided hernia and authorized surgery which was performed on May 19, 2001.

From November 19 to 29, 2007, appellant was treated by Dr. Derrick Galapon, a Boardcertified general surgeon, for a perineal abscess. His history was significant for a hernia repair in
May 2001 with subsequent perineal area swelling and drainage. On November 29, 2007
Dr. Galapon noted that a computerized tomography (CT) scan of the abdomen and pelvis dated
November 27, 2007 revealed a left renal cyst and mild diverticulosis. He diagnosed perineal
abscess and possible stitch abscess, etiology unknown and recommended surgical intervention.
On December 28, 2007 appellant filed a recurrence of disability claim. In January 2002,
he developed a large lump which impeded his ability to walk and which was causally related to
his accepted August 23, 2001 hernia. Appellant was working limited duty at the time of the
claimed recurrence and did not stop work.
In a decision dated February 1, 2008, the Office denied appellant’s claim for a recurrence
of his accepted hernia condition.
On March 19, 2008 appellant requested reconsideration. In an undated letter, he
addressed his work injury and subsequent treatment including surgery. After surgery, appellant
reported developing a large lump at the surgical site approximately four times per year which
would drain. He noted never having problems prior to the surgery and advised that his quality of
life had diminished and he struggled to sit, walk or work. On February 18, 2008 Dr. Galapon
noted that appellant underwent surgery in 2001 and presented in November 2007 with a possible
perineal abscess. After a CT scan of the abdomen revealed no abnormalities, he recommended
exploratory surgery to determine if appellant’s current condition was aggravated by previous
surgeries. On February 21, 2008 appellant was treated by Dr. Daniel R. Miller, a family
practitioner, for a possible chronic abscess or fistulous tract. Appellant reported having a workrelated injury which caused a left inguinal hernia for which he underwent two herniorrhaphies
and subsequently experienced intermittent swelling and drainage from the area of the surgery.
Dr. Miller noted treating appellant on November 16, 2007 for intermittent swelling and drainage
from the surgical area which was consistent with a healed abscess.
By decision dated April 11, 2008, the Office denied appellant’s reconsideration request
on the grounds that his letter neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,1 the Office has the
discretion to reopen a case for review on the merits. It must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,2 which provides that a claimant may obtain review of the merits of his or her written

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b).

2

application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.3
ANALYSIS
Appellant’s March 19, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office.
Appellant’s request for reconsideration asserted that after undergoing surgery for his
work-related hernia he intermittently developed large lumps in the hernia area which would
drain. He asserted that his quality of life was diminished due to the hernia surgeries and he
struggled to sit, walk or work. However, appellant’s letter did not show how the Office
erroneously applied or interpreted a point of law nor did it advance a point of law or fact not
previously considered by the Office. He did not set forth a particular point of law or fact that the
Office had not considered or establish that the Office had erroneously interpreted a point of law.
Consequently, appellant is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a February 18, 2008 report from
Dr. Galapon who noted that appellant underwent surgery in 2001 to repair a perineal hernia and
presented in November 2007 with a possible perineal abscess. Dr. Galapon recommended
exploratory surgery to determine if appellant’s current condition was aggravated by previous
surgeries. However this report is similar to his prior reports of November 19 and 29, 2008
already of record and previously considered by the Office and found deficient.4
Appellant also submitted a report from Dr. Miller dated February 21, 2008 who treated
appellant for intermittent swelling and drainage from the surgical area which was consistent with
3

20 C.F.R. § 10.608(b).

4

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

3

a healed abscess. He reported having a work-related injury which caused a left inguinal hernia
for which he underwent two herniorrhaphies and subsequently experienced intermittent swelling
and drainage. However, Dr. Miller’s report, while new, is not relevant because he did not
provide his own opinion regarding whether appellant sustained a recurrence in January 2002
causally related to the accepted work injury of April 23, 2001.
Therefore, the Office properly determined that this evidence did not constitute a basis for
reopening the case for a merit review. Appellant neither showed that the Office erroneously
applied or interpreted a point of law, advanced a point of law or fact not previously considered
by the Office, nor did he submit relevant and pertinent evidence not previously considered by the
Office.”5
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his request for reconsideration.
On appeal, appellant asserted that he never had health problems prior to the April 23,
2001 work injury and requested that the Board review the merits of his claim. However, the
Office considered his contentions, as noted, in denying his reconsideration request. Furthermore,
as noted, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3 because more than one year has elapsed since the most recent merit
decision dated February 1, 2008 and the filing of this appeal on February 4, 2009.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

5

20 C.F.R. § 10.606(b).

4

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, PEMBROKE PINES
PARCEL & DISTRIBUTION CENTER,
Pembroke Pines, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Dean T. Albrecht, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1731
Issued: April 7, 2008

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 June 15, 2007 appellant filed an appeal of November 27, 2006 and April 19, 2007
decisions of the Office of Workers’ Compensation Programs denying his traumatic injury 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 has established that he sustained a fractured right femur in
the performance of duty.
FACTUAL HISTORY
On September 22, 2005 appellant, then a 46-year-old mail handler, filed a traumatic
injury claim (Form CA-1) asserting that on August 25, 2005 at 6:15 p.m. while driving home

from work.1 He sustained a right femur fracture in a motor vehicle collision on a public road in
Broward County during Hurricane Katrina. The other vehicle involved in the impact was driven
by a private citizen. Jocelyn King, an employing establishment supervisor, noted that appellant’s
regular work hours were weekdays from 4:00 p.m. to 12:30 a.m. Ms. King contended that
appellant was not in the performance of duty at the time of the accident as he “was traveling in
his personal vehicle on his way home, not traveling for [work] purposes” and not on the
employing establishment’s premises.
Timekeeping records show that on August 25, 2005 appellant clocked in shortly before
3:00 p.m. and clocked out at 6:01 p.m. A hurricane warning was in effect from 8:00 a.m.
onward. Workers were instructed to use leave if they left before 6:00 p.m. After the accident,
the employing establishment granted appellant administrative leave from 6:01 p.m. on
August 25, 2005 through 12:30 a.m. on August 26, 2005.
In a September 21, 2005 letter, appellant explained that he was instructed to report for
duty at 3:00 p.m. despite the hurricane warning. At 4:00 p.m., a supervisor advised that he could
go home and use leave for the remainder of his tour. Appellant chose to remain until 6:00 p.m.
so he would not need to use leave. At approximately 6:20 p.m., he was involved in the
automobile accident.
In October 13, 2005 letters, Supervisors Christina Villanueva and Sam Ezem stated that
no employees were forced to perform emergency duties on August 25, 2005 and that appellant
voluntarily remained at work until 6:00 p.m.
In an October 26, 2005 letter, the Office advised appellant of the additional factual and
medical evidence needed to establish his claim. The Office explained the Federal Employees’
Compensation Act’s restrictions regarding injuries occurring while going to or coming from
work. The Office afforded appellant 30 days in which to submit such evidence.
In a November 4, 2005 letter, the employing establishment noted that appellant worked
voluntary overtime on August 25, 2005 and that he was not required to drive for this
employment.
In a November 16, 2005 letter, appellant asserted that his claim fell under coverage of the
Act as he was required to travel during a curfew and was in pay status at the time of the accident.
By decision dated December 5, 2005, the Office denied appellant’s claim on the grounds
that the claimed injury did not occur in the performance of duty. The Office found that
appellant’s drive home on August 25, 2005 did not fall under any exception that would bring the
injury within the performance of duty. The Office noted that appellant did not establish that
there was a curfew in effect at the time he drove home on August 25, 2005. The Office stated
that weather conditions were dangers inherent to the motoring public and did not constitute a
special hazard exception.
1

A municipal police accident report lists the time of the accident as 6:35 p.m. on August 25, 2005. The report
noted that appellant was charged with careless driving for failing to stop at an intersection. The charge was
dismissed on November 8, 2005 by a Broward County court.

2

In a December 19, 2005 letter, appellant requested an oral hearing, which was held on
September 22, 2006. At the hearing, appellant stated that on August 25, 2005 he was assigned
the emergency duty of moving mail from the loading dock to an inside area to protect it from the
hurricane. He submitted a September 13, 2006 statement from Juan Padilla, a coworker,
asserting that on August 25, 2005, Ms. Villanueva instructed some employees to work until 6:00
p.m.
By decision dated and finalized November 27, 2006, the Office hearing representative
found that appellant was not in the performance of duty at the time of the August 25, 2005 motor
vehicle accident. Appellant was not paid or reimbursed for his travel from work to home, there
was no special hazard at the accident site and weather conditions were inherent to the motoring
public.
In a January 24, 2007 letter, appellant requested reconsideration. He submitted coworker
statements that he was not at an August 25, 2005 safety meeting. In a March 9, 2007 letter, the
employing establishment contended that on August 25, 2005 employees were instructed to leave
work at any time and that appellant did not perform emergency duties.
By decision dated April 19, 2007, the Office denied modification on the grounds that the
evidence submitted did not establish that he sustained an injury in the performance of duty. The
Office found that appellant’s drive home was personal in nature, unrelated to his employment.
The Office further found that appellant had not established an exception under the special
hazards doctrine.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim. These elements include the fact that the individual is an “employee
of the United States” within the meaning of the Act, that the claim was filed within the
applicable time limitation, that an injury was sustained while in the performance of duty3 as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 These are the essential elements of each and every
2

5 U.S.C. §§ 8101-8193.

3

The term “while in the performance of duty” has been interpreted to be the equivalent of the commonly found
prerequisite in workers’ compensation of “arising out of and in the course of employment.” The phrase “in the
course of employment” is recognized as relating to the work situation and more particularly, relating to elements of
time, place and circumstance. In the compensation field, to occur in the course of employment, an injury must
occur: (1) at a time when the employee may be reasonably said to be engaged in the master’s business; (2) at a place
where she may reasonably be expected to be in connection with the employment; and (3) while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto. Robert W. Walulis,
51 ECAB 122 (1999). This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown and this encompasses not only
the work setting but also a causal concept, the requirement being that the employment caused the injury. In order
for an injury to be considered as arising out of the employment, the facts of the case must show substantial employer
benefit is derived or an employment requirement gave rise to the injury. Cheryl Bowman, 51 ECAB 519 (2000);
Charles Crawford, 40 ECAB 474 (1989).
4

Joe D. Cameron, 41 ECAB 153 (1989).

3

compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.5
Regarding performance of duty, the Board has recognized, as a general rule, that offpremises injuries sustained by employees having fixed hours and places of work, while going to
or coming from work, are not compensable as they do not arise out of and in the course of
employment. Such injuries are merely the ordinary, nonemployment hazards of the journey
itself, which are shared by all travelers.6 Certain exceptions to this rule have developed where
the hazards of the travel are dependent on particular situations: “(1) where the employment
requires the employee to travel on the highways; (2) where the employer contracts to and does
furnish transportation to and from work; (3) where the employee is subject to emergency call as
in the case of firemen; and (4) where the employee uses the highway to do something incidental
to his employment, with the knowledge and approval of the employer.”7
Professor Larson, in his treatise on workers’ compensation, notes that coverage is usually
afforded in cases “involving a deliberate and substantial payment for the expense of travel, or the
However, under most
provision of an automobile under the employee’s control.”8
circumstances, the travel must be sufficiently important in itself to be regarded as part of the
service performed and therefore within the performance of the employee’s duties.9 The Office’s
procedures also provide an exception for employees required to travel during a curfew
established by local, municipal, county or state authorities because of civil disturbances or for
other reasons.10
ANALYSIS
Appellant was injured in a motor vehicle accident at approximately 6:15 p.m. on
August 25, 2005 while driving home from work on public roads. He had clocked out from work,
left his duty station and was not on the employing establishment premises. Generally, an injury

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Mary Kokich, 52 ECAB 239 (2001); Eileen R. Gibbons, 52 ECAB 209 (2001).

7

Dennis L. Forsgren (Linda N. Forsgren), 53 ECAB 174 (2001); Gabe Brooks, 51 ECAB 184 (1999); see Mary
Margaret Grant, 48 ECAB 969 (1997); see generally A. Larson, The Law of Workers’ Compensation § 13.01
(2000) (explaining the “coming and going” rule).
8

Larson, supra note 7 at § 14.07(1) (2000); see also Mary Margaret Grant, supra note 7.

9

Larson, supra note 7 at § 14.07(3).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(f) (August 1992).
In such cases, “the official superior should be requested to submit: (a) the reason the employee was requested to
report for duty; (b) whether other employees were given administrative leave because of the curfew; and (c) whether
the injury resulted from a specific hazard caused by the imposition of the curfew, such as an attack by rioting
citizens.”

4

occurring on such a commute would not be covered under the Act.11 Also, conditions common
to all travelers, such as weather events, do not constitute a special hazard.12
Appellant contended that the August 25, 2005 injuries should be covered under the Act as
he was required to travel during a municipal curfew. He submitted emergency bulletins but there
was no documentation of a municipal curfew at the time of the August 25, 2005 accident.
Appellant submitted no evidence establishing that his drive home was a requirement of his
employment. Therefore, he has not established an exception to the coming and going rule in this
regard.
Appellant also asserted that his injury should be covered under the Act as he was on
administrative leave at the time of the August 25, 2005 accident. However, the Board finds that
the grant of administrative leave was not equivalent to being in pay status and was not intended
to reimburse commuting expenses.13 Therefore, the administrative leave did not bring the
accident under coverage of the Act.
Appellant also asserted that the August 25, 2005 accident occurred in the performance of
duty as he was returning from emergency duties. However, the employing establishment stated
that appellant did not perform emergency duties on August 25, 2005. The Board therefore finds
that appellant has not established that he performed emergency duties on August 25, 2005.14
Appellant has not established that the August 25, 2005 right femur fracture occurred in
the performance of duty. He established no exception to the coming and going rule.
CONCLUSION
The Board finds that appellant has not established that he sustained a right femur fracture
in the performance of duty.

11

See Jimmie Brooks, 54 ECAB 248 (2002). See also Jon Louis Van Alstine, 56 ECAB 136 (2004).

12

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

13

Dennis L. Forsgren (Linda N. Forsgren), supra note 7.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(d) (August 1992).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 19, 2007 and November 27, 2006 are affirmed.
Issued: April 7, 2008
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mill Creek, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-2060
Issued: February 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from a September 10, 2014 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 met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On August 5, 2014 appellant, then a 46-year-old customer service supervisor, filed an
occupational disease claim alleging that he developed a right knee injury in the performance of
duty. He alleged that standing and walking on hard surfaces caused his condition. Appellant
1

5 U.S.C. § 8101 et seq.

first became aware of his condition on June 23, 2014 and its relation to his employment on
July 28, 2014. He stopped work on July 29, 2014.
In a July 31, 2014 report, Dr. Nancy Connolly, Board-certified in internal medicine,
advised that appellant complained of right knee pain. She indicated that he was unsure if there
was a precipitating event. Dr. Connolly stated that appellant related that his right knee had been
bothering him for the past month and that the pain worsened with walking. Upon physical
examination, she found that the right knee was warm and there was redness medially.
Dr. Connolly also noted that there was pronounced tenderness with effusion. She stated that
appellant’s gait was remarkable because he was minimizing any weight bearing of the right side.
Dr. Connolly diagnosed right knee pain and indicated that she was unsure if it was due to
overuse or an acute rheumatologic or infectious issue. She ordered x-rays. In an accompanying
diagnostic report, Dr. Michael Gass, a Board-certified radiologist, advised that a right knee x-ray
revealed minimal osteoarthritis of the patellofemoral joint.
By letter dated August 7, 2014, OWCP notified appellant that the evidence submitted was
insufficient and advised of the evidence needed to establish his claim. It particularly requested
that he provide a physician’s opinion, supported by a medical explanation, as to how work
activities caused or aggravated his medical condition.
In an August 6, 2014 statement, Alan Sinfuego, an employing establishment manager,
controverted appellant’s claim because appellant did not report his condition to his immediate
supervisor in a timely manner. He also argued that the condition may have been the result of a
nonwork incident or in response to disciplinary action. Mr. Sinfuego also stated that appellant
informed him that he was not going to file a claim because he was unsure if his employment was
the cause of his knee condition.
In an August 9, 2014 statement, appellant advised that he has been with the employing
establishment for the past 22 years in various positions. He further advised that all of these
positions have involved standing and lots of walking. Appellant alleged that in June 2014 while
walking on the workroom floor, from his office to the lobby area, he began to feel pain. He
stated that he informed his postmaster that he was having trouble walking and had right knee
pain on July 28, 2014.
Appellant also provided additional medical evidence in support of his claim. In a
July 31, 2014 form report, Dr. Connolly advised that he was experiencing right knee pain.
Appellant related that his injury was from walking on a blacktop surface eight to 11 hours a day.
Dr. Connolly did not address the cause of his condition. In a July 31, 2014 work status report,
she advised that appellant was unable to work until a diagnosis was determined and his
symptoms improved. In August 7 and 8, 2014 work status reports, Dr. Connolly advised that he
was to be in a nonweight bearing status until his evaluation was complete. In an August 7, 2014
duty status report (Form CA-17), she advised that appellant was unable to return to work.
In an August 17, 2014 report, Dr. Peter Verdin, a Board-certified orthopedic surgeon,
noted examining appellant on August 13, 2014 and advised that appellant complained of right
knee pain. He stated that appellant was a postal supervisor who had an injury to his right knee
on June 23, 2014 as he was walking from his office to the front desk. Appellant related that “he

2

felt something happen in his knee.” Dr. Verdin noted that appellant denied any specific injury,
but specified that appellant had never experienced knee pain in the past. On physical
examination, he noted that appellant had an antalgic gait on the right, tenderness over medical
aspect of the knee, no effusion, full extension, and flexion to 130 degrees. Dr. Verdin advised
that right knee magnetic resonance imaging (MRI) scan showed bone marrow edema in the
medial anterior aspect of the medial femoral condyle and a questionable tear of the posterior
horn of the medial meniscus.2 He advised that the cause of this was “uncertain” noting that “it
does not appear that he had a significant injury per se that caused the problem, but the episode
did occur at work.” Dr. Verdin stated that appellant’s tear of the medial meniscus “may or may
not have any association with the patient’s current event.” He also completed an August 13,
2014 duty status report noting appellant’s work restrictions.
By decision dated September 10, 2014, OWCP denied appellant’s claim because the
medical evidence did not establish that factors of his employment caused a diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish 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, 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.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish 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.5
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 generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical 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.6
2

The record contains an August 7, 2014 right knee MRI scan report.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.J., 59 ECAB 408 (2008); supra note 4.

3

The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.7
ANALYSIS
Appellant claimed that he began experiencing right knee pain on June 23, 2014 while
walking on the job. There is no dispute that he walked as part of his job and the evidence
supports this. However, the medical evidence is insufficient to establish that the medical
condition was causally related to the accepted work event.
In his August 13, 2014 report, Dr. Verdin advised that appellant complained of right knee
pain and that he was walking at work on June 23, 2014 when he felt something in his knee. He
noted that appellant denied any specific injury, but noted that appellant had never experienced
knee pain in the past. Dr. Verdin advised that right knee MRI scan showed bone marrow edema
in the medial anterior aspect of the medial femoral condyle and a questionable tear of the medial
meniscus. He advised that the cause was “uncertain,” explaining that it did not appear that
appellant had “a significant injury per se that caused the problem, but the episode did occur at
work.” Dr. Verdin stated that appellant’s tear of the medial meniscus “may or may not have any
association with the patient’s current event.” His report is insufficient to meet appellant’s burden
of proof. Dr. Verdin states that he is uncertain of the cause of appellant’s condition. The Board
has held that medical opinions which are speculative or equivocal are of diminished probative
value.8 Furthermore, Dr. Verdin notes that the onset of appellant’s injuries occurred on the job.
However, the Board has found that the mere fact that a condition manifests itself or is worsened
during the employment period does not raise an inference of causal relationship between the
two.9 Dr. Verdin also notes that appellant has never had knee problems in the past, but the Board
has held that an opinion that a condition is causally related to an employment injury because the
employee was asymptomatic before the injury but symptomatic after it is insufficient, without
supporting rationale, to establish causal relationship.10 He did not explain the reasons why
walking at work caused or aggravated appellant’s right knee condition.
In her July 31, 2014 report, Dr. Connolly advised that appellant complained of right knee
pain. Appellant related that his right knee had been bothering him for the past month and that
the pain worsened with walking. Dr. Connolly diagnosed right knee pain and indicated that he
was unsure if there was a precipitating event. This report is insufficient to discharge appellant’s
burden of proof as it does not address his work duties, include a firm diagnosis, or provide a
clear opinion on causal relationship. Dr. Connolly must accurately describe appellant’s work
7

James Mack, 43 ECAB 321 (1991).

8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related, or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
9

Patricia Bolleter, 40 ECAB 373 (1988).

10

Thomas D. Petrylak, 39 ECAB 276 (1987).

4

duties and medically explain the pathophysiological process by which these duties would have
caused or aggravated his condition.11
Other medical reports of record are insufficient to discharge appellant’s burden of proof
because they do not address causal relationship between appellant’s work factors and a
diagnosed medical condition.12
Consequently, appellant has submitted insufficient medical evidence to establish his
claim.
On appeal, appellant asserts that he provided medical documentation, and that his injury
should be accepted as it occurred while he was on duty. He alleged that his supervisor knew of
his injury and deliberately assigned him duties that required a lot of walking and climbing.
Appellant also advised that he had never been the subject of a reprimand or disciplinary action.
The Board notes that it is accepted that he walked as part of his duties, and the matter of whether
he was disciplined is not a basis for the Board’s decision. The claim is denied on the basis that
the medical evidence does not establish causal relationship. As explained, the mere fact that a
condition manifests itself or is worsened during the employment period does not raise an
inference of causal relationship between the two. Causal relationship is a medical question that
must be established by probative medical opinion from a physician. Because appellant has not
provided such medical opinion evidence in this case, explaining how specific work duties caused
or aggravated his right knee condition, he has failed to meet his burden of proof.
Appellant may submit new evidence or argument as part of a formal 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 did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

11

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).
12

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).

5

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6