United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U. S. POSTAL SERVICE, POST OFFICE,
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Edison, NJ, Employer
)
___________________________________________ )
A.C., Appellant

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

Docket No. 14-1547
Issued: November 19, 2014

Case Submitted on the Record

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

JURISDICTION
On June 30, 2014 appellant, through her attorney, filed a timely appeal from the May 28,
2014 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) decision.
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 her burden of proof to establish a recurrence of
disability commencing November 1, 2010 causally related to her August 7, 2000 employment
injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board.2 In a July 16, 2013 decision, the Board
found that the case was not in posture for decision with regard to appellant’s claim for a
recurrence of disability. The Board found that the record contained evidence which suggested
that the employing establishment changed appellant’s limited-duty job requirements. Appellant
alleged that she worked successfully in her modified position until her supervisor insisted that
she use a mailbag on her route. The record contained a November 13, 2010 routing slip, in
which the officer-in-charge, Emad Attaalla, noted that she had requested light duty and could not
carry mail in her satchel or push mail in a pushcart. He advised that the employing establishment
did not have limited duty for street time available within her medical restrictions. The Board
remanded to OWCP to adjudicate the issue of whether there was a change in her light-duty
assignment that caused a recurrence of total disability commencing November 1, 2010. The
Board also noted that OWCP relied upon evidence under File No. xxxxxx361 in reaching its
September 19, 2012 decision. On remand OWCP was directed to combine the case records. The
facts of the claim as contained in the prior decision are incorporated by reference.
Appellant’s claim was accepted for a lumbosacral sprain. In 2004, she returned to limited
duty as a modified letter carrier. Appellant indicated that she was able to perform her duties
without the use of a mailbag. She subsequently claimed a recurrence of total disability on
November 1, 2010, as a result of her change in the nature and extent of her limited-duty position.
By letter dated July 30, 2013, OWCP requested that the employing establishment address
whether the physical requirements of appellant’s limited-duty position assignment as a modified
carrier were changed. If her duties were changed, the employing establishment was asked to
provide a description of the changes.
In a letter dated August 20, 2013, Edgar R. Brown, a health and resource management
specialist, stated that the physical requirements of appellant’s limited-duty assignment had not
changed.
By decision dated September 4, 2013, OWCP denied appellant’s claim for a recurrence
of disability due to material change or worsening of her accepted work-related conditions. It
found that the medical evidence did not relate her inability to carry a mailbag to her injury of
August 7, 2000. OWCP found that the employing establishment confirmed that it did not change
the physical requirements of her limited-duty assignment.
By letter dated September 19, 2013, appellant, through her representative, requested a
telephonic hearing, which was held on March 13, 2014. She testified that her recurrence
occurred because the employing establishment took away the limited-duty position she had been
performing for almost 10 years. Appellant stated that she was on limited duty from 2000 to
2010, with the limitation that she not carry a mailbag. She was able to perform her duties until
Mr. Attaalla, “pulled the rug out from under” her. Appellant noted that he was trying to get
overtime down and the use of a new flat machine meant she had to carry more bundles.
2

Docket No. 13-711 (issued July 16, 2013).

2

Mr. Attaalla advised her that every carrier had to use a bag. Appellant explained that she used to
have to carry two bundles and “now there were three.” She stated that Mr. Attaalla could not
accommodate her work restrictions. Appellant related that he stated “[n]o mailbag, no job.”
Mr. Attaalla gave her a routing slip dated November 13, 2010 that he could not give her light or
limited duty.
In a decision dated May 28, 2014, OWCP’s hearing representative affirmed the
September 4, 2013 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 The term “disability” means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.4 The term also means
the inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, except for when such withdrawal occurs for reasons of misconduct,
nonperformance of the job duties or a reduction-in-force.5
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.7 This consists of 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.8 The physician’s
opinion 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

3

20 C.F.R. § 10.5(x).

4

Id. at § 10.5(f).

5

Id. at § 10.5(x).

6

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

7

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

8

Duane B. Harris, 49 ECAB 170, 173 (1997).

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
Appellant’s claim was accepted for a lumbosacral sprain and in 2004 she returned to
limited duty as a modified letter carrier. She indicated that she was able to perform her duties
without the use of a mailbag. Appellant subsequently alleged a recurrence of total disability on
November 1, 2010, as a result of a change in the nature and extent of her limited-duty position.
In the prior appeal, the Board determined that the evidence was unclear as to whether the
physical requirements of appellant’s limited-duty assignment were changed such that they
exceeded her medical restrictions. The Board remanded the case for OWCP to properly
adjudicate the issue of whether there was a change in her light-duty assignment that caused her to
have a recurrence of total disability commencing November 1, 2010.
On July 30, 2013 OWCP contacted the employing establishment to determine whether
the physical requirements of appellant’s limited-duty position assignment as a modified carrier
were changed. It requested that if they were changed, the employing establishment should
provide a breakdown of the changes. The employing establishment responded in a letter dated
August 20, 2013. It confirmed that the physical requirements of appellant’s limited-duty
assignment had not changed. While appellant has alleged a change in the nature and extent of
the light-duty job requirements, the employing establishment stated that her limited-duty
assignment had not changed. She did not submit sufficient evidence to support her claim that the
employing establishment changed her job requirements as to exceed the October 6, 2004
restrictions provided by Dr. Mazella.10
The Board also notes that appellant did not submit any medical reports which contained a
rationalized opinion from a physician who, on the basis of a complete and accurate factual and
medical history, concluded that appellant’s disability during the aforementioned periods was
causally related to the employment injury and supported that conclusion with sound medical
reasoning.11 Appellant also did not submit sufficient evidence to show that any increased work
restrictions beginning November 1, 2010 were attributable to her accepted conditions.
As there is no evidence showing a change in the nature and extent of the light-duty job
requirements, appellant did not meet her burden of proof to establish a recurrence of disability
for the claimed period.
On appeal, appellant’s representative argued that from 2005 to 2010, five postmasters and
at least half a dozen managers, allowed her to be accommodated by delivering mail by not using
a mailbag. He also referred to a July 7, 2011 statement from a coworker, who indicated that
appellant was accommodated with regard to not having to use a mailbag. The Board notes that
9

Gary L. Fowler, 45 ECAB 365, 371 (1994).

10

The Board notes that Dr. Mazella’s October 6, 2004 report which released appellant to work did not contain
any restriction against carrying a mailbag.
11

See Helen K. Holt, 50 ECAB 279 (1999).

4

this statement does not indicate that appellant’s limited-duty position changed on or after
November 1, 2010 such that she sustained a recurrence of disability. Appellant may submit
evidence or argument with a written request for reconsideration 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 her burden of proof to establish a recurrence
of disability commencing November 1, 2010 causally related to her August 7, 2000 employment
injury.
ORDER
IT IS HEREBY ORDERD THAT the May 28, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 19, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HEALTH RESOURCE CENTER, Topeka, KS,
Employer
__________________________________________

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

Docket No. 18-1233
Issued: March 1, 2019

Case Submitted on the Record

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

JURISDICTION
On June 1, 2018 appellant filed a timely appeal from an April 16, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision, dated March 17, 2017, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 15, 2016 appellant, then a 36-year-old contact representative, filed an
occupational disease claim (Form CA-2), alleging that he developed an emotional condition while
in the performance of duty. He indicated that he first became aware of his claimed condition and
1

5 U.S.C. § 8101 et seq.

realized its relation to his federal employment on February 22, 2016. Appellant alleged that he
experienced abuse and harassment while in the performance of duty.
In separate undated statements received by OWCP on April 25, 2016, appellant alleged
that the employing establishment allowed “mistreatment to fester,” that the system was broken,
and that his tour bid was “botched.” He also alleged that he was denied coaching, leave requests,
and resources to perform his work. As well appellant alleged that he was called names and felt his
character was attacked, he was ostracized, his grievance process was mishandled, and he felt his
complaints were ignored.
In a May 18, 2016 development letter, OWCP requested that appellant submit additional
information in support of his claim. It explained that there was no factual evidence describing in
detail incidents/events that occurred in the manner alleged. OWCP provided a questionnaire for
his completion to describe in detail the employment-related conditions or incidents which he
believed contributed to his emotional condition. It asked him to provide signed and dated witness
statements from anyone who could verify his allegations. By separate letter of even date, OWCP
also requested that the employing establishment respond to appellant’s allegations. It afforded 30
days for submission of additional evidence.
Appellant submitted additional statements dated June 16 and August 22, 2016. He asserted
that the employing establishment failed to provide tuition assistance, service compensation dates,
tour bids, reasonable accommodation, and failure to receive coaching.
The employing establishment responded on August 22 and October 7, 2016, and
controverted appellant’s allegations.
By decision dated October 14, 2016, OWCP denied appellant’s emotional condition claim,
finding that he had not met his burden of proof to establish compensable employment factors.
On November 15, 2016 OWCP received appellant’s request for a review of the written
record by an OWCP hearing representative, which was postmarked November 10, 2015.
Appellant provided statements which were received by OWCP on November 16, 2016.
His allegations included that he was invalidated by the workers’ compensation process because
representatives treated him rudely, or ignored him. Appellant argued that he objected to the entire
system because nobody listened.
An undated statement received on November 17, 2016, from appellant, included additional
allegations that the employing establishment neglected issues, that he was denied resources, and
that his leave requests were not processed in a timely fashion. In an additional statement, he
alleged that the employing establishment forced him to work with substandard equipment.
OWCP received a reasonable accommodation request determination from the employing
establishment dated October 28, 2015 which approved appellant for full-time telework. It also
received additional evidence which included a National Archives record, grievance paperwork, a
March 2, 2016 notice of rescission of an admonishment from the employing establishment, letters
from OWCP responding to complaints from appellant, and appellant’s responses.

2

By decision dated March 17, 2017, OWCP’s hearing representative affirmed the
October 14, 2016 decision, finding that appellant had not met his burden of proof to establish an
emotional condition in the performance of duty.
On March 19, 2018 appellant requested reconsideration. He argued that he was mistreated
by the employing establishment. Appellant noted that his supervisor had indicated that there was
no policy regarding break time and personal time usage, and concluded that he was therefore
punished for a policy that did not exist. He argued that his due process rights were violated, his
request for reasonable accommodation was ignored while he was sick, and his grievance was
ignored. Appellant alleged that he was subjected to sexual harassment in May and June, 2017. He
also reiterated his previous allegations. In addition, appellant provided OWCP with a copy of an
accommodation request determination dated October 28, 2015, which had previously been
received on November 23, 2016.2
By decision dated April 16, 2018, OWCP denied appellant’s request for reconsideration,
finding that appellant’s statements were cumulative and substantially similar to previous
statements or documentation already contained in the case file and previously considered.3
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7

2

Although appellant asserted on his request for reconsideration that he was submitting additional new evidence not
previously considered by OWCP, such new documentation is not of record.
3
OWCP noted that his March 13, 2018 statement contained new allegations of sexual harassment. It explained that
he could file a new claim in regard to the new allegations.

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
4

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

20 C.F.R. § 10.606(b)(3).

3

When a timely application for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his request for reconsideration appellant restated arguments that he previously raised
and which were considered by OWCP, including that his due process rights were violated, his
request for reasonable accommodation was ignored, and his grievance was ignored. The Board
has held that the submission of evidence or argument which repeats or duplicates evidence or
argument already in the case record does not constitute a basis for reopening a case.9 Therefore,
the Board finds that appellant is not entitled to a review of the merits based on the first and second
requirements under section 10.606(b)(3).10
Appellant also submitted a copy of an accommodation request determination dated
October 28, 2015, which had already been received by OWCP on November 23, 2016 and had
previously been considered. The Board has held that evidence that either repeats or duplicates
information already in the record does not constitute a basis for reopening a claim.11
The Board finds, therefore, that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by OWCP, or constitute pertinent new and relevant evidence not previously considered. As
appellant did not meet any of the necessary regulatory requirements, he is not entitled to further
merit review.12
On appeal appellant argues that the evidence submitted was not reviewed. However, as
previously noted, the Board lacks jurisdiction over the merits of the case and appellant has not met
any of the necessary regulatory requirements to warrant further merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

Id. at § 10.608(a), (b).

9

P.H., Docket No. 18-1020 (issued November 1, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome
Ginsberg, 32 ECAB 31, 33 (1980).
10

Id. at § 10.606(b)(3)(i) and (ii).

11

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

12

20 C.F.R. § 10.606(b)(3)(iii).

4

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, BLUE RIDGE
PARKWAY, Asheville, NC, Employer
__________________________________________

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

Docket No. 10-2033
Issued: June 21, 2011

Case Submitted on the Record

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

JURISDICTION
On August 3, 2010 appellant filed a timely appeal from a May 20, 2010 decision of the
Office of Workers’ Compensation Programs denying her claim for an additional schedule award
and a June 11, 2010 Office decision that denied her request for reconsideration. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she has
more than a 10 percent impairment of the right upper extremity for which she received a
schedule award; and (2) whether the Office properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

On appeal appellant asserts that the opinion of her physician should be given the weight
of medical evidence.
FACTUAL HISTORY
On August 25, 1999 appellant, then a 40-year-old telecommunications equipment
operator, sustained a right elbow strain lifting a box at work. On January 12, 2001 Dr. Gordon I.
Groh, an attending Board-certified orthopedic surgeon, performed arthroscopic repair of a very
small rotator cuff tear. On February 5, 2002 appellant filed a traumatic injury claim, alleging
that she sustained a right biceps tear while performing physical therapy due to the 1999
employment injury. The claim was accepted for right shoulder impingement and a consequential
right bicep tear. Dr. Groh performed repair of the biceps tear on March 13, 2002. Appellant
returned to modified duty on May 6, 2002. On January 15, 2003 she was granted a schedule
award for 10 percent permanent impairment of the right arm.
On June 27, 2008 appellant filed a traumatic injury claim alleging that she injured her
right shoulder lifting a heavy box.2 In an August 8, 2008 report, Dr. Groh reported findings on
physical examination and diagnosed a right shoulder rotator cuff injury. A September 13, 2008
magnetic resonance imaging (MRI) scan of the right shoulder, with a September 17, 2008
addendum, demonstrated a thin full thickness tear. The Office accepted aggravation of right
rotator cuff tear. On March 3, 2009 Dr. Groh performed right shoulder arthroscopic subacromial
decompression and rotator cuff repair. He submitted reports describing appellant’s postsurgical
treatment. Appellant returned to modified duty on June 9, 2009. A November 3, 2009
functional capacity evaluation (FCE) demonstrated near full effort. Dr. Groh recommended that
appellant work at a light physical demand level, with infrequent work above the shoulder. Right
shoulder range of motion demonstrated 93 degrees of flexion, 95 degrees of abduction, 85
degrees of medial rotation and 80 degrees of lateral rotation. In a November 6, 2009 report,
Dr. Groh advised that, given her right shoulder surgical repair, appellant had 14 percent
permanent impairment of the right upper extremity.
On January 20, 2010 appellant filed a schedule award claim. By letter dated February 10,
2010, the Office advised her and Dr. Groh that schedule award evaluations were to be completed
in accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).3 It noted that Dr. Groh’s
November 6, 2009 report was not sufficient because he failed to explain how he arrived at his
impairment rating. The Office provided a permanent impairment worksheet for the physician to
complete. On February 23, 2010 Dr. Groh appended a note to the worksheet, stating, “see
attached dictation dated [November 6, 2009].” He resubmitted the November 6, 2009 report.
In a May 17, 2010 report, Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon
and Office medical adviser, advised that maximum medical improvement was reached on
November 6, 2009. He noted that Dr. Groh did not provide any explanation for rating appellant
2

Appellant was then working as an office automation assistant at the employing establishment. The case files for
the 1999 and 2008 injuries were doubled.
3

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

2

at 14 percent impairment. The November 3, 2009 FCE demonstrated active right shoulder range
of motion measurements. Dr. Hogshead stated that, under Table 15-34 of the sixth edition of the
A.M.A., Guides, appellant had 6 percent impairment based on 95 degrees of forward elevation, a
4 percent impairment based on 95 degrees of abduction, and no impairment based on 85 degrees
of internal rotation and 80 degrees of external rotation or a total right upper extremity
impairment of 10 percent.
By decision dated May 20, 2010, the Office found that as appellant previously received a
schedule award for 10 percent right upper extremity impairment, she was not entitled to an
increased schedule award. It explained that Dr. Groh’s report was not sufficient to support a
finding of 14 percent impairment rating because he did not provide any explanation for his
opinion.
On May 25, 2010 appellant requested reconsideration, stating that she was entitled to 14
percent permanent impairment based on Dr. Groh’s opinion. She submitted duplicates of
medical evidence previously of record.
In a nonmerit decision dated June 11, 2010, the Office denied appellant’s reconsideration
request, finding that she submitted no new relevant argument and that the evidence submitted
was duplicative.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act,4 and its implementing federal regulations,5 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 for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions
after February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule
awards.7 For decisions issued after May 1, 2009, the sixth edition will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment Class for the Diagnosed Condition (CDX), which is then adjusted by
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 4 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”

3

grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).11
Although the diagnosis-based approach is the preferred method of evaluating permanent
impairment under the sixth edition of the A.M.A., Guides,12 Table 15-5, Shoulder Regional Grid,
provides that, if loss of motion is present, the impairment may alternatively be assessed under
section 17-7, range of motion impairment.13 A range of motion impairment stands alone and is not
combined with a diagnosis-based impairment.14
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.15
ANALYSIS -- ISSUE 1
The Board finds that appellant has no more than a 10 percent impairment of the right
arm, for which she received a schedule award. It is well established that, when the attending
physician fails to provide an estimate of impairment conforming with the A.M.A., Guides, his or
her opinion is of diminished probative value in establishing the degree of permanent
impairment.16 Contrary to appellant’s assertion on appeal, Dr. Groh’s November 6, 2009 report
is of insufficient probative value to establish greater impairment. He merely provided a general
opinion that appellant sustained 14 percent permanent impairment of the right upper extremity;
he did not provide any explanation for his rating or reference the A.M.A., Guides.
On February 10, 2010 the Office asked Dr. Groh to provide an impairment rating in
accordance with the sixth edition of the A.M.A., Guides. Dr. Groh, however, returned a blank
worksheet and merely referenced his November 6, 2009 report. He did not identify the
impairment class for the diagnosed condition or provide analysis of the grade modifiers based on
functional history, physical examination, or use the net adjustment formula as described in
section 15.3 of the sixth edition.17 Nor did Dr. Groh provide range of motion measurements as

10

Id. at 385-419.

11

Id. at 411.

12

Id. at 461, section 15.7.

13

Id. at 401-05.

14

Id. at 461.

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
16

Linda Beale, 57 ECAB 429 (2006).

17

A.M.A., Guides, supra note 3 at 405-09.

4

described in section 15.7g of the sixth edition.18 When the examining physician does not provide
an estimate of impairment conforming to the proper edition of the A.M.A., Guides, the Office
may rely on the impairment rating of an Office medical adviser.19 The Office properly referred
the medical record to Dr. Hogshead, an Office medical adviser, for review.
By report dated May 17, 2010, Dr. Hogshead noted that Dr. Groh merely concluded that
appellant had 14 percent right upper extremity impairment without providing any explanation for
his opinion. The Office medical adviser found that range of motion best revealed the extent of
the right shoulder impairment, as provided in the November 3, 2009 FCE. Table 15-5 of the
sixth edition of the A.M.A., Guides, relevant to determining shoulder impairments, provides that
a shoulder full thickness rotator cuff tear yields from a one to seven percent shoulder
impairment, depending on the class of impairments and grade modifiers.20 Table 15-5 marks this
diagnosis with an asterisk that indicates that, if motion loss is present, the shoulder impairment
may alternatively be assessed using loss of range of motion.21 The impairment due to loss of
range of motion stands alone and is not combined with a diagnosis-based impairment.22
The Office medical adviser utilized Table 15-34 and found that 95 degrees of flexion
yielded 6 percent impairment, 95 degrees of abduction yielded 4 percent impairment, and that 85
degrees of internal rotation and 80 degrees of external rotation yielded no impairment, for a total
right upper extremity impairment of 10 percent. The Board notes, however, that the FCE
demonstrated 93 degrees of flexion and, under Table 15-34, either 93 degrees, as found in the
FCE, or 95 degrees, as reported by Dr. Hogshead, constitutes three percent impairment, not the
six percent as identified.23 Moreover, 95 degrees of abduction under Table 15-34 also constitutes
three percent impairment, not the four percent identified by Dr. Hogshead.24 These errors,
however, are harmless, as the total right upper extremity impairment of 6 percent is less than
appellant’s previous rating of 10 percent impairment of the right arm. There is no evidence in
conformance with the sixth edition of the A.M.A., Guides showing a greater impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.25 Section 10.608(a) of the Code of Federal Regulations provide that a
18

Id. at 472-76.

19

See J.Q., 59 ECAB 366 (2008).

20

A.M.A., Guides, supra note 3 at 403.

21

Id.

22

Id. at 475.

23

Id.

24

Id.

25

5 U.S.C. § 8128(a).

5

timely request for reconsideration may be granted if the Office determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).26 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (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.27 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.28
Office procedures provide that claims for increased schedule awards may be based on
incorrect calculation of the original award or new exposure.29 To the extent that a claimant is
asserting that the original award was erroneous based on his medical condition at that time, this
would be a request for reconsideration. A claim for an increased schedule award may be based
on new exposure or on medical evidence indicating the progression of an employment-related
condition, without new exposure to employment factors, resulting in a greater permanent
impairment than previously calculated.30
ANALYSIS -- ISSUE 2
On May 25, 2010 appellant requested reconsideration, contending that she had 14 percent
right upper extremity impairment. She did not show that the Office erroneously applied or
interpreted a specific point of law and her argument repeats or duplicates that previously of
record.
Appellant’s argument does not constitute a basis for reopening her case.31
Consequently, appellant was not entitled to a review of the merits of her claim based on the first
and second above-noted requirements under section 10.606(b)(2).32
With respect to the third above-noted requirement under section 10.606(b)(2), the
medical evidence submitted by appellant with her reconsideration request was previously of
record. Evidence that repeats or duplicates evidence of record has no evidentiary value and does
not constitute a basis for reopening a case.33 While a claim for an increased schedule award may
be based on the progression of an employment-related condition, without new exposure to
26

20 C.F.R. § 10.608(a).

27

Id. at § 10.608(b)(1) and (2).

28

Id. at § 10.608(b).

29

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.7(b) (March 1995).
30

A.A., 59 ECAB 726 (2008).

31

M.E., 58 ECAB 694 (2007).

32

20 C.F.R. § 10.606(b)(2).

33

Freddie Mosley, 54 ECAB 255 (2002).

6

employment factors, resulting in a greater permanent impairment than previously calculated,34
the claim must be supported by relevant and pertinent new evidence to warrant merit review of
the claim. Appellant submitted no such evidence in this case. As she did not show that the
Office erred in applying a point of law, advance a relevant legal argument not previously
considered, or submit relevant and pertinent new evidence not previously considered by the
Office, the Office properly denied her reconsideration request.
CONCLUSION
The Board finds that appellant did not establish that she has greater than a 10 percent
impairment of the right upper extremity for which she received a schedule award, and that the
Office properly refused to reopen her case for further consideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 11 and May 20, 2010 be affirmed.
Issued: June 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

34

A.A., supra note 30.

7


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

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

Docket No. 18-0591
Issued: May 22, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 26, 2018 appellant, through counsel, filed a timely appeal from a January 5,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish right upper
extremity permanent impairment for entitlement to a schedule award.
FACTUAL HISTORY
On October 24, 2007 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome (CTS) as a result
of her repetitive employment duties. She first became aware of her condition and first realized it
resulted from factors of her federal employment on April 17, 2007. Appellant did not stop work,
but performed limited duty until she retired from federal service in 2015. OWCP accepted her
claim for right CTS.3 In an April 13, 2016 note, Dr. Sergei Kravets, a Board-certified family
practitioner, opined that appellant had reached maximum medical improvement (MMI).
On August 17, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated August 22, 2016, OWCP advised appellant of the medical
evidence needed to establish her schedule award claim, and requested that she submit a detailed
report from her attending physician. It afforded her 30 days to submit the requested information.
In an August 24, 2016 report, Dr. Neil Allen, Board-certified in internal medicine and
neurology, noted a diagnosis of right CTS. He reviewed appellant’s history and provided
examination findings. Dr. Allen related that an April 6, 2012 electromyography and nerve
conduction velocity (EMG/NCV) studies showed mild-to-moderately severe right median
neuropathy at the wrist. He indicated that appellant had reached MMI.
Dr. Allen opined that appellant had six percent right upper extremity permanent
impairment for right CTS utilizing the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).4 He referenced Table 15-23, page
449, for Entrapment/Compression Neuropathy Impairment and assigned grade modifier for
clinical studies (GMCS) of 1 for test findings due to sensory conduction delay. Dr. Allen also
reported grade modifiers of 3 for a functional history (GMFH) of constant symptoms and 3 for
physical findings (GMPE) due to a QuickDASH score of 84. He concluded that according to page
448 of the A.M.A., Guides, “Rating Process,” appellant had six percent right upper extremity
permanent impairment.
In a March 1, 2017 report, Dr. Arthur Harris, a Board-certified orthopedic surgeon and
OWCP district medical adviser (DMA), found that appellant had six percent permanent
impairment of the right upper extremity due to her accepted right CTS. He referenced Table 15-

3

The record reveals that appellant has a previously accepted claim for right CTS and right shoulder
bursitis/tendinitis in OWCP File No. xxxxx0271. Appellant’s claims have been combined with the current case,
OWCP File No. xxxxxx719, as the master file.
4

A.M.A., Guides (6th ed. 2009).

2

23, page 449 and noted a “Grade Modifier of 2D.” The DMA reported a date of MMI of August 24,
2016, the date of Dr. Allen’s evaluation.
On June 26, 2017 OWCP requested a supplemental report from the DMA. In the request,
it indicated that appellant was recently awarded a schedule award of 11 percent permanent
impairment of each upper extremity under File No. xxxxxx045.5 OWCP requested that the DMA
address whether appellant had established an additional schedule award.
An updated statement of accepted facts (SOAF) dated June 26, 2017 indicated that under
OWCP File No xxxxxx045 OWCP had accepted appellant’s claim for bilateral CTS, bilateral
lateral epicondylitis, right medial epicondylitis, and right radial styloid tenosynovitis as a result of
her employment duties. It further indicated that OWCP had paid a schedule award of 11 percent
permanent impairment to the right upper extremity and 11 percent permanent impairment to the
left upper extremity.
In a supplemental June 27, 2017 report, the DMA related that he had previously found that
appellant had six percent right upper extremity impairment due to her accepted right CTS under
the current claim. He indicated that according to the June 26, 2017 OWCP memorandum,
appellant had previously been awarded 11 percent right upper extremity impairment. Dr. Harris
concluded that appellant had no additional right upper extremity impairment.
By decision dated July 6, 2017, OWCP denied appellant’s schedule award claim finding
that the medical evidence of record did not warrant an increase from the prior schedule award. It
noted that she was previously paid a schedule award for 11 percent permanent impairment of each
upper extremity under File No. xxxxxx045. OWCP found that the medical evidence of record was
insufficient to establish that she was entitled to an additional schedule award as a result of her
accepted right CTS for the current claim.
On July 12, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on November 29, 2017.
By decision dated January 5, 2018, an OWCP hearing representative affirmed the July 6,
2017 decision. He found that the weight of the medical evidence rested with the report of the
DMA, Dr. Harris, who found that the medical evidence submitted did not demonstrate that
appellant was entitled to more than 11 percent permanent impairment of her right upper extremity,
for which she previously received a schedule award on April 19, 2017.6

5

OWCP File No. xxxxxx045 is not currently before the Board.

6

The hearing representative further noted that the April 19, 2017 schedule award included impairment referable to
CTS, as reportedly noted by Dr. Michael Katz, a DMA, in a March 9, 2017 report which is not of record in the current
claim.

3

LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.7 With respect to a schedule award, it is the claimant’s burden
of proof to establish a permanent impairment of the scheduled member as a result of his or her
employment injury.8 A claimant may seek an increased schedule award if the evidence establishes
that he or she sustained an increased impairment causally related to an employment injury.9 The
medical evidence must include a detailed description of the permanent impairment.10
The schedule award provision of FECA11 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 of 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 has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.12 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).14 In addressing impairment for the upper extremities, the sixth edition of the
A.M.A., Guides requires identifying the impairment class for the diagnosed condition, which is
then adjusted by grade modifiers GMFH, GMPE, and GMCS.15 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 Evaluators are directed to provide

7

John W. Montoya, 54 ECAB 306 (2003).

8

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

9

See Rose V. Ford, 55 ECAB 449 (2004).

10

See Vanessa Young, 55 ECAB 575 (2004).

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
14

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6th ed. 2009).
15

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

16

Id. at 411.

4

rationale for their impairment rating choices, including the choices of diagnosis from regional grids
and calculations of modifier scores.17
Impairment due to CTS is evaluated under the scheme found in Table 15-23
(Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.18 In Table
15-23, grade modifiers levels (ranging from zero to four) are described for the categories of test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down based on functional scale, an assessment of impact on daily
living activities, QuickDASH.19
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP procedures provide that cases should be administratively combined when correct
adjudication of the issues depend on frequent cross-reference between files.20 For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.21 Appellant’s current claim for a
schedule award for her right upper extremity is for a diagnosis of CTS while her schedule award
in OWCP File No xxxxxx045 was based upon an accepted claim for bilateral CTS, bilateral lateral
epicondylitis, right medial epicondylitis, and right radial styloid tenosynovitis. The medical
records of the two files have not been combined for cross-referencing as required by OWCP
procedures.
The Board therefore finds that for a full and fair adjudication of appellant’s pending appeals
for her right upper extremity, all of her claim files which relate to upper extremity conditions must
be administratively combined by OWCP, including File Nos. xxxxxx045 and xxxxxx719.
Following this and other such further development as it deems necessary, OWCP shall issue a de
novo decision on appellant’s claim for a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

17

See R.V., Docket No. 10-1827 (issued April 1, 2011).

18

A.M.A., Guides 449.

19

Id. at 448-49.

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
21

Id.; K.T., Docket No. 17-0432 (issued August 17, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the January 5, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: May 22, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., claiming as widow of L.T., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 14-806
Issued: May 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 1, 2013 appellant filed a timely appeal of a December 4, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), denying her application for
reconsideration without merit review of the claim.1 Since more than 180 days has elapsed
between the last merit decision on November 11, 2011 and the filing of this appeal, the Board
lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

1

The Board initially issued an order dismissing appeal dated May 12, 2014, because appellant had not submitted
a timely appeal of the December 4, 2012 OWCP decision. By order dated September 9, 2014, the Board reinstated
the appeal, finding that appellant submitted evidence that the appeal was mailed on May 29, 2013, which was within
180 days of the December 4, 2012 decision. 20 C.F.R. § 501.3(e) and (f). The Board also issued an order dated
March 23, 2015, denying appellant’s request for an oral argument.
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.
FACTUAL HISTORY
On July 31, 1995 the employee, then a 38-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a back injury in the performance of duty on
July 15, 1995. He alleged that he was hit in the back with a bag of mail. OWCP accepted the
claim for a lumbar sprain. The employee returned to a light-duty job and filed a claim for a
recurrence of disability from April 7 to 26, 1996, which was accepted by OWCP. In a report
dated September 8, 2004, Dr. Huntly Chapman, a Board-certified orthopedic surgeon, stated that
the employment-related diagnosis was herniated nucleus pulposus at L4-5 and L5-S1.
On November 25, 2008 appellant filed a Form CA-7 (claim for compensation) and
indicated that she was seeking a schedule award (in the claim of her now deceased husband).
She submitted a report dated November 25, 2006 from Dr. Steven Mueller, a Board-certified
anesthesiologist, who indicated that the employee had died on November 24, 2006. Dr. Mueller
reported that the employee had been admitted to the hospital on November 16, 2006, and that the
primary cause of death was squamous cell carcinoma of the left lung, complicated by regional
metastases, with involvement of the heart and pericardium. In a report dated December 31,
2008, an OWCP medical adviser opined that the evidence did not support that the employee’s
death was causally related to his federal employment.
On April 2, 2009 appellant filed a Form CA-5 claim for compensation by widow. He
submitted a death certificate dated November 24, 2006 signed by Dr. Mueller. The immediate
cause of death was reported as squamous cell carcinoma of the lungs, with contributing factors
reported as acute respiratory distress syndrome (ARDS), multisystem organ failure, and coronary
artery disease. Appellant also resubmitted the November 25, 2006 report from Dr. Mueller.
In a decision dated May 5, 2009, OWCP denied the claim for compensation. It found the
evidence did not establish that the employee’s death was causally related to federal employment
or his employment injury.
Appellant requested reconsideration and submitted an April 29, 2009 report from
Dr. Chapman, who stated that the employee’s job injury and associated stresses of that injury
were a “producing cause” of the employee’s problems and ultimate death.
By decision dated September 10, 2009, OWCP reviewed the merits of the claim and
denied modification. In a letter dated April 30, 2010, appellant, through her representative,
requested reconsideration. Appellant argued that the employee had low back problems that
included herniated discs and multiple medications. The evidence submitted included a
December 11, 2007 decision from the Department of Veterans Affairs (VA) which indicated that
the employee’s death was accepted as service related.

2

In a decision dated August 6, 2010, OWCP reviewed the merits of the claim and denied
modification. It noted that the issue of whether a herniated disc was employment related was not
directly relevant to the issue presented of whether the employee’s death was employment related.
By decision dated June 29, 2011, OWCP found that appellant’s application for reconsideration
was insufficient to warrant review of the merits of the claim.
By letter dated August 2, 2011, appellant’s representative again requested
reconsideration. He argued that the employee had employment-related herniated discs, and the
herniated discs, increased medication, and elevated pain levels were contributing factors to his
death. Appellant submitted a July 20, 2011 report from Dr. Chapman, opining that the employee
had disc herniations, as demonstrated by a June 9, 1999 MRI scan. Dr. Chapman opined that the
employment injury on July 15, 1995 had aggravated a preexisting condition and caused herniated
discs.
By decision dated November 1, 2011, OWCP again reviewed the merits of the claim and
denied modification. It found the evidence was insufficient to warrant modification of the denial
of the claim.
Appellant again requested reconsideration on May 11, 2012. By decision dated May 31,
2012, OWCP found the evidence was insufficient to warrant a review of the merits of the claim.
In a letter dated October 29, 2012, appellant requested reconsideration. She stated that
she was asking for an upgrade from a back sprain to a herniated disc. Appellant resubmitted
reports dated September 8, 2004 and July 20, 2011 report from Dr. Chapman. She also
submitted the August 2, 2011 reconsideration request from her former representative.
By decision dated December 4, 2012, OWCP found the evidence was insufficient to
warrant merit review of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”4 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.5

3

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

ANALYSIS
In the present case, appellant requested reconsideration of her claim by letter dated
October 29, 2012. She did not attempt to show that OWCP erroneously applied or interpreted a
specific point of law, or advance a relevant legal argument not previously considered by OWCP.
Appellant stated that she wanted to expand the claim to include a herniated disc. She had
previously argued that the employee (her spouse) had sustained an employment-related herniated
disc and this was a contributing factor to his death.
As to the third standard noted above, appellant did not submit relevant and pertinent
evidence not previously considered by OWCP. The underlying issue in the case was a medical
issue as to whether the employee’s death on November 24, 2006 was causally related to his
federal employment or an employment-related injury. The September 8, 2004 and July 20, 2011
reports from Dr. Chapman were previously submitted and are not new evidence. The August 2,
2011 reconsideration request had been previously submitted and does not constitute new
evidence.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). She did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered by OWCP. Pursuant to 20
C.F.R. § 10.608(b), OWCP properly declined to review the merits of the claim.
On appeal, appellant resubmitted evidence of record. She argued that the medical
evidence established her claim. As noted above, the issue before the Board was whether
appellant had met any of the requirements of 20 C.F.R. § 10.606(b). The Board considered the
evidence and arguments submitted on reconsideration, and for the reasons stated, the Board finds
that appellant was not entitled to a merit review of her claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 4, 2012 is affirmed.
Issued: May 22, 2015
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND
PROCESSING & DISTRIBUTION CENTER,
Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1116
Issued: March 11, 2022

Case Submitted on the Record

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

On July 8, 2021 appellant sought an appeal from a purported March 22, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1116.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 2 The Board notes that the record contains a March 22, 2021
informational letter advising appellant that no further action would be taken on her claim, which
was a duplicate of her claim under OWCP File No. xxxxxx762. This correspondence does not

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

constitute a final adverse decision by OWCP. 3 As there is no final adverse decision issued by
OWCP over which the Board may properly exercise jurisdiction, the Board concludes that the
appeal docketed as No. 21-1116 must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1116 is dismissed.
Issued: March 11, 2022
Washington, DC

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

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

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

3

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
4

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

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Appearances:
Tom Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 12-584
Issued: August 23, 2012

Case Submitted on the Record

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

JURISDICTION
On January 23, 2012 appellant filed a timely appeal from an October 14, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On June 7, 2011 appellant, then a 20-year-old rural route carrier, filed a traumatic injury
claim alleging that he experienced acute stress due to constant harassment by his supervisor,
Heidi Cassuben. OWCP developed his claim as an occupational disease claim, as he claimed
1

5 U.S.C. § 8101 et seq.

that his condition was due to employment-related incidents occurring over a period over more
than one day.2
The employing establishment controverted appellant’s claim, asserting that his
allegations were vague and unfounded. In a May 31, 2011 memorandum, Supervisor Cassuben
stated that appellant had been sent home that date because he did not have access to a vehicle for
his route and the employing establishment was unable to accommodate his light-duty request
based upon a nonwork-related injury.
In a letter dated June 17, 2011, OWCP informed appellant that the evidence submitted
was insufficient to establish his claim. It advised him to provide details regarding incidents that
he believed contributed to his claimed condition. Appellant was also instructed to provide a
medical report, with a diagnosis and an opinion as to the cause of the diagnosed condition.
In a letter dated June 20, 2011, the employing establishment denied appellant’s allegation
of harassment by his supervisor. It noted that the denial of his request for a reduced work
schedule was an administrative matter. As rural carriers were not entitled to light-duty
assignments, there had been no showing of error or abuse.
In a July 8, 2011 letter, Supervisor Cassuben denied that she had harassed appellant,
noting that the employer had tried to accommodate appellant by moving him to four different
routes. She stated that, while his performance had been poor, the only active discipline he had
received was for poor attendance. Supervisor Cassuben noted that appellant had acknowledged
that the injury for which he sought light duty was not work related.
The record contains medical reports, unsigned duty status reports, prescription slips and
notes from physician assistants, for the period June 7, 2010 through February 23, 2011.
In a letter dated July 8, 2011, appellant stated that he filed two grievances alleging that
management refused to accommodate his request to work a 9-hour day, rather than a 12-hour day
and failed to provide written notice removing his restriction.
On July 11, 2011 appellant again asserted that management refused to provide him with
reasonable accommodations and constantly harassed him. On his first day at the job, he returned
to the employing establishment to obtain extra advertisements to complete his route. Supervisor
Lori Covey asked appellant what he was doing wandering around and told him to get back to his
case immediately. When appellant tried to explain that he needed more ads, she shouted, “I do
n[o]t care. I said to get back to your case now!” On his second day on route 32, he again
returned to the station to retrieve additional advertisements. Station Manager Karen Little stated,
“Are you kidding me?! You [a]re going to get me fired. I want to go home already.” Appellant
stated, “All I get from Supervisor Covey and Manager Little for my efforts … is bullying,
harassment and intimidation.”
2

OWCP’s treatment of appellant’s claim as an occupational disease claim was proper. Its procedures provide
that it is not proper to deny a claim merely because a claimant submitted an improper form. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.4(b) (January 2003); see H.M., Docket
No. 09-1548 (issued March 5, 2010).

2

On appellant’s third day, Manager Little informed him that there had been complaints of
undelivered mail on his route. She told him that she was really disappointed in him and
instructed him to attend training the following day. When appellant advised the manager that he
was not available, Manager Little “lost it” and yelled at him, stating that he “will be available
when [she] call[s] him to come in.
On May 4, 2010 Supervisor Covey yelled at appellant for failing to answer his cell phone
while he was on his route. She accused him of leaving a mailbox unsecured in an area she
believed to be on his route. Supervisor Covey later apologized after discovering that the
unsecured box was not on appellant’s route.
Appellant alleged that he was singled out for a 30-day review on May 26, 2010. On
October 23, 2010 he received a letter of warning, which he refused to sign. On April 9, 2011
another frivolous investigation was allegedly conducted regarding a package appellant
supposedly failed to scan as delivered.
Appellant stated that, on May 31, 2011, he provided his supervisor with medical
restrictions limiting him to a nine-hour day. He alleged that he was depressed when he was told
that the employing establishment is not required to accommodate rural carriers and that he must
leave the building and must not return until he no longer had restrictions.
Appellant alleged that on June 3, 2011 Manager Little was verbally abusive. On that day,
he reported to work because he was informed that he was still on the schedule. Manager Little
telephoned appellant and yelled, “Who said you could come back to work?” She stated:
“I told you to never come back to the [employing establishment] and I do n[o]t
care what the schedule says, my word is over everything, including the schedule.
Do you understand this?”
Appellant submitted a statement dated December 29, 2010 from Sue Wood, assistant
state steward, who indicated that he was the only rural carrier called in for a 30-day review.
In a letter dated July 9, 2011, appellant disputed the employing establishment’s claim that
he requested light duty, contending that working a nine-hour shift does not constitute light duty.
The record contains notes from a physician’s assistant, dated October 23, 2010 through
July 7, 2011. On February 24, 2011 N. Koren recommended that appellant should work no more
than a nine-hour shift.
In an October 25, 2010 statement, appellant alleged that he was harassed on October 23,
2010 by Supervisor Cassuben, who behaved in an unprofessional and aggressive manner.
Supervisor Cassuben reportedly told him that she was done with him and that he had
disappointed her, used profanity and exhibited behavior suggesting that she was intoxicated, such
as licking her lips, slurring her words, stuttering slightly and smelling like alcohol. After she
handed him a letter of warning, she harassed him again by asking if he was okay to drive.

3

Appellant submitted a May 4, 2010 statement from Coworker Bernice Baker, who related
his claims that Supervisor Cassuben had mistakenly accused him of leaving a postal box
unsecured and had harassed him and treated him unfairly.
In a letter dated August 22, 2011, Supervisor Cassuben controverted appellant’s claims of
harassment and denied that she had acted abusively or unreasonably in her role as a supervisor.
She stated that management had tried to hold him accountable for frequent misdeliveries, not
delivering all mail, cursing on the workroom floor and that he frequently threw temper tantrums
when efforts were made to talk to him. Supervisor Cassuben also stated that 30-day reviews
were conducted with all new rural carriers, she denied that she had acted aggressively or that she
had harassed appellant on October 23, 2010. She noted that he was reprimanded for failing to
deliver two tubs of hold mail on that date.
Supervisor Cassuben stated that postal regulations precluded the use of a postal route for
a light-duty assignment; therefore, the employing establishment was unable to accommodate a
nine-hour per day restriction.3 She stated that appellant had been given several opportunities, by
way of reassignments, to show he was capable of doing his job, but had failed to perform well.
Supervisor Cassuben denied abusing him, as alleged, when she received a report that he had
failed to secure a postal box on his route. She stated that she had tried repeatedly to reach
appellant on his cell phone, but that he had failed to answer. When appellant finally arrived at
the station, Supervisor Cassuben addressed the customer complaint with him. After discovering
that the unsecured box was not on his route, she apologized for the misunderstanding.
Supervisor Cassuben denied acting abusively regarding the events of May 31 and
June 3, 2011. Due to postal regulations, she informed appellant upon receipt of his work
restrictions, that he would not be allowed to return to work until his restrictions were lifted.
Appellant failed to follow Supervisor Cassuben’s instructions and returned to work although
another carrier had been assigned to his route. When told to leave the building, he began to
argue.
In an August 23, 2011 statement, Manager Little denied ever yelling at appellant. She
also stated that management did not bully or harass him.
In an undated statement, Laura Cady denied raising her voice to appellant or indicating
that she did not care. Rather, she indicated that she tried to assist him when he was looking for
“extras” and explained that not all customers received the flyers.
In an October 14, 2011 decision, OWCP denied appellant’s claim, finding that he had not
established a compensable factor of employment. It determined that he had not established
discrimination or harassment or that the employing establishment acted improperly regarding
administrative matters.

3

Supervisor Cassuben noted that rural carriers are required to work up to 12 hours per day.

4

LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that he has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of FECA. The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to the nature of his work or his fear and anxiety regarding his
ability to carry out his work duties.5 By contrast, there are disabilities having some kind of
causal connection with the employment that are not covered under workers’ compensation law
because they are not found to have arisen out of employment, such as when disability results
from an employee’s fear of reduction-in-force or frustration from not being permitted to work in
a particular environment or to hold a particular position.6 An employee’s emotional reaction to
an administrative or personnel matter is generally not covered by workers’ compensation. The
Board has held, however, that error or abuse by the employing establishment in an administrative
or personnel matter may afford coverage.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.8

4

D.L., 58 ECAB 217 (2006).

5

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

6

Id.

7

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
8

D.L., supra note 4; T.G., 58 ECAB 189 (2006); C.S., 58 ECAB 137 (2006); A.K., 58 ECAB 119 (2006).

5

The Board has held that allegations, alone, by a claimant are insufficient to establish a
factual basis for an emotional condition claim but must be substantiated by the evidence.9 Mere
perceptions and feelings of harassment or discrimination will not support an award of
compensation. The claimant must establish such allegations with probative and reliable
evidence.10
With regard to claims under FECA, the Board has held that the determination of an
employee’s rights or remedies under other statutory authority does not establish entitlement to
benefits under FECA. To establish disability, an employee’s injury must be shown to be
causally related to an accepted injury or accepted factors of his or her federal employment. For
this reason, the determinations of other administrative agencies or courts, while instructive, are
not determinative with regard to disability arising under FECA. Findings made by the MSPB or
Equal Employment Opportunity Commission may constitute substantial evidence relative to a
claim to be considered by OWCP and the Board.11
ANALYSIS
Appellant does not attribute his emotional condition to any specially assigned job
requirement or duty arising from his status as an employee under Cutler. Rather, he contends
that he experienced stress as a result of discriminatory and abusive actions on the part of his
supervisors. Having considered the evidence and argument presented, the Board finds that
appellant has failed to establish a compensable employment factor. Therefore, appellant failed to
meet his burden of proof to establish that he sustained an emotional condition causally related to
factors of his federal employment.
Appellant alleged that management refused to modify his work schedule to accommodate
restrictions that provided a nine-hour workday; that he was sent home on May 31, 2011 due to
his restrictions; and that he was reprimanded for returning to work when he was informed he was
on the schedule. The Board finds that these allegations relate to administrative or personnel
matters, unrelated to his regular or specially assigned work duties and, therefore, do not fall
within the coverage of FECA.12 Although the handling of disciplinary actions and leave
requests, the assignment of work duties and the monitoring of work activities are generally
related to the employment, they are administrative functions of the employer and not duties of
9

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
10

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (it was found that the employee failed to establish the incidents or
actions characterized as harassment).
11

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

12

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath,
44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 126667 (1988). See also Jimmy B. Copeland, 43 ECAB 339 (1991) (An investigation by the employing establishment is
an administrative matter).

6

the employee.13 The Board has also found that an administrative or personnel matter will be
considered to be an employment factor where the evidence discloses error or abuse on the part of
the employing establishment. In determining whether the employing establishment erred or
acted abusively, the Board has examined whether the employing establishment acted
reasonably.14
Appellant alleged that on May 31, 2011 he provided his supervisor with medical
restrictions limiting him to a nine-hour day. He alleged that he became depressed when he was
told that the employing establishment was not required to accommodate rural carriers and to
leave the building and not return until he no longer had restrictions. Appellant contended that
working a nine-hour shift does not constitute light duty. Supervisor Cassuben, however, stated
that rural carriers are required to work up to a 12-hour day and that postal regulations precluded
the use of a postal route for a light-duty assignment; therefore, the employing establishment was
unable to accommodate a nine-hour-per-day restriction. The supervisor noted that appellant had
acknowledged that the injury for which he sought light duty was not work related. In this case,
appellant has not submitted sufficient evidence to show that the employing establishment
committed error or abuse with respect to this administrative matter.
Appellant alleged that he was singled out for a 30-day review on May 26, 2010. He
submitted a letter from a union representative, who stated that he was the only rural carrier called
in for a 30-day review. Supervisor Cassuben, however, indicated that 30-day reviews were
conducted with all new rural carriers. In any event, the Board finds that the manager’s decision
to conduct a 30-day review of a new employee was a reasonable exercise of her administrative
duties.
Appellant alleged that while issuing him a letter of warning on October 23, 2010
Supervisor Cassuben behaved in an unprofessional and aggressive manner, used profanity and
exhibited behavior suggesting that she was intoxicated, such as licking her lips, slurring her
words, stuttering slightly and smelling like alcohol. Supervisor Cassuben reportedly told him
that she was done with him and that he had disappointed her. After she handed appellant a letter
of warning, she purportedly harassed him again by asking if he was okay to drive. Appellant,
however, submitted no evidence to support his allegations of aggressive or drunken behavior on
the part of the supervisor. On the other hand, Supervisor Cassuben denied his allegations and
stated that appellant was reprimanded for failing to deliver two tubs of hold mail. Appellant has
not shown that his supervisor’s actions constituted error or abuse.
Appellant alleged that on May 4, 2010 Supervisor Cassuben falsely accused him of
leaving a mailbox unsecured in an area she believed to be on his route and yelled at him for
failing to answer his cell phone while he was on his route. Supervisor Cassuben, however,
denied abusing him, stating that when she received a report that he had failed to secure a postal
box on his route, she tried repeatedly to reach him on his cell phone but that he had failed to
answer. When appellant finally arrived at the station, she addressed the customer complaint with
him. After discovering that the unsecured box was not on his route, Supervisor Cassuben
13

Id.

14

See Richard J. Dube, 42 ECAB 916, 920 (1991).

7

apologized for the misunderstanding. Appellant submitted a statement from Ms. Baker, who
repeated his allegation that he had been falsely accused of leaving a postal box unsecured.
Ms. Baker’s statement is not evidence of abuse or error on the part of management. The Board
finds that Supervisor Cassuben’s action of investigating the customer complaint was reasonable
and appropriate.
Appellant alleged that he was verbally abused by management. For example, on his first
day on the job, Supervisor Covey asked him what he was doing wandering around the station
and told him to get back to his case immediately. When appellant tried to explain that he needed
more ads, she allegedly shouted, “I do n[o]t care. I said to get back to your case now!” On his
second day, Station Manager Little observed him looking for advertisements in the station and
stated: “Are you kidding me?! You [a]re going to get me fired. I want to go home already.” On
appellant’s third day, she told him that she was really disappointed in him and instructed him to
attend training the following day. When appellant advised Manager Little that he was not
available, she “lost it” and yelled at him, stating that he “will be available when [she] call[s] him
to come in. On May 4, 2010 Supervisor Covey reportedly yelled at him for failing to answer his
cell phone while he was on his route. On June 3, 2011 Manager Little allegedly yelled at
appellant when he returned to work after being told to go home and stated: “Who said you could
come back to work? I told you to never come back to the [employing establishment] and I do
n[o]t care what the schedule says, my word is over everything, including the schedule. Do you
understand this?”
A verbal altercation, when sufficiently detailed by the claimant and supported by the
evidence, may constitute a compensable employment factor.15 This does not imply, however,
that every statement uttered in the workplace will give rise to coverage under FECA.16 In this
case, appellant provided no evidence to substantiate his allegation and his supervisors denied
ever yelling at or acting abusively towards him. He has not shown how his supervisors’ actions
rise to the level of verbal abuse or otherwise fall within coverage of FECA.17 The Board finds
that his emotional reaction to the coworker’s behavior must be considered self-generated in that
it resulted from his perceptions regarding her supervisor’s statements.18
Appellant made additional allegations of harassment and discrimination on the part of his
supervisors. To the extent that incidents alleged as constituting discrimination and harassment
are established as factual, these could constitute employment factors.19 However, for harassment
or discrimination to give rise to a compensable disability under FECA, there must be evidence
that it did, in fact, occur. Mere perceptions of harassment or discrimination will not support an
award of compensation.20 His general allegations are insufficient to establish that he was
15

C.S., supra note 8.

16

J.C., 58 ECAB 594 (2007).

17

Harriet J. Landry, 47 ECAB 543, 547 (1996); see Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L.
White, 42 ECAB 666, 669-70 (1991).
18

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

19

Kathleen D. Walker, 42 ECAB 603 (1991).

20

Charles E. McAndrews, 55 ECAB 711 (2004).

8

harassed or discriminated against by her supervisors at any time. Appellant has not established a
compensable employment factor with respect to these general allegations.
Appellant stated that he filed two grievances alleging that management refused to
accommodate his request to work a 9-hour day, rather than a 12-hour day and failed to provide
written notice removing his restriction. As noted above, findings made by the MSPB or EEO
Commission may constitute substantial evidence relative to a claim to be considered by OWCP
and the Board.21 In this case, however, the record does not contain a final EEO Commission
decision finding that the employing establishment committed error or abuse. Therefore,
appellant has not established entitlement to benefits under FECA in this regard.
The Board finds that appellant failed to establish a compensable factor of employment;
therefore, he failed to establish that his emotional condition arose in the performance of duty.22
On appeal, appellant reiterates his arguments regarding alleged harassment and
discrimination by the employing establishment. He disagrees with OWCP’s October 14, 2011
decision, contending that the employing establishment committed errors that resulted in his
emotional condition. For reasons stated, the Board finds that appellant failed to establish a
compensable factor of employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty.

21

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

22

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See L.K., Docket No. 08-849 (issued June 23, 2009); Margaret S. Krzycki, 43 ECAB
496 (1992). Marlon Vera, 54 ECAB 834 (2003).

9

ORDER
IT IS HEREBY ORDERED THAT the October 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10