United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
GENERAL SERVICES ADMINISTRATION,
OFFICE OF FEDERAL SUPPLIES &
SERVICES, Duluth, GA, Employer
__________________________________________

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

Docket No. 10-878
Issued: December 17, 2010

Case Submitted on the Record

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

JURISDICTION
On February 17, 2010 appellant filed a timely appeal from a September 29, 2009 merit
decision of the Office of Workers’ Compensation Programs terminating his compensation. He
also appealed an October 27, 2009 nonmerit decision denying his request for reconsideration.
Pursuant to 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 the Office properly terminated appellant’s compensation
effective March 15, 2009 on the grounds that he had no further disability due to his accepted
work injury; (2) whether it properly terminated his authorization for medical benefits; and
(3) whether the Office properly denied appellant’s request for further review of the merits of his
claim under 5 U.S.C. § 8128.

FACTUAL HISTORY
The Office accepted that on May 24, 1983 appellant, then a 37-year-old warehouse
worker, sustained low back strain with sciatica and a bulging disc at L4-5 after he injured his
back lifting a box at work. It further accepted post-traumatic stress disorder (PTSD) as a result
of his work injury. Appellant received compensation for total disability from 1986 onward.
In a report dated January 21, 2008, Dr. Richard W. Cohen, an attending Board-certified
orthopedic surgeon, diagnosed chronic cervical and lumbar degenerative disc disease with
intermittent radiculopathy and chronic disability.1 He found that appellant was disabled from
work.
On January 28, 2008 Dr. Shel Sharpe, a psychiatrist, diagnosed psychotic depression,
paranoia, possible schizoaffective disorder and PTSD due to the accepted back injury “and to the
continuation of intrusive memories and low self-worth, as well as flashbacks from the
service….” He found that appellant was permanently and totally disabled from work due to
PTSD and psychotic depression arising from the work injury.
On April 9, 2008 the Office referred appellant to Dr. Harold H. Alexander, a Boardcertified orthopedic surgeon, for a second opinion examination. Dr. Alexander evaluated
appellant on April 30, 2008. After reviewing the history of injury and listing findings on
physical examination, he stated:
“It is my opinion that [appellant] does have significant pain in his lower back
from degenerative disc disease, but how much of this is from his injury and how
much is from normal aging process is difficult to say. I would say that [the]
predominance of his back pain is from aging process with degenerative arthritis.”
Dr. Alexander found no evidence of a herniated disc and asserted that appellant’s back
pain was “somewhat exaggerated compared to the objective findings, but because of his obesity
and degenerative changes I do feel that he has significant back pain.” He opined that appellant
was disabled from his regular employment but could perform part-time sedentary work from an
orthopedic standpoint. Dr. Alexander attributed “most of the limitations” to aging.
On May 19, 2008 the Office referred appellant to Dr. Brian Teliho, a Board-certified
psychiatrist, for a second opinion examination. On June 5, 2008 Dr. Teliho reviewed the history
of injury and provided findings on clinical evaluation. He noted that appellant denied any
current symptoms of PTSD but did have symptoms of depression and psychosis. Dr. Teliho
diagnosed schizoaffective disorder and depression. He found that appellant did not meet the
criteria for PTSD at the present time because he denied any “signs or symptoms of [PTSD].”
Dr. Teliho related:
“I cannot connect a diagnosis of schizoaffective disorder with the reported injury
sustained in 1983. Assuming the claimant had a diagnosis of [PTSD] in relation
1

Dr. Cohen electronically signed the report on February 11, 2008. On April 21, 2008 he diagnosed right shoulder
bursitis, tendinitis and partial adhesive capsulitis and chronic cervical and lumbar disc disease.

2

to this injury, I cannot determine the date or approximate date the condition
resolved. The claimant appears to have ongoing struggles with schizoaffective
disorder and is in a depressive state, which requires continued psychiatric
medication management by a psychiatrist. However, I believe a diagnosis of
schizoaffective disorder is likely wholly unrelated to the 1983 injury.”
Dr. Teliho opined that appellant could not adequately function at work given his
depression and reported hallucinations but could possibly perform limited-duty employment. He
recommended further treatment for his paranoia, hallucinations and depression.
On January 16, 2009 the Office advised appellant of its proposed termination of his
compensation and authorization for medical treatment.
On February 5, 2009 Dr. Cohen diagnosed early degenerative arthritis of the cervical
spine and advanced degenerative disc disease at L5-S1. He reviewed Dr. Alexander’s report and
related that he generally agreed with Dr. Alexander’s finding that appellant could work four
hours per day with restrictions.
By decision dated February 27, 2009, the Office terminated appellant’s compensation and
authorization for medical benefits effective March 15, 2009. It found that the opinions of
Dr. Alexander and Dr. Teliho constituted the weight of the evidence and established that he had
no further employment-related residuals of his accepted work injury.
In a report dated March 12, 2009, Dr. Sharpe diagnosed PTSD due to appellant’s back
injury, psychotic depression, paranoia and possible schizoaffective disorder. He disagreed with
Dr. Teliho’s finding that appellant did not currently have PTSD. Dr. Sharpe indicated that
appellant’s PTSD developed from stress in life and explained, “This whole experience of loss of
benefits has restimulated the nightmares, flashbacks, anxiety, paranoia and related to his back
injury and compounded by childhood issues and military service.” He found that appellant was
totally disabled from work due to paranoia and depression.
On March 30, 2009 appellant requested a review of the written record. By decision dated
September 29, 2009, the hearing representative affirmed the February 27, 2009 decision.
On October 13, 2009 appellant requested reconsideration. By decision dated October 27,
2009, the Office found that he had not submitted evidence or argument sufficient to warrant
reopening his case for further merit review under section 8128.
On appeal, appellant questions why the Office accepted the opinion of Dr. Teliho rather
than the opinion of Dr. Sharpe, his attending physician. He notes that Dr. Alexander found that
he was unable to work and that the Social Security Administration found that he was disabled
due to his PTSD and depression/anxiety.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation

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without establishing that the disability ceased or that it was no longer related to the employment.2
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for low back strain with sciatica, a bulging disc at
L4-5 and PTSD due to a May 24, 1983 work injury. It paid him compensation for total disability
from 1986 onward.
Appellant received treatment for his PTSD from Dr. Sharpe. On January 28, 2008
Dr. Sharpe diagnosed psychotic depression, paranoia, possible schizoaffective disorder and
PTSD. He attributed the diagnosed conditions to the back injury, diminished self-worth and
flashbacks from military service. Dr. Sharpe found that appellant was disabled due to PTSD and
psychotic depression resulting from his employment injury. He did not, however, provide any
rationale for his opinion. A medical report is of limited probative value on a given medical
question if it is unsupported by medical rationale.4
On May 19, 2008 the Office referred appellant to Dr. Teliho to determine whether
appellant had any further disability or residuals of his accepted PTSD. On June 5, 2008
Dr. Teliho discussed appellant’s current symptoms of psychosis and depression and noted that he
denied symptoms of PTSD. He found that appellant had no present diagnosis of PTSD and
provided rationale for his opinion by explaining that it was based on appellant’s description of
his current symptoms. Dr. Teliho diagnosed schizoaffective disorder and a depressive state. He
found that the schizoaffective disorder was unrelated to the accepted 1983 employment injury.
Dr. Teliho determined that appellant could possible perform limited-duty work. The Board finds
that Dr. Teliho’s opinion is detailed and well rationalized and thus represents the weight of the
medical evidence on the issue of whether appellant has any further disability due to his PTSD.
On March 12, 2009 Dr. Sharpe diagnosed PTSD from appellant’s back injury, psychotic
depression, paranoia and a possible schizoaffective disorder. He disagreed with Dr. Teliho’s
finding that appellant did not have PTSD. Dr. Sharpe noted that appellant had PTSD reactions to
stress experienced in daily life and provided as a rationale that the stress of losing his benefits
caused flashbacks, anxiety and paranoia due to his back injury, military service and other issues.
Stress from a claimant’s pursuit of a claim before the Office, however, does not constitute a
compensable employment factor.5 Dr. Sharpe did not provide a rationalized opinion regarding
whether appellant continued to experience PTSD due to back injury and thus his opinion is of
diminished probative value.6
2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

J.M., 58 ECAB 303 (2007); Richard A. Neidert, 57 ECAB 474 (2006).

5

John D. Jackson, 55 ECAB 465 (2004).

6

See supra note 4.

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The Board finds, however, that the Office improperly terminated compensation, as the
evidence is insufficient to establish that appellant had no further disability due to his accepted
low back strain with sciatic and a bulging disc at L4-5. On April 9, 2008 the Office referred him
to Dr. Alexander for a second opinion examination to determine whether he continued to have
disability due to his employment-related back condition. On April 30, 2008 Dr. Alexander
advised that appellant had low back pain from degenerative disc disease but that it was hard to
tell “how much of this is from his injury and how much is from [the] normal aging process….”
He found that most of appellant’s back pain resulted from aging. Dr. Alexander determined that
appellant did not have a herniated disc and that his subjective complaints outweighed the
objective findings. He opined that appellant could perform part-time sedentary work and
reiterated that “most of the limitations” were due to aging. Dr. Alexander’s finding that the
majority of appellant’s disability and pain resulted from aging is insufficient to show that he had
no further disability due to his work injury. The Board has held that if a work factor contributes
in any way to the employee’s condition such condition is employment related for purposes of
compensation under the Federal Employees’ Compensation Act.7 Consequently, the Office has
not met its burden of proof to terminate appellant’s compensation for his low back strain with
sciatica and bulging disc at L4-5.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.9
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical treatment of
appellant’s PTSD based on the opinion of Dr. Teliho, who provided a second opinion
examination. Dr. Teliho found that appellant did not currently have PTSD and required
treatment for nonemployment-related schizoaffective disorder with a depressive state. He
provided rationale for his opinion by explaining that appellant reported no current symptoms of
PTSD.
The Board finds, however, that the Office failed to meet its burden of proof to terminate
medical benefits for the accepted conditions of low back strain with sciatica and a bulging L4-5
disc as Dr. Alexander’s report is insufficient to establish that these conditions had fully resolved.

7

Rudy C. Sixta, Jr., 44 ECAB 727 (1993); Arnold Gustafson, 41 ECAB 131 (1989).

8

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

9

Id.

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LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) submit relevant and pertinent new evidence not
previously considered by the Office.11 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.12 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.13
10

The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.14 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.15 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.16
ANALYSIS -- ISSUE 3
On October 13, 2009 appellant requested reconsideration of the Office’s termination of
his benefits. He did not, however, show that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by the Office
or submit 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.
CONCLUSION
The Board finds that the Office properly determined that appellant had no further
disability or residuals from the accepted condition of PTSD. The Board finds, however, that the
Office improperly terminated his compensation and medical benefits as it did not meet its burden
of proof to show that he had no disability or residuals of the accepted conditions of low back
10

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

15

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
16

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

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strain with sciatica and a bulging disc at L4-5. The Board further finds that the Office properly
refused to reopen appellant’s case for further review of the merits under section 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2009 is affirmed and the decision dated
September 29, 2009 is affirmed in part and reversed in part.
Issued: December 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF LABOR, MINE, SAFETY &
HEALTH ADMINISTRATION, Homewood, AL,
Employer
__________________________________________

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

Docket No. 08-585
Issued: June 11, 2008

Case Submitted on the Record

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

JURISDICTION
On December 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 5, 2007 denying her 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 sustained a traumatic injury while in the performance of
duty on August 21, 2007.
FACTUAL HISTORY
On August 23, 2007 appellant, a 55-year-old mine safety and health inspector, filed a
traumatic injury claim (Form CA-1) alleging that she injured her back and neck in a motor
vehicle accident on August 21, 2007.

By letter dated August 30, 2007, the Office advised appellant that the evidence submitted
was insufficient to establish that she had sustained a traumatic injury in the performance of duty.
It requested additional information, including medical evidence providing a diagnosis and a
physician’s opinion explaining a causal relationship between the diagnosed condition and the
alleged August 21, 2007 accident.
The record contains a September 19, 2007 statement from the employing establishment
reflecting that appellant was driving a government-owned vehicle when she was involved in an
automobile accident on August 21, 2007. The employing establishment also stated that appellant
was on official business at the time the accident occurred.
Appellant submitted an August 21, 2007 accident report, photographs of the accident
scene and the damaged vehicle, and an August 21, 2007 statement from appellant, reflecting that
her vehicle was hit in the driver’s side by a red truck, which left the scene of the accident.
By decision dated October 5, 2007, the Office denied appellant’s traumatic injury claim
on the grounds that she failed to establish that her claimed condition was caused by factors of
employment as alleged. The Office accepted that the incident occurred as alleged, but found that
she had submitted no medical evidence which provided a diagnosis that could be connected to
the accepted event.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of the claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.2 When an
employee claims that she sustained a traumatic injury in the performance of duty, she must
establish the “fact of injury,” namely, she must submit sufficient evidence to establish that she
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged, and that such event, incident or exposure caused an injury.3
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
1

The Board notes that appellant submitted additional evidence after the Office rendered its November 18, 2005
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).
2

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

3

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term “injury” as
defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).

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specific employment incident or to specific conditions of employment.4 Causal relationship is a
medical issue, and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The 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 nature of the relationship between the diagnosed condition and the
established incident, or factor of employment.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.6
ANALYSIS
The Office accepted that appellant was a federal employee, that she timely filed her claim
for compensation benefits, and that the workplace incident occurred as alleged. The issue,
therefore, is whether she has submitted sufficient medical evidence to establish that the
employment incident caused an injury. Appellant submitted no medical evidence in support of
her claim prior to the Office’s October 5, 2007 decision. Therefore, she failed to establish a
prima facie claim for compensation.
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between her claimed condition and her
employment.7 To establish causal relationship, she must submit a physician’s report in which the
physician reviews those factors of employment identified by her as causing her condition and,
taking these factors into consideration, as well as findings upon examination and appellant’s
medical history, explain how these employment factors caused or aggravated any diagnosed
condition, and present medical rationale in support of his opinion.8 Appellant failed to submit
such evidence and, therefore, failed to satisfy her burden of proof. The Board finds that the
Office properly denied her claim for benefits under the Act.
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury in the performance of duty on August 21, 2007.
4

Katherine J. Friday, 47 ECAB 591, 594 (1996).

5

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

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Patricia J. Glenn, 53 ECAB 159 (2001).

8

Robert Broome, supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the October 5, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Ogden, UT,
Employer
__________________________________________

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

Docket No. 08-173
Issued: April 23, 2008

Case Submitted on the Record

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

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 1, 2007 nonmerit decision denying her request for further merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision. The last merit decision of the Office was a May 19, 2006 decision denying
her traumatic injury claim. Because more than one year has elapsed between the Office’s last
merit decision and the filing of this appeal, the Board lacks jurisdiction to review the merits of
this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On April 3, 2006 appellant, a 36-year-old motor vehicle operator, filed a traumatic injury
claim alleging that, while at work on March 30, 2006, she sustained an injury to her left foot
while breaking in a new pair of steel-toed shoes. She stated that she felt as though she had pulled
a muscle or twisted something on the top of her left foot.
Appellant submitted reports from E. Sandberg, a physician’s assistant. In a March 30,
2006 report, Mr. Sandberg related appellant’s statement that she had experienced a sudden onset
of pain in her left foot while walking in new shoes at work. He diagnosed left foot strain. In a
March 30, 2006 physician’s initial report of work injury or occupational disease, Mr. Sandberg
indicated that appellant’s left foot had suddenly started hurting, without trauma. An April 4,
2006 report reflected that Mr. Sandberg had examined appellant for the first time on March 30,
2006 for sudden onset of pain to the top of her left foot, which had developed at work while she
was wearing new steel-toed shoes. He reported that appellant’s x-ray was negative for a fracture.
In follow-up reports dated April 5, 2006, Mr. Sandberg reiterated his diagnosis of left foot strain.
Stating that appellant’s condition had improved since her work injury seven days prior, he noted
that appellant had tenderness in her left foot and a mild limp. The record also contains
March 30, 2006 prescriptions for shoes and an x-ray.
By decision dated May 19, 2006, the Office denied appellant’s claim. It accepted that the
claimed incident occurred. However, noting that a physician’s assistant is not a “physician” as
defined under the Federal Employees’ Compensation Act, the Office found that there was no
probative medical evidence providing a diagnosis that could be connected to the event.
On May 30, 2006 appellant requested reconsideration of the May 19, 2006 decision. She
contended that her physician’s reports clearly identified her injury as work related. Appellant
submitted a May 17, 2007 statement indicating that the work incident occurred while she was
trying to break in new shoes.
In support of her reconsideration request, appellant submitted copies of Mr. Sandberg’s
March 30, April 4 and 5, 2006 reports, which were previously of record and reviewed by the
Office. She also submitted a March 30, 2006 work status report from Mr. Sandberg, which
provided a diagnosis of left foot strain; an undated, illegible work status report from
Mr. Sandberg; and a March 30, 2006 authorization for treatment.
By decision dated June 1, 2007, the Office denied appellant’s request for reconsideration.
Noting that the evidence submitted was duplicative and irrelevant, the Office found that her
request did not warrant merit review.

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LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,2
Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.3 To be entitled to a
merit review of an Office decision denying or terminating a benefit, a claimant also must file his
or her application for review within one year of the date of that decision.4 When a claimant fails
to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.6 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.7
ANALYSIS
Appellant’s April 30, 2006 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is 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).
In support of her request for reconsideration, appellant submitted copies of reports from
Mr. Sandberg, a physician’s assistant, which were previously of record and considered by the
Office. This evidence is cumulative and duplicative in nature and does not constitute a basis for
reopening her case.8 The remaining evidence submitted consisted of two work status reports
from Mr. Sandberg and a March 30, 2006 authorization for treatment. These documents are not
relevant to the issue in this case. In its May 19, 2006 decision, the Office found that there was
no probative medical evidence providing a diagnosis that could be connected to the established
event. The authorization for medical treatment is not a medical report, signed by a physician and
2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

7

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

8

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

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therefore is irrelevant. As a physician’s assistant does not qualify as a “physician” under the Act,
Mr. Sandberg’s reports do not constitute probative medical evidence and are also irrelevant.9
Additionally, they merely repeat information contained in documents previously received and
reviewed by the Office and are, thus, cumulative and duplicative in nature.10 The Board finds
that these documents do not constitute relevant and pertinent new evidence not previously
considered by the Office.11 Therefore, the Office properly determined that this evidence did not
constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her April 30, 2006 request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a “physician” as defined in 5 U.S.C. § 8101(2). § 8101(2) provides as follows:
“(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by state law.” See Merton J. Sills, 39 ECAB
572, 575 (1988).
10

Id.

11

See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the June 1, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 08-74
Issued: May 9, 2008

Case Submitted on the Record

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

JURISDICTION
On October 3, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ September 24, 2007 merit decision and a July 19, 2007 decision
denying benefits for a claimed left knee injury. Under 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 an injury to his left knee in
the performance of duty on June 1, 2007.
FACTUAL HISTORY
Appellant, a 49-year-old letter carrier, filed a traumatic injury claim on June 13, 2007,
alleging that he injured his left knee while ascending a porch step on June 1, 2007. He submitted
a June 7, 2007 Form CA-17 duty status report from Dr. Daniel C. Finch, Board-certified in
internal medicine, which indicated that appellant sustained a knee injury, noted examination
findings of knee effusion and outlined work restrictions.

On June 19, 2007 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. The Office
asked him to submit a comprehensive medical report from his treating physician describing his
symptoms and the medical reasons for his condition, and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office requested that appellant
submit the additional evidence within 30 days.
Appellant submitted a June 27, 2007 Form CA-17 duty status report from Dr. Finch
which indicated that appellant sustained a knee injury on June 1, 2007 when his left knee popped
while he was stepping on a porch. Dr. Finch stated that appellant had mild effusion of the knee,
outlined work restrictions and indicated that he could do sedentary work. A magnetic resonance
imaging (MRI) scan report dated July 12, 2007 from a Dr. Karen J. Stewart stated an impression
of: (1) osteoarthritic changes in the medial joint compartment; (2) small joint effusion and small
popliteal cyst; and (3) horizontal tear in the posterior horn of the medial meniscus.
By decision dated July 19, 2007, the Office denied appellant’s claim, finding that he failed
to establish fact of injury. The Office stated that the factual evidence appellant submitted did not
establish that the event occurred as alleged and there was no diagnosis which could be connected to
the claimed event.
On July 23, 2007 appellant requested reconsideration and submitted additional evidence.
In a June 15, 2007 report, Dr. Finch stated:
“[Appellant] is under my care for primary care, chronic medical conditions and a
new left knee injury. I saw the patient and evaluated the knee on June 5, 2007.
[Appellant] returns today for reevaluation.
“[Appellant] was injured on June 1, 2007. He was carrying mail on that date
when he stepped up on a porch. As [appellant] transferred weight to the left knee
he sensed a popping sensation and had immediate pain along the left medial joint
line. Immediately after, he could n[o]t bear weight. [Appellant] hobbled back to
his truck and drove himself back to the post office. The pain persisted. There
[appellant] was told to go home but he protested saying that he was injured and
needed immediate medical attention. He was driven here to [the hospital] where
he was evaluated by a physician in our primary care clinic. [Appellant] was
examined by another of our doctors and prescribed pain medication.
“When I examined [appellant] on June 5[, 2007] he had a moderate joint effusion
and his range of motion was about 120 degrees from a normal of about 135. No
instability could be detected. A plain x-ray series was felt to show mild
osteoarthritis changes only. I advised continued nonweight bearing and rest.
“Seen today [appellant] is requiring two crutches for mobility. I reexamined the
patient. Now the knee is of normal warmth and equal to the right. No effusion is
evident. The range of motion is greater than 135 degrees. Again, no laxity or
instability are elicited.
“Although the patient is better today I ordered a[n] [MRI] scan of [the] left knee.
2

“[Appellant] needs to continue no weight bearing for at least one more week or
until the MRI [scan] results confirm that he has no significant internal knee
derangement. He is instructed to continue on his crutches and ibuprofen on
therapeutic doses for now. [Appellant] may not perform work duties that require
standing or walking. He cannot lift or carry.
“My diagnostic impression is acute left knee injury with possible internal
derangement. The injury is clearly related to his work activities. [Appellant’s]
prognosis for recovery is good. I anticipate that the patient will eventually return
to full activity.”
In a report dated July 25, 2007, Dr. Michael D. Ciepiela, a specialist in orthopedic
surgery, reviewed the history of injury, stated findings on examination and concluded that
appellant had sustained a flare up of osteoarthritis of the left knee. He advised that appellant was
currently unable to perform his usual duties as a letter carrier due to the degree of arthritis
present in his left knee. Dr. Ciepiela opined that appellant’s current limitations were not due to
the alleged June 1, 2007 work injury, but were related to symptoms of his underlying arthritis.
By decision dated September 24, 2007, the Office denied modification of the July 19, 2007
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5 The medical evidence required
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

John J. Carlone, 41 ECAB 354 (1989).

5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

3

to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Board finds that appellant failed to submit rationalized medical opinion evidence to
sufficiently describe or explain the medical process by which the June 1, 2007 work accident
would have been competent to cause the claimed injury.9
The only medical reports appellant submitted were Dr. Finch’s June 7 and 27, 2007
Forms CA-17 duty status reports and the June 15, 2007 report from Dr. Finch which indicated
that appellant sustained a knee injury on June 1, 2007 when his left knee popped while he was
stepping on a porch. Dr. Finch stated that appellant had findings of mild joint effusion of the left
knee, outlined work restrictions and indicated that appellant could do sedentary work. He
indicated that appellant had possible internal derangement of the left knee with limitations which
prevented him from performing his usual job as a letter carrier; i.e., performing work duties that
require standing or walking in addition to lifting or carrying, and indicated that this injury was
clearly related to his work activities. Dr. Finch, however, did not provide any medical
explanation of how appellant’s work factor, stepping on a porch, caused his condition. As
Dr. Finch did not provide a rationalized medical opinion supporting causal relationship, his
report is of limited probative value. An MRI scan performed on July 12, 2007 likewise noted
6

Id.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

9

The Board notes that in its July 19, 2007 decision the Office denied appellant’s claim on the grounds that he
failed to establish fact of injury and that the medical evidence appellant submitted insufficient medical evidence in
support of his claim. In its September 24, 2007 decision, the Office considered whether the medical evidence
appellant submitted with his request for reconsideration was sufficient to warrant modification of the July 19, 2007
decision. Based on these facts, the Board finds that the Office implicitly accepted that appellant established fact of
injury.

4

several abnormalities of the left knee, but offered no medical opinion regarding the cause of
these findings.
The record also contains a duty status report from Dr. Ciepiela, who stated that appellant
was currently unable to perform his usual duties as a letter carrier, but found that this was due to
an underlying exacerbation of left knee osteoarthritis. He indicated that appellant’s current
limitations were not due to the alleged June 1, 2007 work injury, but were related to symptoms
of his underlying arthritis. The reports from the physicians of record did not provide a medical
opinion containing a diagnosis relating to the June 1, 2007 incident at work. These physicians
also did not adequately address how appellant’s claimed conditions were causally related to the
June 1, 2007 work incident. There is insufficient rationalized evidence in the record that
appellant’s left knee injury was work related. Therefore, appellant failed to provide a medical
report from a physician that explains how the work incident of June 1, 2007 caused or
contributed to the claimed left knee injury.10
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Accordingly, he did not establish that he sustained a
left knee injury in the performance of duty. The Office properly denied appellant’s claim for
compensation.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a left knee injury in
the performance of duty.

10

The form reports from Dr. Finch that support causal relationship with a checkmark are insufficient to establish
the claim, as the Board has held that without further explanation or rationale, a checked box is not sufficient to
establish causation. Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

5

ORDER
IT IS HEREBY ORDERED THAT the September 24 and July 19, 2007 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: May 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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

Docket No. 15-1031
Issued: September 8, 2015

Case Submitted on the Record

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

JURISDICTION
On February 3, 2015 appellant filed a timely appeal from a nonmerit January 9, 2015
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from December 24, 2013, the date of the merit decision at issue, 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 appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 11, 2013 appellant, then a 54-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on November 12, 2012 he sustained a fractured right
great toe when a patient in a motorized wheelchair ran over his foot.
In a November 19, 2013 letter, OWCP advised appellant of the additional evidence
needed to establish his claim, including medical evidence establishing the presence of the
claimed injury, and a report from his attending physician explaining how the alleged
November 12, 2012 incident caused the injury. It afforded him 30 days to submit such evidence.
Appellant submitted no additional evidence prior to December 24, 2013.
By decision dated December 24, 2013, OWCP denied appellant’s claim as he did not
establish causal relationship. It accepted that the November 12, 2012 incident occurred as
alleged. However, as appellant had not submitted any medical evidence in support of his claim,
he had failed to establish that the accepted incident caused the claimed injury.
In a letter received by OWCP on December 30, 2014, appellant requested
reconsideration. He submitted a November 16, 2012 report from Dr. Eve N. Hanna, an attending
physician Board-certified in occupational and emergency medicine, relating his account of right
big toe pain after a “compression injury by wheelchair (ran over tip of foot) two weeks ago and
again on November 12, 2012.” Dr. Hanna obtained x-rays demonstrating an intra-articular
fracture of the right great toe with possible comminution at the interphalangeal joint. She
provided September 6 and November 15, 2013 follow-up reports, diagnosing a nonunion fracture
of the distal phalanx of the right great toe, calcaneal spurring in the right heel, and a synovial
effusion in the right knee.
By decision dated January 9, 2015, OWCP denied appellant’s request for reconsideration,
as it was not timely filed and failed to present clear evidence of error. It found that his request
for reconsideration was received on December 30, 2014, more than one year following the
December 24, 2013 merit decision. OWCP further found that appellant’s request did not
establish clear evidence of error in the December 24, 2013 decision denying his traumatic injury
claim.
LEGAL PRECEDENT
Section 8128(a) of FECA2 does not entitle a claimant to a review of an OWCP decision
as a matter of right.3 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.4 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is

2

5 U.S.C. § 8128(a).

3

Thankamma Mathews, 44 ECAB 765, 768 (1993).

4

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

2

received within one year of the date of that decision.5 The Board has found that the imposition
of this one-year time limitation does not constitute an abuse of the discretionary authority
granted OWCP under 5 U.S.C. § 8128(a).6
In those cases where requests for reconsideration are not timely filed, OWCP regulations
state that OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation set forth in OWCP regulations, if the claimant’s request for reconsideration
shows “clear evidence of error” on the part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.12 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.13
ANALYSIS
In its January 9, 2015 decision, OWCP properly determined that appellant had failed to
file a timely application for review of the December 24, 2013 merit decision. Appellant
requested reconsideration on December 30, 2014, more than one year from the issuance of the
December 24, 2013 merit decision. OWCP denied the request by January 9, 2015 decision as it
was not timely filed and failed to present clear evidence of error. The remaining issue is whether
appellant’s request demonstrated clear evidence of error in OWCP’s December 24, 2013 merit
decision.

5

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
6

5 U.S.C. § 8128(a); supra note 3; Jesus D. Sanchez, supra note 4.

7

20 C.F.R. § 10.607(b).

8

Supra note 3.

9

Leona N. Travis, 43 ECAB 227 (1991).

10

Jesus D. Sanchez, supra note 4.

11

Id.

12

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Gregory Griffin, supra note 5.

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In support of his request for reconsideration, appellant submitted an appeal rights form
dated December 23, 2014. This form does not contain additional evidence or argument to
demonstrate error in OWCP’s January 9, 2015 decision.
Appellant also provided medical reports from Dr. Hanna, an attending physician, Boardcertified in occupational and emergency medicine. Dr. Hanna recorded appellant’s account of
multiple compression injuries to the right great toe after a wheelchair ran over his foot on two
occasions. She diagnosed a nonunion fracture of the distal phalanx of the right great toe. While
Dr. Hanna’s opinion suggests a conclusion contrary to that reached by OWCP, the reports are
insufficient to establish clear evidence of error.14
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in issuing its December 24, 2013 merit decision denying his claim. Appellant did not
submit the type of positive, precise, and explicit evidence which manifests on its face that
OWCP committed an error. The Board has found that even a detailed, well-rationalized medical
report which, if submitted timely, would have created a conflict in medical evidence is still not
sufficient to create clear evidence of error.15 For these reasons, OWCP’s January 9, 2015
decision was proper under the law and facts of the case.
On appeal, appellant contends that OWCP refused to consider his diabetes as an element
in adjudicating his claim. This argument is not clear evidence of error. Appellant also argues
that the Board committed improprieties in adjudicating his appeal under File No. xxxxx911.16
However, as File No. xxxxxx911 is not before the Board on the present appeal, appellant’s
assertions in this regard are irrelevant.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of the claim as it was not timely filed and failed to present clear evidence of
error.

14

Supra note 9.

15

Scotty A. Linney, Jr., Docket No. 90-1234 (issued March 27, 1991).

16

Under File No. xxxxxx911, OWCP accepted a closed fracture of the left great toe sustained on June 17, 2013,
when a patient in a motorized wheelchair ran over appellant’s foot. By decision and order issued June 15, 2015, the
Board affirmed OWCP’s December 18, 2014 merit decision finding that he had no continuing disability on or after
June 6, 2014. File No. xxxxxx911 is not before the Board on the present appeal.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 9, 2015 is affirmed.
Issued: September 8, 2015
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, STONEY RIDGE
STATION ANNEX, Omaha, NE, Employer
__________________________________________

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

Docket No. 07-850
Issued: July 19, 2007

Case Submitted on the Record

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

JURISDICTION
On February 6, 2007 appellant filed a timely appeal from the September 15, 2006 and
January 16, 2007 merit decisions of the Office of Workers’ Compensation Programs denying his
claim for recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
recurrence of disability on October 18, 2004 causally related to his accepted injury.
FACTUAL HISTORY
On December 22, 2003 appellant filed a traumatic injury claim alleging that he sustained
cervical injuries in a work-related automobile accident on December 20, 2003. The Office
accepted his claim for right cervical neck strain. Appellant did not stop working. This is the
second appeal before the Board.

On October 22, 2004 appellant filed a claim alleging a recurrence of disability as of
October 18, 2004. He stated that, although he returned to work immediately following the
accepted injury, he experienced continued pain and numbness and was unable to perform his
regular duties in the same manner he performed them before the accident. Appellant was treated
by Dr. John McClaren, a chiropractor, from June 23 through August 25, 2004. He was also
treated by Dr. Jeffrey G. Meade (from December 23, 2003 through July 9, 2004) and Dr. Dana S.
Farris (on October 19, 2004), both Board-certified in the area of family medicine. Appellant was
promoted from PTF rural carrier to a regular rural carrier on January 10, 2004. He alleged that
his neck pain worsened to the degree that Dr. Farris advised him to stop working on
October 19, 2004. In an attached supervisor’s report dated November 1, 2004, Pam Dickey
stated that appellant returned to work the next workday following the December 20, 2003
accident and continued working until October 18, 2004. She indicated that the employing
establishment accommodated his continued pain following the accident. The last day appellant
worked for Ms. Dickey was January 9, 2004, when he was promoted.
In a report dated October 27, 2004, Dr. Stephen E. Doran, a Board-certified
neurosurgeon, examined appellant on that date for pain in his neck and upper back, which
radiated down his left arm. Dr. Doran provided an impression of cervical spondylosis and disc
herniation, symptomatic, due to a work-related injury on December 20, 2003. He noted that a
January 24, 2004 magnetic resonance imaging (MRI) scan of the cervical spine demonstrated
C5-6 and C6-7 degenerative spondylosis with disc herniation causing foraminal stenosis, and
loss of normal cervical lordosis. Dr. Doran’s examination of the cervical spine revealed
moderately limited range of motion, especially on rotation to the left. Extension caused
discomfort. Shoulder joints had full range of motion, with no crepitus or tenderness bilaterally.
Dr. Doran found slight give away weakness of the dorsiflexor in the left side. Straight leg raises
caused no pain on the left, but caused increased numbness in the foot. He recommended surgical
intervention, based on the severity of symptoms, appellant’s inability to safely work due to his
pain medication, loss of mobility in his neck and arm weakness. In an accompanying duty status
report, Dr. Doran diagnosed C5-6 and C6-7 radiculitis. He indicated by placing a checkmark in
the “no” box that he did not advise appellant to return to full duty. Dr. Doran opined that
appellant could work eight hours per day with restrictions, including lifting no more than 35
pounds continuously and 70 pounds intermittently; standing/sitting continuously from four to six
hours; walking, bending, stooping, reaching above the shoulder, and driving intermittently four
to six hours; climbing intermittently one to three hours; and pulling/pushing continuously for one
hour.
On November 15, 2004 the Office informed appellant that the information submitted was
insufficient to establish that he had sustained a recurrence of disability. The Office asked
appellant to provide a copy all medical notes from February 6, 2004 forward, as well as all
treatment notes relating to his preexisting C7 radiculopathy condition.
On November 12, 2004 Dr. Doran indicated that appellant’s condition required a C5-6
and C6-7 anterior discectomy and fusion. Stating that appellant had no history of previous neck
injuries prior to the accepted injury, he opined that the need for surgery was directly related to
the December 20, 2003 motor vehicle accident. Appellant submitted a January 3, 2004 report of
an MRI scan of the cervical spine.

2

Appellant submitted treatment notes from Dr. Meade dated December 23, 2003 through
October 19, 2004. On December 23, 2003 Dr. Meade stated that appellant had a past history of
acute vertebral disc disease. On January 2, 2004 Dr. Meade indicated that appellant had a past
history of left arm pain due to a February 18, 1996 work injury, but that his condition had fully
resolved and he had been pain-free for many years until the December 20, 2003 injury. Notes
dated February 5 and July 9, 2004 reflected that appellant continued working, but continued to
complain of neck pain. Notes dated October 19, 2004 reflected a diagnosis of exacerbation of
persistent neck pain secondary to motor vehicle accident with evidence of progressive radiculitis.
Dr. Meade stated, “[appellant] relates the symptoms had improved some but a few days ago
when riding in a vehicle he felt something pop and his pain was increased significantly.”
Appellant underwent surgery on November 18, 2004. In a November 22, 2004 attending
physician’s report, Dr. Doran stated that appellant was disabled as of November 18, 2004. He
indicated that appellant was injured in a December 20, 2003 automobile accident at work, but
that he did not have a preexisting condition. In a statement of disability, Dr. Doran indicated that
appellant would be off work from November 17, 2004 through February 17, 2005. In a
December 14, 2004 duty status report, Dr. Doran stated that appellant could return to work with
restrictions.
In a January 14, 2005 decision, the Office denied appellant’s claim for a recurrence of
disability. The Office found that the record did not contain a rationalized medical opinion
supporting that appellant’s current diagnosed condition was causally related to the accepted
employment injury.
On January 31, 2005 appellant requested a review of the written record. In a January 25,
2005 report, Julie R. Walsh, a physician’s assistant, stated that appellant’s preexisting condition
related to his 1996 injury involved the same discs that were involved in his present condition.
However, she indicated that the preexisting condition had resolved, and the December 20, 2003
injury was a reactivation of the old injury or a new injury. Ms. Walsh also stated that appellant’s
symptoms had persisted and progressed since the 2003 injury.
Appellant submitted an undated report from his chiropractor, Dr. McClaren, who
provided a history of injury and stated that appellant had been able to continue working after his
2003 injury, so long as he took pain medication. He reported moderate to severe reduction of the
cervical curvature; no apparent fracture or other osseous pathology; moderate to severe
degenerative changes at levels of C4-T2; and possible canal stenosis due to osteophyte formation
at the levels of C5-T1.
On April 28, 2005 Dr. Doran opined that appellant’s disc herniation and subsequent need
for surgery were a direct result of the December 20, 2003 motor vehicle accident. He reasoned
that because his symptoms related to his 1996 neck injury had resolved prior to the
December 2003 accident, the 1996 injury was not clinically significant. In a May 13, 2005
report, Dr. Doran opined that appellant was able to perform the duties of the position of regular
rural carrier, as described in a May 13, 2005 physical requirements worksheet. Noting that the
requirements of the position were within the detailed limits of an April 8, 2005 functional
capacity evaluation, he released appellant to full duty.

3

By decision dated September 8, 2005, an Office hearing representative affirmed the
January 14, 2005 decision. The representative found that the evidence of record was insufficient
to support a causal relationship between the December 20, 2003 work-related accident and
appellant’s current cervical condition.
On September 30, 2005 appellant requested reconsideration of the September 8, 2005
decision. He submitted reports related to an August 18, 1996 work injury, including a report of
an October 23, 1996 MRI scan of the cervical spine; an October 16, 1996 report of an x-ray of
the cervical spine; and reports from Dr. Doran dated October 24 and 25, November 7 and
December 17, 1996. On November 7, 1996 Dr. Doran reported that appellant’s MRI scan
revealed moderate to severe stenosis at C6-7 and moderate stenosis at C5-6 due to a spondylosis.
He opined that, without surgical intervention, appellant would continue to experience chronic
pain in his left arm with recurrent flares. On January 26, 2004 Dr. Meade stated that he had
treated appellant on December 23, 2003 and January 2, 2004 for neck strain with right-sided
radiculopathy. Noting that appellant had a preexisting C7 radiculopathy which had completely
resolved, he indicated, by placing a checkmark in a “yes” box, that appellant’s current condition
was caused or aggravated by an employment activity. The record contains reports from
Dr. Doran relating to appellant’s November 18, 2004 surgical procedure, including a
November 18, 2004 operative report; a November 19, 2004 discharge summary; a November 22,
2004 attending physician’s report; and follow-up reports dated December 14, 2004 and
January 3, March 2 and 29, 2005. In his November 22, 2004 attending physician’s report,
Dr. Doran diagnosed cervical spondylosis and cervical disc herniation and indicated by placing a
checkmark in the “yes” box that appellant’s condition was caused or aggravated by conditions of
employment. The record also contains x-rays of the cervical spine dated December 14, 2004 and
January 26, 2005; unsigned notes for the period from June 30, 2004 through September 30, 2005;
a report of a March 30, 2005 x-ray of the cervical spine; and numerous copies of previously
submitted reports.
By decision dated January 12, 2006, the Office denied modification of the September 8,
2005 decision. The Office found that appellant had not provided a well-rationalized opinion
explaining how his claimed recurrent injury-related disability was causally related to the
accepted December 20, 2003 injury.
On March 6, 2006 appellant requested reconsideration and submitted reports dated
January 27 and February 17, 2006 from Dr. Farris. On January 27, 2006 Dr. Farris opined that
appellant’s worsened neck and arm pain were the result of exacerbation of an injury initially
suffered in December 2003 while operating a motor vehicle. On February 17, 2006 he indicated
that appellant required surgery for neck pain resulting from a motor vehicle accident, which
exacerbated his underlying degenerative disc disease. On March 16, 2006 the Office
acknowledged appellant’s request for reconsideration, but advised him to follow the appeal
rights attached to the January 12, 2006 decision. Appellant requested review by the Board. In an
order dated August 28, 2006, the Board remanded the case to the Office, finding that the matter
was in an interlocutory posture.1

1

Docket No. 06-1111 (issued August 28, 2006).

4

By decision dated September 15, 2006, the Office denied modification of its January 12,
2006 decision. The Office found that appellant had failed to establish that his claimed disability
as of October 18, 2004 was causally related to the December 20, 2003 work injury.
On November 15, 2006 appellant filed a request for reconsideration. In a narrative
statement dated July 17, 2006, appellant indicated that, following the accepted December 20,
2003 injury, he continued working until October 16, 2004, when he was injured on his way home
from work. He stated that, after finishing his route on that date, “a car pulled out in front of me
on at 84th and Giles which caused me to jerk and I felt something ‘pop’ in my neck and upper
back right below my neck.” Appellant indicated that he experienced significant pain following
the incident and was unable to go to work the following Monday, October 18, 2004 as a result of
pain.
In a September 7, 2006 report, Dr. Farris indicated that he examined appellant on
October 19, 2004. He stated that appellant suffered from increased neck and left upper extremity
pain at that time, following a motor vehicle ride when he experienced “a sudden jarring and a
popping sensation.” Dr. Farris opined that appellant’s “neck difficulties and pain and subsequent
surgery as well as the exacerbation of his pain in October 2004, were all a direct result of his
initial injury.”
By decision dated January 16, 2007, the Office denied modification of its previous
decisions, finding that the medical evidence did not establish that there was a causal relationship
between appellant’s current disability and the accepted employment injury.
LEGAL PRECEDENT
Section 10.5(x) of the Office regulation defines recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness, without an intervening injury or
new exposure to the work environment that caused the illness.2 This term also means an
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 when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.3
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position, or the medical evidence
establishes that he can perform the light-duty position, the employee has the burden to establish,
by the weight of the reliable, probative and substantial evidence, a recurrence of total disability,
and show that he cannot perform such light duty. As part of this burden, the employee must

2

20 C.F.R. § 10.5(x) (2002). See Carlos A. Marrero, 50 ECAB 117 (1998).

3

Id.

5

show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.4
ANALYSIS
Appellant has not established that he sustained a recurrence of disability as of
October 18, 2004 causally related to his accepted December 20, 2003 injury.
Appellant alleged that he sustained a recurrence of disability on October 18, 2004.
Although he reportedly experienced ongoing pain following his accepted injury, he continued
working until October 16, 2004, when he re-injured his neck on his way home from work.
Appellant stated that “a car pulled out in front of [him] on at 84th and Giles which caused [him]
to jerk and [he]felt something ‘pop’ in [his] neck and upper back right below [his] neck.” As a
result of the October 16, 2004 incident, appellant was unable to go to work the following
Monday, October 18, 2004. Dr. Farris noted that when he examined appellant on October 19,
2004, he was experiencing increased neck and left upper extremity pain following a motor
vehicle ride, when he sustained a sudden jarring and popping sensation. The October 16, 2004
incident constitutes an intervening injury, rather than a spontaneous change in appellant’s
medical condition resulting from his accepted injury. Consequently, appellant did not, by
definition, sustain a recurrence of disability, and the Office properly denied his claim.5
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that on
October 18, 2004 he sustained a recurrence of disability that was causally related to his
accepted injury.

4

Conard Hightower, 54 ECAB 796 (2003).

5

20 C.F.R. § 10.5(x); Philip L. Barnes, 55 ECAB 426 (2004); see also Carlos A. Marrero, supra note 2.

6

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2007 and September 15, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
NEW JERSEY HEALTH CARE SYSTEM,
Lyons, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1601
Issued: February 7, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
On July 2, 2013 appellant filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) nonmerit decisions dated January 14 and July 1, 2013. The
appeal was docketed as No. 13-1601.
In a merit decision dated December 15, 2011, OWCP denied appellant’s occupational
disease claim. In a letter dated December 13, 2012, received by OWCP on December 16, 2012,
appellant’s attorney requested reconsideration of the December 15, 2011 decision. By decision
dated January 14, 2013, OWCP denied appellant’s request for reconsideration without a merit
review, finding the request was untimely and that appellant had not established clear evidence of
error. It stated in the decision that appellant’s request was untimely because it was received
more than one year after the decision was issued; therefore, she was not entitled to a merit review
of the December 15, 2011 decision.
In a letter dated June 12, 2013, received by OWCP on June 20, 2013, appellant’s attorney
requested reconsideration of the December 15, 2011 decision. He provided an Express Mail
receipt demonstrating that appellant’s December 13, 2012 request for reconsideration failed upon
attempted delivery on December 16, 2012 at 4:00 a.m. and was delivered on December 17, 2012
at 12:45 p.m. By decision dated July 1, 2013, OWCP again denied appellant’s request for

reconsideration without a merit review, finding the request was untimely and that appellant had
not established clear evidence of error. It noted in the decision that, per the Express Mail receipt
provided by appellant’s attorney, her first reconsideration request was not received until
December 16, 2012. OWCP stated that December 16, 2012 was not within one year of the
December 15, 2011 decision, and therefore the request was untimely.
The Board finds that OWCP improperly determined in this case that appellant failed to
file a timely application for review. In computing the time for requesting reconsideration, the
date of the event from which the designated period of time begins to run shall not be included
when computing the time period. However, the last day of the period so computed shall be
included unless it is a Saturday, a Sunday or a legal holiday.1 The time for requesting
reconsideration of OWCP’s December 15, 2011 decision began to run on December 16, 2011,
and thus would have expired on December 16, 2012, had this date not been a Sunday. The next
business day was Monday, December 17, 2012. As appellant’s request for reconsideration was
received on that date, it was timely. The case will thus be remanded to OWCP for application of
the standard for reviewing timely requests for reconsideration.2
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 1 and January 14, 2013 and are set aside. The case is
remanded to OWCP for further proceedings consistent with this decision of the Board.
Issued: February 7, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

1

Angel M. Lebron, Jr., 51 ECAB 488 (2000); John B. Montoya, 43 ECAB 1148 (1992).

2

See Debra McDavid, 57 ECAB 149 (2005).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, MID-CAROLINAS
DISTRICT, Charlotte, NC, Employer
__________________________________________

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

Docket No. 14-1984
Issued: June 8, 2015

Case Submitted on the Record

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

JURISDICTION
On September 4, 2014 appellant filed a timely appeal of a July 21, 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.2
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty on March 12, 2013.
On appeal appellant disagreed with the denial of her claim.

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument before the Board. By an order dated February 26, 2015 the Board,
after exercising its discretion, denied the request on the grounds that any arguments on appeal could be adequately
addressed based on a review of the case record. See Order Denying Request for Oral Argument, Docket No. 141984 (issued February 26, 2015).

FACTUAL HISTORY
On March 20, 2013 appellant, then a 41-year-old acting business service network
representative, filed a traumatic injury claim alleging on March 12, 2013 she sustained an
anxiety disorder due to her supervisor questioning her about reporting late for work and
instructing her to submit a leave slip. She noted that she arrived about 9:08 a.m. which
sometimes is her normal arrival time.
On November 16, 2012 appellant and Denise A. Hayes, Acting Marketing Manager,
signed an assignment order detailing appellant to the Business Section Network. The assigned
tour duty hours were 8:00 a.m. to 5:00 p.m. with Saturday and Sunday as her days off. The
period of the detail was from November 15, 2012 until March 1, 2013. The form noted that
appellant’s current assignment, prior to the detail, was as a customer service supervisor working
from 9:50 a.m. until 6:50 p.m. with Sunday and Wednesday as her days off.
In support of her claim, appellant submitted a statement along with an undated
work/school release form indicating that she was seen on March 12, 2013 and that she could
return to work on March 14, 2013.3 The record also contains March 13 and 20, 2013 certificates
to return to work by Dr. Jeffrey O. Cardwell, a treating physician, Board-certified in family
medicine, stating that she was under his care from March 13 to 20, 2013.
In an undated statement, appellant alleged that Ms. Hayes asked her in a nasty tone where
is your common decency. She responded by saying that Ms. Hayes was aware of her medical
condition. Appellant alleged that Ms. Hayes implied that she could not perform her job and was
always talking to a coworker, Alan Rybczyk. She was offended by Ms. Hayes’ statements and
began to defend herself. Ms. Hayes requested that appellant lower her voice and appellant
responded that she was not going to take this harassment. Appellant returned to her desk to
gather her belongings and to sign out. Ms. Hayes allegedly followed appellant and instructed her
to complete a leave slip. Appellant left the building, informed Ms. Hayes that she would call the
1-800 number, and drove to a gas station to call her physician to make an appointment. She sat
in the car following the call and returned to work at 3:15 p.m. to inform Jennifer E. Cureton, her
supervisor, of her chest pains. Ms. Cureton informed Ms. Hayes that appellant was requesting
medical treatment due to the meeting held that morning. Appellant alleged that Ms. Hayes
informed her “that as far as she was concerned, [appellant] did not report to work.” At this point
appellant stated that she “became emotionally distraught” and could not recall any subsequent
events.
In a March 20, 2013 statement, Ms. Hayes disagreed with appellant’s statement regarding
the incident and the accusations made by appellant. She stated that she was unaware appellant
had been assigned or given a reporting time other than the hours of 8:00 a.m. to 5:00 p.m.,
Monday to Friday to the detail which had been requested by appellant. Ms. Hayes related that
Ms. Cureton was having difficulty with appellant reporting late to work without calling and not
knowing whether she would arrive late to work. Ms. Hayes called a meeting with both of them
to discuss attendance issues. At the time she spoke to appellant, another employee,
Mr. Rybczyk, was seated on the edge of her desk. Ms. Hayes told the employee that she needed
3

The title with the signature indicates that a registered nurse signed the form, but the signature itself is illegible.

2

to discuss something with appellant. She denied appellant’s allegation that she made any
comment about appellant constantly talking to Mr. Rybczyk. At no time did Ms. Hayes demand
anything of appellant. She denied that Ms. Cureton requested a leave slip be completed for
appellant arriving late.
Ms. Hayes denied saying anything in a nasty tone or derogatory manner. Appellant
responded by being confrontational, loud, and hostile and saying she that did not have to attend
the meeting and that she was not returning to work. Ms. Hayes stated that later, while
Ms. Cureton was on vacation, she noticed that appellant had not reported to work and that she
never knew whether appellant was at work. She knew that appellant had some health issues and
that appellant had wanted a detail to this area. Ms. Hayes noted that appellant had only been
working 30 minutes when she requested to be taken to the hospital due to chest pains. She
indicated 911 had been called as transportation to the hospital is not provided by the employing
establishment.
In a March 25, 2013 statement, Ms. Cureton provided an account of events from the
March 12, 2013 incident until March 25, 2013, when appellant filed a traumatic injury claim.
She related that appellant’s scheduled report time was 8:00 a.m. and that on March 12, 2013
appellant arrived at work around 9:15 a.m. At about 9:30 a.m. Ms. Hayes requested that
appellant come to a meeting to discuss her tardiness without notice. Mr. Rybczyk was at
appellant’s desk at that time so Ms. Hayes asked him to excuse her as she needed to discuss
something with appellant. Ms. Hayes stated that it was common courtesy to call in, if one was
going to be late. Appellant replied in a loud voice that “she had a lot of things going on.”
Ms. Hayes replied that everyone has issues, but “still show courtesy to each other.” At this point
appellant stated “she didn’t have to be here and that she had enough documentation to keep her
out of work.” She then got up to leave, asked if anything else was required and Ms. Hayes
responded that she needed a form 3971. Appellant stated that she “could do better than that” and
would call the 800 number.
At approximately 9:45 a.m. appellant opened the door, slammed it shut, and left.
Ms. Hayes instructed Ms. Cureton to put appellant in an absent-without-leave status, changing
her telephone pass code and ask about having her badge deactivated. At approximately
3:35 p.m. appellant returned, requested to speak with Ms. Cureton, and apologized for her earlier
actions. She related to Ms. Cureton that she had been having chest pains since that morning, that
her physician could not see her that day, and that she wanted a Form CA-1 or a Form CA-17.
Ms. Cureton called Ms. Hayes who informed appellant over the telephone that she was not on the
clock, that someone needed to pick her up or she needed to call 911 for her chest pains.
Subsequently, appellant called 911 and, at approximately 4:05 p.m., she was transported to the
hospital. Ms. Cureton stated that appellant had made several inaccurate allegations on her CA-1
form. She disputed that appellant arrived at 9:08 a.m., that this was her normal work time, that
Ms. Hayes demanded that appellant report to Ms. Cureton’s office, that appellant was asked to
fill out a leave slip, that Ms. Hayes had talked to her in a nasty tone during the meeting, that
Ms. Hayes stated that appellant was always talking with Mr. Rybczyk and not doing her work,
that appellant mentioned the work harassment during the meeting, and that Ms. Hayes followed
appellant to her desk after the meeting.
In a March 29, 2013 letter, the employing establishment controverted the claim.

3

In an April 1, 2013 letter, OWCP informed appellant that the evidence of record was
insufficient to establish her claim. Appellant was advised as to the medical and factual evidence
required to support her claim and was given 30 days to provide this information.
On April 7, 2013 appellant responded to questions posed by OWCP. She noted that she
was called into a meeting with Ms. Cureton and Ms. Hayes in her supervisor’s office. Appellant
identified the factors of employment as harassment from her supervisor and job-related stress. In
response to a question regarding similar symptoms or disability prior to the injury, she identified
stress from her prior job of customer service supervisor.
In an April 10, 2013 report, Dr. Cardwell related that he had treated appellant since
June 2010 for post-traumatic stress disorder. According to him, her condition had stabilized with
counseling and prescription medicine until September 2010. Dr. Cardwell related that she
required accommodations due to her medical situation. He commented that due to her condition
appellant was “seeking long[-]term impairment.”
On April 14, 2013 appellant filed an application for disability retirement.
By decision dated May 7, 2013, OWCP denied appellant’s claim.
In a letter dated October 16, 2013, appellant requested reconsideration and submitted a
March 12, 2013 emergency room report by Dr. Revathi Jyothindran, an emergency room
specialist, in support of her request.
In the March 12, 2013 report, Dr. Jyothindran diagnosed anxiety disorder. Appellant
related that her current condition was due to a work altercation where management allegedly
threatened to fire her over her absences from work. She also stated that she felt pressed,
overwhelmed, and stressed out. Dr. Jyothindran stated that appellant “appears to have an acute
anxiety attack after a verbal altercation at work” and presents with depressive symptoms.
By decision dated October 13, 2013, OWCP denied the claims as appellant had failed to
establish any compensable factor of employment.
In a form dated June 6, 2014, appellant again requested reconsideration and submitted an
April 15, 2012 medical accommodation information form completed by Dr. Cardwell.
The form was completed by Dr. Cardwell on April 15, 2012. He diagnosed posttraumatic stress disorder with anxiety and depression. Dr. Cardwell noted that appellant was
relatively stable and able to work half of her usual work schedule. He stated that “[a] scheduled
change at work triggered significant worsening after some progress.” Dr. Cardwell estimated the
duration for the restrictions to be about 12 weeks, providing there were no further setbacks.
By decision dated July 21, 2014, OWCP denied modification.
LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
the employee must submit the following: (1) medical evidence establishing she has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
4

to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
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.5 There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.6 Where the disability results from an
employee’s emotional reaction to his or her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of FECA.7
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his or her frustration from not being permitted to work
in a particular environment or to hold a particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.9 However,
the Board has held that, where the evidence establishes error or abuse on the part of the
employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.10 In determining whether the employing establishment has erred or acted abusively,
the Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.11
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of FECA. This principal recognizes that a supervisor or manager must
be allowed to perform his or her duties and that employees will, at times, disagree with actions
taken. Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.12 Although the handling of leave
requests and attendance matters are generally related to employment, they are administrative
matters and not a duty of the employee.13
4

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

6

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

7

Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

8

J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

9

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
10

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

11

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

12

S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

13

C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611 (2006).

5

For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact,
occur.14 Mere perceptions of harassment or discrimination are not compensable under FECA.15
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.16 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.17 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.18
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim as she had a
failed to establish any compensable work factors. The Board must, therefore, initially review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of FECA.
The employing establishment denied that appellant was subjected to harassment during
the March 12, 2013 meeting and she has not submitted sufficient evidence or corroboration to
establish that she was harassed by either Ms. Hayes or Ms. Cureton.19 The Board has recognized
the compensability of physical threats or verbal abuse in certain circumstances. This does not
imply, however, that every statement uttered in the workplace will give rise to coverage under
FECA.20
Appellant attributed her emotional condition to events occurring on March 13, 2013
when she was called into a meeting with Ms. Hayes and Ms. Cureton concerning her arriving late
to work without notifying her supervisor. She also alleged that during the meeting Ms. Hayes
implied that appellant could not perform her position and was constantly talking to Mr. Rybczyk,
a coworker.
An employee’s complaints about the manner in which supervisors perform supervisory
duties or the manner in which supervisors exercise supervisory discretion fall, as a rule, outside
the scope of coverage provided by FECA. This principle recognizes that a supervisor must be
14

K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 5.

15

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

16

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 5.

17

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C.
Owens, 54 ECAB 684 (2003).
18

Robert Breeden, supra note 5; Beverly R. Jones, 55 ECAB 411 (2004).

19

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment with probative and reliable evidence).
20

L.K., Docket No. 08-849 (issued June 23, 2009); Donney T. Drennon-Gala, 56 ECAB 469 (2005); Charles D.
Edwards, 55 ECAB 258 (2004).

6

allowed to perform his or her duties and that employees will at times dislike actions taken.21
Furthermore, the Board has held that discussions of job performance by an employee’s
supervisor, and the monitoring and assignment of work are administrative functions that do not
fall under the coverage of FECA absent a showing of error or abuse.22 For harassment or
discrimination to give rise to a compensable disability, there must be evidence which establishes
that the acts alleged or implicated by the employee did, in fact, occur.23 Mere perceptions of
harassment or discrimination are not compensable.24
Appellant has not shown that management committed error or abuse with respect to
discussing her tardiness and lack of prior notice. These are administrative matters.25 While
appellant alleged that arriving at 9:08 a.m. was sometimes her normal time, she has not
submitted any evidence supporting this contention. Moreover, the record contains a copy of the
detail assignment which stated that her duty hours would be 8:00 a.m. to 5:00 p.m. Appellant
also alleged that Ms. Hayes instructed her to complete a leave form. Both Ms. Hayes and
Ms. Cureton deny that this was stated and that they only discussed appellant’s time and
attendance issues and her failure to call when she would be late for work. Appellant also alleged
that Ms. Hayes stated that she was always talking to Mr. Rybczyk and implied that she could not
perform her job. She has not submitted any evidence supporting this allegation. Moreover, both
Ms. Hayes and Ms. Cureton deny these allegations. Accordingly, appellant has not established a
compensable factor in that regard.
For the reasons set forth above, appellant has not established any compensable
employment factors under FECA and, therefore, has not met her burden of proof to establish an
emotional condition in the performance of duty.26
On appeal appellant contends that Ms. Hayes verbally assaulted her which was the cause
of her anxiety attack and ambulance ride to the emergency room. She also contends that the
employing establishment was aware that her medical restrictions required that she not be placed
in a confrontational situation. Appellant reiterated that she had been verbally abused when a
manager accused her of not having any common decency. In concluding, she contended that, as
the employing establishment was aware of her medical condition, it was responsible for the
anxiety attack and later trip to the emergency room from work. As discussed above, appellant
has not established that the factors she identified were compensable factors of employment. She
21

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

22

See Donney T. Drennon-Gala, supra note 20.

23

C.T., Docket No. 08-2160 (issued May 7, 2009); Robert G. Burns, supra note 15.

24

J.F., supra note 16; James E. Norris, 52 ECAB 93 (2000).

25

See S.M., Docket No. 09-2290 (issued July 12, 2010); Joe M. Hagewood, 56 ECAB 479 (2005) (the handling of
attendance matters are generally related to employment but are administrative functions of the employing
establishment and not duties of the employee); Ernest St. Pierre, 51 ECAB 623 (2000) (allegations pertaining to
irregularity of breaks is an administrative matter).
26

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See E.R., Docket No. 09-599 (issued June 3, 2009); Robert Breeden, supra note 5; Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

7

has not established verbal abuse or that there was error or abuse by the employing establishment
in any administrative matter.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish an emotional condition in the
performance of duty on March 12, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2014 is affirmed.
Issued: June 8, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8