United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
KEESLER AIR FORCE BASE, MS, Employer
__________________________________________

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

Docket No. 06-854
Issued: April 13, 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 27, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ overpayment decision dated January 13, 2006. Under 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 determined that appellant received an
overpayment in the amount of $26,106.85 for the period March 9, 2000 to October 12, 2003
because he received greater compensation for a schedule award than the amount to which he was
entitled; (2) whether the Office abused its discretion in denying waiver of the overpayment; and
(3) whether the Board has jurisdiction over the amount appellant is required to pay and the
method employed for the purpose of recovery of the overpayment.

FACTUAL HISTORY
This is the fourth appeal before the Board. To briefly summarize the facts appellant, a
51-year-old general equipment examiner leader, filed a Form CA-2 claim for a bilateral hand
condition. The Office accepted his claim for bilateral carpal tunnel syndrome. Appellant
stopped working and accepted disability retirement, effective July 31, 1999. By decisions dated
June 8, 2000, May 31 and September 28, 2001, January 20 and April 5, 2002, the Office issued
appellant schedule awards totaling a 45 percent impairment for the left upper extremity and a
15 percent impairment for the right upper extremity pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (the A.M.A., Guides) fifth
edition. In a decision dated February 2, 2004, the Board set aside the April 5, 2002 Office
decision, finding that the case was not in posture of decision due to a conflict of medial opinion
between Dr. M.F. Longnecker, a Board-certified orthopedic surgeon and the attending physician
and two Office medical advisers. The Board remanded to the Office for referral to an impartial
medical examiner.1
On remand, the Office referred appellant to Dr. Thomas Purser, III, a Board-certified
orthopedic surgeon, to resolve the conflict in medical evidence. By decision dated July 15, 2004,
the Office denied modification of the April 5, 2002 decision, finding that, the weight of the
medical evidence, represented by Dr. Purser’s July 7, 2004 report, did not demonstrate a greater
percentage of impairment than 45 percent for the left arm and 15 percent for the right arm. The
Office noted that the final percentages of impairment derived by Dr. Purser were less than those
previously awarded.
In a January 24, 2005 decision,2 the Board affirmed the Office’s July 15, 2004 decision.
The Board found that Dr. Purser’s opinion was entitled to the special weight of an impartial
medical examiner. The Board further found that the Office’s instruction to Dr. Purser to submit
a supplemental report and its forwarding of the Office medical adviser’s calculations to
Dr. Purser to confirm the modified impairment rating were proper and in conformance with the
A.M.A., Guides.
By letter dated August 10, 2005, appellant requested reconsideration. He submitted an
April 11, 2005 report from Dr. Longnecker in which he found that appellant had a 56 percent
pain-related impairment and 46 percent impairment in both extremities.
By decision dated December 2, 2005, the Office denied modification of the July 15, 2004
decision.
On December 6, 2005 the Office issued a preliminary determination that an overpayment
had occurred in the amount of $26,106.85 from March 9, 2000 to October 12, 2003 because
appellant incorrectly received an additional 15 percent impairment of the upper extremities to
which he was not entitled. The Office found that appellant was without fault in the matter
because he could not have been aware that the payments he had been receiving were incorrect.
The Office advised appellant that if he disagreed with the fact or amount of the overpayment he
1

Docket No. 99-998 (issued June 8, 2000).

2

Docket No. 04-1964 (issued January 24, 2005).

2

could submit new evidence in support of his contention. The Office further advised appellant
that when he was found without fault in the creation of the overpayment, recovery might not be
made if it could be shown that such recovery would defeat the purpose of the law or would be
against equity and good conscience. The Office informed appellant that he had the right to
request a prerecoupment hearing on the matter of the overpayment and that any response he
wished to make with regard to the overpayment should be submitted within 30 days of the
December 6, 2005 letter.
On December 19, 2006 appellant requested a waiver of recovery of overpayment,
claiming that recovery of the overpayment would constitute a severe financial hardship that
would deprive him and his dependents of the ability to meet ordinary and necessary living
expenses. He indicated on the Form OWCP-20 that he had $2,500.00 in monthly income,
consisting of $1,900.00 in Social Security benefits and $600.00 in additional compensation
checks. Appellant stated on the form that he filed for bankruptcy in March 2005 and had the
following monthly expenses: $1,276.00 in rent or mortgage; $500.00 for food; $200.00 for
clothing; $400.00 for utilities; and $125.00 in miscellaneous household expenses, for a total of
$2,500.00 in monthly expenses. However, he did not submit any documentation to verify his
assertion that he filed for bankruptcy or his listing of his monthly income and expenses.
In a decision dated January 13, 2006, the Office hearing representative finalized the
preliminary determination that appellant received the $26,016.85 overpayment because he
received an improper amount of compensation for a schedule award. The Office stated that
“even though you have been found to be without fault, it has been determined that the
circumstances of your case do not warrant waiver of recovery of the overpayment.” The Office
determined that, therefore, appellant was not entitled to waiver and found that he should repay
the overpayment of $26,106.85 within 30 days.
In a May 18, 2006 decision,3 the Board affirmed the Office’s December 2, 2005 decision.
The Board found that Dr. Purser’s opinion that appellant sustained a 41 percent impairment
rating of the left upper extremity and a 4 percent impairment rating of the right upper extremity
continued to represent the weight of the medical evidence. The complete facts of this case are
set forth in the Board’s February 1, 2004, January 24, 2005 and May 18, 2006 decisions and are
herein incorporated by reference.
LEGAL PRECEDENT -- ISSUE 1
Section 8107(a)4 states:
“If there is permanent disability involving the loss, or loss of use, of a member or
function of the body or involving disfigurement, the employee is entitled to basic
compensation for the disability, as provided by the schedule in subsection (c) of
this section, at the rate of 6 2/3 of his monthly pay.”

3

Docket No. 06-513 (issued May 18, 2006).

4

5 U.S.C. § 8107(a).

3

Federal (FECA) Procedure Manual, Part 6 -- Initial Overpayment Actions, Identification
of Overpayments and Debts, Chapter 6.200.2d (September 1994) states:
“Overpayments of compensation occur under various circumstances, such as:
(d.) A claimant is determined to be not entitled to compensation already
paid.”
20 C.F.R. § 10.431 states:
“Before seeking to recover an overpayment or adjust benefits, [the Office] will
advise the beneficiary in writing that:
(a) The overpayment exists and the amount of overpayment;
(b) A preliminary finding shows either that the individual was or was not
at fault in the creation of the overpayment;
(c) He or she has the right to inspect and copy Government records
relating to the overpayment; and
(d) He or she has the right to present evidence which challenges the fact or
amount of the overpayment and/or challenges the preliminary finding that
he or she was at fault in the creation of the overpayment. He or she may
also request that recovery of the overpayment be waived.”
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $26,106.85.5 The Office found that appellant
was receiving a schedule award exceeding that to which he was entitled by taking the amount
appellant was paid from March 9, 2000 to October 12, 2003, $93,955.66 and subtracting
$67,848.81, the amount to which appellant was actually entitled, for an overpayment of
$26,106.85. Thus, the Office as incorrectly paid appellant an augmented schedule award from
March 9, 2000 to October 12, 2003, the Office properly found that he received an overpayment
of compensation in the amount of $26,106.85 during that period.

5

Appellant contended in his appeal to the Board that the Office medical adviser improperly interfered with
Dr. Purser, the impartial medical examiner, by rejecting his initial, May 25, 2004 report and giving him instructions
on how to arrive at his ultimate impairment rating. This argument, however, was rejected below by the Office and
the Board. It was within the Office medical adviser’s purview to provide guidelines to the medical examiner
regarding his calculation of appellant’s impairment, in conformance with the A.M.A., Guides. The Board’s finding
in its May 18, 2006 decision that Dr. Purser’s finding of a 41 percent impairment of the left upper extremity and a
4 percent impairment of the right upper extremity represented the weight of the medical evidence is decisive
regarding the amount of appellant’s schedule award.

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LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Federal Employees’ Compensation Act6 provides that an
overpayment must be recovered unless “incorrect payment has been made to an individual who
is without fault and when adjustment or recovery would defeat the purpose of the Act or would
be against equity and good conscience.” Thus, a finding that appellant was without fault is not
sufficient, in and of itself, for the Office to waive the overpayment. The Office must then
exercise its discretion to determine whether recovery of the overpayment would “defeat the
purpose of the Act or would be against equity and good conscience,” pursuant to the guidelines
provided in sections 10.4367 and 10.4378 of the implementing federal regulation.
With regard to the “defeat the purpose of the Act” standard, section 10.436 of the
regulation provides:
“Recovery of an overpayment will defeat the purpose of the [Act] if such
recovery would cause hardship to a currently or formerly entitled beneficiary
because -(a) The beneficiary from whom [the Office] seeks recovery needs
substantially all of his or her current income (including compensation
benefits) to meet current ordinary and necessary living expenses; and
(b) The beneficiary’s assets do not exceed a specified amount as
determined by [the Office] from data furnished by the Bureau of Labor
Statistics. A higher amount is specified for a beneficiary with one or more
dependents.”
With regard to the “against equity and good conscience” standard, section 10.437 of the
regulation provides:
“(a) Recovery of an overpayment is considered to be against equity and good
conscience when any individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt.
“(b) Recovery of an overpayment is also considered to be against equity and good
conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes his or her
position for the worse. In making such a decision, [the Office] does not consider
the individual’s current ability to repay the overpayment.

6

5 U.S.C. § 8129(a)-(b).

7

20 C.F.R. §§ 10.436.

8

20 C.F.R. § 10.437.

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(1) To establish that a valuable right has been relinquished, it must be
shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or
on the notice of payment. Donations to charitable causes or gratuitous
transfers of funds to other individuals are not considered relinquishments
of valuable rights.
(2) To establish that an individual’s position has changed for the worse, it
must be shown that the decision made would not otherwise have been
made but for the receipt of benefits and that this decision resulted in a
loss.”
A finding that appellant was without fault is insufficient, in and of itself, for the Office to
waive the overpayment.9 The Office must exercise its discretion to determine whether recovery
of the overpayment would “defeat the purpose of the Act or would be against equity and good
conscience” pursuant to the guidelines provided in sections 10.434-437 of the implementing
federal regulations.10
Office regulations provide that recovery of an overpayment will defeat the purpose of the
Act if such recovery would cause hardship to a currently or formerly entitled beneficiary
because: (a) the beneficiary from whom the Office seeks recovery needs substantially all of his
or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as
determined by the Office from data furnished by the Bureau of Labor Statistics.11 The Board has
found that an individual is deemed to need substantially all of his or her income to meet current
ordinary and necessary expenses by more than $50.00.12 Additionally, the guidelines for
recovery of an overpayment from an individual must meet both conditions to find that recovery
of the overpayment should be waived on the basis that it would defeat the purpose of the Act.
Consequently, to establish that, recovery would defeat the purpose of the Act, the facts must
show that appellant needs substantially all of his or her income to meet current ordinary and
necessary living expenses and also that his or her assets, those which are not exempted, do not
exceed a resource base.13
Office procedures provide that recovery will defeat the purpose of the Act if the
individual’s assets do not exceed the resource base of $3,000.00 for an individual or $5,000.00
for an individual with a spouse or one dependent, plus $600.00 for each additional dependent.

9

James L. Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

10

20 C.F.R. § 10.434-437 (1999).

11

Frederick Arters, 53 ECAB 397 (2002).

12

Id.

13

John Skarbek, 53 ECAB 630 (2002).

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This base includes all of the claimant’s assets that are not exempted from recoupment.14 The
first $3,000.00 or more, depending on the number of the individual’s dependents, is also
exempted from recoupment as a necessary emergency resource.15
20 C.F.R. § 10.43816 states:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the [Act] or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request shall result
in denial of waiver and no further request for waiver shall be considered until the
requested information is furnished.”
ANALYSIS -- ISSUE 2
In the instant case, appellant stated that he had $2,500.00 in monthly income and
$2,500.00 in expenses. He, however, failed to submit documentation to support these amounts.
Appellant has thus fallen well short of showing that he needs substantially all of the current
monthly income to meet living expenses or that the amount of the overpayment was wrongly
computed, as requested by the Office in its December 2, 2005 letter. Therefore, he does not
qualify for waiver under the “defeat the purpose of the Act” standard.17 Further, there is no
evidence in this case, nor did appellant allege, that he relinquished a valuable right or changed
his position for the worse in reliance on the excess compensation he received for the period
March 9, 2000 to October 12, 2003. Pursuant to its regulations, the Office, therefore, did not
abuse its discretion by issuing its January 13, 2006 final decision denying waiver of recovery of
the overpayment in the amount of $26,106.85.

14

The Office procedure manual provides that an individual’s assets include liquid assets such as cash on hand, the
value of stocks, bonds, savings accounts, mutual funds, certificates of deposit and the like and nonliquid assets such
as the fair market value of an owner’s equity in property such as a camper, boat, second home and
furnishings/supplies therein, any vehicles above the two allowed per family, jewelry, artwork, etc. Assets do not
include the value of household furnishing of the primary residence, wearing apparel, one or two vehicles, family
burial plot or prepaid burial contract, a home which is maintained as the principal family domicile or income from
income-producing property if the income from such property has been included in comparing income and expenses.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Waiver of Recovery, Chapter 6.200.6.a(4)
(September 1994).
15

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Waiver of Recovery, Chapter 6.200.6.a(1)(b)
(September 1994).
16

20 C.F.R. § 10.438.

17

See Nina D. Newborn, 47 ECAB 132 (1995).

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LEGAL PRECEDENT -- ISSUE 3
With regard to the method determined by the Office to recover the amount of the
overpayment, section 10.441(b) of Office regulations provides:
“When an overpayment has been made to an individual who is not entitled to
further payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same.... If the individual fails to make such refund, [the Office] may recover the
same through any available means, including offset of salary, annuity benefits, or
other Federal payments, including tax refunds as authorized by the Tax Refund
Offset Program or referral to the debt to a collection agency or to the Department
of Justice.”18
ANALYSIS -- ISSUE 3
The Board lacks the jurisdiction to determine the method of payment for the purpose of
the recovery of a finalized overpayment. Section 10.441(b), cited above, gives the Office
discretion to determine the method of recovery of the overpayment where an overpayment has
been made to an individual who is not entitled to further payments. Further, the Board’s own
case law stipulates that it does not have jurisdiction over the amount appellant is required to pay
for the purpose of recovery of the overpayment when there is no further entitlement to
compensation and appellant is not in receipt of continuing compensation benefits.19 In the
present case, the Board lacks jurisdiction over the method of repayment because appellant is not
entitled to disability compensation.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $26,106.85. The Board finds that the Office did
not abuse its discretion in denying waiver of the overpayment. The Board lacks jurisdiction over
the amount appellant is required to pay and the method employed for the purpose of recovery of
the overpayment.

18

20 C.F.R. § 10.441(b) (1999).

19

Robert N. Vachon, 36 ECAB 502 (1985); Marshall L. West, 36 ECAB 490 (1985).

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ORDER
IT IS HEREBY ORDERED THAT the January 13, 2006 decision of the Office
Workers’ Compensation Programs be affirmed.
Issued: April 13, 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

9


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

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

Docket No. 12-155
Issued: May 8, 2012

Case Submitted on the Record

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

JURISDICTION
On October 31, 2011 appellant filed a timely appeal from an October 7, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on August 27, 2011.
FACTUAL HISTORY
On August 27, 2011 appellant, then a 50-year-old mail processing clerk, filed a Form
CA-1 for traumatic injury, alleging that he dislocated his right shoulder that day after he tossed a
bundle of advertising mail into a hamper. An August 27, 2011 emergency department note
1

5 U.S.C. § 8101 et seq.

diagnosed right shoulder sprain and recommended limited duty.2 Appellant was placed on
modified assignment effective September 15, 2011.
OWCP informed appellant in a September 7, 2011 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a medical report from a qualified
physician explaining how the August 27, 2011 employment incident caused or contributed to a
diagnosed condition.
Appellant specified in a September 16, 2011 statement that he experienced right shoulder
pain and momentary numbness after he tossed a 15-pound bundle of advertising mail
approximately 10 feet into a hamper on August 27, 2011.
In an August 31, 2011 report, Dr. Anthony J. Checroun, a Board-certified orthopedic
surgeon, remarked that appellant was throwing 10-pound bundles at work on August 27, 2011
when he experienced right shoulder symptoms. On examination, he observed greater tuberosity
tenderness and pain elicited during range of motion (ROM) maneuvers. Prior x-rays exhibited
two metal anchors in the right proximal humerus related to biceps tenodesis and arthroscopic
subacromial decompression in 2005. Dr. Checroun diagnosed right shoulder strain and possible
rotator cuff tear and proscribed lifting, pushing, pulling and any overhead motion on the job.3
In a September 14, 2011 follow-up report, Dr. Checroun reexamined appellant’s right
shoulder and found greater tuberosity tenderness, pain elicited during ROM maneuvers and
supraspinatus weakness. He diagnosed right shoulder strain and possible rotator cuff tear.4
By decision dated October 7, 2011, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that his right shoulder strain resulted from the accepted
August 27, 2011 employment incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative, and substantial evidence,5
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.6 The employee must also establish that he sustained an

2

The physician’s signature was illegible.

3

Other treatment notes from Dr. Checroun dated August 31, 2011 restated this diagnosis and referred appellant
for physical therapy. The case record indicates that appellant attended sessions for the period September 13
to 29, 2011.
4

Dr. Checroun advised appellant in September 14, 2011 duty status and attending physician’s return-to-work
forms to refrain from lifting, pushing, pulling and overhead activities with his right arm for three weeks.
5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

6

R.C., 59 ECAB 427 (2008).

2

injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
While the case record supports that appellant tossed a bundle of advertising mail into a
hamper on August 27, 2011, the Board finds that he did not establish his traumatic injury claim
because the medical evidence did not sufficiently demonstrate that this accepted employment
incident was causally related to a right shoulder strain.
Dr. Checroun related in an August 31, 2011 report that appellant was throwing 10-pound
mail bundles at work on August 27, 2011 when he experienced right shoulder symptoms.
Following a physical examination, he diagnosed right shoulder strain and possible rotator cuff
tear. Dr. Checroun reiterated his findings in additional August 31, 2011 and September 14, 2011
medical records. Nonetheless, he failed to provide medical rationale explaining how tossing a
bundle of advertising mail into a hamper on August 27, 2011 pathophysiologically caused or
contributed to a strained right shoulder.10 Medical reports consisting solely of conclusory
statements without supporting rationale are of little probative value.11 Here, the need for such
medical rationale was particularly important because the case record indicates that appellant
underwent right biceps tenodesis and arthroscopic subacromial decompression in 2005.

7

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

8

T.H., 59 ECAB 388 (2008).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

11

William C. Thomas, 45 ECAB 591 (1994).

3

The remaining evidence lacked evidentiary weight. A medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a
physician.12 The August 27, 2011 emergency department note cannot constitute competent
medical evidence because one cannot determine whether the illegible signature belonged to a
qualified physician.13 Finally, since a physical therapist is not a “physician” as defined under
FECA, physical therapy records for the period September 13 to 29, 2011 lacked probative
value.14 In the absence of rationalized medical opinion evidence, appellant failed to meet his
burden of proof.
The Board notes that appellant submitted new evidence after the issuance of the
October 7, 2011 decision. The Board lacks jurisdiction to review evidence for the first time on
appeal.15 However, appellant may submit new evidence or argument as part of a formal written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on August 27, 2011.

12

Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949).

13

R.M., 59 ECAB 690, 693 (2008).

14

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996).

15

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 8, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, LINTHICUM
INCOMING MAIL FACILITY, Linthicum, MD,
Employer
__________________________________________

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Appearances:
Stanley C. Mason, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1075
Issued: December 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 3, 2013 appellant, through his representative, filed a timely appeal from a
December 13, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
denying his emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that he sustained an emotional condition in the
performance of duty.
On appeal, appellant contends that he has established a compensable factor of
employment and entitlement to compensation benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 13, 2012 appellant, then a 69-year-old supervisor, filed a traumatic injury
claim alleging that on January 4, 2012 he sustained severe chest pains, difficulty breathing, stress
and elevated blood pressure as a result of being yelled at by a supervisor regarding mail
processing.2
Appellant submitted disability slips, diagnostic tests a hospitalization report and a factual
statement. He related that Herbert Owens, the plant manager, appeared agitated while instructing
him to run a particular zone of mail on the machines. Appellant informed Mr. Owens that the
mail he requested to be run was not processed on tour one and that he did not have the equipment
to run the mail. He alleged that Mr. Owens responded loudly in a hostile manner “that he was
tired of that being an excuse.” Appellant alleged that the machine would not work without
proper equipment to process the mail and that the mail would be processed at a later time when
the equipment became available. He alleged that Mr. Owens became angry, yelled at him and
instructed him to shut the entire operation down and move his employees to sit in the cafeteria.
As a result of being yelled at by Mr. Owens, appellant began to have difficulty breathing, felt
faint and had chest pain. He was seen by paramedics and taken to a local hospital and admitted.
At the hospital, appellant was diagnosed with exacerbation of chronic obstructive pulmonary
diseases.
In a February 20, 2012 report, Dr. Ruchira Thakor, a treating Board-certified family
practitioner, opined that the January 4, 2012 work incident aggravated appellant’s preexisting
chronic obstructive pulmonary disease and hypertension. He related that appellant became
stressed due to the January 4, 2012 work incident which led to difficulty breathing and chest
pains and being taken to the hospital by an ambulance.
In a letter dated February 23, 2012, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. Appellant was advised as to the medical and factual
evidence required to support his claim and given 30 days to provide such information.
On March 8, 2012 OWCP received a January 22, 2012 statement from Mr. Owens
regarding the January 4, 2012 incident. Mr. Owens denied that he yelled, threatened or was
disrespectful toward appellant during their interaction. While walking through the workroom
floor on January 4, 2012, he noticed three containers of flat mail with a code indicating a
delivery due date of January 5, 2012. Mr. Owens called for appellant to report to him and
informed appellant that the three containers needed to be incorporated with the mail being
worked on to ensure no delayed mail. Appellant responded that he could not process the mail
contained in the three containers as he did not have the equipment. Mr. Owens informed
appellant that he would get appellant the equipment required to process the mail so that it was
not delayed in the morning. He walked away from appellant, who stated that he could not run
the four mail schemes and the mail Mr. Owens wanted sorted at the same time. In response,
Mr. Owens jokingly told appellant to “shut down all the machines and take you and your
employees to the Lunch Room and just sit.” At no time during their discussion was there any
2

Appellant retired from the employing establishment effective February 29, 2012.

2

yelling, disrespectful statements or threatening conduct by either party. Mr. Owens also denied
creating a hostile work environment toward appellant or any other employee. He related that
appellant had previously experienced similar symptoms of severe chest pain, feeling faint and
trouble breathing the last time he was ill.
In a March 17, 2012 statement, appellant alleged that the instructions given by
Mr. Owens on January 4, 2012 regarding the processing of additional mail was a special
assignment as he rarely processed this type of sort plan mail. Mr. Owens informed appellant of
the requirements for sorting the mail. Appellant noted that there was a limited number of flat
tubs. According to appellant, Mr. Owens responded in an angry tone and loud manner that he
was “tired of hearing that as an excuse.” Appellant believed the work request to be unrealistic
and he was stunned at the tone, demeanor and manner of Mr. Owens. He stated that there was no
equipment available to comply with his request. Appellant informed Mr. Owens that he “would
try to process the mail later based upon the availability of flat tubs.” He alleged that Mr. Owens
began yelling at him, became irate and instructed him to shut the flat sorter operation down,
process no mail and move his employees to the cafeteria to sit. Appellant contended that
Mr. Owens created a hostile environment, was very threatening and that he become
apprehensive. After this interaction, appellant approached George J. Askew, a clerk, and
informed of chest pains, feeling faint and difficulty breathing. Appellant’s supervisor called the
paramedics and he was taken to the hospital.
On March 20, 2012 OWCP received the following statements. In a February 6, 2012
statement, Vivian Casey, a manager in distribution operations, stated that appellant called her on
January 4, 2012 and told her he was not feeling well due to being stressed out by Mr. Owens.
She noted that just prior to this incident and prior to Christmas, he had been ill with a stomach
virus and a cold. In a March 14, 2012 statement, Mr. Askew, a coworker, related that appellant
approached him on January 4, 2012 and appearing upset. Appellant related the instructions by
Mr. Owens regarding sorting some mail. He alleged that Mr. Owens abused him, spoke in an
irate tone, told appellant that “he was tired of hearing excuses” and that he should take his
employees off the work floor to the cafeteria to sit. Mr. Agnew related that appellant appeared
stressed.
By decision dated March 29, 2012, OWCP denied appellant’s claim. It found that he
failed to establish that the alleged January 4, 2012 incident occurred as alleged. OWCP found
that the evidence was insufficient to establish that appellant’s supervisor yelled at him regarding
the processing of mail and there was insufficient evidence from people who had witnessed the
incident.
On April 26, 2012 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on September 20, 2012 at which he was
represented and testified.
In an April 26, 2012 statement, appellant reiterated his accusations regarding Mr. Owens.
While he was being transported to the hospital his stress increased as he recalled a supervisor
who died while being transported from work to the hospital.

3

By decision dated December 13, 2012, OWCP’s hearing representative affirmed the
March 29, 2012 denial of appellant’s claim.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional condition in the performance of
duty, an employee must submit the following: (1) medical evidence establishing that he or she
has an emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his or her condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to his or her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.4 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.5 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.6
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.7
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.8 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.9 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.10
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
3

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

4

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

5

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

6

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

7

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

8

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
9

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

10

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

4

be allowed to perform their duties and that employee’s 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.11 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.12
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.13 Mere perceptions of harassment or discrimination are not compensable under FECA.14
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.15 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.16 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.17
The Board has held that, when working conditions are alleged as factors in causing a
condition or disability, OWCP, as part of its adjudicatory function, must make findings of fact
regarding which working conditions are deemed compensable factors of employment and are to
be considered by a physician when providing an opinion on causal relationship and which
working conditions are not deemed factors of employment and may not be considered.18 If a
claimant does implicate a factor of employment, OWCP should then determine whether the
evidence of record substantiates that factor.19 When the matter asserted is a compensable factor
of employment and the evidence of record establishes the truth of the matter asserted, OWCP
must base its decision on an analysis of the medical evidence.20
ANALYSIS
Appellant attributed his severe chest pains, difficulty breathing, stress and elevated blood
pressure due to being yelled at in a loud voice, treated in a demeaning and derogatory manner
11

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

12

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

13

K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 4.

14

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

15

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 4.

16

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C.
Owens, 54 ECAB 684 (2003).
17

Robert Breeden, supra note 4; Beverly R. Jones, 55 ECAB 411 (2004).

18

D.L., 58 ECAB 217 (2006); Jeral R. Gray, supra note 12.

19

K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005).

20

Robert Breeden, supra note 4.

5

and threatened by Mr. Owens on January 4, 2012. He alleged that Mr. Owens harassed him and
created a hostile work environment. The Board must initially review whether the alleged
incidents and conditions of employment are covered employment factors under the terms of
FECA. The Board notes that appellant’s allegations do not pertain to his regular or specially
assigned duties under Cutler.21 Rather, appellant has alleged harassment on the part of
management and error and abuse in administrative matters.
The employing establishment denied that appellant was subjected to harassment and he
has not submitted sufficient evidence to establish that he was harassed by Mr. Owens on
January 4, 2012.22 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.23
Appellant stated that Mr. Owens instructed him to process mail which was not normally
processed on his shift. He contended that he did not have the equipment to process the mail.
During their interaction on January 4, 2012, Mr. Owens spoke to appellant in a loud voice with a
threatening demeanor. The Board has found that an employee’s complaints concerning the
manner in which a supervisor performs his duties as a supervisor or the manner in which a
supervisor exercises his supervisory discretion fall, as a rule, is outside the scope of coverage
provided by FECA. This principle recognizes that a supervisor or manager in general must be
allowed to perform his or her duties, that employees will at times dislike the actions taken, but
that mere disagreement or dislike of a supervisory or management action will not be actionable,
absent evidence of error or abuse.24 The Board notes that the assignment of work is an
administrative function25 and the manner in which a supervisor exercises his or her discretion
falls outside the ambit of FECA. Absent evidence of error or abuse, appellant’s mere
disagreement or dislike of a managerial action is not compensable.26 The Board finds that he has
not offered sufficient evidence to establish error or abuse regarding his work assignments. The
evidence does not establish that the employing establishment acted unreasonably.27 Appellant
presented no corroborating evidence to support that the employing establishment acted
unreasonably in assigning work. He has not established administrative error or abuse in the
performance of these actions and therefore they are not compensable under FECA.
21

See Cutler, supra note 6.

22

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment with probative and reliable evidence).
23

L.K., Docket No. 08-849 (issued June 23, 2009); see also Donney T. Drennon-Gala, 56 ECAB 469 (2005);
Charles D. Edwards, 55 ECAB 258 (2004).
24

See Marguerite J. Toland, 52 ECAB 294 (2001).

25

Donney T. Drennon-Gala, supra note 23.

26

See Barbara J. Latham, 53 ECAB 316 (2002); see also Peter D. Butt Jr., 56 ECAB 117 (2004) (allegations
such as improperly assigned work duties, which relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties do not fall within the coverage of FECA).
27

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

6

Appellant alleged that Mr. Owens created a hostile work environment on January 4, 2012
when he spoke to him in a loud voice, threatened him and treated him in a demeaning and
derogatory manner. To the extent that appellant alleged Mr. Owens verbally abused and
threatened him on January 4, 2012, the Board has recognized the compensability of verbal abuse
in certain circumstances. However, the Board has generally held that being addressed in a raised
or harsh voice does not of itself constitute verbal abuse or harassment.28 The Board finds that the
evidence of record is not sufficient to support verbal abuse. While the record contains witness
statements from Ms. Casey and Mr. Askew, neither actually witnessed the January 4, 2012
incident. They both stated that they saw appellant on January 4, 2012, that he appeared upset
and that he told them he was stressed out due to a recent interaction with Mr. Owens. Neither
mentioned actually witnessing the interaction or heard Mr. Owens yelling, threatening or being
disrespectful to appellant that day. Appellant provided no corroborating evidence or witness
statements from people who actually witnessed the event to establish his allegation regarding the
January 4, 2012 incident.29 There is no corroborating evidence to support that Mr. Owens yelled
at appellant, threatened him or treated him in a disrespectful manner, which would rise to the
level of a compensable employment factor.30 Mr. Owens submitted a statement denying any
yelling, disrespect or threat. As the factual evidence does not support appellant’s allegations that
Mr. Owens yelled or threatened or treated him in a disrespectful manner, appellant has not
established a compensable factor of employment with respect to these allegations.
For the reasons set forth above, appellant has not established any compensable
employment factors under FECA and, therefore, has not met his burden of proof in establishing
that he sustained an emotional condition in the performance of duty.31
On appeal, appellant contends the instructions given by Mr. Owens were unreasonable as
were the screaming and yelling he was subjected to. As found above, the record is devoid of
corroborating evidence establishing that Mr. Owens yelled or screamed at him or that
instructions given constituted abuse or error. Thus, appellant failed to establish any compensable
work factor.
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.

28

T.G., 58 ECAB 189 (2006); Charles D. Edwards, 55 ECAB 258 (2004).

29

See William P. George, 43 ECAB 1159 (1992) (claimed employment incidents not established where appellant
did not submit evidence substantiating that such incidents actually occurred).
30

See C.S., 58 ECAB 137 (2006); Judy L. Kahn, 53 ECAB 321 (2002).

31

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 4; Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

7

CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ dated December 13, 2012 is affirmed.
Issued: December 23, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, BRUNSWICK POST
OFFICE, Brunswick, GA, Employer
__________________________________________

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

Docket No. 19-1781
Issued: November 13, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 23, 2019 appellant filed a timely appeal from an August 1, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated August 19, 2020, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying
Request for Oral Argument, Docket No. 19-1781 (issued August 19, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 1, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease in the performance of duty, as alleged.
FACTUAL HISTORY
On May 18, 2019 appellant, then a 35-year-old rural carrier associate, filed an occupational
disease claim (Form CA-2) alleging that she developed an occupational illness and passed out due
to factors of her federal employment while delivering mail on her route. She noted that she first
became aware of her condition and its relationship to factors of her federal employment on
May 18, 2019, the same date she stopped work.
In support of her claim, appellant submitted a statement in which she noted that she had
been delivering mail when her eyes began to squint, she started sweating, and had clammy hands.
While driving she noticed her vision worsening so she briefly closed her eyes and while her eyes
were closed she heard a boom as her vehicle hit a mailbox. Appellant inspected her vehicle and
the mailbox, which were undamaged and continued with her route. While delivering another
package she felt her legs go weak and she fell. A customer at that location checked on appellant,
took her blood pressure, and advised that it was very high. Appellant noted that she had blurry
vision and requested that the customer call her supervisor, who then arrived and took her to the
hospital.
OWCP received an instructional form from appellant, dated May 18, 2019, from an
emergency care center for heat exhaustion.
In a June 5, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence necessary to establish her claim
and attached a questionnaire for her completion. OWCP asked appellant to explain in detail the
employment-related exposure which she believed contributed to her condition and the
development of her condition, including prior similar conditions. It afforded her 30 days to submit
the requested factual and medical evidence.
In response to OWCP’s request, appellant submitted evidence including diagnostic testing
and discharge notes dated May 18, 2018 from the same emergency care center.
In a May 18, 2019 emergency department note, Dr. Timothy N. McGlaughlin, an osteopath
specializing in emergency medicine, provided examination findings and reported that appellant
was employed as a mail carrier. Under present injury history, he noted that appellant drank water
after seeing spots while delivering mail and that she nearly passed out and became weak after
resuming delivery of mail. Appellant reported a history of heart valve problems. Differential
diagnoses included syncope, near syncope, dysrhythmia, myocardial infarction, anxiety,
dehydration, anemia, dizziness, and orthostatic hypotension.
In a May 24, 2019 report, Dr. Martin R. Artman, a Board-certified emergency room
physician, diagnosed hypertension, heat exhaustion, and weakness. Under history of illness, he
reported that appellant was seen on May 18, 2019 in the emergency room for syncopal episode,

2

heat exhaustion, and dehydration. Dr. Artman noted that she had previously been diagnosed with
high blood pressure and that she had run out of her medication several weeks prior. In addition,
he noted that appellant had a history of heart valve problems and bilateral leg deep vein thrombosis.
A work-related injury verification form dated May 24, 2019 noted that appellant had been
treated for heat exhaustion that day.
In a report dated May 28, 2019, Dr. Daniel Lewis Miller, a Board-certified emergency
room physician, diagnosed heat exhaustion and anhidrotic. He reported that appellant was seen
that day for a recheck of her heat exhaustion.
In a June 4, 2019 note, Tyler Cole, a doctor of nursing practice, reported that appellant was
seen that day and was found to be disabled due to cardiac issues until further evaluation.
By decision dated August 1, 2019, OWCP denied appellant’s claim finding that the factors
of her federal employment had not been established. Specifically, it explained that she failed to
respond to OWCP’s request for a detailed statement regarding the work activities that contributed
to her claimed condition. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

4

Supra note 2.

5

J.S., Docket No. 19-1392 (issued February 13, 2020); S.D., Docket No. 19-1240 (issued December 11, 2019);
J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

J.S., id.; T.W., Docket No. 18-0788 (issued July 22, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018);
Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143 (1989).
7
J.S., supra note 5.; T.W., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41
ECAB 992 (1990).

3

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.9 Moreover,
an injury does not have to be confirmed by eyewitnesses. The employee’s statement, however,
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action. An employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.10
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the May 18,
2019 employment incident occurred in the performance of duty, as alleged.
The Board notes initially that appellant claimed an occupational injury by filing a Form
CA-2. The evidence of record, however, provided support for a traumatic injury, occurring during
the course of a single workday or shift.11 Under the circumstances of the case, the Board finds that
she is alleging a traumatic injury, occurring during a single workday.12
Appellant alleged that she sustained an injury while delivering mail due to heat exhaustion
on May 18, 2019. The record establishes, based upon a statement made by appellant, that on that
day she was delivering mail when her vehicle hit a mailbox after briefly closing her eyes and later
when her legs gave out while delivering a package. Additionally, appellant sought prompt medical
care, first at the emergency room with Dr. McGlaughlin, who noted that appellant saw spots while
delivering mail, felt weak and nearly passed out after resuming mail delivery. She subsequently
sought care with Dr. Artman on May 24, 2019, who noted that appellant had been seen in the
emergency room on May 18, 2019 for dehydration, heat exhaustion, and syncopal episode, and
Dr. Miller, who reported seeing appellant on May 28, 2019 for a recheck of her heat exhaustion.

8

S.D., supra note 5; P.S., Docket No. 19-0549 (issued July 26, 2019).

9

K.F., Docket No. 18-0485 (issued February 18, 2020); M.S., Docket No. 18-0059 (issued June 12, 2019); D.B.,
58 ECAB 464, 466-67 (2007).
10

K.F., id., D.R., Docket No. 19-0072 (issued June 24, 2019).

11
A traumatic injury is defined as a condition of the body caused by a specific event or incident, or series of events
or incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
12

See C.S., Docket No. 19-1809 (issued July 29, 2020). Appellant filed a claim for traumatic injury (Form CA-1),
however, the Board found that appellant was alleging an occupational disease resulting from her work environment
over a period longer than a single workday or shift.

4

The injury appellant claimed is consistent with the facts and circumstances she set forth in
her statement, her course of action, and the medical evidence she submitted. Further, the history
of the employment injury was confirmed by Dr. McGlaughlin, and the contemporaneous medical
reports. The Board thus finds that appellant has met her burden of proof to establish that the
May 18, 2019 employment incident occurred in the performance of duty, as alleged.13
As appellant has established that the May 18, 2019 employment incident factually occurred
as alleged, the question becomes whether the incident caused an injury.14 As OWCP found that
appellant had not established fact of injury, it did not evaluate the medical evidence. The Board,
therefore, will set aside OWCP’s August 1, 2019 decision and remand the case for consideration
of the medical evidence of record.15 After such further development as deemed necessary, OWCP
shall issue a de novo decision addressing whether appellant has met her burden of proof to establish
an injury causally related to the accepted July 31, 2019 employment incident.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the May 18,
2019 employment incident occurred in the performance of duty, as alleged. The Board further
finds that the case is not in posture for decision regarding whether she has established an injury
causally related to the May 18, 2019 employment incident.

13

See M.H., Docket No, 20-0576 (issued August 6, 2020); M.A., Docket No. 19-0616 (issued April 10, 2020);
C.M., Docket No. 19-0009 (issued May 24, 2019).
14

Id.

15

M.H., supra note 13; S.M., Docket No. 16-0875 (issued December 12, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: November 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 15-1932
Issued: March 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 18, 2015 appellant filed a timely appeal from an April 6, 2015 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 has more than 11 percent permanent impairment of the left
lower extremity for which she has received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following OWCP’s April 6, 2015 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant
to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On February 20, 2007 appellant, then a 53-year-old rural mail carrier, filed an
occupational disease claim (Form CA-2) alleging that she experienced noticeable left hip
discomfort beginning January 2006 due to repetitive twisting, bending, lifting, and reaching in
order to process and deliver mail. She did not stop work. OWCP accepted appellant’s claim for
aggravation of herniated disc disease at L5-S1 and aggravation of disc protrusion.
On December 11, 2012 OWCP expanded appellant’s claim to include right hip and thigh
sprain, degeneration of lumbosacral intervertebral disc, displacement of lumbar intervertebral
disc without myelopathy, postlaminectomy syndrome, and thoracic or lumbosacral radiculitis.
On August 30, 2011 appellant underwent authorized L5 decompression and discectomy
surgery. She stopped work and filed a recurrence claim. On November 7, 2011 OWCP accepted
appellant’s recurrence claim and paid compensation benefits. Appellant was placed on the
periodic rolls as of May 16, 2012. On April 19, 2013 OWCP updated her claim to include
postlaminectomy syndrome, lumbago, lumbar radiculopathy, and sciatica. Appellant continued
to receive medical treatment for her employment injuries until October 31, 2014 when all wageloss compensation and medical benefits were terminated.3
On December 15, 2014 OWCP received appellant’s claim for a schedule award.
By letters dated December 5 and 17, 2014, OWCP informed appellant that she needed an
impairment rating based on a current medical evaluation, which included an opinion regarding
maximum medical improvement, a diagnosis on which the impairment rating was based, a
detailed description of the permanent impairment, and a final rating of impairment based on the
sixth edition of the A.M.A., Guides. Appellant was informed that she had 30 days to submit
further evidence.
On December 12, 2014 and January 1, 2015 appellant requested an extension of the time
period to submit her medical evidence.
On January 21, 2015 OWCP granted appellant a 30-day extension to submit the
necessary medical evidence.
In a January 26, 2015 report, Dr. Amy D. Leland, Board-certified in physical medicine
and rehabilitation, noted that she was conducting a follow-up examination of appellant for her
continued complaints of low back pain and chronic lower left extremity radiculopathy. She
related that she had not seen appellant for over two years since an October 12, 2012 examination
when she had found that appellant had reached maximum medical improvement and
recommended a permanent impairment rating of 15 percent for her left lower extremity.
Dr. Leland reviewed appellant’s history and medical records beginning on February 15, 2013.
She related appellant’s complaints of ongoing, near constant left lower extremity numbness,
burning, and difficulty sensing where her foot was in space, which made her feel unsteady when
3

Appellant filed an appeal to the Board regarding the termination of her compensation benefits on April 24, 2015.
Docket No. 15-1141.

2

walking. Dr. Leland reported that appellant also complained of constant discomfort across her
low back.
Upon examination of appellant’s lumbar spine, Dr. Leland observed maximal tenderness
in the left lower lumbar facet region and left proximal buttock. Straight leg raise testing
demonstrated no back or leg pain. Dr. Leland noted that lumbar range of motion demonstrated
lateral flexion to 35 degrees to the right and left, rotation to 90 degrees to the right and left,
extension to 35 degrees, and flexion to 80 degrees. Neurovascular examination revealed intact
lower extremity sensation to light touch and decreased sensation to light tough over the lateral
left hip, lateral calf, and dorsum of the left foot. Dr. Leland indicated that strength testing of the
lower extremity was 5/5 for bilateral hip abduction, bilateral flexion, and bilateral extension.
Strength testing for the bilateral knee and ankle were also 5/5. Dr. Leland diagnosed lumbago,
thoracic or lumbar radiculitis, and sciatica due to displacement of lumbar disc. She reported that
she could not assign a permanent impairment rating without new diagnostic testing, specifically a
nerve conduction study and electromyography (NCS/EMG) examination of the left lower
extremity. Dr. Leland also advised appellant to undergo a new functional capacity evaluation
(FCE) to assess functional abilities. Appellant completed a pain disability questionnaire, which
Dr. Leland scored as 84 or 85.
Dr. Leland requested authorization for NCS/EMG examination of appellant’s left lower
extremity and an FCE.
By letter dated February 13, 2015, appellant requested additional time to submit a
detailed medical report in support of her claim for a schedule award. She explained that due to
the fact that she had not received authorization for an FCE and NCS/EMG she had to cancel her
appointments and reschedule them for February 20 and 26, 2015.
In a decision dated February 24, 2015, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence failed to establish that she sustained a permanent
impairment to her left lower extremity as a result of her accepted lumbar conditions.
By letter dated February 26, 2015, appellant requested a copy of all her medical records
and all written and verbal correspondence between OWCP and Dr. Leland. She also noted that
she had a recent examination which OWCP required for consideration of her claim for a
schedule award.
On February 26, 2015 appellant underwent an NCS/EMG examination by Dr. Leland
who related appellant’s complaints of chronic left L5 radiculopathy from a 2006 work injury.
She reported that needle examination of the muscles of the left lower extremity and of the left
mid and low lumbar paraspinal showed normal resting activity throughout. Dr. Leland indicated
that motor units were decreased in number and increased in size in the anterior tibula, peroneous
longus, and biceps femoris. She opined that appellant had an abnormal NCS/EMG study of the
left lower extremity and concluded that findings were consistent with an old, chronic left L5
radiculopathy.
In her narrative report of that same date, Dr. Leland reviewed appellant’s medical history
and treatment for chronic left lower extremity radiculopathy and chronic low back pain. She

3

related that appellant continued to complain of ongoing left lower extremity numbness and
associated stabbing and burning. Dr. Leland indicated that appellant still experienced difficulty
sensing where her foot was in space and felt unsteady when walking. She noted that appellant
experienced constant discomfort and tenderness across her low back. Upon examination of
appellant’s lumbar spine, Dr. Leland observed tenderness in the left lumbosacral junction into
the left proximal buttock. Appellant exhibited pain with motion, worse with end range right
rotation and end range extension. Straight leg raise testing demonstrated no pain bilaterally.
Dr. Leland provided lumbar range of motion findings. Neurovascular examination of the left
lower extremity demonstrated decreased sensation to light touch over the lateral left hip.
Reflexes of the bilateral patella and Achilles were 2/4. Dr. Leland reported that strength
examination of the bilateral hip, knee, and ankle were also 5/5 except for left ankle dorsiflexion
and plantar flexion which were 4/5.
Dr. Leland diagnosed chronic lumbar radiculopathy and lumbago in class 3. Utilizing
Table 17-4: Lumbar Regional Grid of the A.M.A., Guides, she determined that appellant had a
default impairment of 19 percent. Dr. Leland also reported that appellant could work with
restrictions of a medium physical demand level and provided work restrictions.
On March 20, 2015 OWCP referred appellant’s case, along with a statement of accepted
facts, to an OWCP medical adviser. In a March 22, 2015 report, Dr. Morley Slutsky, Boardcertified in occupational medicine and an OWCP medical adviser, reviewed appellant’s medical
records. He related that a lumbar MRI scan revealed right lateral L3 nerve root involvement and
EMG/NCV testing demonstrated chronic left L5 radiculopathy. Dr. Slutsky explained that
because there was no evidence of left L3 or L4 nerve root involvement, he would use the left L5
nerve root.
Utilizing Table 16-11 for sensory deficits of The Guides Newsletter,
July/August 2009 (The Guides Newsletter), he determined that appellant was a default three
percent impairment for class 1, grade C because of sensibility touching by light touch and
sharp/dull discrimination. Dr. Slutsky next addressed motor deficits and found that appellant
was a default five percent impairment for class 1, grade C due to mild left L5 motor deficits. He
assigned a Functional History (GMFH) grade modifier of 1 because appellant had an antalgic
gait that did not require using a single gait aid device and there was no evidence of a positive
Trendelenburg. Dr. Slutsky also reported that Physical Examination (GMPE) was not relevant
and that Clinical Studies (GMCS) grade modifier was 2 because an EMG examination showed
evidence of left L5 nerve root involvement. He applied the net adjustment formula for a total
adjustment of +1. Dr. Slutsky then calculated that appellant had 4 percent impairment for
sensory deficits and 7 percent impairment for motor deficits, which totaled 11 percent total
impairment for the left lower extremity. He explained that his impairment differed from
Dr. Leland because Dr. Leland used the Spine Chapter 17 from the A.M.A., Guides instead of
the appropriate July/August 2009 The Guides Newsletter. Dr. Slutsky concluded that appellant
had 11 percent permanent impairment for the left upper extremity and noted a date of maximum
medical improvement of February 26, 2015.
On April 6, 2015 OWCP granted a schedule award decision for 11 percent permanent
impairment of the left lower extremity. The award ran for a total of 34.32 weeks from
February 26 to October 24, 2015.

4

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.5
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. The A.M.A., Guides has developed an
approach to rating such impairment in The Guides Newsletter (July/August 2009). OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.6
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.7
ANALYSIS
OWCP accepted that appellant sustained multiple conditions of her lumbar spine as a
result of her employment duties. Its procedures provide that a schedule award is not payable for
injury to the spine.8 However, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originated in the spine.9
For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries,
OWCP procedures indicate that the July/August 2009 The Guides Newsletter of the sixth edition
of the A.M.A., Guides is to be applied.10

4

5 U.S.C. §§ 8101-8193.

5

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

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010). See also G.N., Docket No. 10-850 (issued November 12, 2010).
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
8

Pamela J. Darling, 49 ECAB 286 n.7 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 n. 8 (1999).

10

Supra note 6.

5

Appellant submitted an impairment rating dated October 13, 2012 by Dr. Leland,
appellant’s treating physician who is Board-certified in physical medicine and rehabilitation.
She determined that under Table 17-4, Lumbar Spine Regional Grid, of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) appellant was placed in class 3 for intervertebral disc herniations and/or AOSM at
multiple levels, with documented findings with or without surgery and with or without
documented radiculopathy at a single clinically appropriate level present at the time of
examination for a default value of 19 percent. Appellant applied the net adjustment formula and
calculated an adjustment of -4, which resulted in 15 percent impairment of the lumbar spine.
In a March 22, 2015 report, Dr. Slutsky, an OWCP medical adviser, reviewed appellant’s
medical records and noted that EMG/NCV testing demonstrated chronic left L5 radiculopathy.
Referencing Table 16-11 of the July/August 2009 edition of The Guides Newsletter for sensory
deficits, he determined that appellant had a default value of three percent impairment for a class
1, grade C rating due to sensibility touching by light touch and sharp/dull discrimination.
Dr. Slutsky next addressed motor deficits under Table 16-11 and found that appellant had default
five percent impairment for class 1, grade C due to mild left L5 motor deficits. He assigned a
GMFH of 1 and GMCS of 2. Dr. Slutsky reported that GMPE was not relevant. After applying
the net adjustment formula for a total adjustment of +1, he calculated that appellant had four
percent impairment for sensory deficits and seven percent impairment for motor deficits.
Dr. Slutsky concluded that appellant had a total 11 percent impairment of the left lower
extremity and a date of maximum medical improvement of February 26, 2015. He explained
that his impairment differed from Dr. Leland because Dr. Leland used the Spine Chapter 17 from
the A.M.A., Guides instead of the appropriate July/August 2009 The Guides Newsletter.
The Board finds that the medical adviser, Dr. Slutsky, properly reviewed the medical
record and evaluated appellant’s condition in accordance with OWCP procedures found in
July/August 2009 The Guides Newsletter.11 There is no medical evidence in conformance with
the A.M.A., Guides showing a greater impairment. The Board finds that, as the medical adviser
provided the only rating which properly applied the A.M.A., Guides, his medical opinion
represents the weight of the medical evidence in this case.12
On appeal, appellant requested an impartial medical neurologic or orthopedic referee
physician to solve the discrepancies between Dr. Leland, her treating physician, and Dr. Slutsky,
the OWCP medical adviser. The Board has found, however, that a referee medical examiner is
required only when there exists opposing medical reports of virtually equal weight and
rationale.13 Dr. Leland’s report, however, does not stand in equal weight to Dr. Slutsky’s report
as Dr. Leland’s report does not comport with the standards of the A.M.A., Guides. Dr. Leland
based her impairment rating on Chapter 17 of the A.M.A., Guides as opposed to the
July/August 2009 The Guides Newsletter, which is the only appropriate table to use when
11

The Board notes that Dr. Slutsky’s reference to a left upper extremity impairment is harmless error as he refers
to appellant’s left lower extremity throughout the rest of his report.
12

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

13

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).

6

calculating impairment to the upper or lower extremities caused by a spinal injury.14 The Board
has held that an attending physician’s report is of diminished probative value where the A.M.A.,
Guides are not properly followed.15 Because Dr. Leland’s February 26, 2015 impairment rating
is of diminished probative value, it fails to establish appellant’s request for an increased schedule
or to create a conflict in medical opinion evidence.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant failed to establish more than 11 percent permanent
impairment to the left lower extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Supra note 6.

15

J.G., Docket No. 09-1128 (issued December 7, 2009).

7