United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, GATLINBURG POST
OFFICE, Gatlinburg, TN, Employer
__________________________________________

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Appearances:
T. Scott Jones, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0946
Issued: February 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 21, 2021 decision, appellant submitted additional evidence to OWCP.
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 issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $32,318.44, for which he was without fault, for
the period December 1, 2014 through March 28, 2020, because he concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$563.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 26, 1991 appellant, then a 42-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained “mental and emotional stress and conflict”
due to factors of his federal employment. He stopped work on February 15, 1991. OWCP
accepted appellant’s claim for conversion disorder and single episode of major depression. It paid
him wage-loss compensation on the periodic rolls, effective December 11, 1994.
On March 6, 2020 SSA submitted a completed Federal Employees Retirement System
(FERS)/SSA dual benefits form to OWCP. The form listed appellant’s monthly SSA age-related
retirement benefit rates beginning December 2014 with and without appellant’s FERS
contributions. The form reported that: beginning December 2014, his SSA rate with FERS was
$1,208.90 and without FERS was $713.90; beginning December 2016, his SSA rate with FERS
was $1,212.00 and without FERS was $716.00; beginning December 2017, his SSA rate with
FERS was $1,237.00 and without FERS was $731.00; beginning December 2018, his SSA rate
with FERS was $1,271.50 and without FERS was $751.50; and beginning December 2019, his
SSA rate with FERS was $1,291.60 and without FERS was $762.60.
Effective March 29, 2020, OWCP adjusted appellant’s compensation amount to include
the offset of his SSA age-related retirement benefits attributable to his federal service.
On April 8, 2020 OWCP notified appellant of its preliminary overpayment determination
that he had received an overpayment of compensation in the amount of $32,335.88 because it had
failed to reduce his wage-loss compensation benefits for the period December 1, 2014 through
March 29, 2020 by the portion of his SSA age-related retirement benefits that were attributable to
federal service. It further advised him of its preliminary determination that he was without fault
in the creation of the overpayment. OWCP also provided a FERS offset calculation worksheet.
On May 6, 2020 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review.

4

Docket No. 20-1332 (issued February 19, 2021).

2

By decision dated May 20, 2020, OWCP finalized the April 8, 2020 preliminary
overpayment determination, finding that appellant had received an overpayment of compensation
in the amount of $32,335.88 for the period December 1, 2014 through March 29, 2020 because he
concurrently received SSA age-related retirement benefits and FECA wage-loss compensation
without appropriate offset. It found that he was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment. OWCP required recovery of the overpayment
by deducting $563.00 from appellant’s continuing compensation payments every 28 days.
Appellant, through counsel, appealed to the Board. By decision dated February 19, 2021,5
the Board affirmed the May 20, 2020 overpayment decision in part, and set it aside, in part. The
Board affirmed the fact and period of overpayment, finding that appellant had received an
overpayment of compensation, for the period December 1, 2014 through March 28, 2020, because
he concurrently received SSA age-related retirement benefits and FECA wage-loss compensation
without an appropriate offset. The Board further found, however, that OWCP had incorrectly
calculated the amount of overpayment because the evidence of record established that appellant
was no longer receiving dual benefits as of March 29, 2020. The Board remanded the case for
recalculation of the amount of overpayment, followed by a de novo decision.
OWCP subsequently completed a FERS offset overpayment calculation worksheet on
March 30, 2021. This form indicated that: from December 1, 2014 through November 30, 2016,
appellant received an overpayment in the amount of $11,929.96; from December 1, 2016 through
November 30, 2017, appellant received an overpayment in the amo unt of $5,968.35; from
December 1, 2017 through November 30, 2018, appellant received an overpayment in the amount
$6,088.68; from December 1, 2018 through November 30, 2019, appellant received an
overpayment in the amount of $6,257.14; and from December 1, 2019 through March 28, 2020,
appellant received an overpayment in the amount of $2,075.31. Based on these figures, OWCP
calculated the total overpayment amount of $32,318.44.
On March 30, 2021 OWCP issued a de novo preliminary overpayment determination,
finding that appellant had received an overpayment of compensation in the amount of $32,318.44
because it had failed to reduce his wage-loss compensation benefits for the period December 1,
2014 through March 28, 2020, by the portion of his SSA age-related retirement benefits that were
attributable to his federal service. It further advised him of its preliminary determination that he
was without fault in the creation of the overpayment. OWCP requested that appellant submit an
updated overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable
payment method and advised him that he could request a waiver of the overpayment. It further
requested that he provide supporting financial documentation, including copies of income tax
returns, bank account statements, bills, pay slips, and any other records to support his reported
income and expenses. Additionally, OWCP provided an overpayment action request form and
notified appellant, that within 30 days of the date of the letter, he could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
On April 14, 2021 appellant completed an overpayment action request form and requested
that OWCP issue a decision based on the written evidence. He noted his disagreement that the
overpayment occurred and requested a waiver of recovery of the overpayment.

5

Id.

3

Appellant completed a Form OWCP-20 on April 14, 2021. He listed his monthly income
as $816.00 in SSA benefits and $1,919.42 in “other” benefits for a total monthly income of
$2,735.42. Appellant noted that his monthly expenses included housing of $63.00, food of
$400.00, clothing of $150.00, utilities of $575.00, and other expenses of $600.00. He provided a
list of other debts paid by monthly installments of $397.00, $341.00, and $300.00 for total monthly
expenses of $2,826.00. Appellant indicated that he had a checking account balance of $4,033.00
and other personal property valued at $50,000.00, for a total of $54,033.00.
By decision dated May 21, 2021, OWCP finalized its preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $32,318.44, for the period December 1, 2014 through March 28, 2020, because he concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation without
appropriate offset. It also found that he was without fault in the creation of the overpayment, but
denied waiver of recovery of the overpayment. While appellant reported on the Form OWCP-20
dated April 14, 2021 that he had total monthly income of $2,735.00, OWCP determined that he
received $2,530.42 in FECA benefits and $816.00 in SSA benefits, for a total monthly income of
$3,346.42. OWCP determined that recovery of the overpayment would require deducting $563.00
every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 7
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 8 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $32,318.44 for the period December 1, 2014 through March 28,
2020, for which he was without fault, because he concurrently received FECA wage -loss
compensation benefits and SSA age-related retirement benefits without an appropriate offset.

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); L.J., 59 ECAB 264 (2007).

9

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4

The Board preliminarily notes that it found in its February 19, 2021 decision that appellant
received an overpayment of compensation for the period December 1, 2014 through March 28,
2020, for which he was without fault. Findings made in prior Board decisions are res judicata
absent further review by OWCP under section 8128 of FECA. 10 Therefore, the Board’s prior
finding regarding the fact and period of the overpayment is not sub ject to further consideration.
On remand, by de novo decision dated May 21, 2021, OWCP found that appellant received
an overpayment of compensation in the amount of $32,318.44. To determine the amount of the
overpayment, the portion of SSA’s benefits that were attributable to federal service must be
calculated. OWCP received documentation from SSA with respect to the specific amount of SSA
age-related retirement benefits that were attributable to federal service. SSA provided its rate with
FERS and without FERS for specific periods from December 1, 2014 through March 28, 2020.
OWCP provided its calculations of the amount that should have been offset for each relevant
period based on the information provided by SSA’s dual benefits form and determined that
appellant received an overpayment in the amount of $32,318.44.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period December 1, 2014 through March 28, 2020 and finds that an overpayment of $32,318.44
was created.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 12
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience. 13
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics. 14 An individual is deemed to need

10

T.C., Docket No. 21-0612 (issued December 2, 2021); T.W., Docket No. 20-0836 (issued July 21, 2021);
Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). See also 20 C.F.R. § 501.6(d).
11

J.T., Docket No. 21-0010 (issued September 30, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

12

5 U.S.C. § 8129.

13

A.C., Docket No. 18-1550 (issued February 21, 2019); L.S., 59 ECAB 350 (2008).

14

20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a) (September 2020).

5

substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 15
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt
and when an 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. 16 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18 It considered his
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA.
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. The evidence of record
demonstrated that he had total current monthly income of $816.00 in SSA benefits and $2,530.42
in FECA benefits for a total monthly income of $3,346.42. Based on the financial information
that appellant had provided, he had total monthly expenses of $2,826.00. As his monthly income
exceeds his ordinary and necessary living expenses by more than $50.00, the Board finds that he
did not need substantially all of his income for ordinary and necessary living expenses. 19
On appeal, counsel argues that the reported $816.00 in SSA income are for appellant’s
wife, not himself. Counsel has not, however, provided any evidence to support appellant’s
contention. Accordingly, the Board finds that appellant’s monthly income exceeds his total
monthly expenses by more than $50.00.

15

Id. at Chapter 6.400.4(a)(3) (September 2020).

16

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

17

Supra note 14 at Chapter 6.400.4(c)(3) (September 2020).

18

Supra note 11.

19

See V.G., Docket No. 20-1520 (issued September 21, 2021); see also M.C., Docket No. 19-0699 (issued
February 12, 2020).

6

As appellant failed to establish that, recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery of the overpay ment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 20
Section 10.441(a) of OWCP’s regulations21 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to m inimize
any hardship.”22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$563.00 every 28 days from appellant’s continuing compensation payments.
The record supports that, in requiring repayment of the overpayment by deducting $563.00
from appellant’s compensation payments every 28 days, OWCP took into consideration the
financial information he submitted as well as the f actors set forth in 20 C.F.R. § 10.441 and found
that this method of recovery would minimize resulting hardship. Therefore, OWCP properly
required recovery of the overpayment by deducting $563.00 from his continuing compensation
every 28 days. 23
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$32,318.44, for the period December 1, 2014 through March 28, 2020, for which he was without
fault, as he concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation benefits without appropriate offset. The Board fu rther finds that OWCP properly
denied waiver of recovery of the overpayment and properly required recovery of the overpayment
by deducting $563.00 every 28 days from his continuing compensation payments.

20

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

21

Id. at § 10.441(a).

22

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

23

See J.R., Docket No. 17-181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).

7

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 11, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, FREEHOLD POST
OFFICE, Freehold, NJ, Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0215
Issued: July 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 8, 2020 appellant, through counsel, filed a timely appeal from a July 9, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a medical condition causally related to the
accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are
as follows.
On July 11, 2016 appellant, then a 51-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she injured her back, legs, and hips due to factors of her federal
employment, including bending, twisting, lifting up to 70 pounds, pushing, pulling, sitting,
walking, turning, kneeling, squatting, reaching above and below her head, standing, leaning over,
stepping up and down, carrying, and stretching.4 She noted that she first became aware of her
condition on January 22, 2014 and realized its relationship to her employment on
January 26, 2016. Appellant stopped work on January 26, 2016.
A February 25, 2014 lumbar magnetic resonance imaging (MRI) scan report showed spinal
canal stenosis at L4-5 related to a diffuse disc bulge and prominent facet arthropathy.
In an April 2, 2014 report, Dr. Robert B. Grossman, a Board-certified orthopedic surgeon,
indicated that appellant was previously diagnosed with spinal stenosis and entrapment at L4-5.
Upon physical examination, he observed tenderness at L4-5 and L5-S1 of the lumbar spine.
Straight leg raise testing was positive. Dr. Grossman reported decreased knee reflex and no
sensory losses. He opined that appellant’s injury was “directly related to overuse at work
delivering mail on January 22, 2014.”
In notes dated April 30 and July 2, 2014, Dr. Grossman noted physical examination
findings of back and sacroiliac (SI) joint tenderness. He opined that appellant’s back injury was
“directly related to back strains from doing two routes at the same time for the [employing
establishment].”
In a January 19, 2016 report, Dr. Sandeep Rathi, Board-certified in physical medicine and
rehabilitation and pain medicine, recounted appellant’s complaints of low back pain on the right
side and significant muscle spasm. Upon physical examination, he observed tenderness to
palpation over the right-sided lumbosacral paraspinal musculature and palpable spasm. Straight
leg raise testing was negative. Dr. Rathi diagnosed lumbar intervertebral disc displacement.
In a January 20, 2016 report, Dr. Leslie Cauvin, an osteopath who specializes in internal
medicine, indicated that appellant was seen for right-side back pain. He reviewed appellant’s
3

Order Remanding Case, Docket No. 18-1777 (issued July 20, 2019).

4

The claim was assigned OWCP File No. xxxxxx373. Appellant previously filed a traumatic injury claim for a
back injury related to a January 22, 2014 employment incident. OWCP assigned that claim OWCP File No.
xxxxxx498 and accepted it for temporary aggravation of lumbosacral degenerative disc disease

2

history and provided examination findings. Dr. Cauvin diagnosed low back pain and left elbow
sprain.
An April 1, 2016 lumbar spine MRI scan revealed multilevel degenerative disc disease,
most prominent within the lower lumbar spine and disc protrusion at T11-12, L1-2, L2-3, L3-4,
L4-5, and L5-S1.
On September 6, 2016 OWCP received a statement from appellant. Appellant noted that
the date of the original traumatic injury, which resulted in her back condition, was
January 22, 2014. She provided a detailed account of her employment duties, which included
casing mail, sorting mail into trays, loading trays into carts or skids, signing and writing up all
accountable items, pushing the cart or skid full of mail to the loading dock, driving her truck to the
dock, loading her mail truck with mail, driving to her mail route, and delivering mail and packages.
Appellant indicated that her duties required repetitive grabbing, pulling, twisting, rotating,
bending, squatting or kneeling, lifting, reaching, and walking.
In a September 22, 2016 development letter, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of medical and factual
evidence necessary to support her claim and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary information.
In reports dated August 2 and October 13, 2016, Dr. Rathi recounted appellant’s
complaints of low back pain with radiation to the lower extremities. Upon examination of
appellant’s lumbar spine, he observed tenderness to palpation of the lumbosacral paraspinal
musculature. Straight leg raise testing produced pain in the low back and buttocks. Dr. Rathi
diagnosed lumbosacral radiculopathy and lumbar intervertebral disc displacement.
On October 20, 2016 OWCP received appellant’s response to its development letter.
Appellant noted that her original back injury occurred on January 22, 2014 and that diagnostic
testing showed that she had two herniated and/or bulging discs in her lower back. She indicated
that her second work injury occurred in January 2016 and that a lumbar spine MRI scan revealed
that she now had five herniated and/or bulging discs in her lumbar spine.
Appellant submitted additional reports by Dr. Grossman. In reports dated August 3 and
October 5, 2016, Dr. Grossman indicated that appellant’s problems with her back and legs started
in January 2014 and again in 2016 and was caused by her bending, twisting, and walking for work.
He indicated that an MRI scan showed L2-3, L3-4, L4-5, and L5-S1 entrapment. Upon
examination of appellant’s lumbar spine, Dr. Grossman observed back tenderness and entrapment.
In the October 5, 2016 report, he assessed “spinal stenosis and degenerative spinal disease, all
caused by two injuries at work.”
By decision dated November 14, 2016, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish that her diagnosed
medical conditions were causally related to the accepted factors of her federal employment.
On November 23, 2016 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on March 1, 2017.

3

Appellant submitted progress notes dated January 30 and March 6, 2014 from Dr. Anupam
Sinha, an osteopath, regarding appellant’s medical treatment for “exacerbation of lumbar disc
herniation from work-related incident on January 22, 2014.” Dr. Sinha diagnosed L3-4, L4-5, and
L5-S1 disc herniation and mild-to-moderate L4-5 stenosis.
OWCP received reports dated April 30 and October 26, 2015 by Dr. Grossman, who
treated appellant for left knee pain. Dr. Grossman reported that examination findings revealed
joint line tenderness and positive McMurray signs. He diagnosed arthritis and meniscal tear.
Appellant continued to receive medical treatment from Dr. Rathi and submitted reports and
procedure notes dated November 21, 2016 through January 19, 2017 regarding the treatment that
she received for her lumbar radiculopathy and low back pain.
Appellant submitted reports dated March 7, 2016 through March 23, 2017 from
Dr. Grossman who noted the 2014 back injury and indicated that diagnostic testing had confirmed
degenerative spine disease and five bulging discs. In reports dated January 11 and February 8,
2017, Dr. Grossman assessed “protruding discs and degenerative spine disease related to the work
that [appellant] has done for the last 32 years.” In reports dated January 24 and March 8, 2017, he
further indicated that the source of appellant’s problem began in 2014 when she had to carry an
excessive amount of weight at work. Dr. Grossman recounted that appellant had been carrying
large weights with a degenerative back for 30 some years and explained that appellant’s
degenerative problems were accentuated by her working on hard floors, carrying, lifting, turning,
and twisting. He reported that appellant’s back problems were directly related to being “forced to
carry two bags of mail as a rural carrier back in 2014 and did so approximately 30 years.” In a
March 23, 2017 narrative report, Dr. Grossman further indicated that appellant’s injury was made
worse by what she had done for the previous 20 to 25 years.
By decision dated April 4, 2017, OWCP’s hearing representative affirmed the
November 14, 2016 decision.
On February 5, 2018 appellant, through counsel, requested reconsideration.
OWCP received additional reports and procedure notes from Dr. Rathi dated May 1
through December 14, 2017 regarding the medical treatment that appellant received for her lumbar
and right hip conditions.
In a narrative June 17, 2017 report, Dr. Grossman indicated that for 30 years appellant was
required to work an average of 8½ hours per day, 5 to 6 days per week, casing and delivering mail,
which involved twisting, bending, stooping, and lifting. He opined that appellant’s medical
problems were directly related to what she was required to do and the significant amount of work
on her spine. Dr. Grossman explained that significant twisting, turning, and bending all day long
for 31 years would disrupt anyone’s spine and hips. He concluded that appellant’s back and hip
problems were directly related to her employment, which required twisting and turning exercises,
moving large amounts of mail across the employing establishment floor, and moving that mail
again in and out of her truck.

4

In a report dated August 17, 2017, Dr. Grossman reported that appellant continued to be
symptomatic in her back and left lower extremity. He noted examination findings of positive
straight leg raise testing and weakness in the dorsiflexion of the left foot.
In a December 12, 2017 report, Dr. Rathi noted appellant’s January 22, 2014 work-related
injury and discussed the medical treatment that appellant had received, including diagnostic
testing, epidural steroid injections, and nerve branch blocks. He reported that appellant’s
diagnoses related to the January 22, 2014 work injury were lumbar facet joint syndrome bilaterally,
annual tear at L3-4 and L4-5, and disc herniation at L4-5 and L5-S1. Dr. Rathi indicated that
appellant suffered a permanent, work-related injury on January 22, 2014, which remained
symptomatic after conservative treatment. He opined that appellant’s work duties for May 2014
through January 2016 aggravated her injury.
In a January 8, 2018 narrative report, Dr. Grossman reiterated appellant’s employment
duties as a rural carrier and indicated that this was a significant amount of work for anyone, but
more problematic for appellant since her January 22, 2014 work injury. He noted that appellant
returned to full duty in May 2014 and worked until she reinjured her back in January 2016 while
in the performance of her duties. Dr. Grossman indicated that an April 1, 2016 lumbar MRI scan
showed additional injuries to her back and clearly showed that returning back to work caused more
damage to appellant’s lumbar spine. He reported that physical examination findings showed
continued back pain and numbness and pain and weakness in her legs. Dr. Grossman concluded
that appellant’s injuries were directly related to 30 plus years of employment, which involved
twisting, turning, stooping, squatting, and lifting large amounts of mail across the floor and in and
out of her truck.
In a May 4, 2018 decision, OWCP denied modification of the April 4, 2017 decision.
Appellant appealed to the Board. In a July 29, 2019 order, the Board set aside the May 4,
2018 decision and remanded the case for OWCP to administratively combine the current claim
with appellant’s previous lumbar claim under File No. xxxxxx498 followed by a de novo decision.5
On August 15, 2019 OWCP administratively combined the claim files, with File No. xxxxxx498
serving as the master file.
By de novo decision dated October 22, 2019, OWCP denied appellant’s occupational
disease claim, finding that the medical evidence of record was insufficient to establish a diagnosed
medical condition causally related to the accepted factors of her federal employment.
On April 14, 2020 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a March 30, 2020 report, Dr. Grossman described how the back consisted of disc spaces
between vertebrae, which break and compress, causing irritation, as people become older. He
indicated that for someone in appellant’s age group, the pressures of twisting, bending, and lifting
increase the forces across the back. Dr. Grossman noted that appellant had two significant back
injuries. He reported that a 2014 MRI scan showed irritation and the nucleus pulposus materials
5

Order Remanding Case, Docket No. 18-1777 (issued July 29, 2019).

5

pushing out against the C1-3 nerve roots. Dr. Grossman indicated that a second MRI scan
completed after the 2016 injury revealed that discs were herniated at T11-12, L1-2, L2-3, L3-4,
L4-5, and L5-S1. He noted that appellant’s lumbar spine had degenerated. Dr. Grossman opined
that the degeneration was “related to the amount of weight she carried, lifted, and moved for 30
plus years and so the discs have degenerated throughout her back, putting pressure against her
nerve.” He concluded that appellant’s lumbar condition was degenerated and related to her workrelated back injury.
By decision dated July 9, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,7 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.8 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.9
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the

6

Id.

7
L.C., Docket No. 19-0724 (issued September 5, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
8

D.W., Docket No. 18-1139 (issued May 21, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
9

D.W., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
10

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

11
A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).

6

relationship between the diagnosed condition and specific employment factors identified by the
employee.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a series of reports from Dr. Grossman.
Dr. Grossman indicated that he had treated appellant for an accepted lumbar condition due to her
January 22, 2014 employment injury. In reports dated August 3 and October 5, 2016, he indicated
that appellant’s problems with her back and legs started in January 2014 and again in 2016 and
was caused by her bending, twisting, and walking for work. Dr. Grossman provided examination
findings and noted that diagnostic testing had confirmed degenerative spine disease and five
bulging discs. In reports dated January 24 and March 8, 2017, he indicated that appellant had been
carrying large weights with a degenerative back for 30 some years and explained that appellant’s
degenerative problems were accentuated by her working on hard floors, carrying, lifting, turning,
and twisting. In a June 17, 2017 narrative report, Dr. Grossman explained that significant twisting,
turning, and bending all day long for 31 years would disrupt anyone’s spine and hips. He
concluded that appellant’s back and hip problems were directly related to her employment, which
required twisting and turning exercises, moving large amounts of mail across the post office floor,
and moving this mail again in and out of her truck. In a March 30, 2020 report, Dr. Grossman
described how the back consisted of disc spaces between vertebrae, which break and compress,
causing irritation, as people become older. He indicated that for someone in appellant’s age group,
the pressures of twisting, bending, and lifting increased the forces across the back. Dr. Grossman
opined that the degeneration was “related to the amount of weight she carried, lifting, and moved
for 30 plus years and so the discs have degenerated throughout her back, putting pressure against
her nerve.”
The Board finds that Dr. Grossman provided an affirmative opinion on causal relationship,
provided a complete factual history confirming the accepted employment factors, and accurately
noted appellant’s medical history and course of treatment. The Board finds that, while
Dr. Grossman’s reports are not completely rationalized and are insufficient to meet appellant’s
burden of proof to establish his occupational disease claim, they are consistent in indicating that

12

M.L., Docket No. 18-1605 (issued February 26, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018);
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

7

she sustained a medical condition due to the accepted factors of federal employment and are
sufficient to require OWCP to further develop the medical evidence and the case record.14
It is well established that proceedings under FECA are not adversarial in nature and, while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.15
The Board will, therefore, remand the case for further development of the medical
evidence. On remand OWCP shall prepare a statement of accepted facts and obtain a rationalized
opinion from a physician in the appropriate field of medicine as to whether the accepted work
factors caused or aggravated a diagnosed medical condition. If the referral physician opines that
the diagnosed condition is not causally related to the accepted employment factors, he or she must
explain with rationale how or why their opinion differs from that of appellant’s treating physicians.
Following this and other such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

E.P., Docket No. 19-1703 (issued April 16, 2021); G.M., Docket No. 19-0657 (issued September 13, 2019); see
also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
15
C.W., Docket No. 19-0322 (issued July 18, 2019); S.W., Docket No. 18-0119 (issued October 5, 2018); William J.
Cantrell, 34 ECAB 1233 (1993).

8

ORDER
IT IS HEREBY ORDERED THAT the July 9, 2020 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: July 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Drakesboro, KY, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1602
Issued: January 23, 2009

Case Submitted on the Record

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

JURISDICTION
On May 19, 2008 appellant, through his counsel, filed a timely appeal from a March 28,
2008 merit decision of the Office of Workers’ Compensation Programs denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
pneumoconiosis causally related to factors of his federal employment.
FACTUAL HISTORY
On August 9, 2005 appellant, then a 58-year-old former developmental production
supervisor, filed an occupational disease claim alleging that he sustained pneumoconiosis as a
result of his federal employment. In a statement accompanying the claim, he advised that he
worked with the employing establishment in various positions from October 1968 through
June 2000. Appellant noted that at various times during this employment he was exposed to coal

dust, flue gas, asbestos and limestone dust. He farmed from 1970 to 1979 and was exposed to
dirt dust. After appellant’s federal employment, he had occasional exposure to aluminum dust
while working for LC&E from May 2001 through March 2002 and had exposure to coal dust
while working for Power Industry Consultants from April through November 2002. He noted
that he smoked cigarettes for 20 years at a rate of one to two packs per day and occasionally,
three packs a day. By letter dated November 30, 2006, the employing establishment
controverted the claim alleging that the medical evidence failed to show that appellant’s
condition was due to his federal employment.
In a medical report dated June 29, 2005, Dr. Glen Baker, a Board-certified internist and
pulmonologist, diagnosed appellant with “mixed pneumoconiosis with irregular changes most
likely due to pulmonary asbestosis category 1/0, on the basis of 2000 ILO Classification” and
mild bronchitis based on history.1
By letter dated November 15, 2006, the Office referred appellant to Dr. Kenneth
Anderson, a Board-certified pulmonologist and a B-reader, for a second opinion. In a medical
report dated December 5, 2006, Dr. Anderson noted that appellant did not appear to produce
enough sputum to suggest a diagnosis of chronic bronchitis. Pulmonary function tests revealed
early obstructive airway disease, peripheral airways dysfunction and hyperinflation. However,
Dr. Anderson noted that appellant had normal diffusion capacity of carbon monoxide which
ruled out entities such as emphysema and/or significant pneumoconiosis. He stated that, even
taking into account appellant’s tobacco history, he did not demonstrate findings to suggest
chronic obstructive lung disease.
In a decision dated January 31, 2007, the Office denied appellant’s claim. It found that
there was insufficient evidence to establish that his exposures occurred as alleged. The Office
further found that there was no medical evidence that connected a diagnosis to the claimed
exposures.
On February 13, 2007 appellant, through his attorney, requested an oral hearing. This
was later changed to a request for review of the written record.
Appellant submitted the results of a May 7, 2007 x-ray interpreted by Dr. Matthew A.
Vuskovich, a Board-certified specialist in occupational medicine as showing small particles with
a 1/1 profusion. He found that there were no pleural abnormalities consistent with
pneumoconiosis.
By decision dated May 9, 2007, the Office hearing representative remanded the case to
resolve a conflict in medical evidence.
By letter dated May 17, 2007, the Office referred appellant to Dr. Manjoj Majmudar, a
Board-certified pulmonologist, for an impartial medical examination, to resolve a conflict in
opinion between Drs. Baker and Anderson with regard to whether there was “medical evidence
1

Under 5 U.S.C. § 8122(b), appellant has three years from the date he knew or should have known of the causal
relationship of any disability and his employment to file a claim. As this appears to be the first report diagnosing
pneumoconiosis, this claim was timely filed.

2

sufficient to support a relationship between diagnosis and the employment. In a report dated
July 5, 2007, Dr. Majmudar noted that appellant’s pulmonary function test showed no significant
obstructive airway impairment and that his diffusion capacity was normal. He further noted that
appellant probably had mild hyperinflation. Dr. Majmudar opined that appellant’s shortness of
breath and pulmonary symptoms were most likely related to his 50-pack year smoking history.
He noted that there was no clinical evidence suggestive of pneumoconiosis or asbestosis at the
present time. Dr. Majmudar reported no significant pulmonary impairment on pulmonary
function test basis and that appellant’s chest x-ray was not significant for any pneumoconiosis or
any pleural disease. He also noted a history suggestive of sleep apnea and recommended an
overnight polysomnography to rule out obstructive sleep apnea.
On July 25, 2007 the Office denied appellant’s claim as he had not established that he
sustained a pulmonary condition related to the established work-related exposure of
May 20, 2005.
On August 7, 2007 appellant, through his attorney, requested an oral hearing.
On March 3, 2008 appellant alleged that Dr. Majmudar was insufficient to serve as an
independent medical examiner because he was not a certified B-reader.
In a decision dated March 28, 2008, the hearing representative nonetheless affirmed the
July 25, 2007 decision denying appellant’s claim.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was 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 on a traumatic injury or an occupational disease.7

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

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

3

To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
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 which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.9
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.10 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.11
ANALYSIS
Appellant alleged that employment exposures to dust, gas and chemicals caused or
contributed to his claimed condition of pneumoconiosis. However, his claim was denied as the
medical evidence failed to establish that he sustained a diagnosed medical condition causally
related to the specified employment factors.
A conflict in medical opinion arose between appellant’s physician, Dr. Baker, who found
that appellant had mixed pneumoconiosis with irregular changes most likely due to pulmonary
asbestosis category 1/0 and the second opinion physician, Dr. Anderson, who noted that he
demonstrated a normal diffusion capacity of carbon monoxide which ruled out emphysema
and/or significant pneumoconiosis. In order to resolve the conflict between the opinions of
Drs. Baker and Anderson, the Office referred appellant to Dr. Majmudar, selected as the
impartial medical specialist. He reviewed a history of appellant’s occupational exposures and
presented findings on physical examination. Dr. Majmudar noted that pulmonary function tests
8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
10

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

11

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

4

showed normal spirometry with normal diffusion capacity. He found that appellant’s pulmonary
symptoms were most likely related to a 50-pack-a-year smoking history and that there was no
clinical evidence suggestive of pneumoconiosis or asbestosis. Dr. Majmudar also noted no
significant pulmonary impairment on pulmonary function tests and that appellant’s chest x-ray
was not significant for any pneumoconiosis or pleural disease. Dr. Majmudar noted that
appellant probably had a mildly hyperinflated lung, but no pneumoconiosis or any pleural
disease. The Board finds that Dr. Majmudar’s report is based on an accurate history and
supported by rationale explaining why appellant’s examination and diagnostic testing excluded
the claimed condition of pneumoconiosis constitutes the special weight of the medical evidence
and is sufficient to resolve the conflict in medical opinion.
Appellant’s attorney contends that Dr. Majmudar was not qualified to examine appellant
as he is not a certified B-reader. This argument is without merit. Neither the Act nor the Office
regulations impose such a restriction.12 Office procedures do not require NIOSH B-reader
certification. Dr. Majmudar is a Board-certified specialist in the appropriate field. When a case
is referred to the impartial medical examiner to resolve a conflict in the medical evidence, the
opinion of the impartial medical examiner is entitled to special weight.13 The Board notes that,
only one physician who was a B-reader, Dr. Baker, found that appellant had pneumoconiosis.
Dr. Vuskovich did not find pleural abnormalities consistent with pneumoconiosis and
Dr. Anderson ruled out any significant pneumoconiosis. As noted, Dr. Majmudar’s report
constitutes the special weight of the medical evidence and establishes that appellant does not
have pneumoconiosis related to his federal employment. As the special weight of the medical
evidence fails to establish that appellant sustained any pulmonary condition as a result of his
exposure to dust during his federal employment, the Board finds that the Office properly denied
appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
pneumoconiosis causally related to factors of his federal employment.

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(b) (September 1994 and December 1995), (Exhibit 7) (December 1994).
13

Darlene R. Kennedy, 57 ECAB 414 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2008 is affirmed.
Issued: January 23, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., claiming as widow of K.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Columbus, OH,
Employer
__________________________________________

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

Docket No. 09-1052
Issued: January 25, 2010

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 March 12, 2009 appellant filed a timely appeal from a July 28, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for death benefits on the grounds
that it was not timely filed. 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’s claim for death benefits was timely under the three-year
time limitation of section 8122 of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On April 16, 2002 the employee, then a 51-year-old clerk was standing near the time
clock preparing to clock in from lunch when he suddenly fell to the floor. He struck his head just

above the left eye on the floor.1 An ambulance transported the employee to a hospital where
surgery was performed to insert an intracranial pressure monitor. A computerized tomography
(CT) scan revealed a large left frontal lobe contusion with bifrontal components, a traumatic
subarachnoid hemorrhage and cerebral edema. In an April 16, 2002 report, Dr. Warren I.
Leimbach, a neurosurgeon, indicated that he could not rule out an aneurysmal subarachnoid
hemorrhage and planned to obtain an angiogram. He described, as the history of injury, that the
employee felt dizzy and then fell from scaffolding and struck his head on a cart. The report does
not indicate who provided the history of injury. The employee died on April 18, 2002. The
death certificate listed the cause of death as massive cerebral edema due to head trauma. It
indicated at the bottom of the form that the employee struck his head on a cart.2 No claim for
compensation was filed for the employee’s April 16, 2002 injury or April 18, 2002 death.
On June 21, 2006 appellant filed a claim for benefits based on her husband’s April 18,
2002 death. She indicated that he struck his head on a cart when he fell. The second page of the
form, the attending physician’s report, was blank. An employing establishment Superior’s
Report of Employee’s Death dated July 6, 2006 was signed by Acting Manager of Claims,
Sid Ricigliano, who indicated that the employee experienced a brain aneurysm and fell to the
floor on April 16, 2002. The immediate cause of death was listed as “questionable.” The
employee’s immediate superior at the time of injury was Mr. Saxon. In a separate letter,
Mr. Ricigliano stated that the employing establishment controverted the claim on the grounds
that it was not timely filed and causal relationship was not established. He noted that no autopsy
was performed, Dr. Leimbach could not be located to verify the authenticity of the death
certificate, his signature was illegible and differences in handwriting indicated that more than
one individual completed the death certificate. By letter dated July 13, 2006, the Office asked
appellant to provide additional evidence, including a comprehensive medical report with a
rationalized explanation addressing the employee’s cause of death.
By decision dated August 14, 2006, the Office denied appellant’s claim for death benefits
finding that the evidence did not establish that the employee’s death was causally related to
factors of his employment.
Appellant requested an oral hearing that was held on May 24, 2007. In an August 1,
2007 decision, an Office hearing representative vacated the August 14, 2006 decision and
remanded the case for additional medical evidence and a determination of whether the claim was
timely filed.
By letter dated August 7, 2007, the Office asked appellant to provide additional
information, including a comprehensive medical report addressing the cause of the employee’s
death and an explanation as to why she did not file a claim for benefits until more than four years
after the employee’s death. In an August 20, 2007 affidavit, appellant stated that the employee
1

An employing establishment Supervisor’s First Notice of Injury Prep Sheet indicated that Christopher Saxon
was the employee’s immediate superior. The form noted that the employee fell to the floor and the cause of his fall
was unknown. There were two witnesses, Harry Cogdill and Mike Munyon, but no witness statements were
provided.
2

The Board notes that the signature on the death certificate for Dr. Leimbach appears to differ from the signature
on his April 16, 2002 hospital consultation report.

2

died in the hospital on April 18, 2002 after falling at work on April 16, 2002 and striking his
head on a piece of equipment. She contended that he had no history of headaches, dizziness or
fainting prior to the work incident. Appellant stated that on April 29, 2002 she met with Paula
Tobias, an employing establishment human resources specialist, regarding survivor’s benefits.
She assumed that Ms. Tobias would advise the employee’s supervisor of his death. Appellant
stated that her delay in filing a claim for death benefits was caused by medical and personal
difficulties including surgery and treatment for breast cancer, moving from her house to a
condominium and then to another house and dealing with matters relating to the employee’s
death. She consulted an attorney on an unspecified date but discontinued his representation.
Appellant stated that in October 2005 she felt strong enough mentally and physically to pursue a
claim for compensation and consulted a new attorney. In a September 13, 2007 letter, Dr. Stuart
Chow, a physician at the hospital where the employee died, reviewed the medical records and
stated that no determination was ever made as to whether the employee’s subarachnoid
hemorrhage was caused by an aneurysm because he was too unstable to undergo an angiogram.
The employee developed significant brain edema that progressed to brain death on
April 18, 2002.
On November 26, 2007 the employing establishment advised that Mr. Munyon was
unavailable for a statement regarding the April 16, 2002 work incident because he had retired. In
a November 27, 2007 memorandum of a telephone call, Mr. Cogdill, a coworker present when
the employee fell on April 16, 2002, stated that both he and the employee were standing on the
floor in front of the time clock and talked for several minutes. He turned to face the clock and
heard, but did not see, the employee fall. It sounded as if the employee fell full force on the floor
because of the loud noise. In a December 7, 2007 telephone call memorandum, Mr. Saxon stated
that he did not witness the employee’s fall on April 16, 2002. He had no knowledge of whether
the employee experienced any difficulties prior to the fall or whether he struck anything before
hitting the floor.
By decision dated November 29, 2007, the Office denied appellant’s claim on the
grounds that it was not timely filed.
On December 26, 2007 appellant requested a telephonic hearing that was held on
May 22, 2008. In a May 20, 2008 affidavit, Caitlin Barbee, a law clerk at the firm of appellant’s
attorney, stated that she spoke to Mr. Saxon briefly on May 14, 2008 and he asked her if he could
return the call later. She attempted to contact Mr. Saxon on May 19, 2008 and left a voice
message. As of May 20, 2008 Mr. Saxon had not called back to discuss the April 16, 2002
incident when the employee fell.
By decision dated July 28, 2008, an Office hearing representative affirmed the
November 29, 2007 decision.
LEGAL PRECEDENT
In cases of injury on and after September 7, 1974, section 8122(a) of the Act provides
that an original claim for compensation for disability or death must be filed within three years

3

after the injury or death.3 Even if a claim was not timely filed within the three-year time
limitation, it would still be regarded as timely under section 8122(a)(1) if the immediate superior
had actual knowledge of the injury within 30 days or written notice of injury or death was
provided within 30 days pursuant to 5 U.S.C. § 8119.4 The knowledge must be such as to put the
immediate superior reasonably on notice of an on-the-job injury or death.5
ANALYSIS
Appellant did not file her claim for death benefits until June 21, 2006, more than three
years after the employee’s April 16, 2002 fall and April 18, 2002 death. Since she did not file a
claim until June 21, 2006, her claim was filed outside the three-year time limitation period which
ended April 18, 2005.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
the employee’s immediate superior or another employing establishment official had actual
knowledge of the injury within 30 days of the date of injury. Therefore, the employee’s superior
would need actual knowledge of his claimed injury by May 16, 2002, i.e., within 30 days of
April 16, 2002.6 The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death.7 There is evidence that the employee’s immediate
superior or another employing establishment official had actual knowledge of the April 16, 2002
injury within 30 days of the date of injury. The evidence however does not establish that the
circumstances of Mr. Saxon’s knowledge of the April 16, 2002 work incident were such as to put
him reasonably on notice that the employee’s death might be employment related. There is no
factual evidence establishing that the employee struck his head on a cart when he fell on
April 16, 2002 or was standing on scaffolding. No one from the employing establishment
described such a factual scenario. The only mention of the employee hitting his head on a cart is
in appellant’s June 21, 2006 claim form, Dr. Leimbach’s April 16, 2002 consultation report and
the death certificate. The source for the history of injury in these documents is not provided.
None of the documents from the employing establishment mention that the employee struck a
cart when he fell. The contemporaneous documents, the April 16, 2002 supervisor’s first
notice-of-injury prep sheet and the April 18, 2002 accident report, indicate that the employee fell
directly to the floor without striking anything else. There is no evidence that Mr. Saxon had any
reason to believe the employee’s April 16, 2002 fall was caused by a factor of employment
rather than a nonwork-related medical condition. The evidence does not establish that Mr. Saxon
was reasonably on notice that the employee’s death might be employment related. Additionally,
appellant did not provide written notice of injury or death within 30 days pursuant to 5 U.S.C.
§ 8119. As noted, her claim was not filed until June 21, 2006.
3

5 U.S.C. § 8122(a).

4

5 U.S.C. §§ 8122(a)(1), 8122(a)(2).

5

Kathryn A. Bernal, 38 ECAB 470 (1987).

6

Larry E. Young, 52 ECAB 264 (2001). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter
2.801.3 (February 2000).
7

Kathryn A. Bernal, supra note 5.

4

Appellant alleged that she was unable to timely file a claim within three years of the
employee’s April 18, 2002 death because of personal difficulties including surgery and treatment
for breast cancer, moving her residence and dealing with matters relating to the employee’s
death. She consulted an attorney at an unspecified date but discontinued his representation.
Appellant stated that, in October 2005, she felt strong enough mentally and physically to pursue
a claim for compensation and consulted a new attorney. However, the claim was not filed until
one year after she consulted the attorney, in June 2006. Appellant’s reasons for not filing a claim
within three years of the employee’s death do not constitute exceptional circumstances that
would excuse a failure to timely file a claim. She has not established that she was incapable of
filling out a form or otherwise providing the relatively simple information necessary for filing a
claim and meeting the limitation requirements. Appellant provided no medical evidence
establishing that she was incompetent to file a compensation claim until June 21, 2006, more
than four years after the employee’s death. There are no “exceptional circumstances” in this case
within the meaning of section 8122(d)(3)8 which would permit the Office to excuse appellant’s
failure to comply with the time limitation.
CONCLUSION
The Board finds that appellant failed to establish that her claim for death benefits was
timely filed under the three-year time limitation of section 8122 of the Act.

8

5 U.S.C. § 8122(d)(3).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 28, 2008 is affirmed.
Issued: January 25, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE ARMY, WALTER
REED ARMY INSTITUTE OF RESEARCH,
Silver Spring, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1210
Issued: October 2, 2008

Case Submitted on the Record

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

JURISDICTION
On March 18, 2008 appellant filed a timely appeal from a February 5, 2008 decision of
the Office of Workers’ Compensation Programs, denying her claim for an emotional condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that her emotional
condition was causally related to a compensable employment factor.
FACTUAL HISTORY
On May 15, 2007 appellant, then a 47-year-old secretary, filed an occupational disease
claim for an emotional condition, alleging severe depression, anxiety and panic attacks,
insomnia, chest pain, migraines, hives and hair loss due to factors of her federal employment.
She alleged daily stress due to noise, odors and foul language used by coworkers in her work

environment.1 Appellant alleged that Wilbur Milhous, a coworker, continuously whistled tunes
loudly, banged on cabinets and railings directly outside her office, played military music loudly
and clapped. She told Mr. Milhous that his behavior was rude and annoying. Mr. Milhous
laughed and commented that he knew it “pissed [her] off.” Appellant alleged that Denise
Anderson, a coworker, harassed her for approximately 15 months. On April 2, 2006
Ms. Anderson approached her in a threatening manner regarding appellant’s delay in getting a
message to her.2 She confronted appellant about not parking where she had suggested. On an
unspecified date, appellant was accosted in the cafeteria by Ms. Anderson who angrily demanded
to know why she was purchasing food from the cafeteria when she had advised against it.3
Ms. Anderson told lies about her, including allegations that appellant stole a laptop computer,
was involved with a married man and used drugs. She allegedly talked to coworkers about
appellant’s leave status and told coworkers not to talk to appellant. Appellant unsuccessfully
attempted to avoid Ms. Anderson. Both appellant and Ms. Anderson received a letter of warning
not to speak to anyone about each other. However, Ms. Anderson ignored the warning and
continued to harass appellant. Appellant also alleged that Ms. Anderson stalked her on several
occasions. One night, as she walked to her motor vehicle in the parking lot after work, she saw
Ms. Anderson in her vehicle facing appellant’s car with the engine running and lights on. When
appellant stopped at a grocery store, Ms. Anderson walked up behind her and whispered, “We
both had the same idea to shop before heading home.” She informed her supervisor about the
incident the following morning. Appellant alleged that no action was taken by management.
The Office requested additional information, including a detailed description of the work
situations or incidents that contributed to appellant’s emotional condition and a comprehensive
medical report explaining how the employment factors caused or aggravated her medical
conditions.
In an undated statement, the employing establishment noted that incidents involving
appellant and Ms. Anderson from 2001 to 2002 were addressed at a July 12, 2002 meeting.
Corrective measures were instituted to eliminate interaction between them.
On May 15, 2007 Thomas H. Hudson, appellant’s supervisor, stated that an investigation
found no evidence to either corroborate or contradict an April 30, 2007 incident report alleging
improper and threatening interaction between appellant and Ms. Anderson.4 He stated that there
was a history of adversarial behavior between the two women which counseling had not
1

Appellant alleged that the odors came from food and unspecified chemicals. The noise came from the atrium
and hallway, floor buffing machines, equipment transported through the halls, the sound of malfunctioning
equipment and cell phone conversations. The foul language included vulgar comments about women spoken in a
neighboring office.
2

Appellant went to a supervisor’s office to register for a class. The supervisor asked her to notify Ms. Anderson
of the class. Before she could e-mail her about the class, Ms. Anderson approached and asked why she had not been
informed about the class.
3

Ms. Anderson advised appellant against eating cafeteria food because she did not like the food there.

4

Ms. Anderson alleged that on April 30, 2007 she was crossing the street when appellant approached in her
vehicle and screamed at Ms. Anderson to get out of the street. She felt that appellant was trying to frighten her or
hit her. Appellant denied that the incident occurred.

2

corrected. Mr. Hudson issued a letter of instruction to appellant restricting her movement while
walking and driving on the employing establishment premises. Any further incidents between
appellant and Ms. Anderson were to be reported to her supervisor. Mr. Hudson noted that on
May 8, 2007 appellant saw Ms. Anderson in a hallway. Appellant told Mr. Hudson that she was
afraid of Ms. Anderson and she left work. In a December 17, 2007 statement, Mr. Hudson
indicated that appellant complained about noise from adjacent offices and the atrium area. He
spoke to employees in those offices and to employees who sometimes carried on conversations
in the atrium. They agreed to keep the volume of their conversations low and to avoid using
inappropriate language. Mr. Milhous agreed to stop whistling in the atrium area and playing
military music in his office. Mr. Hudson heard of no further incidents concerning noise. He was
never advised of an odor in the office area. Mr. Hudson indicated that it might have been a onetime occurrence due to someone eating lunch in the atrium area.
In reports dated May 9 and June 9, 2007, Dr. Jared S. Putnam, an attending psychiatrist,
stated that he began treating appellant on April 12, 2007 for preexisting depression, anxiety and
insomnia which had worsened.5 He diagnosed major depression and generalized anxiety
disorder. Appellant indicated that stressors at her job caused her symptoms to become
significantly worse. She described difficulty with a coworker who stalked her and she perceived
a lack of consistent support. On May 3, 2007 she appeared very anxious because of a situation at
work that caused her to fear for her safety. Appellant stopped work for a time but fell back into
her depression after she returned to work, feeling harassed and unsupported. Dr. Putnam stated
that appellant could not return to work under current conditions.
By decision dated February 5, 2008, the Office denied appellant’s claim on the grounds
that she failed to establish that she sustained an emotional condition causally related to a
compensable employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.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 her frustration from not being permitted to work in a
particular environment or to hold a particular position.7
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
5

Dr. Putnam stated that appellant was initially treated for her emotional condition by her primary care physician.

6

5 U.S.C. §§ 8101-8193.

7

Lillian Cutler, 28 ECAB 125 (1976).

3

of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.8
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.9 If a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.10 A rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.11 Were the claimant alleges compensable factors of employment,
she must substantiate such allegations with probative and reliable evidence.12 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, then the Office must base its decision on an analysis of the medical
evidence.13
ANALYSIS
Several of appellant’s allegations are not established as factual. She alleged that
Ms. Anderson harassed her for approximately 15 months. On April 2, 2006 Ms. Anderson
approached her in a threatening way regarding appellant’s delay in getting a message to her. She
confronted her when she did not park where she had suggested. Appellant was accosted in the
cafeteria by Ms. Anderson who demanded to know why she was purchasing food from the
cafeteria when she had advised against it. Ms. Anderson told lies about her, including
allegations that she stole a laptop computer, was involved with a married man and used drugs.
She talked to coworkers about appellant’s leave status and told them not to talk to appellant.
Appellant alleged that Ms. Anderson stalked her on several occasions. One night, as she walked
to her motor vehicle in the parking lot after work, she saw Ms. Anderson in her vehicle facing
her vehicle with the engine running and lights on. When appellant stopped at a grocery store,
Ms. Anderson walked up behind her and whispered, “We both had the same idea to shop before
heading home.” There is insufficient evidence that these incidents and situations occurred.
There is no evidence, such as witness statements, establishing these allegations as factual.
Appellant failed to support these allegations with specific, substantive, reliable and probative

8

Michael Thomas Plante, 44 ECAB 510 (1993).

9

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

10

Margaret S. Krzycki, 43 ECAB 496 (1992).

11

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

12

Joel Parker, Sr., 43 ECAB 220 (1991).

13

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

4

evidence. As there is insufficient evidence to establish these allegations as factual, they cannot
be considered as possible compensable employment factors.
Appellant alleged two factors that are established. She alleged that she was exposed to
noise, odors and foul language used by coworkers in her work environment. Appellant alleged
that Mr. Milhous whistled tunes loudly, banged on cabinets and railings with his ring outside her
office and played military music loudly. The handling of complaints from an employee
regarding adverse conditions in the work environment is an administrative function of
supervisors. The Board has held that an administrative or personnel matter will be considered to
be an employment factor only where the evidence discloses error or abuse on the part of the
employing establishment.14 Is determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.15
Mr. Hudson stated that he spoke to employees in offices near appellant and to employees who
sometimes carried on conversations in the atrium. They agreed to keep the volume of their
conversations low and to avoid using inappropriate language. Mr. Milhous agreed to stop
whistling in the atrium area and playing military music in his office. Mr. Hudson indicated that,
after this corrective action, he heard no further complaints from appellant concerning noise. As
to odors, he noted that he was never informed of an odor in the office area. He indicated that it
might have been a one time occurrence due to someone eating lunch in the atrium area. The
record establishes that management took corrective action regarding the administrative or
personnel matters concerning appellant’s work environment and there were no further
complaints from appellant regarding these matters. Appellant has not established error or abuse
in the handling of these matters. Therefore, she failed to establish any compensable factors of
employment in regard to administrative or personnel matters.
Appellant failed to establish any compensable factors of employment. Therefore, the
Office properly denied her claim for an emotional condition.16
CONCLUSION
The Board finds that appellant failed to establish that her emotional condition was
causally related to a compensable factor of employment.

14

Id.

15

Janice I. Moore, 53 ECAB 777 (2002).

16

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2008 is affirmed.
Issued: October 2, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1549
Issued: August 21, 2009

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 May 1, 2008 appellant filed a timely appeal from a February 5, 2008 decision of the
Office of Workers’ Compensation Programs which denied her reconsideration request. Because
more than one year has elapsed between the Office’s most recent merit decision dated
January 16, 2007 and the filing of this appeal on May 1, 2008, the Board lacks jurisdiction to
review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On September 29, 1989 appellant, then a 33-year-old mark-up clerk, filed an
occupational disease claim alleging that she developed plantar fasciitis as a result of prolonged
standing and walking at work. She became aware of her condition on November 28, 1987 and
she stopped work on December 10, 1987. The Office accepted appellant’s claim for aggravation
of preexisting plantar fasciitis of the right foot and mild bilateral reflex sympathetic dystrophy of

the legs. It authorized a plantar fasciotomy performed on April 29, 1989 and bilateral
decompression of the tibial tarsal tunnels performed on June 2, 1990.
After the claim was filed and accepted, appellant was treated for reflex sympathetic
dystrophy of the bilateral lower extremities and fasciitis of the right foot. The Office also
developed the medical evidence. On March 22, 1996 appellant was placed on the periodic rolls.
Appellant came under the treatment of Dr. John Tzucker, a Board-certified family
practitioner, on February 18, 2003, for plantar fasciitis and reflex sympathetic dystrophy.
Dr. Tzucker noted a history of her condition and subsequent treatment and opined that she was
totally disabled and could not work for more than 15 minutes to an hour. On October 8, 2003 he
treated appellant for seizures or pseudo seizures caused by pain, anger and depression related to
previous work-related nerve damage.
Thereafter, in the course of developing the claim, the Office referred appellant to several
second opinion physicians and also to an impartial medical examiner.
On December 1, 2006 the Office issued a notice of proposed termination of compensation
and medical benefits on the grounds that the second opinion orthopedist determined that
appellant had no residuals of her accepted aggravation of preexisting plantar fasciitis and the
impartial medical examiner established that she had no residuals of the work-related mild
bilateral reflex sympathetic dystrophy of the legs.1
On April 5, 2006 appellant requested reconsideration and noted that her condition had
worsened and she developed eye problems, dry and clenched mouth and dental issues as a result
of the reflex sympathetic dystrophy syndrome. She submitted a report from Dr. Tzucker dated
December 25, 2006 who disagreed with Dr. French, the referee physician, as to whether she had
reflex sympathetic dystrophy. Dr. Tzucker opined that appellant’s examination revealed
differences in skin temperatures, thinning hair and hypersensitivity to touch in the lower
extremities, which were symptoms of reflex sympathetic dystrophy. He concurred with the
Office physicians that appellant no longer had plantar fasciitis. Dr. Tzucker opined that
appellant was totally disabled and could not return to work as a mark-up clerk because it would
exacerbate her pain and disrupt the work environment if she had pseudo seizures.
In a January 16, 2007 decision, the Office terminated appellant’s compensation benefits
effective that day.
On January 14, 2008 appellant requested reconsideration and noted that her life was
devastated by her work injuries including plantar fasciitis, tarsal tunnel syndrome and reflex
sympathetic dystrophy. She indicated that she developed baldness, lost teeth, was unable to
1

Appellant was referred to a referee physician, Dr. Richard French, a Board-certified neurologist, to resolve the
conflict in opinion between her physician, Dr. Tzucker and the second opinion physician, Dr. Arthur Rosen, a
neurologist, as to whether she has reflux sympathetic dystrophy of the lower extremities and whether it caused
disability. At this time, Dr. Tzucker did not indicate that she had plantar fasciitis. On April 18, 2006 Dr. French
opined that appellant did not have reflex sympathetic dystrophy nor was it active. He did not believe further
diagnostic testing was necessary. Dr. French indicated that appellant could not return to work as a mark-up clerk
due to nonwork-related psychological restrictions not physical restrictions.

2

urinate and had arthritis and a seizure disorder. Appellant noted she has been homeless since
2007 and was hospitalized and fell into a diabetic coma with renal failure. She believed that
Office doctors lied about her condition. Appellant submitted a January 12, 2008 report from
Dr. Tzucker who treated her on January 11, 2008 and found her symptoms compatible with
reflex sympathetic dystrophy specifically noting that she had continuing pain, hyperesthesia,
cold lower legs despite socks, allodynia to the light and to moderate touch, weakness of gait and
decreased leg hair. Dr. Tzucker found no signs of addiction to pain medicine and advised her
mental distress increased over time. He opined that as appellant’s treating physician he was
better able to understand her history and the evolution of her condition than Office referral
physicians who only saw her briefly.
In a February 5, 2008 decision, the Office denied appellant’s reconsideration request on
the grounds that her letter neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,2 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,3 which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
Appellant’s January 14, 2008 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

3

Additionally, she did not advance a relevant legal argument not previously considered by the
Office.
On reconsideration, appellant contended that she was devastated by work injuries that
caused plantar fasciitis, tarsal tunnel syndrome and reflex sympathetic dystrophy. She noted also
developing ailments as a result of her work injuries including baldness, loss of teeth, urinary
incontinence, severe arthritis and a seizure disorder. Appellant believed the Office doctors lied
about her visits and condition. However, her letter did not show how the Office erroneously
applied or interpreted a point of law nor did it advance a point of law or fact not previously
considered by it. It had previously considered appellant’s assertions about the cause of her
condition and she did not set forth a particular point of law or fact that the Office had not
considered or establish that it had erroneously interpreted a point of law. 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).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a medical report from Dr. Tzucker
dated January 12, 2008. Dr. Tzucker disagreed with the Office referral physician’s and opined
that appellant’s symptoms including pain, hyperesthesia, cold legs, allodynia to light and
moderate touch, weakness of gait and decreased leg hair, were compatible with reflex
sympathetic dystrophy and not diabetic peripheral neuropathy. He opined that as appellant’s
treating physician he was better able to understand her history and the evolution of her condition
than Office referral physicians who saw her only briefly. This report is insufficient to require a
merit review as it is similar and essentially repetitive of Dr. Tzucker’s prior reports of record that
were previously considered by the Office in its decisions dated December 1, 2006 and
January 16, 2007.5 Additionally, his report is also not relevant because it has been held that
reports from a physician who was on one side of a medical conflict, that an impartial specialist
resolved, are generally insufficient to overcome the weight accorded to the report of the impartial
medical examiner or to create a new conflict.6 Therefore, the Office properly determined that
this evidence, while new, was not relevant and 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 January 14, 2008 request for reconsideration.7
On appeal, appellant through her attorney asserted that Dr. Tzucker’s January 12, 2008
report constituted relevant and pertinent evidence not previously considered by the Office and,
5

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
6

See, e.g., Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990).
7

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

4

therefore, she was entitled to a merit review. However, as noted, Dr. Tzucker’s January 12, 2008
report is similar to his other reports, specifically reports dated June 8, 2004 and December 25,
2006, which were previously considered by the Office and found insufficient.8 For this reason
his January 12, 2008 report is not considered relevant and pertinent new evidence.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2009
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

8

Appellant’s attorney cites to R.B., Docket No. 08-1027 (issued September 12, 2008), to support that a new
report from a physician who previously provided opinions to the Office is sufficient to require it to reopen the claim
for a merit review. However, in R.B. the Board noted that the medical report in question offered additional
reasoning for the physician’s opinion on causal relationship such that it was not considered to be repetitive. As
noted in the text of this decision, Dr. Tzucker’s January 12, 2008 report was found to be similar to his prior reports.

5