United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, MARTECH CARRIER )
ANNEX, Atlanta, GA, Employer
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__________________________________________ )
B.T., Appellant

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

Docket No. 19-1331
Issued: April 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 29, 2019 appellant filed a timely appeal from an April 10, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability from
work during the period October 5 through 26, 2018 causally related to her accepted April 11, 2018
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on April 11, 2018 appellant, then a 56-year-old city carrier, sustained
a strain of the muscle of the fascia and tendon of the lower back as a result of pulling a bucket of
mail while in the performance of duty. She did not stop work.
In an April 26, 2018 encounter note, Dr. Angela R. Miller, an osteopath, indicated that
appellant was seen in her office on April 12, 2018. She advised that appellant was unable to
perform her work duties and placed her off work from April 12 through May 7, 2018. Dr. Miller
further advised that appellant could return to work on May 8, 2018.
In a series of medical reports dated June 19 through September 19, 2018, Dr. Eric I.
Francke, an attending Board-certified orthopedic surgeon, diagnosed low back pain and strain, and
lumbar spondylosis and radiculopathy. He allowed appellant to continue working with a 10-pound
lifting restriction and ordered physical therapy. In his September 19, 2018 duty status report (Form
CA-17), Dr. Francke indicated that her diagnosis of “M54.16” was due to an April 12, 2018 injury.
He advised that appellant could work eight hours a day with restrictions which included lifting no
more than 25 pounds intermittently and bending and stooping intermittently for eight hours a day.
Progress notes dated June 15 through July 24, 2018 from appellant’s physical therapist
indicated her lumbar diagnoses and treatment.
In an August 2, 2018 lumbar spine magnetic resonance imaging (MRI) scan report,
Dr. George W. Eason, a Board-certified diagnostic radiologist, provided an impression of a lumbar
spine examination that was negative for a degenerative spinal stenosis. He indicated that the “AP”
neural canal volume appeared well-maintained throughout the lumbar spine. Dr. Eason also
provided an impression of no evidence of a lumbar disc herniation. The L1-2 disc demonstrated a
small central subligamentous disc bulge without evidence of an exiting nerve root mass effect.
In a letter dated October 5, 2018, a health and resource management specialist for the
employing establishment provided OWCP a copy of a modified city carrier position offered to
appellant on September 27, 2018 based on the work restrictions assigned by Dr. Francke in his
September 19, 2018 report and requested that it determine whether she could perform the duties
of the offered position. The job offer bore the heading “Offer of Modified Assignment (Limited
Duty).” The effective/available work date was listed as September 27, 2018. Work hours for the
offered position were 8:50 a.m. to 5:00 p.m. with Sunday and Monday as scheduled days off. The
position had an annual salary of $63,144.00. The location of the position was at the employing
establishment. The position involved casing and delivering mail along established routes. The
physical requirements of the position included intermittent lifting and carrying up to 25 pounds
and intermittent bending and stooping, eight hours a day. Appellant refused the job offer on
October 4, 2018. She explained that the period for twisting, sitting, and standing was not
addressed.
In a response dated October 12, 2018, OWCP advised the employing establishment that,
although appellant had refused the job offer, she was currently under medical care status only, was
not receiving compensation, and had not submitted a claim for wage loss at that time. It further
advised that, should she later submit a claim for wage loss, it would then develop the case and

2

provide due process. OWCP noted that no determination could be made whether the position
offered was suitable. It concluded therefore that no further action would be taken at that time.
On October 12, 2018 appellant filed wage-loss compensation claims (Form CA-7) for leave
without pay (LWOP) reimbursement for the period October 4 to 26, 2018. On the reverse side of
the claim form the employing establishment indicated that she had received annual leave pay for
October 5, 2018 and holiday pay for October 6, 2018. It further indicated that appellant had
received 32 hours of LWOP from October 9 through 12, 2018.
OWCP, in an October 24, 2018 letter, acknowledged receipt of appellant’s CA-7 forms. It
informed her that the employing establishment’s September 27, 2018 offer of a “temporary
light[-]duty assignment” was within the work restrictions assigned by Dr. Francke in his
September 19, 2018 report. OWCP also informed appellant of the provisions of 20 C.F.R.
§ 10.500(a) and further advised that her entitlement to wage-loss compensation may be denied
under this provision if she did not accept the offered “temporary light[-]duty assignment” or
provide a written explanation with justification for her refusal within 30 days.
OWCP received additional medical evidence from Dr. Francke. In a November 6, 2018
encounter note and Form CA-17 report, Dr. Francke reviewed the findings of a functional capacity
evaluation (FCE), discussed findings on physical examination, and reiterated his prior diagnoses
of lumbar spondylosis and radiculopathy, and low back strain. He determined that appellant had
reached maximum medical improvement regarding her April 12, 2018 work-related injury.
Dr. Francke recommended that she continue with a home exercise program for her back pain.
Based on his review of the FCE results, he recommended lifting no more than 27 pounds
intermittently, carrying no more than 17 pounds intermittently, and no crawling, kneeling, bending,
stooping, or twisting. Dr. Francke indicated that these restrictions were long term.
In a December 18, 2018 visit status report, Dr. Francke again diagnosed low back pain and
recommended a 27-pound lifting restriction with no crawling, kneeling, bending, stooping, or
twisting.
OWCP received additional progress notes and a report dated December 13, 2018 from
appellant’s physical therapist.
By decision dated January 23, 2019, OWCP denied appellant’s claims for total disability
for the period October 5 through 26, 2018 pursuant to 20 C.F.R. § 10.500(a) based on her refusal
to accept the employing establishment’s September 27, 2018 offer for a “temporary light[-]duty
assignment.” It explained that the evidence established that she had medical restrictions in place,
a light-duty work assignment within those restrictions was available to her, and she was previously
notified in writing that such light duty was available.
OWCP continued to receive daily notes dated January 3, 15, and 17, 2019 from appellant’s
physical therapists.
On March 5, 2019 appellant requested reconsideration of the January 23, 2019 decision.
She claimed that she was unable to perform the duties of the modified-duty assignment. Appellant
maintained that the duties of casing and delivering mail was not addressed in the modified-duty
assignment. She further maintained that continuous twisting aggravated her diagnosed lumbar
3

condition, which was why Dr. Francke referred her to a fitness-for-duty examination and addressed
her inability to twist in his November 6, 2018 report. Appellant noted that she had returned to
work in November 2018 after the FCE results and his updated restrictions.
In support of her reconsideration request, appellant submitted an additional Form CA-17
report dated October 9, 2018 from Dr. Francke who indicated that on September 19, 2018 he had
advised her to resume work. Dr. Francke noted that appellant could not perform her regular work
duties. He recommended work restrictions of lifting no more than 25 pounds continuously and
bending, stooping, and twisting intermittently.
OWCP, by decision dated April 10, 2019, denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 2 In general the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time
of such injury.3 This meaning, for brevity, is expressed as disability for work.4
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship. 5 The opinion of the physician must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship.6
Section 10.500(a) of OWCP’s regulations provides that benefits are available only while
the effects of a work-related condition continue. Compensation for wage loss due to disability is
available only for periods during which an employee’s work-related medical condition prevents
him or her from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for wage-loss claimed on a Form CA-7 to the extent that
evidence contemporaneous with the period claimed on a Form CA-7 establishes that an employee

2

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

3

See 20 C.F.R. § 10.5(f).

4

See S.W., supra note 2. See also A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L. Kaaumoana, 54
ECAB 150 (2002).
5

J.M., Docket No. 19-0478 (issued August 9, 2019).

6

Id.

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had medical work restrictions in place, that light duty within those work restrictions was available,
and that the employee was previously notified in writing that such duty was available. 7
OWCP’s procedures provide that, when a claimant is not on the periodic rolls, a claim for
wage-loss compensation may be received on a Form CA-7 when a temporary light-duty
assignment has been provided by the employing establishment. These procedures further provide
that, when a formal loss of wage-earning capacity has not been issued, OWCP’s claims examiner
should follow certain specified procedures. If the evidence establishes that injury-related residuals
continue and result in work restrictions, that light duty within those work restrictions was available,
and that the employee was notified in writing that such light duty was available, then wage-loss
benefits (effective the date of the written notification of light-duty availability) are not payable for
the period covered by the available light-duty assignment. Such benefits are payable only for
periods during which an employee’s work-related medical condition prevent him or her from
earning the wages earned before the work-related injury.8
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP has denied appellant’s claims for wage-loss compensation for the period October 5
to 26, 2018 pursuant to 20 C.F.R. § 10.500(a). The Board, however, is unable to determine from
the current record whether its denial of her claims is proper under section 10.500(a) as it cannot
be established whether she had been offered a temporary or a permanent employment position.
On September 27, 2018 the employing establishment provided appellant a full-time
modified city carrier position beginning that date. The document effectuating the offer bore the
heading “Offer of Modified Assignment (Limited-Duty).” The assignment was for a modified city
carrier with full-time work and had an annual salary of $63,144.00. The cover letter for the written
job offer, completed by a health and resource management specialist for the employing
establishment, provided notice that the offer was based on the work restrictions set forth by
Dr. Francke in his September 19, 2018 report. However, the specialist did not provide an
indication as to whether the offered assignment was temporary or permanent and her notice is
vague in the absence of further clarifying documentation in the case record. In denying appellant’s
Form CA-7 claims on January 23, 2018 and affirming the denial on April 10, 2019, OWCP noted
that on September 27, 2018 she was offered a “temporary light-duty assignment” by the employing
establishment. The Board finds, however, that there is no documentation of record supporting the
status of the offered assignment as temporary in nature. 9
The case will therefore be remanded for OWCP to obtain information from the employing
establishment as to whether it had offered appellant a temporary modified-duty position in
accordance with 20 C.F.R. § 10.500(a) and, if not, it should determine whether she has met her
7

20 C.F.R. § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to
Work, Chapter 2.814.9a (June 2013).
8

Id. at Chapter 2.814.9b (June 2013).

9

See generally, C.W., Docket No. 18-1779 (issued May 6, 2019).

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burden of proof to establish that she was totally disabled for the period October 5 through 26, 2018
causally related to her accepted April 11, 2018 employment injury. After this and other such
further development as deemed necessary, OWCP shall issue a de novo decision as to whether she
was entitled to the claimed wage-loss compensation.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stockbridge, GA, Employer
__________________________________________

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Appearances:
Elick Grant, for the appellant
Office of Solicitor, for the Director

Docket No. 08-399
Issued: June 18, 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 November 19, 2007 appellant filed a timely appeal from the March 29, 2007 decision
of the Office of Workers’ Compensation Programs denying her traumatic injury claim. On
October 17, 2007 the Office denied her request for further merit review of her claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she sustained a back injury in the
performance of duty on December 4, 2006, as alleged; and (2) whether the Office properly
denied appellant’s request for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On December 4, 2006 appellant, then a 58-year-old window and distribution clerk, filed a
traumatic injury claim, Form CA-1, alleging that she developed sharp pain in her right hip from

twisting, walking, standing and rising from a chair over the course of that day. She sought
immediate treatment from Dr. Andre McShan, Board-certified in occupational medicine.
In a report dated December 4, 2006, Dr. McShan stated that appellant reported a one-day
history of low back pain that began at work. He stated that her pain was possibly related to
extended standing, bending and lifting. Appellant reported that she was performing her usual
duties when she felt sharp pain in her right hip and lower back. She stated that she had a 10- to
20-year history of similar back complaints. Dr. McShan noted that her gait and lower extremity
reflexes and sensation were normal. In the lumbar spine, he found tenderness on the right side
and decreased extension and bilateral rotation with pain. Dr. McShan stated that an x-ray
revealed degenerative changes, but no fractures. He diagnosed lumbar strain, prescribed
medication and returned her to regular duty. On December 6, 2006 a physician’s assistant,
Carla Harris provided appellant with work restrictions. On December 13, 2006 Dr. McShan
modified the work restrictions and added diagnoses of back pain and lumbar pain. From
December 4, 2006 to January 26, 2007 appellant received conservative treatment through
Dr. McShan.
On February 16, 2007 the Office notified appellant that the evidence she had submitted
was insufficient to establish that her injury was related to her employment.
On March 9, 2007 appellant provided a written statement and several medical records.
She stated that, on December 4, 2006, she was performing her usual duties, which included
lifting packages, twisting at the mid-section of the back, bending and other physical activities.
Over the course of the day, these actions aggravated her preexisting degenerative disc disease.
She provided the February 24, 2006 report of Dr. Carrie Collins, an osteopathic physician, who
stated that appellant had lumbar degenerative disc disease and osteoarthritis in both knees.
Dr. Collins requested that appellant be provided with a job that allowed her to change positions
frequently as her condition was worsened by prolonged standing. On December 4, 2006
Dr. McShan stated that appellant had a more than 10-year history of low back pain, which was
presumably related to bending and lifting. He opined that appellant’s condition was caused or
aggravated by her employment because her multiple-years of physical activity led to the
degenerative changes in her spine.
On February 5, 2007 appellant underwent a magnetic resonance imaging (MRI) scan of
her lumbar spine. The study revealed a right lateral disc bulge with mild-to-moderate neural
foramen narrowing at L4-5, broad-based disc bulge with mild neural foramen narrowing at L3-4
and mild to moderate disc desiccation from L3 to S1. On February 9, 2007 Dr. Francisco
Caycedo, an orthopedic surgeon, reported that appellant was working as usual on December 4,
2006, when she began feeling pain in the hips and lower back. Appellant indicated that she had
experienced back pain intermittently for 18 years. Dr. Caycedo noted that appellant’s MRI scan
showed multiple disc pathology with arthritic changes that showed the long duration of the
problem. He diagnosed lumbar strain. Dr. Caycedo opined that appellant’s spinal condition was
not a work-related injury because he found no episode or injury that could be connected with her
symptoms. On February 26, 2007 Dr. Claudio Bondulich, a Board-certified family practitioner,
stated that appellant was under his care for lumbar degenerative disc disease. He recommended
that appellant lift or push no more than 15 pounds and stand for no more than 30 minutes an
hour.

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By decision dated March 29, 2007, the Office denied appellant’s claim. It accepted that
she performed the work-related activities as alleged, but found that she had not established that
her claimed condition was related to these events. Following this decision, the Office received
copies of several medical and physical therapy reports that were already in the record.
On October 2, 2007 appellant filed a request for reconsideration. The request was not
accompanied by new medical reports or new legal arguments.
By nonmerit decision dated October 17, 2007, the Office denied appellant’s request for
reconsideration on the grounds that she had presented no relevant and pertinent evidence not
previously considered, advanced no relevant legal argument and demonstrated no error on the
part of the Office is issuing its decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
employment incident that is alleged to have occurred. The second component of “fact of injury”
is whether the incident caused a personal injury and, generally, this can be established only by
medical evidence.3
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.4 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant5 and must be one of reasonable medical certainty,6 explaining the

1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Ellen L. Noble, 55 ECAB 530 (2004).

4

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

5

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

6

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

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant was bending, twisting and rising from seating while in
the performance of duty on December 4, 2006. The issue to be resolved is whether she has
established an injury causally related to these accepted activities.
The issue of causal relationship is medical in nature and must be resolved by probative
medical evidence. On the day of the accepted employment events, appellant was seen by
Dr. McShan, a Board-certified occupational physician, who reported that she had a 10 to 20 year
history of lumbar pain. Dr. McShan stated that, on December 4, 2006, she developed sharp pains
in her right hip and lower back that was possibly related to standing, bending and lifting at work.
He noted that appellant’s lower extremity movement, reflexes and sensation were normal, but
that she had tenderness on the right side of the lumbar area, decreased lumbar extension and
decreased bilateral rotation with pain. Dr. McShan stated that an x-ray of appellant’s lumbar
spine revealed degenerative changes. He diagnosed lumbar strain. On a physician’s report form
completed the same day, Dr. McShan made the additional diagnosis of degenerative joint
disease. He stated that appellant’s history of low back pain was presumably related to bending
and lifting at work. Dr. McShan opined that her condition was caused or aggravated by her
employment, because her years of physical activity had led to the degenerative changes in her
spine.
The Board finds that the opinion of Dr. McShan is insufficient to establish that
appellant’s back condition is related to the accepted employment factors because it is
speculative. Dr. McShan stated that appellant’s lumbar strain was “possibly” related to her
employment activities of standing, bending and lifting at work. The Board has held that medical
opinions that are speculative or equivocal in character are of diminished probative value.8 The
Board also finds that the opinion Dr. McShan expressed on the physician’s report was based on
factors of appellant’s employment that have not been accepted by the Office. Dr. McShan stated
that several years of physical activity at work led to degenerative changes in appellant’s spine.
However, the Office has accepted only the work activities of December 4, 2006. Additionally,
the Board notes that Dr. McShan did not provide rationale explaining how appellant’s
employment activities caused either the diagnosed strain or degenerative disc disease. The
Board therefore finds that the reports of Dr. McShan are insufficient to establish an injury
causally related to appellant’s accepted employment events.
On February 9, 2007 Dr. Caycedo, an orthopedic surgeon, noted that appellant had
experienced back pain intermittently for 18 years. He reported that she was performing her usual
work duties on December 4, 2006 when she began feeling pain in the hips and lower back.
Dr. Caycedo stated that an MRI scan conducted on February 5, 2007 showed multiple disc
pathology with arthritic changes, which indicated the long duration of the problem. He opined
7

Judy C. Rogers, 54 ECAB 693 (2003).

8

D.D., 57 ECAB 734 (2006).

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that appellant’s lumbar strain was not a work-related injury because there was no episode or
injury that could be connected with her symptoms. The Board finds that, on its face, this report
does not support appellant’s claim because Dr. Caycedo opined that appellant’s condition was
not work related.
On February 26, 2007 Dr. Bondulich, a Board-certified family practitioner, stated that
appellant was under his care for lumbar degenerative disc disease and provided work restrictions.
He did not offer an opinion as to the cause of appellant’s condition. In the absence of this
information, the Board finds that his opinion is of little probative value.9
The Board notes that the other medical reports in the record were completed by
physician’s assistants and physical therapists, who are not competent to render medical opinion
under the Act as they are not considered physicians as defined under the Act.10 Therefore, these
reports are not probative under the Act.
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted employment events.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act, the Office has the discretion to reopen a case for
review on the merits.11 Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations
provides that the application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that: (i) shows that the Office erroneously applied or
interpreted a specific point of law; (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.12 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.13
ANALYSIS -- ISSUE 2
The Board finds that appellant met none of the regulatory requirements for a review of
the merits of the Office’s March 29, 2007 decision. Her October 2, 2007 request for
reconsideration was not accompanied by any evidence or argument and the medical documents
9

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 474 (2006) (“Medical reports not containing rationale
on causal relation are entitled to little probative value and are generally insufficient to meet an employee’s burden of
proof.”)
10

David P. Sawchuk, 57 ECAB 316 (2006) (physical therapists are not “physicians”); Roy L. Humphrey,
57 ECAB 238 (2005) (physician’s assistants are not “physicians” as defined under the Act).
11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(2).

13

20 C.F.R. § 10.608(b).

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submitted after March 29, 2007 had already been previously considered. Therefore, appellant
did not show that the Office erroneously applied or interpreted a specific point of law, did not
advance any relevant legal arguments and did not present any relevant and pertinent new
evidence. The Board finds that appellant is not entitled to further review on the merits of her
case because she did not meet any of the requirements of section 10.606(b)(2).14
CONCLUSION
The Board finds that appellant has not established that she sustained a back injury in the
performance of duty on December 4, 2006, as alleged. The Board further finds that the Office
properly denied appellant’s request for further review of the merits of her claim pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office Workers’ Compensation
Programs dated October 17 and March 29, 2007 are affirmed.
Issued: June 18, 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

14

20 C.F.R. § 10.606(b)(2)(i)-(iii).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Imperial, CA, Employer
__________________________________________

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

Docket No. 14-536
Issued: June 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 9, 2014 appellant filed a timely appeal from a December 12, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,026.82 from October 10 through 23, 2008;
and (2) whether OWCP properly found that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver of the recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 2007 appellant, then a 34-year-old instructor, filed a traumatic injury
claim (Form CA-1) alleging burning and aching in his arms and shoulders as a result of an
incident that occurred during a training exercise dealing with resisting arrest. On May 16, 2008
OWCP accepted his claim for a bilateral sprain of the shoulder and upper arm involving the
rotator cuff. It paid medical and compensation benefits. Appellant’s compensation was
deposited directly into his bank account.
On September 25, 2008 appellant claimed compensation for the period October 10
through 24, 2008; and on October 16, 2008 he claimed compensation as of October 24, 2008.
In a report dated October 20, 2008, Dr. Robert E. Pennington, Board-certified in physical
medicine and rehabilitation, noted that appellant’s left shoulder arthroscopy and subacromial
decompression procedure had been rescheduled to October 24, 2008. Appellant underwent these
procedures on that date.
An examination of appellant’s compensation history reveals that on November 21, 2008
OWCP paid his disability compensation for the period October 10 through November 5, 2008 in
the amount of $3,192.39.
Appellant stopped work on October 24, 2008, the date of his surgery. On November 6,
2008 he returned to work on full-time light duty.
On July 19, 2013 OWCP made a preliminary determination that appellant received an
overpayment of compensation in the amount of $1,026.82. Appellant stopped work on
October 24, 2008 and returned to work on November 6, 2008, but received compensation for the
period October 10 through 23, 2008. As he was overpaid from October 10 through 23, 2008, he
received an overpayment of compensation in the amount of $1,026.82. OWCP also found that
appellant was at fault, as he accepted compensation to which he knew or reasonably should have
known he was not entitled.
By decision dated December 12, 2013, OWCP finalized the overpayment in the amount
of $1,026.82. It determined that waiver of overpayment was not appropriate, as appellant
knowingly accepted wage-loss compensation to which he was not entitled while he continued
full-time work.
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 duty.2 FECA, however, also places limitations on an employee’s right to receive
compensation benefits. Section 8116 provides that, while an employee is receiving benefits, he
or she may not receive salary, pay or remuneration of any type from the United States, except in

2

5 U.S.C. § 8102(a).

2

limited circumstances.3 OWCP’s regulations further state that compensation for wage loss due
to disability is available only for the period where an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.4 A claimant
is not entitled to receive temporary total disability and actual earnings for the same period.5
OWCP’s procedures provide that an overpayment in compensation is created when a claimant
works and has earnings but continues to receive wage-loss compensation.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,026.82. The record reflects that he received wage-loss compensation for the period
October 10 through 23, 2008, but received wages from the employing establishment during this
period. OWCP determined that the amount of compensation appellant received for the period
October 10 through 23, 2008 totaled $1,026.82. Because appellant received regular full-time
wages from the employing establishment for this period, the Board finds that his receipt of dual
payments created an overpayment of compensation. He has not submitted any evidence showing
that he did not receive an overpayment of compensation or contesting the amount of the
overpayment. The Board finds that OWCP properly determined that appellant received an
overpayment in the amount of $1,026.82 for the period October 10 through 23, 2008.
On appeal, appellant argues that he did not receive an overpayment because no payment
from OWCP appeared on his earnings and leave statements. The record, however, clearly
substantiates that he received the overpayment in question.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against
equity and good conscience.7 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.8
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
3

Id. at § 8116(a).

4

20 C.F.R. § 10.500(a).

5

Supra note 3.

6

See L.S., 59 ECAB 350, 353-54 (2008); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(d) (May 2004).
7

5 U.S.C. § 8129(b).

8

Gregg B. Manston, 45 ECAB 344, 354 (1994).

3

individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.9
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.10
ANALYSIS -- ISSUE 2
OWCP applied the third standard in this case, finding that appellant accepted a
compensation payment on November 21, 2008 that he knew or should have known was
incorrect. Appellant accepted wage-loss compensation payment for the period October 10
through November 5, 2008, encompassing the period October 10 through 23, 2008 when he
continued to work with no wage loss. The Board finds, however, that OWCP failed to establish
that, at the time appellant accepted the payment of compensation, he knew or should have known
that the payment was incorrect.
In cases where a claimant receives compensation through direct deposit, the Board has
held that OWCP must establish that at the time a claimant received the direct deposit in question
that he or she knew or should have known that the payment was incorrect.11 The Board has held
that an employee who receives payments from OWCP in the form of a direct deposit may not be
at fault for the first incorrect deposit into his or her account, since the acceptance of the
overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.12
Because the fault is defined by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that the claimant lacks the
requisite knowledge at the time of the first incorrect payment.13 Whether or not OWCP
determines that an individual is at fault with respect to the creation of an overpayment depends
on the circumstances surrounding the overpayment.14 It is not appropriate, however, to make a
finding that a claimant has accepted an overpayment by direct deposit until such time as a
reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentations such as a bank statement or notification from
OWCP or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.15
9

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

10

Id. at § 10.433(b).

11

See C.K., Docket No. 12-746 (issued May 1, 2012).

12

See Tammy Craven, 57 ECAB 689, 692 (2006).

13

J.S., Docket No. 12-1707 (issued June 10, 2013).

14

Id., see also K.D., Docket No. 13-451 (issued April 12, 2013).

15

See K.H., Docket No. 13-451 (issued April 12, 2013).

4

The Board finds that appellant was not at fault in the creation of the overpayment.
Appellant’s surgery was rescheduled to October 24, 2008, and OWCP was informed of this fact
by November 14, 2008 prior to the November 21, 2008 payment. However, he worked and
received regular full-time wages during the period that the overpayment was created, October 10
through 23, 2008. Appellant’s check was deposited electronically into his account and this was
the first incorrect payment made to him. There is no documentation or other evidence to
demonstrate that he had clear knowledge that at the time he received a direct deposit from
OWCP on November 21, 2008, covering the period October 10 through November 5, 2008, that
a portion of the payment was incorrect or that a reasonable period of time passed during which
he could have reviewed bank statements or been informed of the incorrect payment.
Accordingly, OWCP improperly determined that he was at fault in the creation of the
overpayment.
The Board finds that this case is not in posture for decision regarding the issue of waiver
of recovery of overpayment for the direct deposit on November 21, 2008 covering the
overpayment from October 10 through 23, 2008. The Board will set aside the December 12,
2013 decision regarding the issue of fault as to the November 21, 2008 direct deposit and will
remand the case to OWCP to determine whether appellant is entitled to waiver of recovery for
the direct deposit of compensation covering the period October 10 through 23, 2008.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,026.82 for the period October 10 through 23, 2008 because he received dual payments of
regular full-time wages and wage-loss compensation from OWCP. The Board further finds that
he was without fault for this period of overpayment. The case will be remanded for
consideration of waiver of the recovery of the overpayment from October 10 through 23, 2008.

5

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further action consistent with this decision of the Board.
Issued: June 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
________________________________________

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

Docket No. 07-2429
Issued: March 14, 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 September 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 2, 2006 denying her occupational injury
claim and a December 1, 2006 nonmerit decision denying her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained an injury causally related to factors of her federal employment; and (2) whether the
Office properly refused to reopen appellant’s case for further review of the merits pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 14, 2006 appellant, a 45-year-old mail handler, filed an occupational disease
claim, Form CA-2, alleging that she developed a sore elbow as a result of her employment

duties. She first became aware that her condition was related to her employment on
June 14, 2006.
Appellant submitted a July 7, 2006 report of an initial consult with Dr. Bryan L. Weddle,
a chiropractor. He stated that appellant’s daily duties as a mail handler for the past eight years
had included transferring as many as 5,000 mail trays (weighing from 1 to 20 pounds) from a
belt to a wire cage. Appellant informed Dr. Weddle that she began to experience left elbow pain
at work on June 20, 2006. She reported the pain level in her elbow to be 5/10 while grasping and
lifting, with pain radiating down to her left wrist. Dr. Weddle indicated that appellant had
sustained a previous injury to her left shoulder the previous year. He found decreased grip
strength on the left (40 pounds), as opposed to the right (60 pounds). Range of motion
examination of bilateral elbows revealed: flexion of 135 degrees; extension of 0 degrees;
pronation of 80 degrees; and supination of 80 degrees.
Appellant submitted a July 7, 2006 treatment plan, bearing an illegible signature,
reflecting a diagnosis of right and left lateral epicondylitis, left cubital tunnel syndrome, right
and left triceps tendinitis, and left bicipital tendinitis. The history of injury was reported as
“repetitive work injury to right and left elbows.” The plan recommended physical therapy three
times per week, including joint mobilization, ultrasound and therapeutic exercise of both elbows,
as well as myofascial release of both forearms, in order to lessen muscle tightness and edema
around the tendons.
On July 17, 2006 Dr. Weddle recommended continuation of appellant’s current treatment
plan. Appellant submitted physicians’ notes, bearing illegible signatures, reflecting treatment of
her elbow condition. Notes dated July 14, 2006 contained a diagnosis of bilateral tennis elbow.
Notes dated July 19, 2006 noted tenderness in both elbows and wrists on palpation. Notes dated
July 21, 2006 reflected slight swelling in the left elbow.
In a letter dated August 3, 2006, the Office informed appellant that the evidence
submitted was insufficient to establish her claim. The Office advised appellant to submit details
regarding the employment duties she believed caused or contributed to her claimed condition, as
well as a comprehensive medical report from a treating physician, which contained symptoms, a
diagnosis, and an opinion with an explanation as to the cause of her diagnosed condition.
Appellant submitted a report dated July 3, 2006 from Dr. Charles E. Willis, a treating
physician, who diagnosed bilateral epicondylitis and myofascial pain. Dr. Willis stated that, on
June 28, 2006, appellant began experiencing pain in her elbows while at work on a letter tray
line, sorting mail. On July 31, 2006 he noted that appellant’s condition was unchanged.
Appellant submitted physicians’ notes, bearing illegible signatures, for the period July 26
through September 16, 2006. An August 10, 2006 report of x-rays of the right and left elbows
reflected no evidence of acute fracture, dislocation or articular disease. Appellant submitted
follow-up notes dated August 15 through 25, 2006 from Dr. Weddle. On August 15, 2006 his
range of motion examination of bilateral elbows revealed flexion of 150 degrees on the left and
130 degrees on the right.

2

Appellant submitted a report from Dr. Willis dated August 28, 2006, noting that her
condition had improved since the previous visit and that bilateral elbow tenderness had
decreased. His assessment included, “Good pain control with current regimen.”
By decision dated October 2, 2006, the Office denied appellant’s claim on the grounds
that she had not established a causal relationship between the diagnosed condition and accepted
work-related events. The Office noted that appellant had not provided a narrative medical report
explaining the cause of her condition.
In an undated form, received by the Office on November 27, 2006, appellant requested
reconsideration of the Office’s October 2, 2006 decision. She submitted physicians’ notes,
bearing an illegible signature, dated September 13 and October 13, 2006. In a September 25,
2006 follow-up report, Dr. Willis stated that appellant’s condition remained unchanged, and
found that her pain was well controlled with the current regimen. Appellant also submitted
documents previously received and considered by the Office.1
By decision dated December 1, 2006, the Office denied appellant’s request for merit
review, on the grounds that she failed to raise a substantive legal question or present relevant
evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that an injury was
sustained in the performance of duty as alleged,3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.5
1

The Board notes that the record on appeal contains evidence which was not before the Office at the time it
issued its December 1, 2006 decision. The Board has no jurisdiction to review this evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c). See also Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB
35, 36 n.2 (1952).
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He
must also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

5

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

3

The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to the claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.7
ANALYSIS -- ISSUE 1
The medical evidence submitted by appellant is insufficient to establish that her
diagnosed medical condition was caused or aggravated by factors of her federal employment.
Therefore, she has failed to meet her burden of proof.
Appellant submitted reports dated July 7 and 17, 2006, and follow-up notes, from
Dr. Weddle, a chiropractor, who treated appellant for bilateral elbow pain. Dr. Weddle related
appellant’s complaints of pain, described her job duties and provided examination findings. The
Board notes that the term “physician” as defined under the Act includes chiropractors only to the
extent that their reimbursable services are limited to treatment consisting of manual manipulation
of the spine to correct a subluxation as demonstrated by x-ray to exist.8 As there is no indication
that Dr. Weddle treated appellant for subluxation of the spine, he cannot be considered a
physician. Therefore, his reports do not constitute probative medical evidence.
Appellant submitted reports from Dr. Willis dated July 3 to September 25, 2006. On
July 3, 2006 Dr. Willis diagnosed bilateral epicondylitis and myofascial pain. Although he
indicated that appellant began experiencing pain while at work on June 28, 2006, he expressed
no opinion as to the cause of appellant’s condition. Therefore, this report is of limited probative
value. None of Dr. Willis’ other reports contain any opinion as to the cause of appellant’s elbow
condition, they do not constitute probative medical evidence.

6

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4, at 218.

8

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician under section 8101(2) of the Act, which provides: “(2) ‘physician’
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. The term ‘physician’ includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the secretary.” See
Merton J. Sills, 39 ECAB 572, 575 (1988).

4

The remaining medical evidence of record does not support appellant’s claim for
disability. Appellant submitted physicians’ progress notes bearing illegible signatures. These
reports, lacking proper identification, cannot be considered as probative evidence.9 Reports of
MRI scans and x-rays, which do not contain an opinion on causal relationship, are of no
probative value.
Appellant expressed her belief that her alleged condition resulted from her duties as a
mail handler. However, the Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.10 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.11 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that her condition was caused by the alleged work-related
conditions is not determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to do so. As there
is no probative, rationalized medical evidence addressing how appellant’s claimed conditions
were caused or aggravated by her employment, she has not met her burden of proof to establish
that she sustained an occupational disease in the performance of duty causally related to factors
of employment.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,12 the Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.13 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.14 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.15 The Board has held that the submission of
9

Merton J. Sills, supra note 8.

10

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

11

Id.

12

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(2).

14

20 C.F.R. § 10.607(a).

15

20 C.F.R. § 10.608(b).

5

evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.16
ANALYSIS -- ISSUE 2
Appellant’s request for reconsideration neither alleged, nor demonstrated that the Office
erroneously applied or interpreted a specific point of law. Additionally, she did not advance a
relevant legal argument not previously considered by the Office. Consequently, appellant is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).
In support of her request for reconsideration, appellant submitted a September 25, 2006
follow-up report from Dr. Willis, illegible physicians’ notes, bearing illegible signatures and
copies of previously-provided documents. Dr. Willis’ report did not address the relevant issue,
namely, whether appellant’s condition was causally related to her employment.17 Rather, the
report merely reiterated information contained in documents previously received and reviewed
by the Office and was, therefore, cumulative and duplicative in nature.18 The Board finds that
Dr. Willis’ report does not constitute relevant and pertinent new evidence not previously
considered by the Office.19 The copies of previously-submitted documents are, by definition,
duplicative and of no evidentiary value. Appellant also submitted largely illegible physicians’
progress notes, bearing illegible signatures. As these reports are illegible, there is no evidence
that they contain information relevant to the issue of causal relationship. Additionally, as they
lack proper identification, they cannot be considered as probative evidence.20 Therefore, the
Office properly determined that this evidence did not constitute a basis for reopening the case for
a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her request for reconsideration.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty. The Board further finds that the Office properly
refused to reopen appellant’s case for further review of the merits of her claim pursuant to
5 U.S.C. § 8128(a).

16

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

17

Id.

18

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
19

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

20

Merton J. Sills, supra note 8.

6

ORDER
IT IS HEREBY ORDERED THAT the December 1 and October 2, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 14, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 18-0423
Issued: September 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 24, 2017 appellant filed a timely appeal from a December 18, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision dated March 15, 1991, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 18, 2017 nonmerit decision, OWCP received additional evidence.
Appellant also submitted new evidence with his appeal to the Board. However, the Board’s jurisdiction is limited to
the evidence that was of record at the time OWCP issued its final decision. Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant has previously appealed to the Board on multiple occasions. The facts and
circumstances of the case as presented in the prior Board decisions are incorporated herein by
reference. The relevant facts are as follows.
On July 25, 1988 appellant, then a 38-year-old computer operator, filed a traumatic injury
claim (Form CA-1) alleging that on July 14, 1988 he injured his back when he tripped and fell
over a box while at work. OWCP accepted the claim for a low back strain.
Appellant filed a recurrence of disability claim (Form CA-2a) on July 3, 1989 alleging a
recurrence of his July 14, 1988 employment injury. OWCP denied this claim on January 16, 1990,
finding that he failed to submit evidence sufficient to establish that his current back condition was
causally related to his July 14, 1988 employment injury. Appellant filed a timely request for
reconsideration on November 19, 1990. On March 15, 1991 OWCP granted his reconsideration
request, reviewed the merits of his claim, but denied modification of the prior decision. It found
that the medical evidence then of record failed to demonstrate that the claimed condition or
disability for work was causally related to appellant’s accepted employment injury.
The March 15, 1991 decision was OWCP’s most recent final decision on the merits of
appellant’s recurrence claim. The statement of appeal rights accompanying OWCP’s March 15,
1991 merit decision notified appellant that any further request for reconsideration must be made
within one year of the date of that decision, i.e., within one year of March 15, 1991.
In a letter received by OWCP on December 5, 2017, appellant requested reconsideration
of the denial of his recurrence claim. He argued that medical evidence from the Veterans
Administration established his mental incapacity and established good reason for his failure to file
a timely request for reconsideration. Appellant contended that OWCP committed error in the
handling of his claim and discrediting medical evidence he had submitted. He further argued that
he never completely healed from his accepted employment injury, that he developed additional
conditions, and that he is entitled to wage-loss compensation.
By decision dated December 18, 2017, OWCP determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error in its denial
of his recurrence claim. It noted that the record was devoid of any evidence showing that he was
mentally incompetent and incapable of filing a timely request for reconsideration of the March 15,
1991 merit decision.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s

3

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

2

decision for which review is sought.4 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Workers’ Compensation System).5 Imposition
of this one-year filing limitation does not constitute an abuse of discretion.6
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application demonstrates clear evidence that OWCP’s final merit decision
was in error.7 OWCP procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s application for review demonstrates “clear evidence of error” on the part of OWCP.8
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.12 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.14 To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial

4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

6

E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

B.W., Docket No. 10-0323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB
196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous.” 20 C.F.R.
§ 10.607(b).
8

9

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

10

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

11

See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

12

See Leon J. Modrowski, supra note 7; Jesus D. Sanchez supra note 7.

13

See Leona N. Travis, supra note 11.

14

See supra note 9.

3

question as to the correctness of OWCP’s decision.15 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that OWCP abused its discretion in denying merit review in the face of such evidence.16
ANALYSIS
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.
Appellant seeks reconsideration of a March 15, 1991 merit decision denying modification
of his claim that he sustained a recurrence of disability on July 3, 1989 as a result of his accepted
July 14, 1988 employment injury. He continues to disagree with the denial of his claim and filed
his current request for reconsideration on December 5, 2017. Because OWCP received his request
more than one year after OWCP’s March 15, 1991 merit decision, the Board finds that appellant’s
request was untimely filed. Thus, appellant must demonstrate clear evidence of error on the part
of OWCP in denying his claim.17
The Board finds that appellant’s request for reconsideration fails to demonstrate clear
evidence of error. Appellant again argued that he had never healed from his original injury, that
OWCP mishandled his claim, and that he was mentally incapacitated during the time period when
his request for reconsideration should have been filed. He submitted no evidence with his
December 5, 2017 letter requesting reconsideration which demonstrates on its face that OWCP’s
March 15, 1991 decision was erroneous in finding that a recurrence of disability had not been
established. Appellant also submitted no medical evidence which establishes that he was mentally
incapacitated at any point during the appeal process. The Board will, therefore, affirm the
December 18, 2017 decision denying appellant’s request.
Appellant has not raised an argument or submitted any evidence that is manifest on its face
that OWCP committed an error in denying appellant’s claim. He has not provided evidence of
sufficient probative value to raise a substantial question as to the correctness of OWCP’s decision.
Thus, the evidence is insufficient to demonstrate clear evidence of error.18
On appeal appellant contends that the medical evidence of record is sufficient to establish
his recurrence claim and entitlement to wage-loss compensation. He also notes that he sustained
three employment injuries involving his back and had undergone surgeries due to his back.
Appellant also contends error by OWCP in the handling of his recurrence claim. As explained
above, appellant has failed to demonstrate clear error on the part of OWCP in denying his

15

Leon D. Faidley, Jr., supra note 6.

16

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied,
41 ECAB 458 (1990).
17

20 C.F.R. § 10.607(b). See S.D., 58 ECAB 713 (2007); Jack D. Johnson, 57 ECAB 593 (2006).

18

See M.B., Docket No. 17-1505 (issued January 9, 2018).

4

recurrence claim in its last merit decision on that issue. Therefore he failed to demonstrate clear
evidence of error.
CONCLUSION
OWCP properly found that appellant’s request for reconsideration was untimely filed and
failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated December 18, 2017 is affirmed.
Issued: September 11, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION CENTRAL
OFFICE, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1136
Issued: November 22, 2019

Case Submitted on the Record

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

JURISDICTION
On April 25, 2019 appellant, through counsel, filed a timely appeal from a November 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.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
3

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on March 17, 2016, as alleged.
FACTUAL HISTORY
On September 14, 2016 appellant, then a 53-year-old program manager of identity,
credential, and access management, filed a traumatic injury claim (Form CA-1) alleging that at
12:15 p.m. on March 17, 2016 she sustained permanent hearing damage and tinnitus in both ears
while in the performance of duty. She reported that her injury occurred when a very loud, sustained
squealing noise emitted from a speaker. On the reverse side of the claim form, the employing
establishment indicated that appellant was injured in the performance of duty.
To support her claim appellant submitted several e-mails. A February 22, 2016 e-mail
described a six-week team building activity called March Mayhem Challenge, which encouraged
physical activity, camaraderie, and wellness. In e-mails dated March 24 and 25, 2016, appellant
informed S.J., a wellness fitness coordinator at the employing establishment, that she had
experienced ringing in her ears ever since “that loud noise in the gym class.” In e-mails dated
September 13 and 14, 2016, appellant requested information about how to file a claim for a work
injury at the Veterans Affairs Central Office (VACO). She related that, after several trips to a
specialist, she was advised that the damage to her ears was permanent.
OWCP also received medical reports by Dr. Thomas Lee, a Board-certified
otolaryngologist. In an initial April 8, 2016 report, Dr. Lee recounted that appellant was exposed
to loud noise last month at the gym and now had tinnitus. He reviewed her history and conducted
audiometric and tympanogram testing. Dr. Lee diagnosed comprehensive diagnosed sensorineural
hearing loss in both ears and tinnitus of both ears. He continued to treat appellant and provided
medical reports dated May 23 and August 22, 2016. In a development letter dated September 30,
2016, OWCP informed appellant of the factual and medical deficiencies of her claim. It provided
a questionnaire for her completion regarding the circumstances of her claimed March 17, 2016
injury, including whether she was on the employing establishment premises at the time and
whether she was performing her regularly assigned duties. OWCP also requested that appellant
provide a narrative medical report from her physician explaining how the reported work incident
caused or aggravated her medical condition. In a separate development letter of even date, it
requested that the employing establishment answer several questions, including whether, at the
time of the claimed employment injury, appellant was on the employing establishment’s premises
during regular working hours and whether she was performing official duties or engaged in
activities reasonably incidental to her job. OWCP afforded both parties 30 days to respond.
On October 17, 2016 appellant responded to OWCP’s development questionnaire. She
noted that her injury occurred on March 17, 2016 at noon during her lunch break. Appellant
explained that she was waiting for a fitness class to begin at the gym in the fitness facility located
in the VACO building when the speakers malfunctioned, emanating a high-pitched squealing
noise. She recounted that the noise persisted for nearly a minute until one of the managers came
into the room and turned the sound system off. Appellant indicated that she began to experience
ringing in her ears when she left the gym and that she had difficulty hearing her children that
evening. She explained that she did not immediately file a claim because she thought the effects
of the injury were temporary. Appellant noted that it was not until her last appointment on
2

August 22, 2016 that she was informed that her hearing loss and tinnitus were permanent. She
responded “No” that she did not sustain any other injury or have any similar disability or symptoms
before the injury. Appellant clarified that she was on the employing establishment premises in the
fitness facility located in the VACO building during her lunch hour when the injury occurred. She
reported that her participation in the activity was optional, but that employees were encouraged to
participate in health and fitness activities and received monthly newsletters with information,
including fitness class schedules. Appellant noted that she was a disabled veteran with a back
injury, hip bursitis, and arthritis, and that exercise and stretching are part of her physical therapy.
In a statement dated October 18, 2016, C.L., a supervisory program analyst, responded to
OWCP’s development letter. He indicated “Yes” that the employing establishment concurred with
appellant’s allegations. C.L. related that appellant immediately shared details with him of the
employment incident that occurred while at work at VACO. He clarified that appellant’s
participation in the activity was optional and explained that many VA employees participated in
exercise activities during their break periods. C.L. responded “Yes” that the injury occurred on
the employing establishment’s premises during regular work hours.
OWCP also received an October 18, 2016 statement from D.S., a wellness and fitness
specialist at the VACO Fitness Center, who related that he learned of appellant’s injury after
talking with her and discussing it with S.J., the program coordinator, who confirmed the incident
and circumstances.
The employing establishment also provided an official position description for a
supervisory program manager.
In an October 24, 2016 letter, Dr. Rithu Chea, a Board-certified internist, noted dates of
examination and treatment as April 8, May 23, and August 22, 2016. She related that appellant
received comprehensive audiometry and tympanometry testing and was diagnosed with
“sensorineural hearing loss in both ears and tinnitus of both ears secondary to mild acoustic trauma
and cerumen impaction as a result of exposure to loud noise while [appellant] was at the fitness
center in her office building.” Dr. Chea reported that appellant was exposed to loud noise while
at the fitness center in her office building on March 17, 2016 that caused sensorineural hearing
loss in both ears and tinnitus of both ears. She concluded that appellant’s reported work incident
caused sensorineural hearing loss in both ears and tinnitus of both ears. Dr. Chea also provided an
April 8, 2016 examination report and audiological testing report.
By decision dated November 4, 2016, OWCP denied appellant’s claim, finding that she
was not in the performance of injury when injured on March 17, 2016. It found that, although the
injury occurred on the employing establishment’s premises and during her tour of duty, the act of
going to the gym during her lunch break was a matter of personal convenience, and she was not
performing duties incidental to her employment or from which her employing establishment
derived substantial benefit.
On November 30, 2016 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
May 30, 2017.
Appellant submitted various printouts from the employing establishment’s website about
the Employee Health and Well-Being program. It noted that the mission of the VA Health
3

Administration’s Employee Health and Well-Being program was to provide staff with the
educational and training opportunities and resources needed to reduce the incidence of preventable
illness, injury, and impairment. The program was designed to focus on the overall health and wellbeing of VA employees by helping them to establish and maintain healthy lifestyles through
educational tools and resources. It explained that the VA Employee Health and Wellness Program
provided monthly health observances, events, guidance on establishing health and wellness
program, wellness resources, and educational material.
Appellant also submitted a May 2017 newsletter about employee health, a Spring 2016 VA
Employee Health and Wellness bulletin, and a schedule of fitness classes from the VACO Fitness
Center. She also provided a copy of the Office of Personnel Management (OPM) Health and
Wellness Policy and provided additional printouts from OPM’s website about work-life reference
materials.
OWCP also received an employing establishment memorandum entitled “Liability Related
to Physical Fitness Activities in the Workplace.” It explained that, according U.S. Department of
Labor (DOL) guidelines, FECA coverage for employees injured while engaged in physical fitness
activities was provided when an injured employee was engaged in an activity that was specifically
identified in that employee’s Physical Fitness Program (PFP). The memorandum defined a PFP
as an “[employing establishment] initiated and structured program that allowed employees to
participate in specified physical exercise activities.” It indicated: “If an employee is injured while
engaging in a physical fitness activity or recreational activity that is not part of a PFP, FECA
coverage is considered on a case-by-case basis.”
Appellant submitted a copy of OWCP’s “A Handbook for Employing Agency Personnel”
Publication CA-810, section 304 “Performance of Duty.” She also submitted a printout of FECA’s
Frequently Asked Questions.
In a January 5, 2017 statement, appellant related that, as part of its health and wellness
program, the employing establishment published a quarterly “VA Employee Health and Wellness”
newsletter. She indicated that she was including a newsletter from earlier that year that encouraged
employees to do yoga, which she noted that was the class that she was waiting for when she
suffered the hearing loss injury.
Appellant submitted her fitness center membership contract with the VACO Fitness
Center. She had checked a box indicating that she selected the option for Personalized Program
with Comprehensive screening.
By decision dated August 31, 2017, the hearing representative affirmed the November 4,
2016 decision finding that the injury did not occur in the performance of duty. She found that the
evidence failed to establish that appellant’s March 17, 2016 activity was a regular part of or a
regular incident of her employment or the requirements of her job duties. The hearing
representative noted that appellant’s participation in the fitness class was voluntary.
On August 16, 2018 appellant, through counsel, requested reconsideration. Counsel
asserted that pursuant to Federal (FECA) Procedure Manual 2.0804.18, injuries that arise from
participation in an employing establishment’s physical fitness program are compensable under
FECA, regardless of whether participation occurs during regular work hours or on the employing
establishment’s premises. He also cited that employees who are injured while exercising in a
4

recreational activity during authorized lunch break periods in a designated area of the employing
establishment premises are covered under FECA whether or not the exercise was part of a
structured PFP. Counsel further contended that, according to Federal (FECA) Procedure Manual
2.0804.4, an affirmative response by the official superior is sufficient to establish performance of
duty unless the facts or other evidence indicate that the answer may be incorrect. He related that
he was enclosing an October 25, 2017 memorandum from the employing establishment, which
demonstrated that appellant was injured while participating in an employer-sponsored program on
its premises. Counsel further argued that she had submitted sufficient medical evidence to
establish a medical diagnosis of her injury and requirement of ongoing care for her work-related
conditions. He concluded that appellant had met all of the requirements to establish her traumatic
injury claim.
OWCP received an August 10, 2018 impact statement from appellant. Appellant described
the March 17, 2016 employment incident and the permanent hearing loss and tinnitus that she
sustained in both ears. She expressed the difficulties she experienced in her daily activities and
the depression she had suffered from since the claimed employment incident.
In an October 26, 2017 letter, C.L., a supervisory program analyst at VACO, noted his
disagreement with the August 31, 2017 decision. He asserted that appellant was injured while
participating in an “employer-sponsored program on the [employing establishment] premises.”
C.L. also related that the employing establishment derived substantial benefit from appellant’s
participation in the VA Employee Health & Wellness Program and referenced its mission and
policy. He cited to Guidance on Performance of Duty from DOL in support of his argument that
appellant was injured while in the performance of duty. C.L. pointed out that appellant was injured
during her lunch break on the employing establishment’s premises and while engaged in activities
that were approved as part of an individual plan developed under a formal physical fitness program
managed by the employing establishment.
OWCP also received a March 26, 2018 examination and audiology report by Dr. Lee.
By decision dated November 14, 2018, OWCP denied modification of the August 31, 2017
decision. It found that the evidence of record failed to establish that appellant’s March 17, 2016
injury arose out of the performance of her duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

4

Supra note 2.

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

5

the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”8 The phrase “in the course of employment” is recognized
as relating to the work situation, and more particularly, relating to elements of time, place, and
circumstance.9 To arise in the course of employment, an injury must occur: (1) at a time when
the employee may reasonably be stated to be engaged the master’s business; (2) at a place when
he or she may reasonably be expected to be in connection with his or her employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.10 This alone is insufficient to establish entitlement to benefits
for compensability. The concomitant requirement of an injury “arising out of the employment”
must be shown, and this encompasses not only the work setting, but also a causal concept, the
requirement being that the employment caused the injury.11
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours, or
at lunch time, are compensable.12
With regard to recreational or social activities, the Board has held such activities arise in
the course of employment when: (1) they occur on the premises during a lunch or recreational
period as a regular incident of the employment; (2) the employing establishment, by expressly or
impliedly requiring participation or by making the activity part of the service of the employee,
brings the activity within the orbit of employment; or (3) the employing establishment derives

6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

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).
8

See M.T., Docket No. 17-1695 (issued May 15, 2018); S.F., Docket No. 09-2172 (issued August 23, 2010);
Valerie C. Boward, 50 ECAB 126 (1998).
9
L.B., Docket No. 19-0765 (issued August 20, 2019); G.R., Docket No. 16-0544 (issued June 15, 2017); Cheryl
Bowman, 51 ECAB 519 (2000).
10

A.S., Docket No. 18-1381 (issued April 8, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary
Keszler, 38 ECAB 735, 739 (1987).
11

D.C., Docket No. 18-1216 (issued February 8, 2019); R.B., Docket No. 16-1071 (issued December 14, 2016);
Eugene G. Chin, 39 ECAB 598 (1988).
12

Eileen R. Gibbons, 52 ECAB 209 (2001); Narbik A. Karamian, 40 ECAB 617, 618 (1989).

6

substantial benefit from the activity beyond the imaginable value of improvement in employee
health and morale is common to all kinds of recreation and social life.13
OWCP’s procedures provide that injuries and occupational diseases arising from
participating in an employing establishment’s PFP are compensable under FECA.14 It further
provides that employees who are injured while exercising or participating in a recreational activity
during authorized lunch or break periods in a designated area of the employing establishment
premises are covered under FECA whether or not the exercise or recreation was part of a structured
PFP.15 The procedures also outline the evidence necessary to demonstrate that an injury resulted
from participation in a PFP. For traumatic injury claims, the CA-1 form must be accompanied by
a statement from the employee’s supervisor indicating that the employee was enrolled in the PFP,
and that the injury was sustained while the employee was performing authorized exercises under
the program. If the statement from the supervisor is not submitted with the CA-1 form, it must be
requested.16
ANALYSIS
The Board finds that appellant has established that an incident occurred in the performance
of duty on March 17, 2016 as alleged.
As noted above, OWCP’s procedures provide that, to demonstrate that an injury resulted
from participation in a PFP, a CA-1 form must be accompanied by a statement from the employee’s
supervisor indicating that the employee was enrolled in the PFP, and that the injury was sustained
while the employee was performing authorized exercises under the program.17 Appellant’s claim
form included a statement from the employing establishment acknowledging that she was in the
performance of duty at the time of the claimed injury. In an October 18, 2016 statement, C.L., a
supervisory program analyst for the employing establishment, indicated that “yes” he agreed with
her allegations. In an October 26, 2017 letter, he reiterated that appellant was participating in an
“employer-sponsored program on the [employing establishment] premises” when the March 17,
2016 alleged injury occurred. C.L. emphasized that she was engaged in activities that were
approved as part of an individual plan developed under a formal PFP.
The Board thus finds that appellant has established that she was in the performance of duty
at the time of the March 17, 2016 alleged employment injury.
As appellant has established that the March 17, 2016 employment incident factually
occurred, the question becomes whether this accepted employment incident caused an injury.18
13
L.B., Docket No. 19-0765 (issued August 20, 2019); S.B., Docket No. 11-1637 (issued April 12, 2012); Ricky A.
Paylor, 57 ECAB 568 (2006); Kenneth B. Wright, 44 ECAB 176 (1992); see also A. Larson, The Law of Workers’
Compensation § 22.00 (2015).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994).

15

Id.

16

Id. at Chapter 2.804.18(c).

17

Id.

18

M.L., Docket No., 19-0361 (issued October 24, 2019); Willie J. Clements, 43 ECAB 244 (1991).

7

The Board will, therefore, set aside OWCP’s November 14, 2018 decision and remand the case to
OWCP for consideration of the medical evidence. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision addressing whether
appellant has met her burden of proof to establish an injury causally related to the accepted
employment incident.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish an incident in the
performance of duty on March 17, 2016, as alleged. However, the Board further finds that this
case is not in posture for decision with regard to whether she sustained an injury causally related
to the accepted March 17, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: November 22, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8