United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Kansas City, KS, Employer
__________________________________________

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Appearances:
Melford V. McCormick, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1717
Issued: December 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 2, 2008 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated October 22, 2007 and May 21, 2008
finding that she did not sustain an injury while in the performance of duty. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a back injury while in
the performance of duty on May 21, 2006, as alleged.
FACTUAL HISTORY
On June 21, 2006 appellant, then a 28-year-old mail handler, filed a traumatic injury
claim alleging that on May 21, 2006 she hurt her back and right leg muscle as a result of lifting
sacks of mail. A June 13, 2006 progress note of Dr. Karen A. Ryan, a Board-certified internist,
reviewed a history that appellant experienced severe low back pain that radiated to her left
buttock after she arrived home from work. Appellant also experienced abdominal pain which

she believed may have been caused by a large uterine fibroid. Dr. Ryan opined that appellant
most likely sustained a low back strain. She expressed concern about her abdominal pain as
some bleeding into the fibroid may have occurred.
Progress notes dated May 21 and 24, 2006 of Debra B. Clark, Matthew Sharpe and
Morris Russell, registered nurses, addressed appellant’s back and left thigh pain. Mr. Sharpe
stated that she sustained a musculoskeletal strain.
In a June 22, 2006 letter, the employing establishment controverted the claim. It stated
that on June 21, 2006 appellant reported her alleged May 21, 2006 back injury to Danny Burch,
Carlos Hamilton and W.D. Smith, supervisors. The employing establishment contended that
neither Mr. Smith nor Mr. Hamilton had any knowledge of the alleged injury. It stated that
Mr. Smith was aware of appellant’s medical restrictions, which were for other reasons.
Mr. Hamilton was notified by appellant on May 20, 2006 that she was not feeling well and
needed to go to a local emergency room. He stated that she did not indicate that it was related to
her back or to her employment. It noted several disciplinary actions were taken against appellant
regarding her attendance and inappropriate conduct since April 28, 2006. The employing
establishment submitted e-mail messages from Mr. Burch and Mr. Hamilton to support that
appellant did not sustain a work-related back injury.
By letter dated June 26, 2006, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the additional factual and medical evidence
she needed to submit. The Office requested a rationalized medical report from appellant’s
attending physician, which described her symptoms, results of examination and tests, diagnosis,
treatment provided, prognosis, period and extent of disability and an opinion explaining why the
diagnosed condition was caused or aggravated by the claimed injury.
A June 28, 2006 disability certificate of Sherril Sego, a nurse practitioner, stated that
appellant was excused from work during the period June 24 through July 4, 2006. She stated
that appellant may return to work on July 5, 2006 without restrictions.
By decision dated July 31, 2006, the Office denied appellant’s claim. It found the
medical evidence insufficient to establish that her claimed back condition was causally related to
the accepted May 21, 2006 employment incident.
In an October 25, 2006 letter, appellant, through her representative, requested
reconsideration. In an October 24, 2006 progress note, Ms. Sego stated that appellant’s jobrelated lifting requirements likely worsened her chronic low back pain. A September 18, 2006
magnetic resonance imaging (MRI) scan report of Dr. Mushtaq Ahmad, a Board-certified
internist, stated that appellant sustained degenerative disc changes at L5-S1. She also had a large
disc protrusion at L5-S1 that was lateralized to the right side, resulting in effacement and
deformity of the ventral thecal sac and an impression on adjacent nerve roots.
By decision dated January 29, 2007, the Office denied modification of the July 31, 2006
decision. It found the evidence insufficient to establish that appellant sustained a back injury
causally related to the accepted May 21, 2006 employment incident.

2

An April 11, 2007 x-ray report of Dr. Padma K. Kandula, a Board-certified radiologist,
stated that appellant sustained mild narrowing of the L5-S1 disc with degenerative disc disease.
A January 23, 2007 consultation sheet from the Department of Veterans Affairs (VA) advised
that appellant had a 60 percent service-connected disability rating for a major depressive disorder
and hypothyroidism. An April 10, 2007 report of Dr. Magdalene A. Akanji, a VA physician,
noted that appellant experienced low back pain with a herniated nucleus pulposus.
Reports dated July 13, 2007 from Dr. Ann Y. Lee, a Board-certified physiatrist, stated
that appellant suffered from low back pain and mild degenerative disc narrowing at L5-S1.
By letter dated September 5, 2007, appellant, through counsel, requested reconsideration
of the July 31, 2006 decision.
In an October 22, 2007 decision, the Office denied modification of the January 29, 2007
decision. It found the medical evidence insufficient to establish a causal relationship between
her back condition and the May 21, 2006 employment incident.
By letter dated January 30, 2008, appellant, through counsel, requested reconsideration.
In a January 18, 2008 report, Dr. Lee reviewed a history of the accepted May 21, 2006
employment incident. On physical examination, she reported localized back pain with
provocative maneuvers. Dr. Lee further reported no definite neurological deficits. She stated
that this finding was consistent with a lumbar strain that was causally related to the May 21,
2006 employment incident. Dr. Lee was unable to determine whether appellant was currently
capable of performing her work duties as she was unable to address her recovery or progress.
She evaluated appellant several months ago and she did not keep her follow-up appointment.
Dr. Lee related that, on July 13, 2007, she placed appellant on modified work duty with a
10-pound lifting restriction, which may be alleviated if her condition had improved.
By decision dated May 21, 2008, the Office denied modification of the October 22, 2007
decision. It found that appellant failed to submit rationalized medical evidence establishing that
she sustained a back injury due to the May 21, 2006 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential

1

5 U.S.C. §§ 8101-8193.

2

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

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elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury. An employee may establish
that the employment incident occurred as alleged but fail to show that her disability or condition
relates to the employment incident.4
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment, is
sufficient to establish a causal relationship.6
ANALYSIS
The Office accepted that appellant lifted a sack of mail on May 21, 2006 while working
as a mail carrier at the employing establishment. The Board finds, however, that the medical
evidence is insufficient to establish that her diagnosed back condition was caused or aggravated
by the May 21, 2006 employment incident.
Dr. Ryan’s June 13, 2006 progress note reviewed a history of severe low back pain that
radiated to appellant’s left buttock after she arrived home from work and noted abdominal pain,
which the physician believed may have been caused by a large uterine fibroid. She opined that
appellant “most likely” sustained a low back strain. Dr. Ryan failed to provide a firm diagnosis
regarding appellant’s back condition. Moreover, she did not provide an accurate history of the
accepted May 21, 2006 employment incident; that appellant had lifted a sack of mail at work.
Dr. Ahmad’s September 18, 2006 MRI scan report stated that appellant sustained
degenerative disc changes at L5-S1. She had a large disc protrusion at L5-S1 that was lateralized
to the right side, resulting in effacement and deformity of the ventral thecal sac and an
3

Gary J. Watling, 52 ECAB 357 (2001).

4

Elaine Pendleton, supra note 2.

5

Solomon Polen, 51 ECAB 341 (2000).

6

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

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impression on adjacent nerve roots. Dr. Kandula’s April 11, 2007 x-ray report stated that
appellant sustained mild narrowing of the L5-S1 disc with degenerative disc disease.
Dr. Akanji’s April 10, 2007 report noted low back pain with a herniated nucleus pulposus.
Dr. Lee’s July 13, 2007 reports stated that appellant suffered from lumbar pain and mild
degenerative disc narrowing at L5-S1. This evidence, however, is insufficient to establish
appellant’s claim. None of the physicians addressed how the diagnosed conditions were caused
or contributed to by the accepted employment incident.
The January 23, 2007 VA consultation sheet noted a 60 percent service-connected
disability rating for appellant’s major depressive disorder and hypothyroidism. This evidence is
not relevant to her back injury claim as it did not address whether she sustained a back injury due
to the May 21, 2006 employment incident.
Dr. Lee’s January 18, 2008 report reviewed a history of the May 21, 2006 employment
incident. She opined that appellant sustained a lumbar strain causally related to the employment
incident based on localized back pain with provocative maneuvers and no definite neurological
deficits. Dr. Lee was unable to determine whether appellant could perform her work duties and
was unable to address her recovery or progress because the physician last evaluated her several
months ago and appellant did not keep a follow-up appointment. While Dr. Lee diagnosed
lumbar strain and opined that it was the result of the accepted employment incident, she failed to
explain how the employment incident caused the condition. A mere conclusion without medical
rationale explaining how and why the physician believes that a claimant’s accepted exposure
could result in a diagnosed condition is not sufficient to meet the claimant’s burden of proof.7
The medical evidence must include rationale explaining how the physician reached the
conclusion.8 Dr. Lee’s report fails to provide the medical opinion on causal relation necessary to
demonstrate that appellant’s condition is related to the employment incident. Therefore, her
report is insufficient to establish appellant’s claim.
The progress notes of Ms. Clark, Mr. Sharpe and Mr. Russell, each a registered nurse,
and the disability records of Ms. Sego, a nurse practitioner, have no probative value in
establishing appellant’s claim. Neither a nurse nor a nurse practitioner is a “physician” as
defined under the Act.9
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back condition causally related to the accepted May 21, 2006
employment incident. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back injury
while in the performance of duty.
7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Id.

9

See 5 U.S.C. § 8101(2); see also Roy L. Humphrey, 57 ECAB 238 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the May 21, 2008 and October 22, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTION,
Greenville, IL, Employer
__________________________________________

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

Docket No. 09-937
Issued: October 23, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated April 23, 2008 and January 22, 2009 finding that
he had not established an injury due to his federal employment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a right hand injury in the performance of duty.
FACTUAL HISTORY
On January 5, 2008 appellant, then a 33-year-old correctional officer, filed an
occupational disease claim alleging that he developed a staphylococcus aureus infection due to
factors of his federal employment. He stated, “As a duty of my employment, I am responsible

for searches of federal inmates and their rooms. I believe that due to the inmates with
staphylococcus infection that I contacted this disease from my work environment.”
In a January 5, 2008 narrative statement, appellant noted that on December 27, 2007 he
reopened an existing wound which started to bleed. On December 28, 2007 his hand appeared
swollen; he sought treatment at the employing establishment clinic and the local emergency
room. Appellant’s attending physician examined him on January 2, 2008, diagnosed a
staphylococcus infection and directed him to complete his antibiotic course.
The employing establishment safety manager stated the appellant had an existing injury
to his hand which occurred at work on December 27, 2007 when he hit it on a locker causing it
to bleed. Appellant received medical treatment for this injury on December 28, 2007 at the
employing establishment clinic and was diagnosed with a small reddened area to the right hand
which was open and draining yellowish fluid. He sought treatment at the local emergency room
on December 28, 2007 and underwent a wound and fluid culture on his right hand which was
positive for staphylococcus aureus. Dr. Jerome J. Eppin, a Board-certified family practitioner,
completed a note on January 2, 2008 relating that appellant had injured his right hand at work
and that upon return to work he noticed his right hand was swelling and that the wound was
draining. He reviewed the culture and diagnosed a skin infection. Dr. Eppin recommended that
appellant complete his prescribed course of antibiotics. In a statement dated January 4, 2007, a
coworker noted that on December 28, 2007 appellant reported that he had a small sore on the top
of his right hand which he believed to the staphylococcus infection.
In a letter dated February 14, 2008, the Office requested additional factual and medical
information from appellant and allowed him 30 days for a response. Appellant responded on
February 23, 2008 and stated that he was exposed to inmates with infections, but that the medical
records were not available to him. In a memorandum dated March 10, 2008 appellant’s
supervisor, David Hutchcraft, stated that appellant was responsible for working around inmates
during this tour of duty, but that he had no knowledge of any specific inmate with a
staphylococcus infection.
By decision dated April 23, 2008, the Office denied appellant’s claim finding that
exposure alone was not sufficient to establish a work-related medical condition.
Appellant requested reconsideration on October 28, 2008 and stated that he injured his
hand on December 27, 2007. He alleged that he searched the wet and dirty laundry of an inmate,
that he wore his latex gloves into his office, moved a box and cut open the top of his right hand
through his glove on a locker handle. Appellant washed his hand and applied a bandage. He
developed pain and swelling in his hand a few days later and was diagnosed with an infection.
By decision dated January 22, 2009, the Office denied modification of its prior decision
finding that the medical evidence was not sufficiently detailed to establish a causal relationship
between appellant’s employment and his diagnosed infection.

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LEGAL PRECEDENT
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred. The second
component is whether the employment incident caused a personal injury. Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.1
ANALYSIS
Appellant alleged on December 27, 2007 after conducting a search of an inmate’s wet
and dirty laundry he struck the back of his right hand on a locker handle cutting his hand through
his latex glove. He further asserted that he developed a staphylococcus infection in this wound.
It is well established that a claim for compensation need not be filed on any particular form. A
claim may be made by filing any paper containing words which reasonably may be construed or
accepted as a claim.2 Although appellant filed a claim for an occupational disease, the Office
should have developed his claim as a traumatic injury.
The employing establishment supported that appellant sustained a cut on the back of his
right hand. Although causal relationship generally requires a rationalized medical opinion, a
claim may be accepted without a medical report in clear-cut traumatic injury claims when one or
more of the following criteria, as set forth in the Office’s procedure manual, are satisfied:
“(1) The condition reported is a minor one which can be identified on visual
inspection by a lay person (e.g., burns, lacerations insect stings, or animal bites);
“(2) The injury was witnessed or reported promptly and no dispute exists as to the
fact of injury; and
“(3) No time was lost from work due to disability.3”
In the present case, the injury reported, a cut on the back of the hand, is the type of
condition that can be readily identified on visual inspection by a lay person. This is supported by
the employing establishment clinic notes and the emergency room records. Moreover, there is
no dispute that the injury was promptly reported to appellant’s supervisor. No dispute exists as
to fact of injury. Therefore, the Board finds that the record establishes that appellant sustained
an injury while in the performance of duty on December 27, 2007.

1

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

2

D.D., 57 ECAB 734, 738 (2006).

3

M.A., 60 ECAB ___ (Docket No. 08-2510, issued July 16, 2009); Timothy D. Douglas, 49 ECAB 558, 55960 (1988).

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Because the Office made no finding as to whether appellant was disabled and, if so, the
extent and nature of such disability, the case will be remanded for further development. It should
make appropriate findings as to his entitlement to medical expenses and whether he missed time
from work due to his injury. After such further development as the Office considers necessary,
it shall issue an appropriate decision on appellant’s entitlement to benefits under the Federal
Employees’ Compensation Act.
CONCLUSION
The Board finds that appellant has met his burden of proof in establishing that he
sustained a laceration to the back of his right hand in the performance of duty on
December 27, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 22, 2009 and April 23, 2008 are reversed and remanded
for additional development with this decision of the Board.
Issued: October 23, 2009
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, USAF
MEDICAL CENTER, TRAVIS AIR FORCE
BASE, CA, Employer
__________________________________________

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

Docket No. 19-0261
Issued: July 3, 2019

Case Submitted on the Record

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

JURISDICTION
On November 15, 2018 appellant filed a timely appeal from an October 26, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,205.14 because she was overpaid for mileage reimbursements from January 6, 2014
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 26, 2018 decision, OWCP received additional evidence. Appellant
also 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.

through January 11, 2016; and (2) whether OWCP properly found appellant at fault in the creation
of the overpayment thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On July 31, 1992 appellant, then a 40-year-old food service worker, filed an occupational
disease claim (Form CA-2) alleging that she sustained an emotional condition in the performance
of duty causally related to factors of her federal employment. OWCP initially denied her claim on
March 12, 1993. After several requests for reconsideration, following which OWCP denied
modification of its prior decisions, appellant filed an appeal with the Board. By decision dated
April 3, 1997, the Board remanded the case to OWCP, finding that appellant had established a
compensable employment factor with respect to unwarranted sexually explicit comments made by
a coworker. The Board found that the medical evidence of record was sufficient to require further
development.4
OWCP accepted the claim for dysthymic disorder on May 30, 1997. The record does not
indicate that appellant received wage-loss compensation. Appellant elected Office of Personnel
Management (OPM) retirement benefits. Her annuity commenced on March 15, 2008.
The record contains a bill pay history that showed payments to Dr. John Brandes, a treating
psychologist. The bill pay history also documented individual payments made to appellant
including reimbursements from January 6, 2014 through January 11, 2016 for mileage to and from
appointments with Dr. Brandes. This history noted numerous duplicate payments made to her for
the same date of service.5
On May 17, 2016 a fiscal document was made part of the record which substantiated the
amount of travel reimbursement paid by OWCP for claimed travel from January 6, 2014 through
January 11, 2016. This included notations for duplicate and triplicate units of travel, and found
that at that time, an overpayment due to the duplicative payments totaled $3,168.84.6
On May 17, 2016 OWCP issued a preliminary determination that a $3,168.84 overpayment
of compensation had been created because appellant received duplicative payments for travel made
from January 6, 2014 to January 11, 2016 for appointments with Dr. Brandes. It indicated that the
3

Docket No. 17-1041 (issued December 27, 2017); Docket No. 95-0332 (issued April 3, 1997). The record also
contains a December 6, 1993 order dismissing appeal at the Director’s request. Order Dismissing Appeal, Docket No.
93-1530 (issued December 6, 1993).
4

Docket No. 95-0332, id.

5

The record also contains bill status response lists indicating that OWCP denied private transportation claims for
dates from 2007 to 2013.
6
The documented payments by OWCP for roundtrip units of 38 miles from January 16, 2014 through May 19,
2015, and for roundtrip units of 39 miles from May 26, 2015 through January 11, 2016.

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proper distance between her home and his office was 19 miles, or 38 miles roundtrip, and noted
that some of the duplicative payments had been for 77 miles, as she had improperly exaggerated
the claimed mileage. OWCP found appellant at fault in creating the overpayment because the
travel reimbursement request form (OWCP Form 957) included a certification clause that the
information provided was true to the best of the claimant’s knowledge. It found that she had
accepted payments she knew were incorrect.
Appellant requested a prerecoupment hearing with OWCP’s Branch of Hearings and
Review, indicating that she disagreed that an overpayment occurred. During the hearing, held on
October 12, 2016, she testified that her disability had caused confusion as to the mileage.7
Appellant submitted a December 3, 2015 report in which Dr. Brandes opined that she was
psychologically unable to make the effort to bill for transportation to his office.
By decision dated December 7, 2016, the hearing representative finalized the determination
that an overpayment of compensation in the amount of $3,168.84 had been created. He also found
appellant at fault in the creation of the overpayment and that she was, therefore, not entitled to
waiver of the overpayment.
Appellant appealed to the Board on April 13, 2017. By decision dated December 27, 2017,
the Board found that the case was not in posture for decision regarding whether she received an
overpayment of compensation because the evidence of record did not include OWCP travel
reimbursement forms she submitted to OWCP and, as such, it could not verify that she submitted
duplicate requests for reimbursement and/or that she had requested payment for incorrect mileage.
The Board set aside the December 17, 2016 OWCP decision and remanded the case for
reconstruction of the record, to include OWCP 957 forms appellant submitted for claimed
reimbursement. Following this and other development deemed necessary, OWCP was to issue a
de novo decision regarding the overpayment of compensation.8
OWCP subsequently placed additional documentation into the record. This included
OWCP 957 forms, all signed by appellant on May 29, 2015. The forms included requests for
reimbursement of 38 miles roundtrip on 57 dates from December 24, 2013 to May 19, 2015 for
travel between her home in Vallejo, California to Dr. Brandes’ office at 1301 Jefferson Street
Napa, California. Additional OWCP 957 forms included requests for reimbursement for travel to
the same address of 77 miles roundtrip on 54 dates from December 16, 2013 to May 26, 2015, of
which 53 of the dates were duplicative forms requesting reimbursement for 38 miles of roundtrip
travel. On these forms appellant certified with her signature that the information she provided in
connection with the travel refund request was true and correct and that she was aware that any
misrepresentation to obtain reimbursement from OWCP was subject to penalties. Each of the
forms submitted was also signed by Dr. Brandes.
Additional evidence included a listing of receipt dates for OWCP 957 forms and dates paid.
A chronological pay history from January 6, 2014 through January 11, 2016 noted duplicate
7

Appellant had submitted an overpayment questionnaire prior to the hearing. She submitted additional financial
information following the hearing.
8

Docket No. 17-1041, supra note 3.

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payments. Remittance vouchers for July 2 and December 24, 2015 described payments for travel
reimbursement of $1,200.23 and $2,260.80 respectively. Copies of cancelled checks in those
amounts are found in the record, as well as cancelled checks dates January 28 and March 3, 2016
for $929.88 and $559.38 respectively.
On March 13, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $3,205.14 had occurred because appellant was paid for duplicative
reimbursement requests that she submitted for specific dates during the period January 6, 2014
through January 11, 2016. It found her at fault in the creation of the overpayment because she had
certified on the claim forms that the information given was true and correct to the best of her
knowledge and belief. The preliminary decision listed the specific dates in which duplicate or
triplicate claims were made. A listing of receipt dates for OWCP 957 forms and dates paid was
attached, along with an overpayment action request and overpayment recovery questionnaire
(Form OWCP-20). OWCP afforded appellant 30 days to respond.
In a letter postmarked April 4, 2018, appellant requested a hearing before OWCP’s Branch
of Hearings and Review. She disagreed both with occurrence of the overpayment and with the
finding of fault.9 On July 20, 2018 OWCP forwarded a second overpayment questionnaire and
advised appellant of the type financial information necessary. Appellant again requested waiver
in correspondence dated August 7, 2018.
On October 2, 2018 appellant submitted a completed overpayment recovery questionnaire,
listing monthly income of $1,570.88, monthly expenses of $1,943.98, and assets totaling
$3,644.38. She also forwarded financial information and statements describing her monthly
expenses.
During the hearing, held on September 24, 2018, appellant testified that she wanted
payment for all travel expenses and questioned the allowable mileage and what were considered
usual expenses. Following the hearing she submitted additional correspondence regarding her
expenses, including financial information, and continued to maintain that she was not at fault in
the creation of the overpayment.
By decision dated October 26, 2018, an OWCP hearing representative finalized the
March 13, 2018 preliminary determination that an overpayment of compensation in the amount of
$3,205.14 had been created. She found that the overpayment occurred because appellant was
overpaid for mileage reimbursement for service from January 6, 2014 through January 11, 2016,
and found appellant at fault because she knowingly claimed and accepted compensation to which
she was not entitled.

9

OWCP issued a final overpayment determination on April 13, 2018. This was vacated on July 12, 2018 because
appellant had timely requested a hearing. The record also indicates that she wrote OWCP in April 2018 regarding a
check she had not cashed in the amount of $1,608.39. OWCP telephoned appellant on April 27, 2018 and informed
her that this check was not from OWCP, but was her OPM annuity check, and she should contact OPM for information.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation.10
With respect to travel expenses for medical treatment, OWCP’s regulations provide:
“(a) The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what a reasonable distance to travel is, OWCP
will consider the availability of services, the employee’s condition, and the means
of transportation. Generally, a roundtrip distance of up to 100 miles is considered
a reasonable distance to travel. Travel taken by the shortest route, and if practical
by public conveyance. If the medical evidence shows that the employee is unable
to use these means of transportation, OWCP may authorize travel by taxi or special
conveyance.”11
In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA to ensure that an employee recovers from
his or her injury to the fullest extent possible in the shortest amount of time. OWCP has
administrative discretion in choosing the means to achieve this goal and the only limitation on
OWCP’s authority is that of reasonableness.12
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$2,238.95 during the period January 6, 2014 through May 26, 2015.
On December 27, 2017 the Board found the case not in posture for decision because the
evidence of record did not include the travel reimbursement forms appellant had submitted to
OWCP. With respect to the findings made in the Board’s December 27, 2017 decision, those
matters are res judicata absent any further review by OWCP.13
The record currently includes multiple medical travel refund request forms (OWCP Form
957) submitted by appellant and signed by her on May 29, 2015 in which she claimed
reimbursement for 38 miles of roundtrip travel for 51 dates for the period January 6, 2014 through
May 19, 2015 and also claimed reimbursement for 77 miles of travel. For the date May 26, 2015,
she only claimed reimbursement for 77 miles.

10

5 U.S.C. § 8103.

11

20 C.F.R. § 10.315(a).

12

See B.H., Docket No. 17-0479 (issued March 19, 2019).

13

See C.S., Docket No. 17-2013 (issued April 11, 2018).

5

The record indicates that the allowable mileage for travel between appellant’s home in
Vallejo, California and Dr. Brandes’ office in Napa, California is 38 miles. The record supports
that on July 2, 2015 OWCP reimbursed her $1,200.22 for 38 miles for the dates January 6, 2014
through May 19, 2015. On December 24, 2015 it reimbursed appellant $2,260.80 for an additional
77 miles of travel on each date claimed and also for 77 miles on May 26, 2015. In its December 24,
2015 payment, for the dates January 6 through December 23, 2014, OWCP incorrectly reimbursed
her for 77 miles of travel on 36 dates at the rate of $43.12 each day, for a total of $1,552.32, and
for the dates January 5 through May 19, 2015, it incorrectly reimbursed her for 77 miles of travel
on 15 dates at the rate of $44.28, for a total of $664.20. For the date May 26, 2015, it reimbursed
appellant for 77 miles of travel, when she was only entitled to 38 miles, for an overpayment of
$22.43. Thus, by adding $1,552.32, $664.20, and $22.43, an overpayment of compensation in the
amount of $2,238.95 was created for the period January 6, 2014 through May 26, 2015.
Regarding the period June 1, 2015 to January 11, 2016, the Board finds the case is not in
posture for decision because the record does not contain OWCP 957 forms, signed by appellant
requesting travel reimbursement, for that period. As noted, in its December 27, 2017 decision, the
Board remanded the case to OWCP to obtain all completed 957 forms.14 OWCP, however, only
placed OWCP 957 forms in the record for the dates January 6, 2014 through May 26, 2015. It is
of particular importance to review all medical travel refund request forms which were found to be
fraudulent because OWCP subsequently issued an overpayment decision that included dates after
May 26, 2015 resulting from these requests.15 Thus, OWCP had not established the existence of
an overpayment of compensation from May 26, 2015 through January 11, 2016. As such, without
this crucial evidence, the Board will set aside the October 28, 2018 decision with regard to that
time period and remand the case to OWCP for reconstruction of the case record. OWCP shall
obtain all the OWCP 957 forms completed and signed by appellant for the claimed reimbursement
period. Following this and other such further development as deemed necessary, it shall issue a
de novo decision.16
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”17
Section 10.433(a) of OWCP regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
14

Docket No. 17-1041, supra note 3.

15

Supra note 12.

16

Id.

17

5 U.S.C. § 8129; see S.M., Docket No. 18-1525 (issued April 12, 2019).

6

that payments he or she receives from OWCP are proper. The recipient must show
good faith and exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits.... A recipient who has done any of the
following will be found to be at fault in creating an overpayment: (1) Made an
incorrect statement as to a material fact which he or she knew or should have known
to be incorrect; (2) Failed to provide information which he or she knew or should
have known to be material; or (3) Accepted a payment which he or she knew or
should have known to be incorrect. (This provision applies only to the overpaid
individual).”18
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines 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.19
ANALYSIS -- ISSUE 2
With regard to the period of overpayment discerned, the Board finds that appellant was at
fault in the creation of the $2,238.95 overpayment of compensation because she made an incorrect
statement as to a material fact which she knew or should have known to be incorrect. The record
establishes that on May 29, 2015 she signed 52 requests for reimbursement for roundtrip travel to
Dr. Brandes’ office for the period January 6, 2014 through May 26, 2015. On 51 of the forms
appellant requested reimbursement for both 38 miles of travel and 77 miles of travel on the same
date. The correct roundtrip mileage is 38 miles. On one date appellant only requested 77 miles of
travel. Each form signed by her included a certification clause in which, by signing, she
acknowledged that the information given by her and in connection with the form was true and
correct to the best of her knowledge, and noted that any person who knowingly made a false
statement or misrepresentation to obtain reimbursement to OWCP was submit to civil penalties
and/or criminal prosecution.
Appellant signed each of these forms with duplicate and/or excessive mileage requests on
the same date. Under the circumstances of this case, the Board finds that she misrepresented a
material fact in order to obtain reimbursement from OWCP, which makes her at fault in the
creation of the overpayment. Appellant is, therefore, not eligible for waiver of recovery of the
overpayment.20
As to Dr. Brandes’ December 3, 2015 report that appellant was psychologically unable to
make the effort to bill for transportation to his office, she submitted the Form 957 reimbursements
requests for the period January 6, 2014 through May 26, 2015. However, his report contains no
discussion as to why her psychological condition caused her to submit duplicate and/or excessive
requests, which he cosigned. To be of probative value, the physician must provide rationale for
18

20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. § 10.430.

19

Id. at. § 10.433(b); C.Y., id.

20

See W.A., Docket No. 14-0350 (issued October 28, 2014).

7

the opinion reached. Where no such rationale is present, the medical opinion is of diminished
probative value.21 Thus, this report is of insufficient probative value to establish that appellant
was psychologically unable to submit proper forms for the period of this overpayment.
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits under
FECA.22 As appellant is not receiving wage-loss compensation, the Board does not have
jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act.23
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$2,238.95 for the period January 6, 2014 through May 26, 2015, because she was reimbursed for
duplicate and excessive travel reimbursement requests. The Board further finds that the case is
not in posture for decision regarding whether an overpayment of compensation for the period
June 1, 2015 through January 11, 2016 was created.

21

C.V., Docket No. 18-1106 (issued March 20, 2019).

22

E.F., Docket No. 18-1320 (issued March 13, 2019).

23

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: July 3, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CANANDAIGUA VETERANS MEDICAL
CENTER, Canandaigua, NY, Employer
__________________________________________

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

Docket No. 13-273
Issued: April 8, 2013

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, 2012 appellant, through her attorney, filed a timely appeal from the
October 16, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. § 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a traumatic injury to her back and leg on
March 25, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 30, 2011 appellant, then a 36-year-old nursing assistant, filed a traumatic
injury claim alleging that she felt pain and a pop in her lower back, buttocks and leg when she
turned to address a patient on March 25, 2011.
Appellant submitted a Form CA-16 (authorization for examination and treatment) dated
March 30, 2011, indicating that she had twisted her back and torso while walking a patient. The
form was signed by a workers’ compensation specialist at the employing establishment.
Appellant submitted reports and notes for the period March 30 through April 27, 2011
from Deborah Smith, a nurse practitioner. On March 30, 2011 Ms. Smith stated that appellant
experienced pain in her right buttock and leg on March 25, 2011 when she turned quickly with
her feet planted while walking a patient. She diagnosed sacroiliitis and sciatica. Duty status
reports dated April 6 and 13, 2011 placed appellant off work. On April 13, 2011 Ms. Smith
diagnosed lower back pain with radiculitis. The record contains physical therapy notes dated
March 31, 2011.
On April 22, 2011 Dr. Raman Dhawan, a Board-certified orthopedic surgeon, related
appellant’s report that she had a work-related injury about a month prior when she twisted her
back and heard a pop. Since that time, appellant had experienced back pain and radiculopathy.
Examination of the lumbar spine revealed decreased range of movement. Movements of flexion
and extension were restricted. Dr. Dhawan diagnosed lumbar intervertebral disc displacement
lumbar and lumbar strain. He placed appellant off work and recommended a magnetic resonance
imaging (MRI) scan of the lumbar spine to rule out a herniated disc. In response to the question
as to whether the incident described by appellant was the competent medical cause of her
condition, Dr. Dhawan placed a check mark in the “yes” box.
In a letter dated May 18, 2011, OWCP informed appellant that the information submitted
was insufficient to establish her claim. It allowed her 30 days to submit additional information,
including a detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to the cause of the diagnosed condition.
Appellant submitted a May 11, 2011 duty status report signed by a physician’s assistant.
The record also contains a report of a June 3, 2011 MRI scan of the lumbar spine.
In a decision dated June 20, 2011, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish a causal relationship between the accepted work
incident and a diagnosed back condition.
On June 25, 2011 appellant requested reconsideration. She submitted a May 14, 2011
disability slip from Dr. Dhawan and May 3, 2011 physical therapy notes.
In a decision dated September 28, 2011, OWCP denied appellant’s reconsideration
request, finding that the evidence submitted was insufficient to warrant further merit review.

2

In a follow-up report dated October 14, 2011, Dr. Dhawan noted appellant’s continuing
back pain with right-sided radiculopathy and opined that she was unable to work. He placed
checkmarks in a “yes” box indicating his belief that the incident described by her was the
competent medical cause of her injury.
On January 23, 2012 appellant again requested reconsideration.
In a report dated February 10, 2012, Dr. Dhawan reviewed the results of the June 3, 2011
MRI scan, which showed spondylosis at L5 and degenerative changes at L4-5 and L5-S1. He
diagnosed lumbar intervertebral disc displacement and again indicated with a checkmark in the
“yes” box that the incident described by appellant was the competent medical cause of her
condition.
Appellant submitted reports from Dr. James M. Inzerillo, a Board-certified physiatrist. In
a report dated October 24, 2011, Dr. Inzerillo obtained a history of injury, noting that she felt a
pop in her lower back, followed by immediate pain in her right leg, after turning sharply to speak
to a patient walking to the psych ward at work. On examination of the low back, active range of
motion measurements were as follows: flexion -- 40 degrees; forward flexion from the hips -- 65
degrees with lumbar pain and “tight” feeling in leg; extension -- 30 degrees, without pain; right
rotation -- 45 degrees with right-sided lumbar pain and pain down her right leg; left rotation -- 45
degrees with right-sided lumbar pain and pain down her right leg. There was mild paraspinal
lumbar muscle hypertonicity and tenderness with moderate palpation, as well as exquisite points
in the right buttock in area of the piriformis muscle and exquisite right proximal sartorius and
vastas lateralis trigger points. Sacroiliac motion palpation revealed right S1 joint restriction and
tenderness in flexion and external rotation. Dr. Inzerillo diagnosed low back pain; myalgia and
myositis; lumbar intervertebral disc displacement; spondylolysis; degenerative disc disease at
L4-5 with an annular fissure; and small central/right paracentral disc protrusion, as evidenced by
MRI scan. He stated that much, if not most, of her pain appeared to be secondary to myofascitis
throughout her right buttock and right thigh, along with an associated right sacroiliac joint
dysfunction and pain. Dr. Inzerillo indicated by placing a checkmark in the “yes” box that the
incident described by appellant was the competent medical cause of this injury.
In a December 15, 2011 follow-up report, Dr. Inzerillo reiterated the diagnoses and again
placed a checkmark in the “yes” box indicating his belief that the claimed incident caused
appellant’s diagnosed condition.
On July 18, 2012 appellant again requested reconsideration.
By decision dated October 16, 2012, OWCP denied modification of its prior decision on
the grounds that the medical evidence was insufficient to establish a causal relationship between
a diagnosed condition and the claimed event.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase
2

5 U.S.C. § 8102(a).

3

“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.3
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of 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, that an injury was sustained in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.4 When an employee claims that she sustained a traumatic injury in the
performance of duty, she must establish the fact of injury, consisting of two components, which
must be considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury and generally
this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 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.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by FECA, refers to a disease proximately caused by the employment.
5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q)(ee).
6

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

7

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

8

Id.

9

20 C.F.R. § 10.303(a).

4

by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS
OWCP accepted that appellant was a federal employee, that she timely filed her claim for
compensation benefits and that the March 25, 2011 workplace incident occurred as alleged. The
issue, therefore, is whether she submitted sufficient medical evidence to establish that the
employment incident caused an injury. The evidence of record does not contain a rationalized
medical opinion from a physician sufficient to establish that the work-related incident caused or
aggravated a back condition or disability. Therefore, appellant has failed to meet her burden of
proof.
The medical evidence submitted by appellant included reports and disability slips from
Dr. Dhawan, who provided a history of injury and examination findings. After reviewing the
results of a June 3, 2011 MRI scan, which showed spondylosis at L5 and degenerative changes at
L4-5 and L5-S1, Dr. Dhawan diagnosed lumbar intervertebral disc displacement and lumbar
strain. In reports dated April 22 and October 14, 2011 and February 10, 2012, he indicated by
placing a checkmark in the “yes” box his belief that the incident described by appellant was the
competent medical cause of her condition. Dr. Dhawan did not, however, sufficiently explain
the process through which the March 25, 2011 incident was competent to cause the claimed
lumbar disc condition. Medical conclusions unsupported by rationale are of little probative
value.11 The Board has held that a report that addresses causal relationship with a checkmark,
without a medical rationale explaining how the work conditions caused the alleged injury, is of
diminished probative value and is insufficient to establish causal relationship.12 Dr. Dhawan’s
disability slips and notes do not provide a full history of appellant’s treatment for her back or an
opinion on the cause of her condition sufficient to establish her claim. Medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.13
Dr. Inzerillo’s reports are similarly deficient. On October 24, 2011 he provided a history
of injury and examination findings. Dr. Inzerillo diagnosed low back pain; myalgia and
myositis; lumbar intervertebral disc displacement; spondylolysis; degenerative disc disease at
L4-5 with an annular fissure; and small central/right paracentral disc protrusion, as evidenced by
MRI scan. He indicated by checkmark in the “yes” box that the incident described by appellant
was the competent medical cause of this injury. On December 15, 2011 Dr. Inzerillo reiterated
his prior diagnoses and again placed a checkmark in the “yes” box indicating his belief that the
claimed incident caused her diagnosed condition. As noted, without medical rationale explaining
how the March 25, 2011 incident caused the diagnosed conditions, his checkmark opinion is of
limited probative value.
10

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

11

Willa M. Frazier, 55 ECAB 379.

12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

13

Michael E. Smith, 50 ECAB 313 (1999).

5

Reports from Ms. Smith, a nurse practitioner, and physical therapy notes do not constitute
probative medical evidence, as nurse practitioners and physical therapists do not qualify as
“physicians” under FECA.14 Therefore, they are insufficient to establish appellant’s claim.
Appellant expressed her belief that her back condition resulted from the March 25, 2011
employment incident. 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.15 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.16 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, her belief that her condition was caused by the work-related incident is not
determinative.
OWCP 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 submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how her claimed back condition was caused or
aggravated by her employment, she has not met her burden of proof to establish that she
sustained an injury in the performance of duty causally related to factors of her federal
employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on March 25, 2011.

14

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.” See
Merton J. Sills, 39 ECAB 572, 575 (1988).
15

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

16

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2013
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
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0822
Issued: July 1, 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 March 11, 2018 appellant filed a timely appeal from a December 19, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision dated October 25, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the December 19, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 7, 2014 appellant, then a 32-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed “occupational stress” due to factors of her federal
employment. She explained that a series of events contributed to her condition, including that a
truck driver for the employing establishment with whom she had worked, M.S., murdered another
postal clerk whom she knew. Appellant indicated that M.S. had also harassed her while at the
employing establishment, he had her contact information, and he would send her inappropriate
photos to her phone. She explained that contemporaneously with the murder incident she was
verbally assaulted by a coworker who cursed at her while at the time clock and she was required
to call the police on a postal customer who had followed her and yelled at her over a piece of
previously returned mail. Appellant explained that due to the murder by M.S. she was in
consultation with the Employee Assistance Program (EAP)4 and that the acts of her coworker and
the postal customer were more than she could take emotionally.5 She noted that she did not feel
safe at work. Appellant did not stop work.
A June 7, 2014 police report noted that appellant had called for assistance due to a man
cursing at her and also noted that she complained that she was feeling threatened.
In a June 7, 2014 duty status report (Form CA-17), a family practitioner with an illegible
signature noted that appellant presented after being followed by a postal customer who was yelling
and screaming. The physician noted several potential diagnoses and restricted appellant from
returning to work until cleared by a mental health professional.
In a June 10, 2014 Form CA-17 report, Dr. Rupinda Kaur, a Board-certified psychiatrist,
restricted appellant from returning to work due to her psychiatric condition. She noted appellant
had been followed down the street by a postal customer who yelled and screamed at her. Dr. Kaur
noted she was fearful, shaky, nervous, nauseous, had disturbed sleep at night, and was
apprehensive due to acute stress. She diagnosed acute stress disorder. In a June 16, 2014 report,
Dr. Kaur diagnosed acute stress disorder and post-traumatic stress disorder (PTSD). She reported
the history of a March 24, 2014 incident in which appellant’s coworker killed one lady, beat
another one severely, and then committed suicide. Dr. Kaur further indicated that a male coworker
had threatened and cursed at appellant at work and that on June 7, 2014 a customer followed her
and yelled at her while on her mail route. She concluded that appellant was traumatized by these
events and was experiencing recurrent, involuntary, and intrusive flashbacks and distressing
memories of these traumatic events.

4

Appellant submitted a note from a USPS EAP consultant who noted that appellant had contacted EAP on April 9,
2014 and had continued counseling.
5

In a record of a telephone call dated June 24, 2014, OWCP noted that appellant had called to inform them that the
narrative statement on her claim form was not accurate, was illegible, and was completed without giving her the time
she requested to provide greater detail.

2

In a letter dated June 17, 2014, Dr. Kaur noted that appellant had been under psychiatric
care after a close friend passed away. She noted that on March 24, 2014 another coworker killed
one lady, severely beat another, and then committed suicide. Dr. Kaur noted appellant’s trauma
and noted examination findings. She noted that appellant presented with multiple signs and
symptoms of PTSD and that she was having flashbacks to the traumatic events.
In a letter dated June 17, 2014, the employing establishment controverted appellant’s
claim. It noted that its controversion was based on fact of injury, performance of duty, and causal
relationship. The employing establishment also submitted a handwritten statement from A.M. who
asserted that the claim should be denied because the incident with the postal customer who was
angry was an occurrence that all carriers encounter and the customer was only angry because he
wanted mail that appellant had returned the day prior.6
In a development letter dated June 24, 2014, appellant was informed of the deficiencies of
her claim and was instructed as to the type of factual and medical evidence necessary to establish
her claim. OWCP included a questionnaire for her completion. On the same date, it also sent a
development letter to the employing establishment requesting information relative to the claim.
OWCP afforded both appellant and the employing establishment 30 days to respond.
Appellant submitted numerous statements from coworkers and others in support of her
claim. These statements included a June 23, 2014 statement by S.I., a coworker, who explained
the murder-suicide by M.S. and explained its traumatic nature on coworkers. She noted that the
police had informed the postal service that M.S. was possibly targeting postal employees. S.I.
asserted that the employing establishment completely disregarded the workers’ safety as they
failed to inform them of the actions of M.S. and the possibility he was targeting them prior to his
suicide. She explained that appellant called her when news reports surfaced because she was
disturbed due to her interactions with M.S. who had asked her out several times. S.I. noted that
appellant had rebuffed the advances of M.S. and was especially worried and in shock because she
knew M.S. personally and nobody knew his motives for his actions, but the actions were against
other women. A June 26, 2014 statement of T.R., a coworker, claimed that female employees
were generally subjected to a hostile environment.
On July 4, 2014 appellant responded to the development questionnaire. On July 8, 2014
she submitted a detailed statement of the factual history of her development of psychiatric
conditions due to incidents involving her work. Appellant also submitted news articles about the
murder-suicide incident. Additional statements were also submitted regarding the incident
including one from B.M. Appellant also submitted a statement of C.G., a postal customer, who
witnessed an angry man who was agitated towards appellant and a statement of T.C., a coworker,
who observed appellant in an anxious and disoriented state after she was threatened by a customer.
In a June 26, 2014 statement, C.B., an employing establishment representative, asserted
that appellant’s claim should be denied. She explained that the customer had been upset with
appellant, but she finished her route and had returned to work. C.B. also noted that appellant had
informed A.M., a coworker, of her interactions with M.S. who she stated had sent her photographs

6

The employing establishment also submitted an unsigned and undated handwritten statement which alleged that
the incident with the customer was a parking dispute and appellant handled the situation without his involvement.

3

of his penis and that stressed her out. She noted that appellant had not made complaints until after
M.S. committed suicide.
In a Form CA-17 duty status report, dated July 30, 2014, Dr. Kaur noted that appellant’s
psychiatric condition was improving. An accompanying note indicated that appellant could return
to work on August 11, 2014. On September 8, 2014 Dr. Kaur noted that her work should be
limited to eight hours per day to avoid a relapse.
On October 21, 2014 OWCP received a statement from appellant explaining her difficulties
following her return to work. Appellant also contested the statements of employing establishment
personnel. In a supplemental statement, received on October 24, 2014, she noted examples of
conflict she was experiencing in the workplace. A copy of a grievance form was also submitted.
By decision dated December 19, 2014, OWCP denied appellant’s emotional condition
claim, finding that the medical evidence of record was insufficient to establish that a medical
condition arose during the course of employment and within the scope of compensable work
factors. It found that there were no accepted events that were compensable factors of employment
and, while the events involving M.S. occurred as alleged, they were not directed at appellant, nor
did they involve appellant. OWCP found that the fact that appellant used to work with M.S. and
knew at least one of his victims were not compensable factors of her federal employment. It further
found that a postal customer had not verbally abused her on June 7, 2014 as alleged.
On January 15, 2015 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. A telephonic hearing was held on July 16, 2015.
Appellant submitted medical reports from Dr. Tullo Teresa, Board-certified in internal medicine,
who noted that appellant should be excused from work.
On August 16, 2015 appellant’s representative submitted new evidence including
documents relating to criminal convictions of the postal customer who was alleged to have
physically and verbally threatened appellant.
On August 28, 2015 the employing establishment submitted a September 13, 2013 Step B
grievance decision which it asserted established that the working environment was safe for all
employees.
By decision dated September 29, 2015, OWCP’s hearing representative affirmed the
December 19, 2014 decision.
On September 24, 2016 appellant, through her representative, requested reconsideration.
By decision dated October 25, 2016, OWCP denied modification of the September 29, 2015
decision.
On October 17, 2017 appellant, through her representative, requested reconsideration of
the October 25, 2016 decision. She advised that new evidence was submitted in support of the
request for reconsideration. In an attached September 2, 2017 medical report, received by OWCP
on October 17, 2017, Dr. Kaur opined that appellant’s conditions were a result of the March 24,
2014 incident involving M.S. She further noted that appellant had a follow-up visit on May 15,
2017 during which she explained that she continued to be ridiculed and demeaned at work, causing
additional trauma and exaggeration of her preexisting symptoms from PTSD. Dr. Kaur observed
4

that appellant was distraught and distressed during this visit. Counsel also set forth additional
arguments in support of reconsideration. She cited to two cases which she alleged supported
finding a compensable factor of employment based upon the aftermath of a traumatic event and a
series of cases in which postal employees had been verbally assaulted by customers, which were
found to be compensable employment factors.
By decision dated December 19, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of the reconsideration request dated October 17, 2017, appellant’s representative
cited to a series of Board decisions which she alleged supported the finding of compensable
employment factors. The request included the representative’s explanation as to why each case
was applicable to the claimed factors of employment as were found factual. The Board finds that
the representative’s reconsideration request constitutes relevant legal argument not previously
7

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
8

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
9

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

5

considered by OWCP which was asserted to establish that OWCP erroneously applied or
interpreted a specific point of law. It is relevant argument not yet addressed, thus denying appellant
an opportunity to correct deficiencies, if any, in her claim. The Board therefore finds that appellant
has established that OWCP improperly denied the request for a reconsideration of the merits of
her claim based on the two initial requirements of 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant submitted new and relevant evidence in support of
her October 17, 2017 request for reconsideration. OWCP failed to review Dr. Kaur’s September 2,
2017 report, which was submitted with her request. In this new report, appellant’s attending
physician provides additional detail as to the nature and extent of appellant’s psychiatric condition
and her ability to interact with management at the employing establishment based upon the
June 2014 incidents which are alleged as employment factors in this case. Thus, the Board finds
that this attending physician’s report constitutes relevant and pertinent new evidence under the
third requirement of 20 C.F.R. § 10.606(b). Appellant’s request for reconsideration therefore met
the third standard for obtaining merit review of her case under 20 C.F.R. § 10.606(b)(3).
Accordingly, she is entitled to a merit review of her claim.11
The Board will therefore set aside OWCP’s December 19, 2017 decision and remand the
case for an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: July 1, 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
11

See M.C., Docket No. 17-1983 (issued August 17, 2018); S.H., Docket No. 17-1101 (issued August 3, 2017);
Helen E. Tschantz, 39 ECAB 1382 (1988).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Reading, MA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0484
Issued: June 25, 2021

Case Submitted on the Record

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

On January 28, 2021 appellant filed a timely appeal from a December 29, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 21-0484.
In a letter dated and received May 20, 2021, appellant requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0484 is dismissed.
Issued: June 25, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF STATE, BUREAU OF
DIPLOMATIC SECURITY, Washington, DC,
Employer
__________________________________________

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

Docket No. 16-1070
Issued: January 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 21, 2016 appellant filed a timely appeal from an October 27, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 27, 2015, the date of OWCP’s last decision was
April 24, 2016. As April 24, 2016 fell on a Sunday, the appeal would have been due the next business day, which
was April 25, 2016. Since using April 26, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is April 21, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant sustained an injury on August 29, 2014 in the performance
of duty.
FACTUAL HISTORY
On September 18, 2014 appellant, a 53-year-old physical security specialist, filed a
traumatic injury claim (Form CA-1) alleging that on August 29, 2014, while on travel in Beijing,
China, appellant fractured his right elbow, sprained his right wrist, and bruised his right shin and
knee in the performance of duty. He indicated that he had tripped and fallen on a low cross bar
in the roadway while crossing Xiao Yun Road while walking from the U.S. Embassy to his hotel
to await transportation to the airport. The employing establishment marked the box “yes” to
indicate that appellant was in the performance of duty when the injury occurred.
By letter dated March 16, 2015, OWCP advised appellant of the type of evidence needed
to establish his claim. Appellant was asked to complete and return a questionnaire to establish
the factual element of his claim. OWCP informed him that he had 30 days to submit responsive
evidence. No response was received.
By decision dated April 20, 2015, OWCP denied appellant’s claim because the evidence
of record was insufficient to establish that a medical condition was diagnosed in connection with
the claimed event.
On May 20, 2015 appellant requested review of the written record by an OWCP hearing
representative. He advised that the orthopedic clinic where he was treated advised him that it
would send the necessary records, but it had failed to do so.
In an August 29, 2014 report, Dr. Kristie Harris, a radiologist, advised that a right elbow
x-ray revealed an impacted fracture of the radial head.
In a September 2, 2014 report, Dr. Daniel Hampton, a Board-certified orthopedic
surgeon, advised that appellant complained of right elbow pain. He noted that appellant had
injured his right elbow when he tripped and fell while abroad. Dr. Hampton indicated that
appellant’s flight was a few hours following the fall, so he sought medical treatment once he
arrived back home. Examination of the elbow revealed soft tissue swelling, tenderness over the
radial head, pain with attempted range of motion, and no gross instability. Dr. Hampton noted
that an outside x-ray report revealed a radial head fracture with some comminution and
displacement. He diagnosed radial head fracture and recommended surgery. In a September 3,
2014 report, Dr. Hampton advised that appellant underwent a radial head arthroplasty. Several
progress reports from Dr. Hampton were submitted.
Appellant also provided an April 7, 2015 statement from R.P., a coworker, who advised
that he witnessed appellant injure his right elbow when he tripped on a road divider while
returning to the hotel around 1500 hours.
Also received was a July 1, 2014 travel authorization form. It indicated that appellant
was authorized to travel from Washington, DC to China from August 18 until 29, 2014.
2

By decision dated October 27, 2015, an OWCP hearing representative modified the prior
decision to find that appellant’s claim was denied because he failed to establish that his
August 29, 2014 fall occurred in the performance of his federal duties. She noted that appellant
had failed to return the questionnaire accompanying OWCP’s March 16, 2015 letter. The
hearing representative noted that the responses to the questionnaire were necessary to determine
whether he was involved in an activity connected to his federal employment prior to the fall.
On appeal appellant provided additional facts surrounding the incident.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.4 Arising in the course of employment relates to the elements of time, place, and
work activity.5 An injury is stated to arise in the course of employment when it takes place
within the period of the employment, at a place where the employee reasonably may be and
while they are fulfilling their duties or are engaged in doing something incidental thereto.6
Arising out of employment relates to the causal connection between the employment and the
injury claimed.7
Under FECA, an employee on travel status or a temporary-duty assignment or special
mission for his or her employer is in the performance of duty and therefore under the protection
of FECA 24 hours a day with respect to any injury that results from activities essential or
incidental to his or her special duties.8 Examples of such activities are eating,9 returning to a
hotel after eating dinner, and engaging in reasonable activities within a short distance of the hotel
where the employee is staying.10 However, when a claimant voluntarily deviates from such
activities and engages in matters, personal or otherwise, which are not incidental to the duties of
his or her temporary assignment, they cease to be under the protection of FECA. Any injury
3

5 U.S.C. § 8102(a).

4

R.A., Docket No. 07-814 (issued June 19, 2008); Bernard D. Blum, 1 ECAB 1 (1947).

5

V.O., 59 ECAB 500 (2008); R.S., 58 ECAB 660 (2007).

6

L.K., 59 ECAB 465 (2008); D.L., 58 ECAB 667 (2007).

7

See Charles Crawford, 40 ECAB 474 (1989) (the phrase arising out of and in the course of employment
encompasses not only the concept that the injury occurred in the work setting, but also the causal concept that the
employment caused the injury); see also Robert J. Eglinton, 40 ECAB 195 (1988); Clayton Varner, 37 ECAB 248
(1985); Thelma B. Barenkamp (Joseph L. Barenkamp), 5 ECAB 228 (1952).
8

Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K. O Connor,
4 ECAB 21 (1950).
9

Michael J. Koll, Jr., 37 ECAB 340 (1986); Carmen Sharp, 5 ECAB 13 (1952).

10

Ann P. Drennan; Janet Kidd (James Kidd), supra note 8; Theresa B.L. Grissom, 18 ECAB 193 (1966).

3

occurring during these deviations is not compensable.11 Examples of such deviations are visits
to relatives or friends while in official travel status,12 visiting nightclubs and bars,13 skiing at a
location 60 miles from where an employee is undergoing training,14 and taking a boat trip during
nonworking hours to view a private construction site.15
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.16
An employee seeking benefits under FECA17 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 filed within the applicable time
limitation; that an injury was sustained while 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.18 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.19
ANALYSIS
OWCP accepted that appellant fell while on travel status in Beijing, China. However, it
denied appellant’s claim because it found the evidence of record insufficient to establish that the
injury occurred in the performance of duty. It noted that appellant had failed to return a
questionnaire sent by OWCP to explain the circumstances surrounding the fall. Appellant’s
claim was that he fractured his right elbow, sprained his right wrist, and bruised his right shin
and knee while on travel overseas. OWCP accepted the claim without formal review for a
limited time and medical expense. As the claim went over the informal acceptance limits,
OWCP determined to evaluate the merits of the claim.

11

Karl Kuykendall, 31 ECAB 163 (1979).

12

Ethyl L. Evans, 17 ECAB 346 (1966) (travelling to a friend’s house to spend the night was a deviation from the
course of employment); Miss Leo Ingram, 9 ECAB 796 (1958) (driving 200 miles to visit relatives was a deviation).
13

Conchita A. Elefano, 15 ECAB 373 (1964).

14

Supra note 11.

15

Mattie A. Watson, 31 ECAB 183 (1979).

16

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

17

Supra note 2.

18

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

19

Supra note 2.

4

Appellant has been provided three opportunities to provide the details of the alleged
incident relating to his injuries.
First was a Form CA-1 filed on September 18, 2014. His description as to the cause of
the injury was: “Walking from U.S. Embassy to Hotel to await transportation to airport.
[T]ripped on low cross bar in roadway, smacking shin on both legs and worker fell forward onto
right knee, right elbow, and right wrist.” The place where the injury occurred was “Crossing
road between Xiao Yun Road U.S. Embassy and Beijing Marriott Hotel Tianze Road, Beijing.”
In an April 7, 2015 statement, appellant’s coworker advised that he and appellant were returning
to the hotel at approximately 1500 hours when appellant tripped over a road divider.
Second, OWCP provided appellant an opportunity to further elaborate through the
March 16, 2015 development letter. It requested answers to the following questions: “When and
where did you last perform your official duties? What was the approximate distance between the
place of the accident and the place where your last official duty was performed? When and
where were you expected to perform your next official duty? When the accident occurred, were
you on the most direct route between the point of last official duty and next expected official
duty? If not, explain where you were in relation to the most direct or usually-traveled route and
why you were at such point.” Appellant was also asked to provide a copy of his travel orders.
No response was received to the questionnaire. By decision dated April 20, 2015 OWCP denied
the claim finding that there had been no evidence to support that appellant was injured in the
performance of duty.
The third opportunity was when appellant filed a request for a review of the written
record before an OWCP hearing representative following the April 20, 2015 OWCP decision.
Appellant did provide medical evidence reflecting a fractured right elbow and other injuries, a
copy of his travel records, and a witness statement. However, he failed to provide the details
surrounding the injury. The hearing representative, in her decision dated October 27, 2015,
denied the claim for failing to establish that his fall occurred while in the performance of duty.
She noted that appellant had not responded to the questions and that his responses were critical to
the determination of whether the injury occurred in the performance of duty.
On appeal appellant provided details surrounding the incident. However, 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 will not be considered for the first time on appeal.20
It is appellant’s burden of proof to establish his claim. This burden includes the
submission of a detailed description of the employment factors or conditions which he believes
caused or adversely affected a condition for which compensation is claimed and a rationalized
medical opinion relating the claimed condition to compensable employment factors.21 The
Board finds that appellant has failed to meet that burden.

20

20 C.F.R. § 501.2(c)(1) (2008).

21

See Effie O. Morris, 44 ECAB 470, 473-74 (1993).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.22
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish an
injury in the performance of duty on August 29, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2015 is affirmed.
Issued: January 24, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

22

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

6