United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Tallahassee, FL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0759
Issued: September 22, 2021

Case Submitted on the Record

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

JURISDICTION
On February 20 2020 appellant, through counsel, filed a timely appeal from a
December 23, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on December 7, 2016, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On December 7, 2016 appellant, then a 60-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he was injured when his vehicle ran off the road and hit a tree at
9:00 p.m. that day. He noted that he was on official business when injured and suffered head, rib,
and extremity injuries. The claim form indicated that appellant’s regular work hours were 8:00
a.m. to 5:00 p.m.
The employing establishment controverted the claim, maintaining that appellant was not
in the performance of duty as he was off the clock and had deviated from the direct line of travel
to retrieve his vehicle from the repair shop on his way home. It also noted that no medical
documentation had been submitted in support of the claim.
In a development letter dated January 24, 2017, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of medical and factual evidence needed to
establish the claim and afforded him 30 days to submit the necessary evidence.
OWCP subsequently received an undated statement, wherein appellant explained that on
the date of injury he went to work, and after delivering mail for approximately three miles, his
personal vehicle that he used for mail delivery broke down. Appellant called his supervisor and a
tow truck, which took him back to the employing establishment and towed his vehicle a shop to
be repaired. He related that he used an employing establishment long life vehicle (LLV) to
complete his route, and when he returned the LLV at 9:00 p.m., the night supervisor advised him
that he had permission to pick up his personal work truck. Appellant indicated that he had to have
his personal vehicle for work the next day, and that the postmaster, day, and night supervisors were
aware that he had to deviate from his usual route home to pick up his work vehicle that had been
repaired. He reported that his wife picked him up and took him to a shop where he picked up his
personal vehicle. Appellant indicated that the motor vehicle accident (MVA) occurred as he was
driving home, and that he was hospitalized for a week following the accident.
An emergency department report dated December 7, 2016, completed by Dr. Colby Scott
Redfield, Board-certified in emergency medicine, and Dr. Shelby L. Blank, Board-certified in
surgery, noted a history of an unrestrained MVA and that appellant had been admitted to the
hospital. Final diagnoses were multiple bilateral rib fractures, liver contusion, mild mental status

3

Docket No. 18-0445 (issued August 14, 2018).

2

changes consistent with traumatic brain injury, nasal/facial fractures, facial abrasions, and lower
extremity lacerations.
In a January 5, 2017 statement, R.W., manager of customer service, reported that on
December 7, 2016 appellant, a rural carrier, was involved in a single vehicle accident at
approximately 9:00 p.m. He noted that appellant reported to work in his personal vehicle at 7:00
a.m., and that at approximately 11:00 a.m. appellant called to report that his personal vehicle had
broken down, and he needed an LLV. R.W. related that a tow truck driver brought appellant back
to the employing establishment, that appellant ﬁnished his route in an LLV, and signed out at 8:10
p.m. Appellant then retrieved his personal vehicle at some time during the period between 8:10
p.m. and 9:00 p.m. when he was involved in a single vehicle accident. R.W. indicated that it was
the employing establishment’s contention that appellant was not in the performance of duty for
two reasons. First, because appellant had not used his personal vehicle to finish his route and,
therefore, would not be covered for the drive home. Second, because he had deviated from a direct
line of travel to retrieve his personal vehicle from the shop.
On February 1, 2017 Dr. L. Chris DeRosier, a Board-certified plastic surgeon, advised that
appellant could not work.
By decision dated March 2, 2017, OWCP denied appellant’s claim. It found that he was
not in the performance of duty at the time of the December 7, 2016 MVA because he had deviated
from his usual route home to conduct personal business.
On March 14, 2017 appellant, through counsel, timely requested a hearing with a
representative of OWCP’s Branch of Hearings and Review. Counsel submitted evidence
previously of record. He also submitted a Step 1 grievance denial by the employing establishment
that indicated that appellant was not on the clock when the MVA occurred and that appellant had
deviated when the accident occurred at 9:00 p.m., noting that he had left the employing
establishment at 8:10 p.m.4
OWCP received an unsigned, incomplete copy of a State of Florida traffic crash report. It
documented that a single vehicle accident was reported at 8:58 p.m. on December 7, 2016, that it
occurred on Centerville Road 35 feet south of the intersection with Centre Point Boulevard, that
appellant was driving at the time of the MVA, that he had run off the roadway on the right, side of
the roadway, and that he had injuries.
Additional medical evidence was also submitted including further reports from Dr. Blank
and Dr. Rosier, and a June 9, 2017 report from Scott O. Burkhard, Psy.D., who opined that
appellant had cognitive difficulties due to the December 7, 2016 MVA.
During the hearing, held on September 14, 2017, appellant described the events of
December 7, 2017, indicating that his wife picked him up after work and took him to the vehicle
4

Appellant’s union provided a detailed statement of disputed facts. It maintained that, after appellant left the repair
shop, he was following his normal line of travel when he lost control of his vehicle and hit a tree, suffering a head
injury among other things. The union indicated that appellant was discharged from the hospital on
December 12, 2016.

3

repair shop. He testified that he did not remember how the MVA happened, and perhaps he had
the accident due to exhaustion because he was working 12- to 14-hour days. Counsel maintained
that, because the employing establishment told appellant that he would need his vehicle the next
day, appellant was in the performance of duty when picking it up, that he was reimbursed mileage
for the use of his personal vehicle, and that he now had a traumatic brain injury and had not
returned to work.
By decision dated November 28, 2017, OWCP’s hearing representative affirmed the
March 2, 2017 decision. She found that appellant was not in the performance of duty because, at
the time of the December 7, 2016 MVA, he was conducting personal business and had deviated
from his direct route home.
On December 29, 2017 appellant, through counsel, filed an appeal with the Board.
By decision dated August 14, 2018,5 the Board found the case not in posture for decision
because the case record, as transmitted to the Board, was insufficient and would not permit an
informed adjudication of the case. The Board found that there was insufficient evidence regarding
the employing establishment’s policy regarding use of a personal vehicle by a rural carrier,
particularly as to whether appellant was required to use this personal vehicle each day and whether
he would have needed his vehicle to perform his employment duties on December 8, 2016. The
Board set aside the November 28, 2017 decision and remanded the case for further development
including, but not limited to, securing evidence from the employing establishment evidence
regarding its policies on personal vehicle use by rural carriers or any agreements between appellant
and the employing establishment regarding the use of his own vehicle.
By letter dated September 18, 2018, OWCP requested that the employing establishment
provide information regarding whether appellant would have needed his vehicle to perform
employment duties on December 8, 2016, to furnish a statement from appellant’s supervisor
describing the manner in which the work required him to travel with his own vehicle as a rural
carrier, and when and in what manner appellant was told that he had to work using his personal
vehicle on December 8, 2016.6
In correspondence dated October 3, 2018, counsel related that the employing establishment
rules indicated that appellant must have a personal vehicle to bid on a rural route, and that he used
a government LLV one day because his personal vehicle needed immediate repairs. Appellant
immediately took his personal vehicle in for those repairs, and when he returned the LLV, he was
told that it would not be available for him the next day and that he would need to retrieve his
personal vehicle to do his route. Counsel also noted that appellant received a stipend for using his
personal vehicle. Additional medical evidence was also submitted.
On October 5, 2018 T.D., a postmaster, indicated that an executive level supervisor was
not present at the time of the December 2016 incident, but as appellant was a rural carrier, he
5

Supra note 3.

6
The Board notes that it appears that the date referenced was a typographical error as the MVA occurred on
December 7, 2016.

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would have been paid mileage for the use of his personal vehicle. T.D. noted that appellant was
off the clock when the MVA occurred and maintained that he had deviated from his normal route
home.
By letter dated October 24, 2018, counsel argued that appellant confirmed that he was
informed via telephone by K.C., his supervisor, to get his truck repaired immediately because no
government vehicle would be available the following day.
In correspondence dated November 14, 2018, T.D. indicated that appellant would have
needed his vehicle to perform employment duties on December 8, 2016, noting that he was
required to deliver mail to an assigned route using his own vehicle. He provided a list of basic
carrier responsibilities that included that a carrier provide and maintain a vehicle. T.D. indicated
that appellant became a postal rural carrier associate on April 2, 2005, at which time he would
have been told by the hiring coordinator that he must furnish his own vehicle in order to service
his assigned route, and would have been provided a copy of the rural carrier handbook. He
continued that, as for using his personal vehicle on December 8, 2016, appellant was fully aware
that furnishing his own vehicle was a requirement. T.D. concluded that rural carriers were
protected under FECA for an injury sustained in the performance of duty and are considered to be
in the performance of duty for purposes of FECA when driving their own vehicle between their
home and the employing establishment, and between the employing establishment and their home,
and are required to wear a seatbelt when traveling from home to the place of employment and from
the place of employment to home. 7
By decision dated November 19, 2018, OWCP again denied appellant’s claim, finding that
appellant was not in the performance of duty when injured on December 7, 2016.
On November 26, 2018 appellant, through counsel, requested a hearing before OWCP’s
Branch of Hearings and Review. In correspondence dated December 21, 2018, counsel maintained
that K.C. needed to provide a statement to clarify whether she told appellant that he had to get his
truck repaired immediately because no government vehicle would be available for him the next
day. Counsel also provided a copy of a letter he sent K.C. regarding this matter, and e-mail
correspondence from appellant regarding his attempts to get in contact with K.C.
During a March 13, 2019 hearing, counsel asserted that, because no employing
establishment LLV would be available, K.C. directed appellant to get his personal vehicle from
the repair shop on the evening of the MVA, and asked that the hearing representative remand the
case to obtain a statement from K.C. Appellant testified that, because an LLV would not be
available and because a substitute carrier was also unavailable, he had to pick up his vehicle so
that he could have it the next day. He stated that his wife picked him up and took him to the repair
shop, and that he had the MVA on his way home from there when he hit an oak tree just off the
road.

7
The Board notes that T.D. identified the date of claimed injury as December 8, 2016 when the record indicates
that it occurred on December 7, 2016.

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By decision dated May 23, 2019, the hearing representative remanded the case for OWCP
to obtain a statement from Supervisor K.C.
On May 28, 2019 OWCP directed the employing establishment to obtain a statement from
K.C. addressing whether on December 7, 2016 she told appellant that no LLV would be available
for him on December 8, 2016, and whether she advised him that he needed to retrieve his personal
vehicle from the repair shop that day in order to work on December 8, 2016. It also directed the
employing establishment to obtain a statement from the night supervisor, identified as M.B., and
postmaster at that time, E.G., regarding any information or knowledge they had regarding whether
appellant had been instructed or had permission to pick up his repaired vehicle on his way home
on December 7, 2016 in order to work on December 8, 2016.
In a statement signed by K.C. on June 6, 2019, she indicated that she had been the opening
supervisor at appellant’s duty station on December 7, 2016. She related that his privately-owned
vehicle had a breakdown that day, and an LLV was available for him to complete his route. K.C.
related that the only thing she remembered telling appellant was that he would need to have a
suitable vehicle to complete his delivery duty requirements on December 8, 2016.
In a June 5, 2019 statement, M.B. indicated that she was the closing supervisor on
December 7, 2016. She related that appellant had been given an LLV to deliver his route that day
because his vehicle had broken down, and that when he returned from delivery, he told her that his
wife was on her way to pick him up. M.B. indicated that appellant did not mention that he was
going to get his vehicle at the repair shop, and that as far as she knew, he had not been instructed
to pick it up.
In a June 6, 2019 statement, E.M. related that he had no knowledge that appellant had been
given instructions or permission to pick up his vehicle.
By decision dated June 10, 2019, OWCP again denied the claim, finding that appellant was
not in the performance of duty when the MVA occurred on December 7, 2019.
On June 18, 2019 appellant, through counsel, requested a hearing before an OWCP hearing
representative.
During an October 15, 2019 hearing, counsel reiterated that appellant was in the
performance of duty when injured on December 7, 2016 because he had been told that he had to
pick up his postal vehicle so that he could deliver mail on December 8, 2017. The hearing
representative questioned appellant about his current medical condition and asked that he submit
updated medical evidence. The record was held open for 30 days.
Appellant thereafter submitted medical evidence previously of record.
By decision dated December 23, 2019, the hearing representative affirmed OWCP’s
June 10, 2019 decision. She found that the evidence of record was insufficient to establish that
appellant was in the performance of duty when injured on December 7, 2018, noting that it
occurred approximately one hour after he clocked out for the day and that he was not on a direct
route home. The hearing representative further found that the evidence of record was insufficient
to support that appellant was sent on a special errand to retrieve his repaired personal vehicle.
6

Rather, the evidence supported that K.C. reminded appellant of his obligations to have
transportation available for his duties the following day.
LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might befall
an employee contemporaneous or coincidental with his or her employment. Liability does not
attach merely upon the existence of an employee/employer relation. Instead, Congress provided
for the payment of compensation for “the disability or death of an employee resulting from
personal injury sustained while in the performance of his duty.”8 The phrase “while in the
performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing this issue, the Board has stated: “In the compensation field, to occur
in the course of employment, in general, an injury must occur: (1) at a time when the employee
may reasonably be said to be engaged in his or her master’s business; (2) at a place where he or
she may reasonably be expected to be in connection with the employment; and (3) while he or she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.”9 In deciding whether an injury is covered by FECA, the test is whether, under
all the circumstances, a causal relationship exists between the employment itself, or the conditions
under which it is required to be performed, and the resultant injury.10
It is a well-established principle that where the employee as part of his or her job is required
to bring along his or her own car, truck or motorcycle for use during the working day, the trip to
and from work is by that fact alone embraced within the course of employment. 11 Because rural
carriers may use their own transportation to deliver their routes, which is a benefit to the employer,
they may be deemed to be in the performance of their duties when they are driving their vehicles
to and from their route, when they are required by the employing establishment to provide their
own transportation.12
The Board has also recognized the special errand exception to the going to and coming
from work rule. When the employee is to perform a special errand, the employer is deemed to
have agreed, expressly or impliedly, that the employment service should begin when the employee
leaves home or work to perform the errand. Ordinarily, cases falling within this exception involve
travel, which differs in time or route or because of an intermediate stop, from the trip, which is
normally taken between home and work. In such a case, the hazard encountered in the trip may
differ somewhat from that involved in normally going to and returning from work. However, the
8

5 U.S.C. § 8102(a); J.N., Docket No. 19-0045 (issued June 3, 2019); Angel R. Garcia, 52 ECAB 137 (2000).

9

K.G., Docket No. 18-1725 (issued May 15, 2019); George E. Franks, 52 ECAB 474 (2001).

10

A.G., Docket No. 18-1560 (issued July 22, 2020); Mark Love, 52 ECAB 490 (2001).

11

J.C., Docket No. 17-0995 (issued November 3, 2017); Lex K. Larson, The Law of Workers’ Compensation,
§ 15.05 (2013).
12

J.C., id.; L.T., Docket No. 09-1798 (issued August 5, 2010).

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essence of the exception is not found in the fact that a greater or different hazard is encountered ,
but in the agreement to undertake a special task. For this reason, coverage is afforded from the
time the employee leaves home, even though in time and route the journey may be, in part, identical
to that normally followed in going to work. 13
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that the December 7,
2016 incident occurred in the performance of duty as alleged.
On December 7, 2016, appellant’s personal vehicle broke down as he was delivering mail,
and it was towed to a repair shop. Appellant was given an employing establishment LLV to finish
delivery that day. He has consistently alleged that at the end of his workday on December 7, 2016,
he was told by his supervisor K.C. that an LLV would not be available for his use the following
day, therefore, in order to deliver mail on December 8, 2016, he had to retrieve his personal vehicle
from the repair shop. Appellant’s wife then picked him up from the employing establishment and
took him to the repair shop where he picked up his repaired vehicle, and on the way home, the
vehicle left the road and hit a tree. Appellant thereafter claimed that, because he was ordered to
pick up the vehicle to deliver mail the following day, he was on a special errand and, therefore,
the MVA that occurred on December 7, 2016 was in the performance of duty.
The record indicates that the employing establishment policies require that rural carriers
have a personal vehicle in order to deliver mail. K.C., his supervisor, provided a statement in
which she confirmed that she told appellant that he would have to have a suitable vehicle to deliver
mail on December 8, 2016. Because rural carriers use their own transportation to deliver their
routes, which is a benefit to the employer, they may be deemed to be in the performance of their
duties when they are driving their vehicles to and from home and work; and, as in this case, if they
are expressly or impliedly authorized to perform a special errand. 14 As appellant had been told by
K.C., his supervisor, that the employing establishment would not have an LLV available for his
use on December 8, 2016 and he would need his own vehicle to complete his route that day, the
Board finds that appellant was injured while on a special errand, which was necessitated by the
service for which he was employed. 15
As the Board finds that the appellant was in the performance of duty, the case must be
remanded for consideration of the medical evidence of record. After any this and other such further
development as deemed necessary, OWCP shall issue a de novo decision addressing whether
appellant has met his burden of proof to establish a medical condition causally related to the
accepted employment incident.

13

K.M., Docket No. 17-1263 (issued December 19, 2018); D.T., Docket No. 11-0751 (issued March 12, 2012).

14

Id.

15

K.G., Docket No. 18-1725 (issued May 15, 2019).

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CONCLUSION
The Board finds that appellant has met his burden of proof to establish that the December 7,
2016 incident occurred in the performance of duty as alleged. The Board further finds that the
case is not in posture for decision as to whether appellant sustained an injury causally related to
the accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2019 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, New York, NY,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1131
Issued: November 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 17, 2014 appellant, through counsel, filed a timely appeal from a December 19,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that he
received an overpayment of compensation.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

The record also contains a December 9, 2013 schedule award decision. Appellant requested an oral hearing
before an OWCP hearing representative on the December 9, 2013 schedule award decision, which formed the basis
for the overpayment. A hearing representative issued a decision on August 5, 2014 setting aside the December 9,
2013 schedule award decision. Any action by OWCP that can disturb the status of the case as appealed is null and
void as the Board and OWCP may not exercise simultaneous jurisdiction over the same issue. See Douglas E.
Billings, 41 ECAB 880 (1990). As OWCP issued its August 5, 2014 decision on the schedule award after appellant
appealed the overpayment decision to the Board, it is null and void as the status of the schedule award determination
affects the issue of the overpayment on appeal.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly issued its December 19, 2013 overpayment
decision.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated August 14, 2013, the
Board set aside an October 10, 2012 decision finding that appellant had no more than a 7 percent
permanent impairment of the left upper extremity and a 20 percent permanent impairment of the
right upper extremity.3 The Board determined that the opinion of the impartial medical
examiner, Dr. Ian Fries, a Board-certified orthopedic surgeon, was insufficient to establish the
extent of the right or left upper extremity impairment and instructed OWCP to refer appellant for
a new impartial medical specialist for an impairment evaluation. The Board further set aside an
October 10, 2012 decision finding that appellant received an overpayment of compensation
because he received excess compensation for a schedule award. It determined that it was
premature to address the overpayment issue as the case was not in posture for determination
regarding the extent of permanent impairment. The facts as set forth in the prior decision are
hereby incorporated by reference.
Following further development of the medical evidence, in a decision dated December 9,
2013, OWCP found that appellant had no more than the previously awarded 20 percent
impairment of the right upper extremity and 6 percent impairment of the left upper extremity. It
noted that he would receive separate notification “regarding any potential overpayment of
compensation.”
On December 17, 2013 appellant, through his attorney, requested an oral hearing before
an OWCP hearing representative on the December 9, 2013 decision.
By decision dated December 19, 2013, OWCP reissued its October 12, 2012
overpayment decision, finding that appellant received an overpayment of compensation in the
amount of $20,227.47 because it failed to deduct a previously paid schedule award from his
compensation for an additional impairment of the right upper extremity. It further denied waiver
of recovery of the overpayment.
On appeal appellant’s attorney argues that the Board should vacate the December 19,
2013 decision and remand the case in accordance with its August 14, 2013 decision.

3

Docket No. 13-798 (issued August 14, 2013). OWCP accepted that on September 11, 2001 appellant, then a 43year-old special agent, sustained bronchitis, bilateral shoulder tendinitis and instability, a right labral tear, a cervical
disc herniation at C4-5, cervical radiculopathy and cervical spondylosis in the performance of duty. It had
previously accepted a right rotator cuff strain and right shoulder subluxation causally related to a December 17,
1991 work injury under file number xxxxxx765. By decision dated April 17, 1995, OWCP granted appellant a
schedule award for an 11 percent impairment of the right upper extremity under file number xxxxxx765.

2

LEGAL PRECEDENT -- ISSUE 1
Section 10.431 of OWCP’s implementing regulations provide that, before seeking to
recover an overpayment or adjust benefits, OWCP will advise the individual in writing that the
overpayment exists and the amount of the overpayment.4 The written notification must also
include a preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.5 Additionally, OWCP is obliged to advise the individual of his or her right to
inspect and copy the government records relating to the overpayment.6 Lastly, the preliminary
notice must inform the individual of his or her right to challenge the fact or amount of the
overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.7
The recipient of the alleged overpayment may present evidence in response to OWCP’s
preliminary notice either in writing or at a prerecoupment hearing.8 The evidence must be
presented or the hearing requested within 30 days of the date of the written notice of
overpayment.9 Failure to request the hearing within this 30-day time period shall constitute
waiver of that right.10
OWCP procedures provide that, once an overpayment is identified and calculated, it is
responsible for determining whether the claimant was with fault or without fault, issuing a
preliminary finding, and unless a hearing is requested, it is responsible for issuing a final
decision.11 It indicates that any new determination which results in an overpayment, such as an
amended schedule award, warrants a separate formal decision and preliminary overpayment
finding.12 OWCP procedures further note that, if the claimant is determined to be without fault,
Form CA-2202 (preliminary finding notice) must be released within 30 days of the date the
overpayment is identified. It must clearly state the reason that the overpayment occurred and
provide the preliminary finding that the claimant is without fault. Form CA-2202 informs the
claimant of the right to submit evidence and the right to a prerecoupment hearing on the issues of
fact and amount of overpayment and waiver.13

4

20 C.F.R. § 10.431(a).

5

Id. at § 10.431(b).

6

Id. at § 10.431(c).

7

Id. at § 10.431(d).

8

Id. at § 10.432.

9

Id.

10

Id.

11

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4
(June 2009).
12

Id.

13

Id. at Chapter 2.600.4(a)(2) (June 2009).

3

ANALYSIS
By decision dated August 14, 2013, the Board set aside an October 10, 2012 OWCP
decision finding that appellant received an overpayment of compensation because OWCP
overpaid him for a schedule award. The Board found that the case was not in posture for
determination regarding the extent of his permanent impairment and that it was consequently
premature to address the issue of the overpayment.
On remand, in a decision dated December 19, 2013, OWCP again found that appellant
received an overpayment of compensation because he received schedule award compensation in
excess of his permanent impairment. The Board finds, however, that OWCP failed to follow its
procedures in issuing the December 19, 2013 overpayment decision. OWCP regulations provide
that before seeking to recover an overpayment or adjust benefits, it will advise the individual in
writing that the overpayment exists and the amount of overpayment.14 It must inform the
individual of his or her right to challenge the fact or amount of the overpayment, the right to
contest any preliminary finding of fault in the creation of the overpayment and the right to
request a waiver of recovery of the overpayment.15 OWCP procedures further provide that a
preliminary finding of overpayment must be provided within 30 days and clearly identify the
reason that the overpayment occurred.16
In this case, following its development of the schedule award issue on remand, OWCP
did not issue a new preliminary determination notifying appellant of its findings, providing him
with the right to challenge the fact or amount of overpayment or allowing him to submit new
information regarding waiver of recovery of the overpayment. Consequently, it did not comply
with the procedural rights afforded to appellant under its regulations.17 The Board, therefore,
finds that the case must be remanded for OWCP. Upon remand OWCP shall issue a preliminary
determination to appellant regarding any overpayment in accordance with its procedures, prior to
making any final overpayment determination.
CONCLUSION
The Board finds that OWCP improperly issued its December 19, 2013 overpayment
decision.

14

20 C.F.R. § 10.431(a).

15

Id. at § 10.431(d).

16

See supra note 11.

17

Id. at §§ 10.431, 10.432; see also K.H., Docket No. 11-603 (issued September 27, 2011); K.G., Docket No.
08-2135 (issued April 16, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision.
Issued: November 14, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESSEE VALLEY HEALTHCARE
SYSTEM, Nashville, TN, Employer
__________________________________________

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

Docket No. 16-1785
Issued: November 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 7, 2016 appellant filed a timely appeal from a September 1, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than eight percent permanent
impairment of the right middle finger, for which he previously received a schedule award.
FACTUAL HISTORY
On November 24, 2015 appellant, then a 30-year-old general engineer, filed a traumatic
injury claim (Form CA-1) alleging a partial amputation of the right middle finger, which
1

5 U.S.C. § 8101 et seq.

occurred on November 17, 2015 when a door at work slammed shut on his finger. He was
treated in the employing establishment’s emergency department and released later that same
day.2 Appellant stopped work on November 18, 2015 and returned to work November 23, 2015.
On December 22, 2015 OWCP accepted the claim for traumatic right middle finger amputation.
On January 27, 2016 appellant filed a claim for a schedule award (Form CA-7).
Appellant was unable to obtain an impairment rating from his own physician(s),
therefore, OWCP referred him to Dr. David A. West, an orthopedic surgeon. In an April 13,
2016 report, Dr. West diagnosed traumatic amputation of the distal phalanx, right long finger.
He noted that the amputation was appropriate at the distal phalanx with nice contour. Dr. West
also reported that appellant had full range of motion to all digits of the right hand, including the
long finger. He estimated that appellant reached maximum medical improvement (MMI) on
approximately January 1, 2016. Based on his evaluation, Dr. West found that appellant had eight
percent permanent impairment of the right upper extremity under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (2009)
(A.M.A., Guides). Referencing Table 15-28, Impairment of Upper Limb Amputation at Various
Levels, A.M.A., Guides 457, he noted that an amputation at the distal phalangeal (DIP) joint
(index or middle finger) yielded 45 percent permanent impairment of the digit, or 9 percent
impairment of the hand, 8 percent impairment of the upper extremity, or 5 percent whole person
impairment. Dr. West found that there were no applicable adjustment modifiers, and thus,
concluded that appellant had eight percent permanent impairment of the “right upper extremity”
due to his accepted work injury.
In an April 26, 2016 report, Dr. Morley Slutsky, a Board-certified occupational medicine
specialist and OWCP medical adviser, questioned the accuracy of Dr. West’s impairment rating.
He noted that it appeared from the record that a majority of appellant’s distal phalanx was still
present, and therefore, he questioned why Dr. West rated appellant as if the whole distal phalanx
had been amputated. Dr. Slutsky indicated that in order to provide an accurate rating, Dr. West
should quantify the amount of distal phalanx amputation, citing Figure 15-5, Digit Impairment
due to Finger Amputation at Various Lengths, A.M.A., Guides 426 (6th ed. 2009).
OWCP referred the case back to Dr. West, and in a May 3, 2016 supplemental report he
indicated that there was no discrepancy with his eight percent impairment rating for the third
phalanx. Dr. West explained that according to Figure 15-5, eight percent did indeed only involve
the tip of the digit. He further noted that a complete amputation of the DIP would represent 40
percent impairment of the digit, which he had not mentioned anywhere in his report, but after
reviewing Table 15-12, Impairment Values Calculated From Digit Impairment, A.M.A., Guides
421(6th ed. 2009), Dr. West indicated that he would amend the calculated five percent whole
person impairment. He explained that under Table 15-12, eight percent “digital (sic)
impairment” of the index or middle finger would convert to two percent permanent impairment
of the hand, and one percent upper extremity or whole person impairment. Accordingly,
Dr. West amended his prior report to reflect that appellant had an “[eight percent] digital (sic)
impairment and a [one percent] upper extremity impairment.”
2

A November 17, 2015 right hand x-ray revealed acute traumatic amputation of the distal end of the third digit,
which included amputation of the very distal portion of the terminal tuft of the distal phalanx.

2

In an August 4, 2016 report, Dr. Slutsky, OWCP’s medical adviser, indicated that the
final right middle finger digit impairment was eight percent, consistent with Dr. West’s
supplemental report. He indicated that the impairment rating was consistent with Figure 15-12,
Digit Impairment Percent for Finger Amputation at Various Lengths, A.M.A., Guides 458 (6th
ed. 2009). Dr. Slutsky also found that appellant reached MMI on April 13, 2016, rather than
January 1, 2016 as Dr. West previously indicated.
By decision dated September 1, 2016, OWCP granted a schedule award for eight percent
permanent impairment of the right middle finger. The award covered a 2.4-week period from
April 13 through 29, 2016.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA however does not specify the manner by which the percentage loss of a member, function,
or organ shall be determined. To ensure consistent results and equal justice of all claimants
under the law, good administrative practice requires the use of uniform standards applicable to
all claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For decisions issued after May 1, 2009, the
sixth edition is used to calculate schedule awards.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition should be Class of Diagnosis (CDX), which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE), and Clinical
Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).10

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

T.L., Docket No. 17-0546 (issued September 5, 2017).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010), see also Federal (FECA) Procedure Manual -- Part 2 -- Claims, Schedule Awards and Permanent
Disability Claims, Chapter 2.808.5a (February 2013).
8

See Dale B. Larson, 41 ECAB 481, 490 (1990); id. at Chapter 3.700.3.a.3 (January 2010).

9

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
10

Id. at 383-419.

3

OWCP procedures provide that, after obtaining all necessary evidence, the file should be
forwarded to OWCP’s medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.11
ANALYSIS
The issue on appeal is whether appellant has established greater than eight percent
permanent impairment of his right middle finger, for which he previously received a schedule
award. The Board finds that appellant has no greater than eight percent permanent impairment
of the right middle finger.
Dr. West, an orthopedic surgeon, based upon a referral by OWCP, evaluated appellant
and provided an opinion on the extent of permanent impairment. In an April 13, 2016 report, he
diagnosed traumatic amputation of the distal phalanx, right long finger and noted that the
amputation was appropriate at the distal phalanx with nice contour. Referencing Table 15-28,
Impairment of Upper Limb Amputation at Various Levels, A.M.A., Guides 457, Dr. West found
that appellant had eight percent permanent impairment of the right upper extremity under the
sixth edition of the A.M.A., Guides. He found that there were no applicable adjustment
modifiers, and thus, concluded that appellant had eight percent permanent impairment due to his
accepted work injury.
OWCP routed the report of Dr. West to its medical adviser, Dr. Slutsky. Dr. Slutsky
indicated that in order to provide an accurate rating, Dr. West should quantify the amount of
distal phalanx amputation, citing Figure 15-5, Digit Impairment due to Finger Amputation at
Various Lengths, A.M.A., Guides 426 (6th ed. 2009).
In a May 3, 2016 supplemental report Dr. West indicated that there was no discrepancy
with his eight percent impairment rating for the third phalanx. He explained that according to
Figure 15-5, eight percent did indeed only involve the tip of the digit. Dr. West did amend his
prior report to reflect that appellant had an “[eight percent] digital (sic) impairment and a [one
percent] upper extremity impairment.”
In an August 4, 2016 report, Dr. Slutsky, OWCP’s medical adviser, indicated that the
final right middle finger digit impairment was eight percent, consistent with Dr. West’s
supplemental report.
The medical evidence of record applicable to the extent of appellant’s permanent
impairment of his right middle finger are the impairment rating opinions of Dr. West and
OWCP’s medical adviser Dr. Slutsky. Both physicians have provided opinions limiting
appellant’s permanent impairment to eight percent of the right middle finger. The Board finds
that Dr. West and Dr. Slutsky properly utilized the A.M.A., Guides in calculating an eight
percent impairment rating and their reports constitute the weight of the medical evidence.
Appellant has not provided any additional medical evidence upon which a higher rating of
permanent impairment could be based for purposes of an additional schedule award. The Board
11

Id. at 411.

4

therefore finds that appellant has no more than eight percent permanent impairment of his right
middle finger, for which he previously received a schedule award.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than eight percent permanent
impairment of his right middle finger, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 1, 2016 is affirmed.
Issued: November 9, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


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

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1716
Issued: February 4, 2015

Case Submitted on the Record

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

JURISDICTION
On August 4, 2014 appellant, through her attorney, filed a timely appeal from a
March 25, 2014 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.
ISSUE
The issue is whether appellant sustained a recurrence of disability when the employing
establishment withdrew limited duty.

1

Together with her appeal appellant, through her representative, submitted a timely request for oral argument,
pursuant to 20 C.F.R. § 501.5(b). The Board exercised its discretion pursuant to 20 C.F.R. § 501.5(a) and denied the
request by order dated December 23, 2014 on the grounds that appellant’s contention could be fully addressed based
on a review of the evidence of record. Order Denying Request for Oral Argument, Docket No. 14-1716 (issued
December 23, 2014).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 5, 1999 appellant, then a 42-year-old full-time mail processor, sustained a
traumatic injury in the performance of duty while bending over to put labels in boxes. She
twisted when her name was called, and she felt a sharp pain in her lower back. OWCP accepted
appellant’s claim for lumbosacral strain and aggravation of herniated disc at L4-5. Appellant
underwent a discectomy at L4-5 on March 2, 2000.
On January 14, 2002 OWCP issued a loss of wage-earning capacity (LWEC)
determination after appellant was reemployed for four hours a day as a mail processor effective
January 8, 2001. It found that her wages in this position fairly and reasonably represented her
wage-earning capacity. OWCP adjusted appellant’s compensation for wage loss accordingly.
In a decision dated July 31, 2002, however, OWCP rescinded its January 14, 2002 LWEC
determination. It found that the decision was in error, as earnings in a part-time position cannot
reasonably represent the wage-earning capacity of an employee whose date-of-injury position
was full time.
On December 5, 2012 appellant filed a Form CA-2a, notice of recurrence. She claimed
that she sustained a recurrence of total disability on June 30, 2012 when her employing
establishment withdrew her light-duty assignment.
By letter dated February 7, 2014, OWCP informed appellant that a formal LWEC
determination had been issued in her case on January 14, 2002. It provided her with a copy of
that determination. OWCP then notified appellant of the three criteria for obtaining modification
of an LWEC determination. It advised that an employing establishment withdrawal of a
light-duty assignment was not considered one of the three reasons to modify “the current LWEC
decision.”
In a decision dated March 25, 2014, OWCP denied modification of its January 14, 2002
LWEC determination.
Counsel argues that OWCP rescinded the January 14, 2002 LWEC determination, and as
a result, the issue was not modification of an LWEC determination, but rather was one of
recurrence.
LEGAL PRECEDENT
Once OWCP issues a formal decision on wage-earning capacity, the rating should be left
in place until the claimant requests resumption of compensation for total wage loss for more than
a limited period of disability, in which instance OWCP will need to evaluate the request
according to the customary criteria for modifying a formal wage-earning capacity
determination.3

3

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

2

FECA specifies that an award for or against payment of compensation may be reviewed
at any time on the Director’s own motion. Such review may be made without regard to whether
there is new evidence or information. If the Director determines that a review of the award is
warranted (including, but not limited to, circumstances indicating a mistake of fact, or law or
changed conditions), the Director (at any time and on the basis of existing evidence) may
modify, rescind, decrease, or increase compensation previously awarded, or award compensation
previously denied.4
ANALYSIS
After appellant filed her recurrence claim on December 5, 2012, OWCP observed that it
had issued a formal LWEC determination on January 14, 2002 and that the issue, therefore, was
whether appellant had established one of the three criteria for modifying the existing LWEC
determination. Under normal circumstances, this would have been the correct procedure.
However, OWCP rescinded its January 14, 2002 LWEC determination, approximately
six months after its issuance. In a decision dated July 31, 2002, it explained that LWEC
determination was in error. OWCP found that actual earnings in a part-time position could not
be used to determine the wage-earning capacity of an employee who was a full-time employee at
the time of injury.
Thus, when appellant filed her recurrence claim on December 5, 2012, there was no
longer a formal LWEC determination in place. She was free to pursue her recurrence claim in
the usual manner without having to meet the criteria for modifying an LWEC determination.
Counsel correctly argued this issue on appeal.
Accordingly, the Board will set aside OWCP’s March 25, 2014 decision denying
modification of the January 14, 2002 LWEC determination. The Board will remand the case to
OWCP for further development and a de novo decision on appellant’s recurrence claim.
CONCLUSION
The Board finds that this case is not in posture for decision. Further action is warranted.

4

20 C.F.R. § 10.610.

3

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: February 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
Louisville, KY, Employer
__________________________________________

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Appearances:
Rosanna Heinrichs, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-702
Issued: May 9, 2013

Case Submitted on the Record

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

JURISDICTION
On February 5, 2013 appellant, through her attorney, filed a timely appeal from a
September 28, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation and a December 12, 2012 nomerit decision denying her request for
reconsideration. 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 and over the
December 12, 2012 nonmerit decision.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation effective November 9, 2011 on the grounds that she had no further disability due
to her November 13, 2010 employment injury; (2) whether it properly terminated authorization
for medical benefits; (3) whether appellant has established continuing disability after

1

5 U.S.C. § 8101 et seq.

November 9, 2011 due to her accepted work injury; and (4) whether OWCP properly denied her
request to reopen her case for further review of the merits under 5 U.S.C. § 8128.
FACTUAL HISTORY
On November 18, 2010 appellant, then a 45-year-old nursing assistant, filed a traumatic
injury claim alleging that on November 13, 2010 she injured her lower back when she was
thrown on the floor by a patient. OWCP accepted the claim for lumbar sprain, spinal stenosis at
L3-4 and lumbosacral spondylosis without myelopathy.
Appellant stopped work on
November 13, 2010 and returned to limited-duty employment on November 23, 2010. She
stopped work again on March 23, 2011 and did not return. OWCP paid appellant compensation
for total disability.
On April 19, 2011 appellant received treatment from a nurse for neck, mid-back and right
shoulder pain due to a March 31, 2011 motor vehicle accident. She informed the nurse that
Dr. Robert Roach, a chiropractor, was treating her for the injuries sustained in the motor vehicle
accident.
On May 26, 2011 OWCP referred appellant to Dr. Stanley W. Collis, a Board-certified
orthopedic surgeon, for a second opinion examination.
On June 22, 2011 Dr. Louie N. Williams, a Board-certified physiatrist, evaluated
appellant for low back, upper middle back, right shoulder and left knee pain. He stated,
“[Appellant] had a work injury this past November and subsequently had a motor vehicle
accident in March. She was taken off work prior to the motor vehicle accident apparently.”
Dr. Williams diagnosed facet syndrome, radiculopathy, myofascial/fibromyalgia and
degenerative disc disease and found that appellant should remain off work pending epidural
injections.
On July 8, 2011 Dr. Roach diagnosed cervical, thoracic and lumbar sprain/strain, lumbar
disc displacement and muscle spasms. He attributed the conditions to the March 31, 2011 motor
vehicle accident.
In a report dated August 15, 2011, Dr. Raghunath Gudibanda, a Board-certified
neurologist, discussed appellant’s history of an employment injury on November 13, 2010 and a
subsequent motor vehicle accident in March 2011. He diagnosed lumbar degenerative disc
disease, lumbar facet arthropathy, lumbar myofascial pain and left L5-S1 radiculopathy.
Dr. Gudibanda scheduled lumbar steroid injections.
On August 23, 2011 Dr. Collis reviewed appellant’s history of a November 13, 2010
employment injury and motor vehicle accidents in 2004, 2007 and on March 31, 2011. On
examination, he measured good back movement without guarding or pain and a negative straight
leg sign and Lasegue sign. Dr. Collis found “no evidence of muscle wasting or muscle weakness
in either lower extremity” and noted that diagnostic studies did not show herniations or nerve
compression. He stated, “There was no evidence of lumbar sprain or any subjective findings of
spinal stenosis. I did not see any obvious lumbosacral spondylosis on this examination.”

2

Dr. Collis advised that appellant’s subjective complaints outweighed the physical findings and
determined that she could resume her usual employment without restrictions.
On September 21, 2011 OWCP notified appellant that it proposed to terminate her wageloss compensation and medical benefits.2 Appellant did not respond.
By decision dated November 9, 2011, OWCP terminated appellant’s compensation
benefits effective that date. It found that Dr. Collis’ opinion represented the weight of the
medical evidence and established that she had no further employment-related disability or
residuals requiring medical treatment.
In a report dated November 11, 2011, Dr. Michael T. Casnellie, a Board-certified
orthopedic surgeon, reviewed appellant’s history of a November 13, 2010 employment injury
and a March 31, 2011 motor vehicle accident. He noted that the motor vehicle accident had
“aggravated her pain and symptoms, but she did ultimately go back to baseline pain levels which
she had been experiencing from the work-related injury [of] November 13, 2010.” On
examination, Dr. Casnellie found a mild positive straight leg raise on the left and pain in the
lower back. He diagnosed lumbar facet arthropathy, lumbar stenosis and low back pain and
recommended lumbar facet injections. Dr. Casnellie stated that appellant was unable to work.
In a progress report dated February 28, 2012, Dr. Casnellie again recommended facet
injections. He noted that appellant wanted to return to work because she had no income and
indicated that he would “arbitrarily place her in the sedentary category level of work….”3
In a report dated May 14, 2012, Dr. Roach reviewed the findings from a magnetic
imaging study and computerized tomography scan and diagnosed disc bulging and degenerative
changes. He found that appellant’s injuries in her 2011 motor vehicle accident were more severe
due to her preexisting degenerative condition.
On November 19, 2011 appellant requested reconsideration. In an undated statement, her
attorney argued that she continued to experience back pain and requested that she receive a
schedule award based on Dr. Casnellie’s March 19, 2012 report.4 Counsel contended that
Dr. Roach’s May 14, 2012 letter established that appellant sustained more significant injuries in
the March 31, 2011 motor vehicle accident due to her prior employment injury. Appellant was
unable to perform her regular employment and required additional medical treatment for her
injuries. Counsel also maintained that Dr. Collis did not perform a complete examination or
review all the medical evidence of record.

2

On September 14 and 28, 2011 Dr. Gudibanda performed lumbar epidural steroid injections.

3

On March 28, 2012 Dr. David P. Rouben, a Board-certified orthopedic surgeon, diagnosed stenosis and
spondylosis and performed a lumbar facet joint injection. On April 30, 2012 Dr. Casnellie recommended an
ablation. On June 4, 2012 appellant underwent radiofrequency ablation.
4

In a report dated March 19, 2012, Dr. Casnellie advised that appellant had a five to eight percent whole person
impairment due to her lumbar spine condition.

3

By decision dated September 28, 2012, OWCP denied modification of its November 19,
2011 decision. It found that the reports from Dr. Roach were of no probative value as he did not
diagnose a subluxation by x-ray and that the remaining medical evidence failed to provide a
rationalized opinion explaining how appellant remained disabled due to her work injury.
In an unsigned affidavit received November 23, 2012, appellant requested
reconsideration. She argued that Dr. Collis did not perform his examination “with due diligence”
or review the medical records she brought to the examination. Appellant maintained that she
continued to experience disability due to her work injury and that the employing establishment
was acting unreasonably by refusing to let her return to work with limitations.
In a decision dated December 12, 2012, OWCP denied appellant’s request for
reconsideration finding that she did not submit sufficient evidence or argument to warrant
reopening her case for further review of the merits. It noted that she did not provide any new
medical evidence with her request for reconsideration.
On appeal, appellant’s attorney contends that appellant sustained permanent impairment
entitling her to a schedule award as established by the March 19, 2012 report of Dr. Casnellie.
Counsel also argued that Dr. Roach’s May 14, 2012 report supports that appellant’s back injuries
arising from her March 2011 motor vehicle accident were more severe because of her
November 2010 employment injury. Dr. Casnellie found that appellant could perform sedentary
work and counsel maintained that appellant continued to benefit from medical treatment for her
injury. Counsel also maintains that Dr. Collis did not review the medical records appellant
brought to the examination or perform a complete physical examination.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained lumbar sprain, spinal stenosis at L3-4 and
lumbosacral spondylosis without myelopathy due to a November 13, 2010 employment injury.
Appellant worked limited-duty employment until March 23, 2011, when she stopped work and
did not return. OWCP paid wage-loss compensation for total disability until November 9, 2011,
when it terminated her compensation based on the opinion of Dr. Collis, a referral physician.
The Board finds that the August 23, 2011 report of Dr. Collis is probative and well
rationalized and represents the weight of the medical evidence. Dr. Collis reviewed the history
5

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

6

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

4

of appellant’s November 13, 2010 work injury and the history of motor vehicle accidents in
2004, 2007 and on March 31, 2011. He also accurately summarized the relevant medical
evidence.7 On examination, Dr. Collis found no evidence of atrophy or weakness in the lower
extremities and that appellant moved her back well and without pain. He further found a
negative straight leg sign and that objective studies did not reveal a herniation or compression of
a nerve. Dr. Collis explained that the subjective complaints outweighed the objective findings
and concluded that appellant had no further evidence of lumbar sprain, spinal stenosis or
lumbosacral spondylosis. He found that she could return to her usual employment without
restrictions. Dr. Collis’ report, which is based on a complete and accurate work history and
supported by rationale, constitutes the weight of the evidence and establishes that appellant has
no further disability due to her November 13, 2010 employment injury.8
The remaining evidence submitted prior to the termination of compensation is
insufficient to show that appellant had any remaining work-related disability. Appellant received
treatment from Dr. Roach, a chiropractor. Section 8101(2) of FECA provides that the term
“physician” includes chiropractors only to the extent that their reimbursable services are limited
“to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist….”9 A chiropractor is not considered a “physician” as defined
under FECA unless it is established that there is a subluxation as demonstrated by x-ray
evidence.10 As Dr. Roach did not diagnose a subluxation as demonstrated by x-ray, he is not a
“physician” under FECA and his report is of no probative value.11
In a report dated June 22, 2011, Dr. Williams noted appellant’s history of both a work
injury in November 2010 and a motor vehicle accident in March 2011. He diagnosed facet
syndrome, radiculopathy, fibromyalgia and degenerative disc disease. In a report dated
August 15, 2011, Dr. Gudibanda reviewed the history of injury and diagnosed lumbar
degenerative disc disease, facet arthropathy and left L5-S1 radiculopathy. Neither Dr. Williams
nor Dr. Gudibanda, however, addressed the cause of the diagnosed conditions. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of diminished
probative value on the issue of causal relationship.12
On appeal, appellant’s attorney asserts that Dr. Collis did not review the medical records
she took to the examination or perform an adequate examination. As discussed, however,
Dr. Collis reviewed the medical evidence of record provided by OWCP and listed detailed
findings on examination.
7

See Melvina Jackson, 38 ECAB 443 (1987).

8

See E.J., 59 ECAB 695 (2008).

9

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

10

OWCP’s regulations, at 20 C.F.R. § 10.5(bb), defines subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See
Mary A. Ceglia, 55 ECAB 626 (2004).
11

See Isabelle Mitchell, 55 ECAB 623 (2004).

12

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

5

LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.13 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.14
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. Collis, the second opinion examiner, who found that appellant had no further
evidence of her accepted conditions. Dr. Collis explained that based on his physical examination
she had no further signs of lumbar sprain, spinal stenosis or lumbosacral spondylosis. As his
opinion is detailed and well rationalized, it constitutes the weight of the evidence and establishes
that appellant has no further residuals of her accepted employment injury.15
On appeal, appellant’s attorney argues that appellant benefits from continued medical
treatment. The weight of the evidence, however, establishes that appellant has no further need
for treatment due to her November 2010 employment injury.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to
appellant to establish that he or she has continuing disability after that date related to his or her
accepted injury.16 To establish a causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such a causal
relationship.17 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.18
ANALYSIS -- ISSUE 3
Given the Board’s finding that OWCP properly relied upon the opinion of Dr. Collis in
terminating compensation, effective November 9, 2011, the burden of proof shifted to appellant
to establish that she remained entitled to compensation after that date.19 Appellant submitted a
13

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

14

Id.

15

See Manual Gill, 52 ECAB 282 (2001); Mary A. Lowe, 52 ECAB 223 (2001).

16

See I.J., 59 ECAB 408 (2008); Franklin D. Haislah, 52 ECAB 457 (2001).

17

Id.

18

See Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

19

See Manual Gill, supra note 15.

6

May 14, 2012 report from Dr. Roach; however, as previously discussed, he does not diagnose a
subluxation by x-ray and thus his report does not constitute medical evidence under FECA.20
On November 11, 2011 Dr. Casnellie related that appellant’s March 31, 2011 motor
vehicle accident increased her pain and symptoms but that she then returned to the “baseline pain
levels” caused by her November 13, 2010 employment injury. He found a mild positive straight
leg test on examination and diagnosed lumbar facet arthropathy, lumbar stenosis and low back
pain. Dr. Casnellie advised that appellant was disabled from employment. He did not, however,
specifically attribute the disability to the November 13, 2010 work injury or provide any
rationale for his conclusions. Medical conclusions unsupported by rationale are of little
probative value.21
On February 28, 2012 Dr. Casnellie recommended facet injections and found that
appellant could resume sedentary employment. As he did not address the cause of any work
limitations, his opinion is of diminished probative value.
On appeal, appellant’s attorney argues that appellant is entitled to receive a schedule
award based on Dr. Casnellie’s March 19, 2012 impairment evaluation. The Board’s jurisdiction
is limited to reviewing final decisions of OWCP.22 OWCP has not issued a decision on a
schedule award claim. Consequently, this issue is not before the Board at this time.
Counsel also contends that the May 14, 2012 opinion of Dr. Roach supports that
appellant’s work injury caused the injuries from her March 2011 motor vehicle accident to be
more severe. As noted, however, Dr. Roach’s opinion is not that of a physician under FECA as
he did not diagnose a subluxation by x-ray and thus his reports do not constitute probative
medical evidence.23
LEGAL PRECEDENT -- ISSUE 4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,24
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.25 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year

20

See Kathryn Haggerty, 45 ECAB 383 (1994).

21

See Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

22

20 C.F.R. § 501.2(c).

23

See supra note 20.

24

Supra note 1. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.”
25

20 C.F.R. § 10.606(b)(2).

7

of the date of that decision.26 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.27
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.28 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.29
ANALYSIS -- ISSUE 4
On November 23, 2012 appellant requested reconsideration of OWCP’s termination of
her compensation. She argued that Dr. Collis failed to review medical records that she brought
with her to the examination and did not perform a thorough examination. Appellant, however,
previously raised these contentions before OWCP prior to its September 28, 2012 merit decision
denying modification of its termination of compensation. Evidence or argument which repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.30
Appellant additionally argued that she continued to have employment-related disability.
Her lay opinion, however, is not relevant to the medical issue in this case, which can only be
resolved through the submission of probative medical evidence from a physician.31
Appellant additionally maintained that the employing establishment erred in failing to
allow her to return to work with restrictions. The Board’s jurisdiction, however, is limited to
reviewing final decisions of OWCP rather than actions of the employing establishment.32
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

26

Id. at § 10.607(a).

27

Id. at § 10.608(b).

28

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

29

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
30

C.N., Docket No. 08-1569 (issued December 9, 2008); Richard Yadron, 57 ECAB 207 (2005).

31

L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).

32

20 C.F.R. § 501.2(c).

8

CONCLUSION
The Board finds OWCP properly terminated appellant’s compensation and authorization
for medical benefits effective November 9, 2011 on the grounds that she had no further
employment-related disability or need for medical treatment due to her November 13, 2010
employment injury. The Board further finds that she has not established that she had continuing
disability after November 9, 2011 due to her accepted work injury and that OWCP properly
denied her request to reopen her case for further review of the merits under section 8128.
ORDER
IT IS HEREBY ORDERED THAT the December 12 and September 28, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 9, 2013
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1357
Issued: March 15, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 14, 2021 appellant filed a timely appeal from a May 19, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 5, 2021 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2019 appellant, then a 57-year-old scheduling officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2019 she experienced an asthma attack
when exposed to dust while in the performance of duty. She stopped work on the date of injury.
In support of her claim, appellant submitted an October 17, 2019 hospital emergency
department report by Dr. Richard D. Zane, Board-certified in emergency medicine. Dr. Zane
related that appellant had a history of asthma, and had not experienced a severe exacerbation since
2014 until that day while in her office in the baggage claim area at work. He attributed the current
episode to odor and mold caused by water leaking through the ceiling tiles in her office. On
examination, Dr. Zane observed diminished expiratory sounds with end expiratory wheezing,
coughing, tachycardia, dyspnea, respiratory distress, and tremulousness. As nebulizer treatments
in the emergency department did not improve appellant’s symptoms, she was admitted to the
intensive care unit. Dr. Zane diagnosed an asthma exacerbation attack.
In an October 17, 2019 intensive care unit report, Dr. Richard William Vandivier, Boardcertified in internal medicine and pulmonology, noted that appellant presented with acute shortness
of breath while at work. He noted “[s]he states that there has been some construction and leaking
of moldy odor fluid in her office which likely precipitated her shortness of breath.”
In an October 18, 2019 hospital discharge report, Dr. Vandivier diagnosed an asthma
exacerbation and prescribed medication. He noted that it was important for appellant to avoid any
environmental triggers, particularly at her workplace, “to prevent this from occurring again.”
In a development letter dated June 12, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide comments from a knowledgeable
supervisor on the accuracy of appellant’s statements and the type of tasks performed which
resulted in the exposure and the duration. It afforded both parties 30 days to provide the necessary
evidence.
In response, the employing establishment provided a June 22, 2020 statement confirming
that in the area where appellant was seated on October 17, 2019, there were missing ceiling tiles
and large trashcans placed to collect dripping water. There was also a “smell that was not right.
[Appellant] began coughing and using her emergency inhaler.” She left the area at her supervisor’s
instruction, but her breathing became more erratic. Paramedics were called to the scene and
recommended appellant be taken to an emergency department. Appellant’s husband then
transported her to the hospital.
In a June 24, 2020 statement, appellant’s supervisor, asserted that on the date appellant
experienced an asthma attack, “[w]hen entering the office there was a strong mildew smell with
several wet ceiling tiles and trash cans filled with water.” Appellant began coughing 30 minutes
after her arrival. She exited the office to get fresh air, then began struggling to breathe. Paramedics
were summonsed and administered medication, which did not relieve appellant’s symptoms.
Appellant’s husband then transported her to the hospital.

2

By decision dated July 23, 2020, OWCP accepted that the October 17, 2019 incident
occurred as alleged but denied appellant’s claim as the medical evidence of record did not contain
a diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On August 11, 2020 appellant requested reconsideration.
medical evidence.

She submitted additional

In an August 4, 2020 report, Dr. Mark Nathanson, an osteopath specializing in family
medicine, noted treating appellant for severe, persistent asthma for more than five years.
Appellant also submitted employing establishment e-mails dated from October 18
through 20, 2019 noting that a water pipe had broken above her work area, causing extensive
leakage and significant odor. In an October 18, 2019 e-mail, a safety specialist, cautioned that
there were “layers of particles that can easily set off [appellant’s] asthma again.”
By decision dated September 16, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
On December 2, 2020 appellant requested reconsideration. She submitted an October 1,
2020 report by Dr. Nathanson, who noted that appellant had been doing fairly well with her asthma
until an exacerbation at work caused by black mold on waterlogged tiles which caused appellant
to be hospitalized due to the injury. Dr. Nathanson diagnosed a resolved severe exacerbation of
moderate persistent allergic asthma, vocal cord dysfunction, and stable asthma. He prescribed
medication.
By decision dated March 5, 2021, OWCP modified its July 23, 2020 decision to find that
appellant had established a diagnosis that could reasonably be connected to the claimed condition.
The claim remained denied as the medical evidence of record was insufficient to establish causal
relationship.
On May 12, 2021 appellant requested reconsideration. She submitted a May 7, 2021
statement reiterating her account of the events of October 17, 2019. Appellant also submitted an
April 26, 2021 note from Dr. Nathanson noting that her “[a]cute attack which led to
hospitalization” was “caused by dust and other particulate components which stemmed from wet
ceiling tiles at her place of work.” He opined, “this is what brought on her attack.”
By decision dated May 19, 2021, OWCP denied appellant’s request for reconsideration. It
found, “[s]pecifically, causal relationship is a medical issue and you did not submit any medical
evidence in support of your request for reconsideration. We have not received a well-rationalized
medical report.…”

3

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 own motion or on application. 2
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.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 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. 6
ANALYSIS
The Board finds that this case is not in posture for decision.
In denying appellant’s request for reconsideration, OWCP did not reference
Dr. Nathanson’s April 26, 2021 report addressing the causal relationship between the claimed
asthma attack to appellant’s exposure to wet ceiling tiles and particulates at the employing
establishment.
In the case of William A. Couch,7 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that Dr. Nathanson’s April 26, 2021 report was
reviewed and considered by OWCP in its May 19, 2021 decision. 8 In its May 19, 2021 decision,
OWCP denied appellant’s request for reconsideration, finding that she failed to submit any medical
evidence in support of her request for reconsideration. As it did not review or consider
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(a).

6

Id. at § 10.608(b).

7

41 ECAB 548, 553 (1990).

8

See T.G., Docket No. 19-1930 (issued January 8, 2021).

4

Dr. Nathanson’s April 26, 2021 report, it failed to follow its own procedures by properly
discussing the relevant evidence of record. 9
As the Board’s decisions are final as to the subject matter appealed, it is crucial that OWCP
address all relevant evidence properly submitted to OWCP prior to the issuance of its decision. 10
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record. Following this and other such further development as deems necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9
All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
10

20 C.F.R. § 501.6(d); supra note 8; W.G., Docket No. 20-1536 (issued December 17, 2021); see also A.V., Docket
No. 20-1251 (issued January 28, 2021).

5

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 15, 2022
Washington, DC

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

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

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

6