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

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Appearances:
Appellant, pro se
Ashkea Herron McAllister, for the Director

Docket No. 14-1165
Issued: July 8, 2015

Oral Argument January 20, 2015

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2014 appellant filed a timely appeal from an October 30, 2013 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.
ISSUES
The issues are: (1) whether OWCP properly found that appellant forfeited her right to
compensation from February 4, 2006 to May 14, 2012; (2) whether appellant received a
$292,280.66 overpayment of compensation; and (3) whether she was at fault in the creation of
the overpayment, thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
In April 1997, OWCP accepted that appellant, then a 37-year-old supervisor of customer
service, sustained an adjustment disorder due to the performance of her work duties and other
conditions at work. Appellant stopped work and began to receive compensation on the periodic
rolls beginning in June 2002.
Between 2007 and 2013, appellant completed EN1032 forms which contained language
advising her what types of employment activities, earnings, and volunteer activities that she was
required to report for each 15-month period prior to the time she signed each form.
The EN1032 forms instructed appellant to report all employment for which she received
a salary, wages, income, sales commissions, piecework, or payment of any kind. Appellant was
directed to report all self-employment or involvement in business enterprises, including (but not
limited to) farming, sales work, operating a business, and providing services in exchange for
money, goods, or other services. Examples of services that she was required to report included
such activities as carpentry, mechanical work, painting, contracting, child care, keeping books
and records, odd jobs, and managing and overseeing a business of any kind, including a family
business. Such activities had to be reported even if they were part time or intermittent.
The EN1032 forms also instructed appellant to report any work or ownership interest in
any business enterprise, even if the business lost money or if profits or income were reinvested
or paid to others. If appellant performed any duties in a business enterprise for which she was
not paid, she had to show what the rate of pay would have cost the employer or organization to
hire someone to perform the work or duties she did, even if the work was for her or a family
member or relative. The forms contained certification clauses which informed her of the
consequences of not accurately reporting her employment activities, such as being subjected to
criminal penalties and losing the right to receive workers’ compensation.
On May 4, 2007, May 7, 2008, May 6, 2009, May 7, 2010, May 13, 2011, and May 14,
2012, appellant completed EN1032 forms indicating that she did not engage in any employment,
self-employment, or volunteer work for the 15-month period prior to completing each form.2
These EN1032 forms collectively covered the period February 4, 2006 to May 14, 2012.
In an EN1032 form completed on May 19, 2013 and covering the period February 19,
2012 to May 19, 2013, appellant reported that she had self-employment between February 2012

2

The EN1032 forms appellant completed between May 4, 2007 and May 7, 2010 asked her, “During the past 15
months, did you perform any volunteer work for which any form of monetary or in-kind compensation was
received?” The EN1032 forms she completed on May 13, 2011 and May 14, 2012 contained a change in language
and asked, “During the past 15 months, did you perform any volunteer work including volunteer work for which any
form of monetary or in-kind compensation was received?”

2

and May 2013.3 On the same form, she also reported that she performed volunteer work between
January 2012 and May 2013 for six to eight hours per week.4
On January 23, 2013 OWCP received a January 16, 2013 investigative memorandum of
the employing establishment’s Office of Inspector General (OIG) in which it was concluded that
appellant engaged in employment activity between 2007 and 2012 in connection with the
organizations Word Church and Potter’s House.
The OIG agent who completed the report indicated that appellant had been listed in
Georgia corporation annual registration records for each of the years between 2007 and 2012 as
Secretary of Word Church and Chief Executive Officer of Potter’s House.5 It was noted that
evidence revealed that Word Church and Potter’s House had been incorporated by appellant’s
husband in 1996 and 2003, respectively. Appellant’s husband was listed on documents as Chief
Executive Officer of Word Church and an Agent for Word Church. The OIG agent noted that
appellant was listed on Word Church’s website as “Executive Pastor” and that the website listed
her as facilitating a meeting of the “God’s Girls in the Earth/Women” life group on the second
Sunday of the month.6 The OIG report does not indicate, and the record does not otherwise
establish, that appellant was ever paid a salary or received in-kind compensation for activities
related to Word Church or Potter’s house.
In a February 4, 2013 decision, OWCP determined that appellant forfeited her right to
compensation from February 4, 2006 to May 14, 2012 because she failed to report employment
activities on EN1032 forms covering this period. It indicated that she worked for Word Church
and Potter’s House and noted that the wording of the EN1032 forms advised her of the need to
report such employment activities even if she was not paid for them. OWCP noted that
appellant’s activities were documented by evidence such as being listed on Word Church’s
website as “Executive Pastor,” with her own church-account e-mail address, and as facilitating
the “God’s Girls in the Earth/Women” life group on the second Sunday of the month.
In a February 4, 2013 letter, OWCP advised appellant of its preliminary determination
that she received a $292,280.66 overpayment of compensation because she forfeited her right to
any compensation from February 4, 2006 to May 14, 2012.7 It also made a preliminary
3

Appellant indicated that she served as Secretary of the Board for Word Church International, Inc. (hereinafter
Word Church) and Chairman of the Board for Potter’s House Community Development Corp. (hereinafter Potter’s
House).
4

Appellant indicated that she performed volunteer work in the form of office work (answering telephones,
performing clerical work, purchasing supplies, and attending meetings) and outreach (feeding the homeless, driving
a van, and mentoring). She received no monetary or in-kind compensation.
5

The state corporation documents were attached to the report and are presently included in the case record.

6

The record contains screenshots of these pages of Word Church’s website. The screenshot regarding the “God’s
Girls in the Earth/Women” life group also indicated that all life groups were on hiatus until January 2012 due to
Word Church hosting a function known as Financial Peace University. Another screenshot from 2011 lists appellant
as “Pastor.”
7

The record contains payment records and worksheets showing that appellant received $292,280.66 in
compensation from February 4, 2006 to May 14, 2012.

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determination that she was at fault in the creation of the overpayment, thereby precluding waiver
of recovery of the overpayment. OWCP indicated that the EN1032 forms completed by
appellant clearly advised her of the type of employment activities that needed to be reported. It
requested that she complete and return a financial information questionnaire (Form OWCP-20).
Appellant requested a telephone hearing with an OWCP hearing representative. During
the July 16, 2013 hearing, she testified that she had not worked as an employee for Word
Church, which was headed by her husband, a pastor, and that she was given the title of Secretary
for the church’s board because she was advised that an organization is required to have a certain
number of people on the board to incorporate. Appellant stated that she was ordained in 2005,
but that she had not performed any pastoral duties. She indicated that she had “done maybe two
or three Bible studies” over a period of three or four weeks. Appellant stated that she was not
aware that her name was on the church website with respect to leading courses and indicated she
only engaged in activities at Word Church as a member, including helping to feed the homeless
and collecting and taking clothes to the homeless. She testified that if she happened to be at
Word Church she would answer the telephone if nobody else was around and she asserted that
Word Church always employed a secretary who received a salary and handled telephone and
clerical matters. Appellant stated that she was not expected to be at Word Church or Potter’s
House at any given time, but noted that she did visit of her own volition in order to help out. She
testified that she did not receive any money or compensation for any of her activities and that her
physician recommended that she get involved with such activities. Appellant stated that her
husband started Word Church in 1996 and that he was always the pastor. She noted that the
activities she engaged in at Word Church or Potter’s House were due to the fact that she was a
member of the church and her husband was the pastor. Appellant indicated that she did not list
her activities on the EN1032 forms as employment or volunteer work because she did not
consider them to be such, but rather considered them to be the natural actions of a parishioner
who was involved with her church. She indicated that she was listed as Chief Executive Officer
of Potter’s House, but noted that this was not a “working” position. Appellant explained that she
was placed in the position because it was thought that it would be good for her to be in the
position in the event anything happened to her husband. She stated that her husband was the
executive director of Potter’s House and performed its main functions. Potter’s House was
created to help carry out charity work for the homeless.
Appellant submitted a number of documents concerning her income and her monthly
expenses, including tax forms, billing statements, and other financial documents. She provided a
statement indicating that she was not the leader or facilitator for the “God’s Girls in the
Earth/Women” life group but rather she only provided a video for the group to watch on two
occasions around 2010.
In an October 30, 2013 decision, OWCP affirmed its finding that appellant forfeited her
right to compensation from February 4, 2006 to May 14, 2012 because she failed to report
employment and earnings on EN1032 forms covering this period. It also found that she received
a $292,280.66 overpayment of compensation and that she was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.

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LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA8 provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered by a deduction from the compensation payable to
the employee or otherwise recovered under section 8129 of this title, unless
recovery is waived under that section.”9
An employee can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
or she “knowingly” omitted or understated earnings. It is not enough to merely establish that
there were unreported earnings. OWCP procedure manual recognizes that forfeiture is a
penalty,10 and, as a penalty provision, it must be narrowly construed.11 In OWCP’s regulations,
“knowingly” is defined as: “with knowledge, consciously, willfully or intentionally.”12 To meet
this burden, OWCP is required to examine closely the employee’s activities and statements. It
may meet this burden without an admission by an employee if the circumstances of the case
establish that he or she failed to reveal fully and truthfully the full extent of his or her
employment activities and earnings.13

8

5 U.S.C. § 8106(b).

9

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled, and not whether he or she received compensation for that period for total or
partial loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a
totally disabled employee normally would not have any employment earnings and therefore a statutory provision
about such earnings would be meaningless. Id. at 260.
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

11

Christine P. Burgess, 43 ECAB 449 (1992).

12

20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268 (1992).

13

Terry A. Geer, 51 ECAB 168 (1999).

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Section 10.5(g) of OWCP’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”14
ANALYSIS -- ISSUE 1
OWCP found in its October 30, 2013 merit decision that appellant forfeited her right to
compensation from February 4, 2006 to May 14, 2012. The Board will first consider whether
appellant’s completion of EN1032 forms on May 4, 2007, May 7, 2008, May 6, 2009, May 7,
2010, and May 13, 2011 justifies OWCP’s determination regarding forfeiture of the right to
compensation. The Board finds that OWCP improperly found that appellant “knowingly”
omitted employment activities, earnings, or volunteer work on these forms within the meaning of
section 8106(b)(2) of FECA. Although these forms notified appellant of her responsibility to
provide information concerning her employment status, earnings, and volunteer work during the
periods covered by the forms, the facts of the case show that OWCP did not meet its burden of
proof to show that appellant knowingly made omissions on these forms.
Although the EN1032 forms signed by appellant between May 4, 2007 and May 13, 2011
used such terms as “business,” “enterprise,” and “service” to explain the obligation for reporting
all forms of employment, self-employment, and earnings, the evidence of record does not show
that she knowingly failed to report earnings or employment activities which fell within these
categories on the forms she completed. Appellant asserted that she was not an employee of
Word Church or Potter’s House, but rather only attended services and engaged in other minor
activities at Word Church and Potter’s House in her role as a church member at Word Church.
She indicated that her husband was the pastor of Word Church and carried out the major
functions at Potter’s House, an organization designed to help the homeless.
The Board notes that OWCP has placed undue emphasis on the fact that appellant was
listed on corporation papers as Secretary of Word Church and Chief Executive Officer of
Potter’s House. Appellant has testified that she did not receive any compensation or perform any
functions as Secretary of Word Church and Chief Executive Officer of Potter’s House. She
indicated that Word Church and Potter’s House were nonprofit organizations, that there was no
strict requirement that they be incorporated, and that they never engaged in for-profit activities.
Appellant stated that she agreed to be listed as Secretary of Word Church because she was
advised that an organization is required to have a certain number of people on the board in order
to incorporate. She also noted that she was placed in the position of Chief Executive Officer of
14

20 C.F.R. § 10.5(g); see Monroe E. Hartzog, 40 ECAB 329 (1988).

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Potter’s House because it was thought that it would be good for her to be in the position in the
event anything happened to her husband.
The Board notes that the mere fact that appellant was listed on corporation papers as
Secretary of Word Church and Chief Executive Officer of Potter’s House does not establish
factually whether she carried out any duties in connection with holding these positions.
Appellant has testified that she performed no duties in connection with these positions.
Similarly, the fact that she was listed as “Executive Pastor” or “Pastor” on Word Church’s
website does not provide any information about any specific activities she might have engaged in
at any specific time.15 The OIG agent for the employing establishment and OWCP asserted that
appellant’s activities in connection with Word Church were documented by a notation on the
Word Church website which listed her as facilitating a meeting of the “God’s Girls in the
Earth/Women” life group on the second Sunday of the month. However, there is no indication
precisely when this information appeared on the website, what was involved in facilitating the
meeting, or whether and when appellant actually performed any functions with respect to this
group.16 Appellant provided a statement that she was not the leader or facilitator for the group
and that she only provided a video for the group to watch on two occasions around 2010.
Appellant stated that a number of her actions could be best interpreted as the normal
activities of a member of a church and the wife of a pastor, rather than as an individual who
engaged in employment activities or volunteer work. In this context, she acknowledged that on
unspecified dates and for unspecified amounts of time she engaged in activities such as helping
to feed the homeless, gathering clothes for the homeless, and answering telephones at Word
Church when no one else was around.17 There is no documentary evidence of record regarding
the amount of time appellant was engaged in such activities. Under these circumstances, the
Board finds that OWCP has not met its burden of proof to submit documentary evidence
establishing that such activities, particularly given their nature and undocumented duration,
constitute employment activities that had to be reported.18 Appellant also indicated that she did
15

The record remains unclear regarding precisely when and for what duration this characterization of appellant as
Executive Pastor appeared on the website or who placed it on the website. Appellant stated that she was ordained in
2005, but that she had not performed any pastoral duties. She indicated that she did lead two or three Bible study
sessions over a period of three or four weeks at an unspecified time, but it is unclear whether she led these sessions
as a member of Word Church or in some other capacity. Appellant also asserted that there was no particular
significance to the fact that she had her own church-account e-mail address as a number of other Word Church
members had them as well.
16

Moreover, the document indicated that all life groups were on hiatus until January 2012 due to Word Church
hosting a function known as Financial Peace University.
17

Appellant noted that Word Church had hired a secretary who was paid a salary and carried out telephone and
clerical functions. She also stated that at times she has helped clean the church and decorate it for special functions
held there.
18

The Board notes that even if appellant’s unreimbursed activities in this regard could be considered employment
activities, the fact that there is insufficient documentary evidence of record to establish the extent to which they were
carried out prevents a determination of whether such activities would have required the hiring of an individual to
perform them such that appellant would have been required to report them as business activities. But see J.S., 59
ECAB 2007 (2007) (where the claimant was required to report his unreimbursed activities -- including providing
estimates, contracting for jobs, hiring employees, visiting job sites, and handling all financial records -- because they
were extensive enough to require the hiring of an employee to perform them).

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not list these actions on the EN1032 forms as volunteer work because she did not consider them
to be such, but rather considered them to be the natural actions of a parishioner who was
involved with her church.19 The Board notes, that regardless of how her activities are
characterized, OWCP has not met its burden of proof to submit documentary evidence
delineating their nature, timing, and duration such that it is established that appellant knowingly
made material omissions on the EN1032 forms she completed between May 4, 2007 and
May 13, 2011.20
The Board generally notes the sparseness of the supporting evidence collected by the
OIG for the employing establishment regarding appellant’s activities relative to Word Church
and Potter’s House. For example, the OIG agent did not obtain a single witness statement in an
attempt to elucidate the nature and extent of such alleged activities. The Board has held that
OWCP may not base its application of the forfeiture provision strictly on conclusions drawn in
an investigation, but rather the evidence of record must establish that the claimant has had
unreported employment activities, earnings from employment, or volunteer work which were
knowingly not reported.21 The Board notes that the conclusions contained in the report of the
OIG for the employing establishment have not been adequately documented and therefore not
proven.
For these reasons, the Board finds that OWCP did not present sufficient evidence to
establish that appellant “knowingly” failed to report earnings, employment activities, or
volunteer activities under section 8106(b)(2) of FECA on the EN1032 forms she completed on
May 4, 2007, May 7, 2008, May 6, 2009, May 7, 2010, and May 13, 2011 such that she should
be subjected to the forfeiture provisions of FECA for nondisclosure on these forms.22
However, the Board also finds that appellant did “knowingly” omit employment activities
and/or volunteer work under section 8106(b)(2) of FECA on the EN1032 form she completed on
May 14, 2012, a form which covered the period February 14, 2011 to May 14, 2012. On the
May 19, 2013 form, appellant reported that she had self-employment between February 2012 and
May 201323 and performed volunteer work between January 2012 and May 2013 for six to eight
19

Moreover, the EN1032 forms that appellant completed beginning in 2007 initially provided that volunteer work
should only be reported if monetary or in-kind compensation was received and she did not, in fact, receive any
compensation for such activities. See supra note 2 regarding the language of the EN1032 forms with respect to
volunteer work.
20

See supra notes 10 through 13 regarding OWCP’s burden of proof to establish forfeiture of the right to
compensation for any given period. See also James M. Steck, 49 ECAB 134 (1997) (where knowing omission on an
OWCP form was found after extensive documentation was entered into the record regarding the employee’s specific
duties as a youth minister at a church).
21

See D.O., Docket No. 13-1809 (issued September 11, 2014); R.W., Docket No. 09-1607 (issued July 26, 2010).

22

In a January 13, 2015 brief, the Director argued that OWCP’s findings were proper as appellant failed to report
employment activity or volunteer work on various EN1032 forms. The Board notes that the Director did not
adequately explain how such employment activity or voluntary work was documented by the evidence of record.
23

Appellant stated that she served as Secretary of the Board for Word Church and Chairman of the Board for
Potter’s House.

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hours per week.24 This acknowledged self-employment and volunteer work was performed
during the period covered by the EN1032 form she completed on May 14, 2012, i.e.,
February 14, 2011 to May 14, 2012. However, appellant failed to report this self-employment
and volunteer work on the EN1032 form she completed on May 14, 2012. Therefore, forfeiture
of the right to compensation has been established for the entire period February 14, 2011 to
May 14, 2012.
OWCP found that appellant forfeited her right to compensation from February 4, 2006 to
May 14, 2012. For the reasons explained above, it has only met its burden to establish forfeiture
of the right to compensation for the period February 14, 2011 to May 14, 2012. Therefore,
OWCP has not established that appellant “knowingly” omitted employment activities, earnings,
or volunteer work under section 8106(b)(2) for the remaining portion of the original period for
which it found forfeiture, i.e., February 4, 2006 to February 13, 2011.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.25 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”26
ANALYSIS -- ISSUE 2
OWCP based its finding of a $292,280.66 overpayment of compensation on its
determination that appellant forfeited her right to compensation from February 4, 2006 to
May 14, 2012. For the reasons described above, it did not meet its burden of proof to establish
that appellant forfeited her right to compensation from February 4, 2006 to February 13, 2011,
but the evidence does support a finding of forfeiture of compensation for the period February 14,
2011 to May 14, 2012. Due to the fact that appellant would not be entitled to compensation for
the period February 14, 2011 to May 14, 2012, the amount of compensation she actually received
during this period would serve as the basis for an overpayment of compensation. Thus, OWCP
has established an overpayment for the period February 14, 2011 to May 14, 2012 and the case
shall be remanded to OWCP for recalculation of the amount of the established overpayment.
Given the Board’s finding regarding the fact and amount of the overpayment, it is
premature to consider the matters of fault and waiver of recovery of the overpayment. After
carrying out the necessary development in accordance with this decision, OWCP shall issue an
appropriate decision regarding these overpayment matters.
24

Appellant indicated that she performed volunteer work in the form of office work (answering telephones,
performing clerical work, purchasing supplies, and attending meetings) and outreach (feeding the homeless, driving
a van, and mentoring). She received no monetary or in-kind compensation.
25

5 U.S.C. § 8102(a).

26

Id. at § 8129(a).

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CONCLUSION
The Board finds that OWCP improperly found that appellant forfeited her right to
compensation for the period February 4, 2006 to February 13, 2011, but properly found that she
forfeited her right to compensation for the period February 14, 2011 to May 14, 2012. The
Board further finds that it improperly determined that an overpayment of compensation was
created by appellant’s receipt of compensation for the period February 4, 2006 to February 13,
2011, but that an overpayment of compensation has been established by her forfeiture of
compensation for the period February 14, 2011 to May 14, 2012. The case is remanded to
OWCP for recalculation of the overpayment and the issuance of an appropriate overpayment
decision.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
to OWCP for further proceedings consistent with this decision of the Board.
Issued: July 8, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
OFFICE OF SPECIAL INVESTIGATIONS,
Quantico, VA, Employer
__________________________________________

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

Docket No. 19-0938
Issued: November 20, 2019

Case Submitted on the Record

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

JURISDICTION
On March 29, 2019 appellant filed a timely appeal from a January 24, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a head injury
causally related to the accepted March 27, 2014 employment incident.
FACTUAL HISTORY
On April 28, 2014 appellant, then a 49-year-old administration support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on March 27, 2014 she injured her head, resulting
1

5 U.S.C. § 8101 et seq.

in headaches, and right shoulder pain due to falling while in the performance of duty. She related
that she was on a step stool scanning files on a top shelf when she fell and hit her head and landed
on her right shoulder. Appellant stopped working on the date of injury and then returned to work
on March 31, 2014. On the reverse side of the claim form, the employing establishment indicated
that the “workplace mishap” was unwitnessed and she did not recall any details of the alleged
injury.
On March 27, 2014 Dr. Brian Wexler, a Board-certified emergency medicine specialist,
diagnosed head injury and acute cervical strain and advised appellant not to work for two days.
In an incident report dated April 3, 2014, appellant’s supervisor indicated that appellant
was on a two-step stool scanning files on a top shelf when there was a loud sound. Appellant’s
coworker, M.P., found appellant on the floor lying on her right side still holding the scanning gun
she was using. When asked what happened, appellant stated that she did not remember, but was
feeling a little light-headed. The employing establishment noted that it had instructed employees
to utilize the handrails on the safety steps to help increase stability and safety while using the steps.
On April 10, 2014 Dr. Roshan Kalim, a Board-certified family practitioner, indicated that
appellant had been experiencing headaches since her fall on March 27, 2014 and asserted that the
headaches were worsened by light, sound, and staring at a computer for long hours. She indicated
that a magnetic resonance imaging (MRI) scan of the head showed a mass for which appellant had
an appointment with neurology/neurosurgery to further evaluate later that month.
In an April 27, 2014 letter, the employing establishment indicated that appellant was asked
two weeks after the incident if she could recall any details that would help it understand the nature
of the incident and how it might prevent any future incidents. Appellant restated her account of
the incident, but stated that she could not recall any details of the fall from her step stool.
On May 7, 2014 Dr. Kalim opined that appellant had a syncopal episode and a work-up
revealed a right frontal meningioma. Appellant was being treated for headaches by neurology and
was scheduled for surgery on March 20, 2014. Dr. Kalim further advised that appellant was not
able to perform full duty because working at the computer for long periods of time caused
headaches.
The record indicates that appellant worked part time from May 7, 2014 until her surgery
on May 20, 2014 in accordance with Dr. Kalim’s restrictions.
In a July 24, 2017 development letter, OWCP requested that appellant provide additional
evidence, including a detailed factual statement and a report from her attending physician
addressing the causal relationship between any diagnosed condition(s) and the claimed March 27,
2014 work incident. It afforded her 30 days to respond.
In response, appellant submitted two narrative statements dated August 19, 2017
reiterating that she fell off a stepladder at work, but that she did not recall how she fell. She did
remember her coworker standing over her trying to untangle the ladder that was between her legs
after the incident.

2

By decision dated August 25, 2017, OWCP denied appellant’s claim for a March 27, 2014
work injury. It found that she had a brain tumor and her fall was due to an idiopathic incident,
which was considered to be a personal nonoccupational pathology without intervention or
contribution by a factor of employment and, therefore, the injury was not considered compensable.
Appellant subsequently submitted an April 22, 2014 report from Dr. Jason Madey, a
Board-certified neurologist, who indicated that she presented for persistent headaches after a fall
on March 27, 2014. Dr. Madey stated that she was on a stepladder at work when her coworkers
heard her crash and found her lying on the ground. Appellant related that she did not remember
the fall and endorsed waking up on the ground as her coworkers were helping her to her feet. She
was confused after the incident and her coworkers reported that she was saying strange things,
including asking if there would be cats at the hospital, which she does not remember herself saying.
A computerized tomography scan displayed no evidence of fracture or intracranial bleeding, but it
did reveal a calcified right frontotemporal mass. A follow-up MRI scan a week later showed
findings consistent with a meningioma. Dr. Madey asserted that since the incident appellant had
been experiencing daily headaches and indicated that light and sound worsened the headaches.
Appellant had no personal or family history of migraines and had never experienced similar
headaches previously.
Appellant also submitted a series of reports that indicated that a visit was completed in the
Neurology Department at a medical facility, but contained no signature.
In a report signed on February 10, 2015, Dr. James Huang, a Board-certified family
practitioner, diagnosed chronic pain syndrome, neuralgia/neuritis, and headache/cephalgia.
In a report signed on December 12, 2016, Dr. Vipul Mangal, a Board-certified
anesthesiologist and pain medicine specialist, diagnosed chronic pain syndrome, cervicalgia,
occipital neuralgia, low back pain, radiculopathy, lumbar region, fibromyalgia, neuralgia and
neuritis, and headache.
On September 8, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
An oral hearing was held before an OWCP hearing representative on January 30, 2018.
During the hearing, appellant testified that she was unaware that she had a brain tumor at the time
of injury. The hearing representative held the case record open for 30 days for the submission of
additional evidence.
In response, appellant submitted a neuropsychological evaluation report dated May 14,
2014 from Dr. Jennifer Lundmark, a clinical neuropsychologist, who diagnosed right frontal
meningioma, resection scheduled for May 20, 2014, obstructive sleep apnea, Hashimoto’s
thyroiditis, and irritable bowel syndrome. Dr. Lundmark indicated that appellant had no recall of
her fall from a step stool at work when she fell and hit her head and denied a loss of consciousness
(LOC), but described an alteration of consciousness following the fall, including difficulty
thinking clearly.
By decision dated April 13, 2018, OWCP’s hearing representative affirmed the August 25,
2017 decision, as modified. She found that the evidence of record was sufficient to establish that
3

appellant had an unexplained fall on March 27, 2014 that occurred in the performance of duty.
However, the claim remained denied because the medical evidence of record was insufficient to
establish a medical condition causally related to the accepted employment incident.
In a letter received by OWCP on December 20, 2018 appellant requested reconsideration.
In support of her request for reconsideration, appellant submitted a May 5, 2014 report
from Dr. Patrick Cooper, a Board-certified neurosurgeon, who diagnosed “fainting (syncope)” and
meningioma. Dr. Cooper indicated that appellant had a LOC of unknown etiology and fell off a
ladder at work. He opined that appellant’s right frontal meningioma was not responsible for her
fall or her headaches.
Appellant further submitted a September 25, 2014 report from Jessica L. Biagas, a
physician assistant, who indicated that appellant’s symptoms began in April 2014 after a fall off a
ladder/stool at her job when she struck the left side of her head (occipital region).
By decision dated January 24, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.3 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.5 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.6

2

Id.

3
K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
4

K.V., and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

5

G.C., Docket No. 18-0506 (issued August 15, 2018).

6

Id.

4

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a head injury
causally related to the accepted March 27, 2014 employment incident.
Appellant submitted reports dated April 10 and May 7, 2014 from Dr. Kalim. In her
reports, Dr. Kalim discussed examination findings, diagnosed headaches and syncopal episode,
and addressed appellant’s work restrictions. However, she failed to provide a specific opinion as
to whether appellant’s conditions and work restrictions were caused or aggravated by the accepted
work incident.11 Thus, the Board finds that Dr. Kalim’s reports are of no probative value and are
insufficient to establish appellant’s claim.
Similarly, the reports of Dr. Madey and Dr. Cooper are insufficient to establish appellant’s
claim. In his April 22, 2014 report, Dr. Madey described the March 27, 2014 employment incident
and asserted that, since the incident, she had been experiencing daily headaches worsened by light
and sound. In his May 5, 2014 report, Dr. Cooper described the accepted employment incident
and opined that appellant’s meningioma was not responsible for her fall or her headaches. Neither
Dr. Madey nor Dr. Cooper offered an opinion as to whether the accepted employment incident
caused or aggravated her conditions.12

7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
11

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value on the issue of causal relationship. See L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
12

Id.

5

Although Drs. Wexler, Huang, Mangal, and Lundmark provided medical diagnoses, they
did not explain how the diagnosed conditions were causally related to the accepted employment
incident. As these physicians failed to address causal relationship, their reports are insufficient to
meet appellant’s burden of proof.13 This evidence is, therefore, insufficient to establish the claim.
Appellant further submitted a September 25, 2014 report from a physician assistant. The
Board has held that medical reports signed solely by a physician assistant are of no probative value
as such health care providers are not considered physicians as defined under FECA and are,
therefore, not competent to provide medical opinions.14 Consequently, this evidence is also
insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment incident, the Board finds that she has not met
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a head injury
causally related to the accepted March 27, 2014 employment incident.

13

T.R., Docket No. 18-1272 (issued February 15, 2019).

14

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA).

6

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF LABOR, ENERGY
EMPLOYEES’ OCCUPATIONAL ILLNESS
COMPENSATION PROGRAM,
Denver, CO, Employer
__________________________________________

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

Docket No. 10-594
Issued: November 2, 2010

Case Submitted on the Record

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

JURISDICTION
On December 30, 2009 appellant filed a timely appeal from the July 10, 2009 decision of
the Office of Workers’ Compensation Programs denying her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 23, 2008, as alleged.
On appeal appellant contended that the Office ignored witness statements and medical
evidence in denying her claim.
FACTUAL HISTORY
On November 7, 2008 appellant, then a 56-year-old senior claims examiner, filed a
traumatic injury claim alleging that, on October 23, 2008, while she was reviewing claims and

revising recommended decisions at her desk, she felt a stinging and burning sensation on her
legs. She noted that when she looked at her legs they had numerous red welts on them that were
not there when she showered that morning. Appellant contended that five other workers in her
area have recently experienced the same symptoms. The employing establishment controverted
the claim, contending, “It has not been determined to be in pod.”
In a statement dated October 31, 2008, appellant noted that on October 23, 2008 she
noticed dark, reddened, pimple like marks appearing on her right ankle, left leg and from the
ankle running along the shin bone to above the knee and on her abdomen accompanied by a rash.
She stated that on October 29, 2008 dermatologists at the University of Colorado diagnosed mite
infestation following observations of erthematous papules on appellant. Appellant indicated that
the employing establishment had an exterminator put stick paper on the floor. She further noted
that Karen Morman came to her office at least twice between the period August 4 through 18,
2008 to complain that something was biting her in her work area and had shown appellant her
legs. Appellant also noted that she was aware of other examiners on both sides of the building
since at least July 2008 complaining of stinging and burning sensations as well as welts on their
skin.
By letter dated November 17, 2008, the Office asked that appellant submit further
information.
A medical report dated October 29, 2008 by Dr. David Norris, a physician Boardcertified in dermatology and dermatological laboratory immunology, indicated that appellant was
examined and there were several erythematous papules grouped together in anterior lower legs
and a few on the abdomen. He noted that the lesions were not pruritic. Dr. Norris listed his
assessment as infestation by mites. He noted, “It is possible that the office is infested with bird
mites, wh[ich] can be present in the ventilation system.”
In a statement dated November 13, 2008, appellant stated that she filed a claim because
several employees, including herself, were experiencing stinging and biting sensations and welts
and rashes on their skin that appeared while at work. She contended that, when she submitted
medical evidence, the district regional director did not properly investigate. Appellant argued
that placing sticking paper on the floor was not a sufficient response and contended that the
suspected bugs are microscopic. She contended that the ventilation system had not been tested
and the situation with the biting bugs continued at the workplace.
In a September 2, 2008 memorandum, received by the Office on November 24, 2008, the
regional director indicated that on August 5, 2008 complaints were received regarding alleged
insects at the office. He indicated that building management responded the same day and
indicated that there were no signs of any fleas or other insect infestations and unless they were
provided with medical evidence to the contrary, it was determined that no additional inspection
was required. The memorandum continued that following additional complaints on August 18,
2008 an exterminator was hired and that after multiple visits to the office, the exterminator had
been unable to find any signs of fleas or other types of bugs with the exception of a fungus gnat,
which does not bite. The regional director indicated that, based on the report, the office did not
have fleas or other bugs present and the matter was considered resolved.

2

In an October 29, 2008 attending physician’s report, received on November 24, 2008,
Dr. Norris noted that he observed several erythematous papulei on appellant’s lower extremities
and abdomen. Under diagnosis, he wrote, “suspect bird mite infestation.” In response to the
question as to whether Dr. Norris believed that the condition was caused or aggravated by an
employment activity, he checked “yes” and explained, “As several coworkers have similar
symptoms, the work area or ventilation system could be infested.” In remarks, he wrote
“Suspect bird mite infestation. Those are too small to be seen by naked eye. Recommend
evaluation of workplace, including ventilation system and appropriate extermination. Suspect
that infestation came from workplace.”
In a November 5, 2008 statement, received on November 24, 2008, Teresa R. Peterson
indicated that she had a conversation with appellant on October 24, 2008 at which time appellant
indicated that she was bitten by something on her legs the day before.
In a November 13, 2008 memorandum, received on November 24, 2008, Barbara A.
Warner indicated that on October 27, 2008 around 7:00 a.m., appellant showed me her legs
which were very red and inflamed looking and had what looked like welts running up her skin.
She noted that appellant requested leave later that day to go to a doctor.
In a December 23, 2008 decision, the Office denied appellant’s claim as the evidence was
not sufficient to establish that appellant had sustained an injury as defined by the Act. It noted
that appellant failed to demonstrate that the established events occurred as alleged. The Office
further indicated that there was no medical evidence that provided a diagnosis which could be
connected to the claimed events.
On April 6, 2008 appellant requested reconsideration. In support of her request, she
submitted several statements from her coworkers with regard to bites received by others. In a
September 5, 2008 note, Eudocia Garcia, Jr. stated that on August 15, 2008 he recalled Karen
Morman talking about how she was being eaten alive by fleas and that Kathryn A. Thompson
laughed at what Karen was saying. He noted that as he continued work near appellant’s work
area he also began to feel like he was being bitten, mostly on his legs. In a note dated
September 5, 2008 Ms. Thompson indicated that on several occasions in July and August 2008
she noted that Ms. Morman was suffering from dozens of small bites on her skin. In a
September 5, 2008 note, Beatrice Calvert also indicated that she observed Ms. Morman with bite
marks. In a statement with a fascimile date of October 1, 2008, Kristina Picher, a claims
examiner, stated that appellant had her first bites in the second week of June, and that
immediately after being bitten, there was a big red welt with a firey itch which did not go away
for about two weeks. Appellant stated that she knew it happened at work and could tell
immediately when she was bitten and that the bite occurred in the afternoon. She noted that her
last incident occurred two weeks ago. In an October 29, 2008 statement, Sonia Stovall noted that
while working at Ms. Morman’s desk she felt constantly irritated by something nipping at her
ankles and a heightened feeling of general skin sensitivity with itchiness which made it very
difficult to concentrate on her tasks.
In a December 24, 2008 report, Dr. Loren E. Golitz, a Board-certified dermatologist and
dermatopathaologist and Chief of Dermatopathology at the Auschutz Cancer Pavillion, noted

3

that a microscopic diagnosis taken on that date of spongiotic dermatitis with cosinophils, skin,
left clavicle was consistent with an arthropod bite or nummular eczema.
In a February 5, 2009 report, Dr. Dexter S. Levy, a Board-certified internist, stated that
appellant has been a patient in his office since 2002. He noted that she was seen in his office on
October 27, 2008 at which time numerous papules were noted on her legs which she stated
developed on October 23, 2008 due to something biting her while working in her cubicle.
Dr. Levy noted that she was again seen on December 30, 2008 and dermatitis was noted
predominantly on her upper torso from her neck to her waist. He noted that a copy of the biopsy
report dated December 24, 2008 was reviewed in which spongiotic dermatitis with eosinophils
was diagnosed as well as changes consistent with an arthropod bite or nummular eczema. He
noted that he saw appellant that date and that her dermatitis was significantly improved as she
has not been in the workplace for a few weeks. Based on current information, which he noted
included appellant’s history, physical examinations, biopsy results, Dr. Norris’ report and
Denver Public Health Investigation, the probable source of appellant’s noncontagious dermatitis
is arthropod bites at her workplace. He released appellant to return to work on February 9, 2009
on a different floor at the employing establishment where similar issues are not known to have
been reported.
By decision dated July 10, 2009, the Office denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4

1

5 U.S.C. § 8122(a).

2

Id.

3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

4

An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action.5 An employee has not met his or her burden of proof in establishing the occurrence of
an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.6 Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements as to whether a prima facie case has been established.7 However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.8
ANALYSIS
The question presented is whether the evidence establishes that the alleged incident, in
this case insect bites, occurred in the performance of duty on October 23, 2008. In such cases,
the Board looks carefully at the circumstances of the case, including the medical evidence, to
determine if it is consistent with an insect bite at work. In Linda Christian,9 the employee felt a
bite on her thigh at work but did not seek treatment for five days as she did not realize the
seriousness of the injury. She did not see an insect or spider, nor did she initially report the
incident to a supervisor. The Board found that appellant’s claim was consistent with the facts of
her case and her subsequent course of action and, therefore, an injury in the performance of duty
was established. In Doyle W. Ricketts,10 the employee stated that on June 23, 1993 at work he
felt soreness with a stinging sensation in his left heel and a small lump; he did not see an insect
or spider. Appellant eventually saw his physician on August 23, 1993 and was diagnosed with a
spider bite and infection. The Board found that his claim was consistent with the facts of the
case and his subsequent course of action, noting that when a condition of employment puts the
claimant in a position to be injured by a neutral risk, it is compensable.11
In the present case, the Board also finds that appellant’s claim of an insect bite is
consistent with the facts and her subsequent course of action. Appellant alleged that she received
bug bites by microscopic insects in the ventilation system. She noted that, on October 23, 2008,
while reviewing claims and revising recommended decisions at her desk, she felt a stinging and
burning sensation on her legs, and that when she looked at them she noted numerous red welts on
5

M.H., 59 ECAB 461 (2008); George W. Glavis, 5 ECAB 363, 365 (1953).

6

S.P., 59 ECAB 184 (2007), Gus Mavroudis, 9 ECAB 31, 33 (1956).

7

M.H., supra, note 5.

8

S.P., supra note 6.

9

46 ECAB 598 (1995).

10

48 ECAB 167 (1996).

11

The Board noted that a neutral risk is a risk that is not distinctly associated with the employment or personal to
the claimant. Id.

5

her legs that were not there when she showered that morning. Although appellant cannot
definitely identify the offending creature, that in itself would not preclude establishment of the
claim.12 She submitted a statement wherein Ms. Peterson indicated that she had a conversation
with appellant on October 24, 2008 at which time appellant indicated that she was bitten by
something on her legs the day before, October 23, 2008, the alleged date of injury. Furthermore,
Ms. Warner indicated that on October 27, 2008 she observed that appellant’s legs were red and
inflamed and looked like welts running up her skin. Appellant also submitted numerous
statements by other employees indicating that they had been bitten by bugs or had noted others
who were bitten by bugs while at work. In addition, appellant submitted a February 5, 2009 note
from her treating physician, Dr. Levy, wherein he indicated that he saw appellant on October 27,
2008 at which time numerous papules were noted on her legs which appellant indicated
developed on October 23, 2008 due to something biting her while working in her cubicle.
Appellant sought further medical treatment on October 29, 2008 from dermatologists at the
University of Colorado. An October 29, 2008 report electrically signed by Dr. Norris noted that
there were several erythematous papules grouped together in anterior lower legs and a few on the
abdomen and that it was possible that her office could be infested with bird mites which can be
present in the ventilation system. He indicated that if they were bird mites, they would be too
small to be seen by the naked eye and he recommended an evaluation of the workplace,
including the ventilation system, and appropriate extermination. Appellant filed her claim on
November 7, 2008. This consistent pattern of behavior, as evinced by appellant’s statements, the
statements of her coworkers, her treatment by a physician and her filing of the claim shortly after
obtaining medical treatment indicate that appellant sustained an injury as alleged. Although the
employing establishment stated that an exterminator was unable to identify any bugs other than a
fungus gnat which was a nonbiting insect, these reports are not sufficient to contradict the
statements by appellant and her coworkers. Thus, appellant has established that she sustained an
injury in the performance of duty, in the form of insect bites, on October 23, 2008, as alleged.
The decision of the Office will be set aside regarding the finding of fact of injury and the
case remanded to the Office for determination of the medical conditions and periods of disability
related to appellant’s October 23, 2008 employment injury.
CONCLUSION
The Board finds that appellant has established that she sustained an injury in the
performance of duty on October 23, 2008, as alleged.

12

See., e.g., Doyle W. Ricketts, supra note 10.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 10, 2009 is set aside and remanded for further proceedings
consistent with this decision of the Board.
Issued: November 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Chillicothe, OH, Employer
__________________________________________

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Appearances:
Richard Homer, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0539
Issued: May 26, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 29, 2015 appellant, through his representative, filed a timely appeal from an
August 26, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days have elapsed since the last merit decision dated August 16, 2013 to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its August 26, 2015
nonmerit decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time
of its final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R.
§ 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 45 ECAB 35, 36 n.2 (1952).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim as his request was untimely filed and failed to demonstrate clear
evidence of error.
On appeal, appellant contends that he has submitted the evidence necessary to establish
his claim.
FACTUAL HISTORY
On December 17, 2011 appellant, then a 52-year-old practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that a patient struck him in the left jaw with a fist. He listed
the nature of the injury as discoloration, pain, and swelling to his lower left jaw. Appellant
submitted no evidence with his claim, and did not timely respond to OWCP’s request that he
submit evidence within 30 days. Accordingly, in a decision dated June 18, 2012, OWCP denied
appellant’s claim as he did not submit medical evidence to establish fact of injury causally
related to the accepted December 17, 2011 employment incident.
On November 8, 2012 appellant requested reconsideration. Evidence submitted by
appellant since OWCP’s June 18, 2012 decision included a December 17, 2011 note from
Dr. William D. Padamadan, a Board-certified internist. Dr. Padamadan indicated that appellant
had been struck on the left side of the jaw a few hours prior to his examination. He noted no
visible swelling or ecchymoses and that appellant’s gum and teeth were intact. Dr. Padamadan
noted no contraindication for appellant going back to his regular duties, and noted that his
prognosis was excellent.
Appellant also submitted a nursing note from Penny Callis, a registered nurse, of the
same date. In a July 16, 2012 note, Dr. Jeremy Crabtree, a dentist, indicated that appellant was
under his care. He related that on May 4, 2012 appellant had root canal therapy on his lower left
second bicuspid, and that the tooth was crowned on June 27, 2012. Dr. Crabtree opined that this
treatment was required because of an injury to appellant’s tooth that was caused by a blow to
appellant’s jaw.
By decision dated January 15, 2013, OWCP denied modification of its prior decision. It
found that the facts of the claim were not in dispute. OWCP was clear that on December 17,
2011 appellant was struck on the left side of his jaw by a patient. However it also found that the
medical evidence was totally devoid of an opinion explaining why appellant required dental
treatment in May 2012 causally related to the event of December 17, 2011.
By letter dated March 19, 2013 and received by OWCP on March 27, 2013, appellant,
through his representative, requested reconsideration. The representative argued that there was
evidence in the record that appellant saw a private dentist after being struck on the left side of the
face while in the performance of his duties.
By decision dated August 16, 2013, OWCP denied modification of its prior decision.

2

By letter dated June 2, 2015 and received by OWCP on June 9, 2015 appellant, through
his representative, requested reconsideration and submitted medical evidence.
In an April 30, 2013 report, Dr. Crabtree indicated that appellant was currently under his
care for treatment of his lower left cuspid, that the tooth had to be surgically extracted on
April 22, 2013, that the tooth was ankylosed and had external resorption as a result of trauma
suffered at the employing establishment. He explained that the ideal treatment for replacement
of the tooth was socket preservation and placement of an implant and implant crown. In an
August 27, 2014 report, Dr. Crabtree noted that appellant’s tooth was traumatized two and a half
years ago in an incident at work, and that the injury resulted in external resorption and severe
bone loss on tooth number 22. He indicated that he had been advised by appellant’s periodontist,
Dr. Ira Levenson, that an implant was contraindicated and that a bridge from tooth number 21 to
23 was to be placed. Dr. Crabtree noted that there was possible future loss of teeth 21 and 23
due to bone loss from the trauma to the area. Appellant also resubmitted Dr. Crabtree’s July 16,
2012 report, Dr. Padamadan’s note of December 17, 2011, and the nurse’s note of
December 17, 2011.
OWCP also received an undated statement wherein registered nurse Kaye Smith
indicated that appellant was on duty on December 17, 2011 when he was hit in his lower left jaw
by a patient, and was immediately seen by the urgent care physician who returned him to work.
Ms. Smith noted that the next day appellant had a dark purple/blue bruise on his lower left jaw in
the area where the hit had occurred, and the bruise lasted for weeks after the injury had occurred
and had impacted his teeth. Identical statements were signed by registered nurses Belinda
Walter and Laura Hollis, licensed practical nurse Scott Eichenlaub, nursing assistant Patricia
Leon, and Linda Lawson.
By decision dated August 26, 2015, OWCP denied appellant’s request as it was untimely
filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
OWCP must receive a request for reconsideration within one year of the date of that decision.3
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.4 The one-year
period begins on the date of the original decision. However, a right to reconsideration within one
year accompanies any subsequent merit decision on the issues. This includes any hearing or
review of the written record decision, any denial of modification following reconsideration, any
merit decision by the Board, and any merit decision following action by the Board.5

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

3

OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, OWCP must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.6 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review demonstrates clear evidence of error on the part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.10 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.11 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.12 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.13
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits as the request for reconsideration was untimely filed and did not
demonstrate clear evidence of error.
As previously stated, the Board does not have jurisdiction over the last merit decision,
issued on August 16, 2013. The only decision over which the Board has jurisdiction is the
August 26, 2015 nonmerit decision wherein OWCP denied reconsideration as appellant’s request
6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5a (October 2011). OWCP procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See Leona D. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Leon D. Faidley, Jr., supra note 4.

4

for reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
Appellant, through his representative, most recently requested reconsideration by a letter dated
June 2, 2015. As this request was received by OWCP on June 9, 2015, more than one year after
the last merit decision, is was untimely filed.
The Board further finds that appellant’s untimely request for reconsideration failed to
demonstrate clear evidence of error. The last merit decision affirmed OWCP’s denial of
appellant’s claim as he had not established a causal relationship between the accepted
December 17, 2011 employment incident and appellant’s dental treatment commencing
May 2012. In support of his reconsideration request, appellant submitted new reports, dated
April 30, 2013 and August 27, 2014, wherein Dr. Crabtree discussed appellant’s dental
treatment. Dr. Crabtree’s reports are insufficient to demonstrate clear evidence of error. These
reports are largely repetitive of Dr. Crabtree’s earlier report of July 16, 2012 and do not raise a
substantial question as to the correctness of OWCP’s merit decision.14 The term clear evidence
of error is intended to represent a difficult standard. Appellant must present evidence which on
its face shows that OWCP made an error.15
Appellant also submitted on reconsideration other reports from Dr. Crabtree,
Dr. Padamadan’s report of December 17, 2011, and nurse’s note of December 17, 2011. As
previously noted evidence that duplicates or repeats evidence already in the case record does not
raise a substantial question as to the correctness of OWCP’s merit decision.16
While appellant also submitted a number of statements from nurses verifying the
December 17, 2011 incident, this evidence does not demonstrate clear evidence of error in the
denial of appellant’s dental treatment as of May 2012.
Accordingly, the Board finds that OWCP properly denied appellant’s untimely
reconsideration request. The Board will affirm OWCP’s August 26, 2015 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim as his request was untimely filed and failed to demonstrate clear
evidence of error.

14

See T.M., Docket No. 15-1571 (issued November 5, 2015).

15

Annie L. Billingsley, 50 ECAB 210 (1998).

16

See supra note 14.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 26, 2015 is affirmed.
Issued: May 26, 2016
Washington, DC

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

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

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

6


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

Appearances:
Glen Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1585
Issued: March 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 17, 2011 appellant filed a timely appeal from the December 21, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
further merit review of her claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit
decision. The last merit decision of OWCP pertaining to the underlying issue was OWCP’s
December 10, 2009 decision which denied appellant’s claim for an emotional condition.
Because more than 180 days elapsed between the last merit decision of OWCP to the filing of
this appeal, the Board lacks jurisdiction to review the merits of this claim.2

1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 8, 2009 appellant, a 44-year-old clerk, filed a traumatic injury claim alleging that
on May 27, 2009 she was sexually harassed and assaulted by a supervisor, John Cacciatore. She
was grabbed from behind with his arms latched around her waist below her breast and lifted from
the floor with her body leaning on his body. Appellant noted having a stress reaction on the right
side of her body, depression and post-traumatic stress. She stopped work on June 3, 2009. The
employing establishment controverted the claim.
In a June 16, 2009 statement, Tyrone Williams, a supervisor of distribution operations,
controverted the claim. He denied appellant’s allegations and denied that Mr. Cacciatore
engaged in inappropriate touching or harassment. Mr. Williams explained that witnesses
reported that she presented herself in a “playful mood to the equipment operators and the clerks
assigned to the west end dock.” Mr. Cacciatore was also witnessed joking around; however, his
behavior was in “the nature of playfulness.” It was not reported that he was over aggressive in
touching or fondling appellant. Mr. Williams noted that “[n]evertheless it did happen.”
Furthermore, he noted that appellant had previously requested a transfer, which was denied due
to poor attendance and that she was trying to “gain leverage to achieve a transfer.” Mr. Williams
explained that she had reported that her parents were in ill health and that she was a primary care
giver.
In a May 27, 2009 e-mail and a July 8, 2009 statement, appellant alleged that, on the date
of the incident, Mr. Cacciatore approached her from behind and assaulted her. She indicated that
she shouted “PUT ME DOWN, PUT ME DOWN AND GET YOUR HANDS OFF OF ME! I
could feel his penis directly in contact with my butt.” Appellant noted that she had filed a
grievance and an Equal Employment Opportunity (EEO) complaint, with no resolution. She
provided a copy of the EEO complaint. In a May 27, 2009 e-mail, appellant repeated that she
was sexually harassed by Mr. Caciattore and noted that there were two mail handlers who
witnessed the “horrific” incident, Armondo Griffin and David Porter.
In a July 21, 2009 statement, Mr. Cacciatore denied appellant’s allegations. He noted
that, on the date of the incident, May 27, 2009, she was joking and laughing with several
coworkers and passing out priority mail tee shirts. Mr. Cacciatore explained that, when he
requested one, he was informed that he was not allowed one because he was a supervisor. He
indicated that he was not aware of that but appellant continued to laugh and he believed that she
was joking. Mr. Cacciatore approached her and again tried to obtain a tee shirt. Once again,
appellant laughed and informed him that they were not for supervisors. Mr. Cacciatore indicated
that he left with another supervisor, Alice Pennamon, who was also told they were not allowed to
have a tee shirt. He explained that, as he proceeded to his duties, he could still hear appellant
laughing in the background. Mr. Cacciatore explained that “[a]t no time did I touch her.” He
further noted that the forklift operators were moving the whole time and did not have full view of
appellant or him. The only person who had an unobstructed view of Mr. Cacciatore was

2

Ms. Pennamon. Mr. Cacciatore explained that appellant’s accusation was untrue and that her
account of the incident was a complete fabrication. He noted that he was five feet five inches tall
and weighed 150 pounds and she was five feet four inches tall and easily outweighed him by
about 50 pounds. Mr. Cacciatore explained that he believed that appellant had an ulterior motive
for making her allegation and found him to be the perfect scapegoat.
By decision dated July 29, 2009, OWCP denied appellant’s claim, finding that there was
no medical evidence that provided a diagnosis which could be connected to the claimed events.
On August 27, 2009 appellant requested reconsideration and submitted an August 21,
2009 report from Dr. Tajuan Bayless-Pearson, a Board-certified psychiatrist and neurologist.
She opined that her symptoms and diagnosis were triggered by an alleged sexual assault which
occurred on May 27, 2009 at the employing establishment. Appellant diagnosed post-traumatic
stress disorder single episode.
OWCP also received several statements. A May 29, 2009 declaration from Roger
Coleman, a coworker, noted that, on May 29, 2009, he witnessed Mr. Cacciatore walk up behind
appellant and “pick her up pressing himself against her buttocks and lifting her off the ground.”
He noted that she stated “put me down, put me down.”
In a June 16, 2009 declaration, Mr. Griffin, a mail handler, noted that he was sitting on
the forklift at the time of the incident. He explained that Mr. Cacciatore approached appellant
from behind, put his arms around her and lifted her off the ground and put her down. Mr. Griffin
noted that both parties laughed. He also explained that he believed it was horseplay and he did
not observe anything sexual about the incident.
In a July 15, 2009 statement, Ms. Pennamon indicated that “at no time did I see
[Mr. Cacciatore] touch [appellant] in any way.” She also provided an August 12, 2009
declaration, reaffirming that there was no physical contact between appellant and Mr. Cacciatore.
In an August 12, 2009 declaration, Janice Miller, a dock clerk, noted that, on the date and
time of the incident, she had Mr. Cacciatore within her eyesight at the time he was with appellant
and she did not observe any physical contact.
In an August 12, 2009 declaration, Mr. Porter, a forklift operator, noted that on May 27,
2009 he observed Mr. Cacciatore approach appellant from behind, put his arms around her and
lifted her off the ground and put her down. He noted that both parties laughed. Mr. Porter
explained that appellant did not ask Mr. Cacciatore to put her down or scream. He believed it to
be horseplay.
In a September 27, 2009 statement, Mr. Williams provided a clarification statement. He
noted that regarding his statement that “[n]evertheless, it did happen,” he was trying to convey
that, while an event occurred, it did not occur to the degree that appellant was suggesting.
Mr. Williams explained that it was not his intent to state that the alleged incident occurred as
alleged or that he had any evidence confirming that anything occurred.

3

In a December 2, 2009 decision, OWCP denied the claim and modified its prior decision
to find that appellant failed to establish that the claimed incident occurred as alleged. It found
that statements regarding the claimed incident contained inconsistencies.
By letter dated December 3, 2010, appellant’s representative requested reconsideration,
repeating the previous description regarding appellant’s allegation that she was “grabbed from
behind with [Mr. Cacciatore’s] arms latched around [her] waist below [her] breasts and lifted
from the floor with [her] body leaning on his body.” He also asserted that the medical evidence
supported the claim. Counsel alleged that OWCP denied the claim because Mr. Griffin and
Mr. Porter changed their statements. He contended that there was no evidence that the witnesses
had changed their statements and reiterated that they witnessed the incident. Counsel submitted
a request for production of documents and a request for admissions, which were unanswered and
unsigned. He also submitted a copy of a February 8, 2010 letter from Christopher Pearson, a
representative of the employing establishment’s legal department, responding to an inquiry from
appellant’s counsel. Mr. Pearson referred to prior responses or objected to the inquiry as either
vague or irrelevant. He asserted that Mr. Porter maintained that he and Mr. Griffin were present
at the time of the incident and Ms. Pennamon was at the other end of the dock.
By decision dated December 21, 2010, OWCP denied appellant’s request for
reconsideration without a review of the merits of the claim finding that the evidence submitted
was insufficient to warrant further review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that [OWCP] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[OWCP].”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608(b).

4

ANALYSIS
In the instant case, appellant disagreed with the denial of her claim for an emotional
condition and requested reconsideration. The only decision before the Board on this appeal is
OWCP’s December 21, 2010 nonmerit decision denying reconsideration of OWCP’s
December 10, 2009 decision concerning the denial of her claim for an emotional condition on the
grounds that the evidence was insufficient to establish that the claimed incident occurred as
alleged. Thus, the issue presented on appeal is whether appellant’s December 3, 2010
reconsideration request met any of the conditions of 20 C.F.R. § 10.606(b)(2), requiring OWCP
to reopen the case for further review of the merits.
On reconsideration appellant’s representative repeated appellant’s previous description of
the May 27, 2009 incident that she was grabbed from behind by Mr. Cacciatore. The Board
notes that this allegation is a restatement of her previous assertions regarding the incident. This
does not show that OWCP erroneously applied or interpreted a specific point of law and it does
not advance a relevant legal argument not previously considered by OWCP. The submission of
evidence which repeats or duplicates evidence that is already in the case record does not
constitute a basis for reopening a case for merit review.6 Counsel also asserted that the medical
evidence supported appellant’s claim. However, as the underlying issue is factual in nature,
whether the claimed incident occurred as alleged, assertions regarding the medical evidence are
not relevant to the basis of the denial of the claim.7
Counsel also alleged that OWCP erred in finding that the witnesses, Mr. Griffin and
Mr. Porter, changed their statements. This contention does not show that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered. Regardless of whether their account of the incident may have changed, their account
of record differs with the account of appellant which underscores OWCP’s finding in its
December 2, 2009 decision that statements regarding the claimed incident were inconsistent.8
Counsel did not submit any new and relevant statements from either Mr. Griffin or Mr. Porter in
support of appellant’s account of the incident.
The February 8, 2010 letter from Mr. Pearson, while new, did not contain any relevant or
pertinent new information. His response to counsel’s inquiries either referred to other documents
or reiterated previous findings or evidentiary accounts of the claimed incident. The submission

6

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald, 50
ECAB 185 (1998).
7

See S.P., 59 ECAB 184 (2007) (where a claimant did not establish an employment incident alleged to have
caused his or her injury, it was not necessary to consider any medical evidence); C.S., 58 ECAB 137 (2006) (where
a claimant has not established any compensable employment factors, the Board need not consider the medical
evidence of record).
8

Mr. Griffin and Mr. Porter described the incident as horseplay with both parties laughing while appellant’s
account of the incident indicated that it was an assault in which she shouted for Mr. Cacciatore to put her down.

5

of evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.9
As appellant has not satisfied one of the three regulatory criteria for reopening the claim,
OWCP properly denied her request for reconsideration without conducting a merit review of the
claim.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

9

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).

6