United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-2236
Issued: July 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 1, 2010 appellant filed a timely appeal from an April 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her claim for an
additional schedule award. 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 met her burden of proof to establish that she has more than
a 10 percent impairment of the right upper extremity for which she received schedule awards.
On appeal appellant asserts that the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment2 (hereinafter A.M.A., Guides) should have
been utilized to calculate her schedule award.
1

5 U.S.C. §§ 8101-8193.

2

A.M.A., Guides (5th ed. 2001).

FACTUAL HISTORY
On June 22, 2007 OWCP accepted that appellant, then a 43-year-old clerk, sustained
employment-related right cubital tunnel syndrome and right medial epicondylitis. Appellant also
has an accepted claim for bilateral carpal tunnel syndrome for which she received schedule
awards for five percent impairment of both the left and right arms.3 She underwent carpal tunnel
releases in 2003 and 2004 and returned to full duty. On July 25, 2007 Dr. David R. Steinberg,
Board-certified in orthopedic and hand surgery, performed surgical transposition of the right
ulnar nerve and medial epicondylar release. He reviewed a January 10, 2008 functional capacity
evaluation and advised that appellant could return to limited duty with permanent limitations on
use of her right arm. On February 29, 2008 the employing establishment offered appellant a
limited-duty position that she refused. Appellant elected civil service retirement, effective
March 28, 2008.
Appellant requested additional schedule awards.
In a March 13, 2008 report,
Dr. Steinberg provided findings on physical examination, including full elbow range of motion,
and a mild sensitivity over the medial forearm. In a May 26, 2008 report, Dr. Morley Slutsky, an
OWCP medical adviser Board-certified in occupational medicine, reviewed the medical record
and recommended a second-opinion evaluation.
Appellant was referred to Dr. Steven J. Valentino, a Board-certified osteopath
specializing in orthopedic surgery. In a June 23, 2008 report, Dr. Valentino provided physical
examination findings, not full elbow range of motion and normal motor and sensory
examinations. He diagnosed right cubital tunnel syndrome, resolved and right medial
epicondylitis. Dr. Valentino advised that appellant had reached maximum medical improvement
and had no permanent impairment. On August 6, 2008 Dr. Slutsky reviewed the medical
evidence. He agreed with Dr. Valentino’s assessment that appellant had no ratable right upper
extremity impairment.
By decision dated August 28, 2008, the Office denied appellant’s claim for an additional
schedule award.
On September 23, 2008 appellant requested a hearing and submitted additional medical
evidence, including a normal August 12, 2008 electromyography (EMG) study.
In a September 23, 2008 report, Dr. David S. Zelouf, Board-certified in orthopedic and
hand surgery, noted examination findings including diminished grip strength on the right. In a
September 25, 2008 report, Dr. Steinberg advised that appellant had residual deficits, including
decreased grip strength. On November 21, 2008 he noted his previous examination findings and
stated that appellant had reached maximum medical improvement. Dr. Steinberg advised that, in
accordance with the fifth edition of the A.M.A., Guides, appellant had a 10 percent right upper
extremity impairment due to decreased strength under Table 16-34, a 2 percent impairment under

3

The carpal tunnel syndrome claim was adjudicated under file number xxxxxx191.

2

Table 16-15 due to decreased sensibility in the small and ring fingers on the right, and a 3
percent impairment for pain, for a total 15 percent right upper extremity impairment.4
By decision dated April 3, 2009, OWCP’s hearing representative found a conflict in
medical opinion between Drs. Steinberg and Valentino regarding the extent of right upper
extremity impairment and remanded the case for an impartial evaluation. Appellant relocated to
Georgia. On April 20, 2009 she began part-time work with Delta Airlines, transporting baggage.
Appellant submitted a May 11, 2009 report from Dr. Obinwanne Ugwonali, Board-certified in
orthopedic and hand surgery. Dr. Ugwonali noted the history of injury and provided physical
examination findings. He diagnosed right hand numbness, rule out recurrent cubital tunnel
syndrome.
OWCP referred appellant to Dr. Bronier L. Costas, Board-certified in orthopedic and
hand surgery, as an impartial medical specialist. In a May 18, 2009 report, Dr. Costas noted the
history of injury, review of the medical record, and appellant’s complaint of continuing
limitations including ring and little finger numbness with aching in the forearm on repetitive
activity. He provided findings on physical examination including tenderness with palpation over
the medial condyle and some question of a positive Tinel’s sign. Sensory testing demonstrated
slightly diminished grip strength in the ulnar distribution of the ring and small fingers on the
right. Dr. Costas diagnosed status post carpal tunnel syndrome, resolved; status post
subcutaneous anterior transposition with medical epicondylectomy and normal nerve conduction
studies. He concluded that she had a five percent impairment of the right upper extremity due to
decreased sensation and scar tenderness.
In a June 2, 2009 report, Dr. Wing K. Chang, a Board-certified physiatrist, reported that
an EMG study showed evidence of mild bilateral carpal tunnel syndrome and no evidence of
cubital tunnel syndrome or peripheral neuropathy. On June 22, 2009 Dr. Ugwonali concurred
with the diagnoses. In reports dated July 18 and 27, 2009, Dr. H.P. Hogshead, a Board-certified
orthopedic surgeon and OWCP medical adviser, noted that appellant had previously received
schedule awards for five percent impairments of each upper extremity. He reviewed the medical
record, including the report of Dr. Costas under the sixth edition of the A.M.A., Guides,5
appellant had an additional five percent right upper extremity impairment.
On August 3, 2009 OWCP found the weight of the medical evidence rested with the
opinion of Dr. Costas and granted appellant a schedule award for an additional five percent
permanent impairment of the right arm.
On February 26, 2010 appellant requested reconsideration, contending that she had 15
percent impairment based on the opinion of Dr. Steinberg under the fifth edition of the A.M.A.,
Guides.
She submitted a June 2, 2009 report from Dr. Chang who reiterated the
electrodiagnostic findings. Dr. Ugwonali submitted form treatment notes dated November 16,
2009 to February 16, 2010. On March 23, 2010 he noted appellant’s complaints of small finger
4

By letter dated December 29, 2008, appellant’s attorney changed the hearing request to a review of the written
record.
5

A.M.A., Guides (6th ed. 2008).

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numbness and sore index finger and thumb. Dr. Ugwonali provided grip test findings and
diagnosed bilateral mild carpal tunnel syndrome, not likely to improve with surgery.
In a March 31, 2010 report, Dr. Costas noted the normal electrodiagnostic findings
regarding cubital tunnel syndrome and advised that appellant continued to have some exquisite
sensitivity over the ulnar nerve at the elbow scar. He concluded that appellant had a 10 percent
right arm impairment. In an April 15, 2010 report, Dr. Hogshead, OWCP’s medical adviser,
noted his review of Dr. Costas’ March 31, 2010 report and concluded that appellant had a 10
percent right upper extremity impairment based on carpal tunnel syndrome and right ulnar nerve
lesion and was thus not entitled to an additional schedule award.
By decision dated April 20, 2010, OWCP credited the weight of medical opinion to
Dr. Costas and denied modification of the August 3, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued after May 1, 2009, the sixth edition is used.10
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).11 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE - CDX) +
(GMCS- CDX).13

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

A.M.A., Guides, supra note 5 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
12

Id. at 385-419.

13

Id. at 411.

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Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.14 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed 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 OWCP medical
adviser providing rationale for the percentage of impairment specified.16
ANALYSIS
OWCP accepted that appellant sustained employment-related cubital tunnel syndrome
and right medial epicondylitis under this claim and bilateral carpal tunnel syndrome under a
separate claim. Appellant was granted schedule awards for a five percent impairment of each
upper extremity on December 7, 2004. OWCP found that a conflict in medical opinion was
created regarding the degree of right upper extremity impairment between her attending
orthopedic surgeon, Dr. Steinberg, who found that she had a 15 percent right upper extremity
impairment, and Dr. Valentino, an OWCP referral physician, who found no permanent
impairment. OWCP referred appellant to Dr. Costas for a referee opinion. On August 3, 2009
appellant was granted a schedule award for an additional five percent impairment of the right
upper extremity, based on Dr. Costas’ opinion.
Regarding appellant’s argument on appeal that the fifth edition of the A.M.A., Guides
should be used in assessing her impairment, the Board notes that the method used in rating
impairment for purposes of a schedule award is a matter which rests in the sound discretion of
the Director. In the case Harry D. Butler,17 the Board addressed OWCP’s use of the A.M.A.,
Guides to evaluate impairment since the first edition single volume published in 1971. The
Director has adopted the subsequent editions of the A.M.A., Guides and stated the specific date
when use of each edition should be made applicable to claims under FECA. Appellant has not
established that the Director abused the discretion delegated under section 8107 or the
implementing federal regulations to make the sixth edition of the A.M.A., Guides applicable to
all claimants as of May 1, 2009. The fact that the sixth edition revises the evaluation methods
used in previous editions does not establish an abuse of discretion. As noted in FECA Bulletin
No. 09-03,18 the American Medical Association periodically revises the A.M.A., Guides to

14

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

15

Manuel Gill, 52 ECAB 282 (2001).

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
17

43 ECAB 859 (1992).

18

Supra note 10.

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incorporate current scientific clinical knowledge and judgment and to establish standardized
methodologies for calculating permanent impairment.
The Board finds this case is not in posture for decision. The sixth edition of the A.M.A.,
Guides provides that upper extremity impairments be classified by diagnosis which is then
adjusted by grade modifiers according to the formula described above.19 Dr. Costas, who
provided an impartial evaluation for OWCP, explain the basis for his conclusion that appellant
had an additional five percent right upper extremity impairment. Dr. Costas advised that she had
an increased impairment due to decreased sensation and scar tenderness and was entitled to five
percent right upper extremity impairment, which he later increased to 10 percent impairment.
Dr. Hogshead, OWCP’s medical adviser agreed with that conclusion.
Schedule awards under FECA are to be based on the A.M.A., Guides. An estimate of
permanent impairment is irrelevant and not probative where it is not based on the A.M.A.,
Guides.20 Dr. Costas did not mention the A.M.A., Guides in either report, and Dr. Hogshead
merely made a general reference that 10 percent impairment was consistent with the sixth edition
of the A.M.A., Guides. Without a detailed report comporting with the standards of the sixth
edition of the A.M.A., Guides, the Board is unable to determine whether appellant has an
additional impairment due to her accepted employment injuries entitling her to an increased
schedule award.
Accordingly, as there is insufficient probative medical opinion of record, the Board finds
that the case is not in posture for decision, and the case must be remanded to OWCP for further
development regarding the extent of appellant’s right upper extremity impairment in accordance
with the sixth edition of the A.M.A., Guides. After such development as deemed necessary,
OWCP should issue an appropriate decision on the issue of appellant’s entitlement to an
additional schedule award.
CONCLUSION
The Board finds this case is not in posture for decision.

19

A.M.A., Guides, supra note 5 at 403.

20

Shalanya Ellison, 56 ECAB 150 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the April 20, 2010 decision of the Office of
Workers’ Compensation Programs be vacated and the case remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: July 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Lauderdale, FL, Employer
__________________________________________

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

Docket No. 08-287
Issued: May 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 6, 2007 appellant filed a timely appeal of a June 12, 2007 merit decision of
the Office of Workers’ Compensation Programs, finding that he did not sustain an injury in the
performance of duty and an August 8, 2007 nonmerit decision, denying his request for an oral
hearing as untimely. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether appellant established that he sustained an injury on April 25,
2007 in the performance of duty, as alleged; and (2) whether the Office properly denied
appellant’s request for an oral hearing as untimely under 5 U.S.C. § 8124.
FACTUAL HISTORY
On April 25, 2007 appellant, then a 53-year-old carrier technician, filed a traumatic injury
claim alleging that on that date he experienced pain in his groin while on his route with a
defective satchel.

On appellant’s claim form, D.M. Saunders, a supervisor, received notification of the
alleged injury on April 28, 2007. Appellant advised an evening supervisor that his injury was
caused by walking on April 25, 2007. He informed a manager that his injury was caused by his
satchel on April 26, 2007.
Appellant submitted an April 25, 2007 form report of a physician whose signature is
illegible which stated that April 25, 2007 was the date of injury. The physician provided clinical
findings of a left groin muscle pull and stated that a diagnosis due to the injury was unclear. The
physician listed appellant’s physical restrictions. In an April 25, 2007 authorization for an
examination and/or treatment, the same physician diagnosed a left groin muscle pull. The
physician stated that a causal relationship between the diagnosed condition and the April 25,
2007 employment activity was unclear without additional diagnostics.
By letter dated May 9, 2007, the Office advised appellant that the evidence submitted was
insufficient to establish his claim. It advised him to state “where you were and what you were
doing at the time your injury occurred. Provide a detailed description as to how your injury
occurred. (For example, if you fell, state how far you fell, how you landed, etc. If lifting was the
cause of the injury, describe the object handled, its weight, what you did with it, etc.).” The
Office also addressed the additional medical evidence appellant needed to submit to support his
claim of injury.
Records from a medical center emergency room were submitted. They indicated that
appellant was treated on April 25, 2007 for a left muscle groin pull.
The May 21, 2007 form reports of Dr. Laurie Kardon, Board-certified in preventive
occupational medicine, provided April 25, 2007 as the date of injury. Dr. Kardon opined that
appellant sustained a work-related right inguinal hernia. Also on May 21, 2007 she provided his
physical restrictions.
On April 25, 2007 Dr. Richard T. Baker, a Board-certified radiologist, performed a
computerized tomography (CT) scan of appellant’s abdomen and pelvis. He found no kidney
stones or obstruction. There were several tiny to small stones within a nondilated gall bladder.
There was also mild left and sigmoid colon diverticulosis.
By decision dated June 12, 2007, the Office denied appellant’s claim on the grounds that
he did not establish that the claimed employment incident occurred at the time, place and in the
manner alleged. On July 19, 2007 the Office received appellant’s request for an oral hearing
before an Office hearing representative which was dated July 10, 2007 and sent in an envelope
postmarked July 13, 2007.
In a decision dated August 8, 2007, the Office denied appellant’s request for a hearing on
the grounds that it was untimely under section 8124. It stated that his request was postmarked
July 13, 2007, which was more than 30 days after the issuance of its June 12, 2007 decision, and
therefore, he was not entitled to a hearing as a matter of right. The Office nonetheless
considered the matter in relation to the issue involved and determined that it could be addressed
equally well on reconsideration, by submitting evidence establishing that the claimed event,

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incident or exposure occurred at the time, place and in the manner alleged and a diagnosed
medical condition was causally related to the accepted incident.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.4 Second, the employee
must submit evidence, in the form of medical evidence, to establish that the employment incident
caused a personal injury.5 The term injury, as defined by the Act, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to, or contact
with, certain factors, elements or conditions.6 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.7
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.8 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
1

5 U.S.C. §§ 8101-8193.

2

Anthony P. Silva, 55 ECAB 179 (2003).

3

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

4

Delphyne L. Glover, 51 ECAB 146 (1999).

5

Donna A. Lietz, 57 ECAB ___ (Docket No. 05-1758, issued October 27, 2005); Alvin V. Gadd, 57 ECAB ___
(Docket No. 05-1596, issued October 25, 2005); David Apgar, 57 ECAB ___ (Docket No. 05-1249, issued
October 13, 2005).
6

Alvin V. Gadd, supra note 5; Elaine Pendleton, 40 ECAB 1143 (1989); 20 C.F.R. § 10.5(a)(14).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

See Louise F. Garnett, 47 ECAB 639 (1996).

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surrounding facts and circumstances and his or her subsequent course of action.9 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.10
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 doubt on an employee’s statements in determining
whether a prima facie case has been established.11 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.12
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained a left groin injury in the performance of duty on
April 25, 2007. The Office denied his claim after finding that he did not demonstrate that the
specific event occurred at the time, place and in the manner described.
The Board finds that appellant has not established that the employment incident occurred
on April 25, 2007, as alleged because he did not sufficiently describe the place and manner in
which the alleged incident occurred. On his claim form, appellant stated that on April 25, 2007
he experienced pain in his groin while on his route with a defective satchel. This statement is not
sufficiently detailed to allow the Office to determine whether an injury occurred in the manner
described. Appellant did not describe how the satchel was defective or explain what he was
doing with the satchel. Therefore the nature of the external stress has not been identified.
Pursuant to the applicable regulation:
“Traumatic injury means a condition of the body caused by a specific event or
incident or series of events or incidents, within a single workday or shifts. Such
condition must be caused by external force, including stress or strain which is
identifiable as to time and place of occurrence and member or function of the
body affected.”13
On May 9, 2007 the Office advised appellant that it required additional information as to what
happened on April 25, 2007 while he was on his route. Appellant offered no further explanation.
The emergency room records and the reports of the physician whose signature is illegible
and Dr. Baker stated that appellant was treated for a groin injury on April 25, 2007. However,
this evidence did not provide a history of the alleged injury. Similarly, Dr. Kardon’s reports

9

See Betty J. Smith, 54 ECAB 174 (2002).

10

Id.

11

Linda S. Christian, 46 ECAB 598 (1995).

12

Gregory J. Reser, 57 ECAB ___ (Docket No. 05-1674, issued December 15, 2005).

13

20 C.F.R. § 10.5(ee).

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stated that April 25, 2007 was the date of appellant’s alleged injury but failed to provide a history
of the injury.
D.M. Saunders, a supervisor, received notification of the alleged injury on
April 28, 2007. On April 25, 2007 appellant informed an evening supervisor that his injury was
caused by walking on his route on that date. He advised a manager that his injury was caused by
his satchel on April 26, 2007.
Under the circumstances in this case, the Board finds there are inconsistencies in the
evidence that cast serious doubt as to whether an incident occurred as alleged. Appellant was
provided an opportunity to perfect the factual aspect of a traumatic injury claim but he failed to
do so. Accordingly, the Board finds that he failed to substantiate that the April 25, 2007
employment incident occurred as alleged and, therefore, has not established an injury in the
performance of duty. As appellant has not established the factual aspect of his claim, it is not
necessary for the Board to consider the medical evidence of record.14
LEGAL PRECEDENT -- ISSUE 2
Section 8124 of the Act provides that a claimant is entitled to a hearing before an Office
representative when a request is made within 30 days after issuance of a final decision by the
Office.15 Section 10.615 of the federal regulations implementing this section of the Act provides
that a claimant shall be afforded a choice of an oral hearing or a review of the written record.16
The Board has held that section 8124(b)(1) is unequivocal in setting forth the time limitation for
requesting hearings. A claimant is entitled to a hearing as a matter of right only if the request is
filed within the requisite 30 days.17
Section 10.616(a) of Title 20 of the regulations further provides:
“A claimant injured on or after July 4, 1966, who had received a final adverse
decision by the district Office may obtain a hearing by writing to the address
specified in the decision. The hearing request must be sent within 30 days (as
determined by postmark or other carrier’s date marking) of the date of the
decision for which a hearing is sought.”18
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings, including when the request is made after the 30-day
period for requesting a hearing, and that the Office must exercise this discretionary authority in
14

Alvin V. Gadd, supra note 5.

15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. § 10.615; Gerard F. Workinger, 56 ECAB 259 (2005).

17

Tammy J. Kenow, 44 ECAB 619 (1993); Ella M. Garner, 36 ECAB 238 (1984).

18

20 C.F.R. § 10.616(a). See also Gerard F. Workinger, supra note 16.

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deciding whether to grant a hearing.19 In these instances, the Office will determine whether a
discretionary hearing should be granted or, if not, will so advise the claimant with reasons.20
ANALYSIS -- ISSUE 2
Appellant’s request for a hearing before an Office hearing representative was dated
July 10, 2007 and sent in an envelope postmarked July 13, 2007. The date of filing for
appellant’s hearing request was fixed by the date of the postmark, i.e., July 13, 2007.21
Appellant’s July 13, 2007 hearing request was made more than 30 days after the date of issuance
of the Office’s prior decision dated June 12, 2007 and, thus, he was not entitled to a hearing as a
matter of right.
The Office properly exercised its discretion and determined that appellant’s request for an
oral hearing could be equally well addressed by requesting reconsideration and submitting
additional evidence establishing that he sustained an injury in the performance of duty on
April 25, 2007.22 The Board has held that the only limitation on the Office’s discretionary
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to logic
and probable deduction from established facts.23 The Board finds that there is no evidence of
record that the Office abused its discretion in denying appellant’s request. Thus, the Board finds
that the Office’s denial of appellant’s request for an oral hearing was proper under the law and
the facts of this case.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on April 25,
2007 in the performance of duty. The Board further finds that the Office properly denied
appellant’s request for an oral hearing.

19

Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994).

20

Claudio Vasquez, 52 ECAB 496 (2001); Johnny S. Henderson, 34 ECAB 216 (1982).

21

See supra note 18 and accompanying text.

22

See Joseph R. Giallanza, 55 ECAB 186 (2003).

23

See André Thyratron, 54 ECAB 257 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the August 8 and June 12, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 6, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 15-0869
Issued: January 7, 2016

Case Submitted on the Record

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

JURISDICTION
On March 9, 2015 appellant filed a timely appeal of a February 2, 2015 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 established an injury in the performance of duty on
July 24, 2014, as alleged.
FACTUAL HISTORY
On August 14, 2014 appellant, then 58-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 24, 2014 she felt numbness on her left side after she

1

5 U.S.C. § 8101 et seq.

bent down to pick up a tray of mail. On the back of the form the employing establishment
controverted the claim and questioned whether it was an employment-related injury.
In support of her claim, appellant submitted a July 24, 2014 form wherein she related that
she sustained left side pain on July 23, 2014 when her jeep hit a hole in the road.
In a July 24, 2014 form report, Joy Justice, a nurse practitioner, noted appellant’s
complaints of left-sided pain and an injury date of July 24, 2014. The history of injury however
related that appellant sustained pain in her left buttock which radiated into her left leg after
hitting a bump on a gravel road while driving a mail truck on July 23, 2014, not July 24, 2014.
Diagnoses included sciatica and lumbar back pain.
The record contains a number of duty status reports (Form CA-17) dated from July 24,
2014 which contain diagnoses of lower back pain with left sciatica. These forms note work
restrictions. The date of injury is listed as July 24, 2014, or no injury date is noted. Some of the
forms were signed by Ms. Justice, nurse practitioner, while others contained illegible signatures.
In a statement dated July 25, 2014, Mike Ringholz, a supervisor, related that on July 23,
2014 appellant approached him to have her scanner checked after returning from delivering her
mail route. He stated that appellant made no mention to him regarding any injury or accident.
Appellant, in a July 28, 2014 statement, related that she sustained a work-related back
injury on July 24, 2014. She described feeling a pull in her left hip when getting up after
bending down to pick up another tray of mail. Appellant related that her left foot was numb, she
shook it and then her entire left side went numb.
In an August 19, 2014 statement, Glenn Angenmeier, postmaster, related that appellant
provided different accounts of how she was injured and different dates of the incident as either
July 23, 2014 or July 24, 2014. In one account, appellant related that her injury occurred due to
hitting a hole while driving a mail jeep, while in another account she alleged that the injury
occurred as the result of reaching down to pick up another tray of mail from the floor.
Mr. Angenmeier also noted that statements from two supervisors, Mr. Ringholz and Vickie
Boles, contradict appellant’s version of how her injury occurred.
By letter dated August 25, 2014, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised as to the medical and factual
evidence required to support her claim and given 30 days to provide this information.
On September 15, 2014 OWCP received Novant Health form reports, which noted an
injury date of July 24, 2014. The forms related that appellant’s injury occurred when she bent
down to pick up mail. The signatures on the forms were again illegible.
By decision dated October 2, 2014, OWCP denied appellant’s claim as the evidence of
record was insufficient to establish that the incident occurred as alleged.
On November 10, 2014 OWCP received appellant’s request for review of the written
record by an OWCP hearing representative dated November 3, 2014.

2

In support of the request for review of the written record, OWCP received a letter dated
October 30, 2014 and a supplemental statement dated November 2, 2014 from appellant
explaining how her injury occurred. In the October 30, 2014 letter, appellant stated that on
September 4, 2014 she wrote an 11-page statement describing how the July 24, 2014 incident
occurred and provided clarification of her injury. She stated that she did not report hitting a
bump while driving her mail jeep on a gravel road on July 23, 2014. Appellant related feeling a
pull in her left hip or butt, which hurt slightly, but was “no big deal.” She explained that it was
routine to go on and off the main road and ride in ditches. As to the July 24, 2014 incident,
appellant noted that she bent down to get another tray of mail from the floor while putting mail
in a case. She felt a pull in her lower back and hip while sitting on the ledge and twisting and
turning. While working the mail, appellant related feeling a tingling sensation going down her
back to her buttocks, left leg, and left foot. She related that she could not stand up after trying to
shake her foot. At this point, appellant went to see Ms. Boles, an acting supervisor, and
informed her that she needed to go the emergency room as she was hurt. After some discussion
as to how appellant would get to the emergency room, Ms. Boles stated that she would take
appellant. Appellant concluded that she was diagnosed with sciatica, had physical therapy from
September 3 to October 9, 2014, and saw her doctor for this injury from July 24 to
October 21, 2014.
In the November 2, 2014 statement, appellant related that she felt a pull in her hip and
lower back which turned into a tingling sensation going down her back to her left foot while
casing mail. She stated that, while shaking her left foot to wake it, all of sudden she was unable
to stand up straight as she was bent over. At this point, appellant felt pain like she never felt
before going from her back all the way to her foot.
On November 11, 2014 OWCP also received an Ocotber 21, 2014 form report from
Dr. Mark L. Dumonski, an examining Board-certified orthopedic surgeon. Dr. Dumonski
diagnosed low back pain and provided work restrictions. By checkmark he indicated that the
work incident or job dutes described by appellant caused or significantly contributed to the
condition or injury.
By decision dated December 17, 2014, OWCP denied appellant’s request for review of
the written record as the request was untimely filed.
On December 23, 2014 OWCP received appellant’s request for reconsideration dated
December 18, 2014.
Following the December 17, 2014 decision, appellant submitted medical and factual
evidence including a number of CA-17 forms for the period July 24 to October 8, 2014 and an
October 21, 2014 report. The CA-17 forms noted that the cause of injury was unknown except
for the January 23, 2015 form which noted that the injury occurred while appellant bent over to
pick up mail and felt back pain. The signatures on the forms were again illegible.
By decision dated February 2, 2015, OWCP denied modification of the prior decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
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.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action.8 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
doubt on an employee’s statements.9 However, an employee’s statement regarding the
occurrence of an employment incident is of great probative force and will stand unless refuted by
strong or persuasive evidence.10
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish a
traumatic injury on July 24, 2014, as alleged. There are inconsistencies in the evidence which
cast serious doubt on the validity of her claim.
2

5 U.S.C. § 8101 et seq.

3

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

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

See Betty J. Smith, 54 ECAB 174 (2002).

9

Linda S. Christian, 46 ECAB 598 (1995).

10

Gregory J. Reser, 57 ECAB 277 (2005).

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OWCP found that the medical and factual evidence of record contained conflicting
evidence regarding how the alleged injury occurred. The Board has held that 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.11 Although
appellant alleged on her Form CA-1 that she felt numbness on her left side after bending down to
pick up a tray of mail from the floor, this assertion was contradicted by statements from two
supervisors, Mr. Ringholz and Ms. Boles. Mr. Angenmeier, the postmaster, also provided a
statement which contradicts appellant’s account of how the injury occurred as he stated that she
provided two different injury dates and different accounts of how she was injured. Appellant
also failed to submit any corroborating witness statements in response to OWCP’s request.
The evidence of record also contains inconsistencies that cast serious doubt as to the date
of the alleged work incident. The early medical evidence submitted by appellant noted that the
cause of the alleged July 24, 2014 injury was unknown or were silent on the date and cause of
her condition. These reports are either from a physician assistant or otherwise unidentified
authors as the signatures are illegible. The record also contains July 24, 2014 form reports
attributing appellant’s injury to hitting a bump on a gravel road while driving a mail jeep on
July 23, 2014. These reports are of no probative value as the author or authors cannot be
identified as physicians.12 Furthermore a physician assistant is not a physician as defined under
FECA.13
Appellant also submitted an October 21, 2014 form report by Dr. Dumonski who checked
a box marked “yes” as to whether the diagnosed condition was caused by the work incident or
job duties described by appellant, but provided no injury date. This opinion is of little probative
value on its face as it provides no date or history of injury and therefore does not corroborate
appellant’s history that her injury occurred on July 24, 2014.14
The Board finds that appellant has failed to meet her burden of proof to establish that an
incident occurred on July 24, 2014, as alleged.
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 that she
sustained a traumatic injury in the performance of duty on July 24, 2014, as alleged.
11

Id.

12

See Merton J. Sills, 39 ECAB 572 (1988).

13

See 5 U.S.C. § 8101(2) which defines physicians under FECA.

14

See generally Connie Johns, 44 ECAB 560 (1993). The accuracy and completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion are facts which determine the weight to be given to each individual report.

5

ORDER
IT IS HEREBY ORDERED THAT the decision dated February 2, 2015 of the Office
of Workers’ Compensation Programs is affirmed.15
Issued: January 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015 and did not participate in the preparation of this decision.

6


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

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

Docket No. 09-408
Issued: August 26, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 20, 2008 appellant filed a timely appeal from the November 20, 2007
merit decision of the Office of Workers’ Compensation Programs, which denied his emotional
condition 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 the accepted work incident of July 18, 2006 caused an injury.
FACTUAL HISTORY
On August 4, 2006 appellant, then a 43-year-old letter carrier, filed a claim alleging that
he sustained stress and a pulled groin injury on or about July 18, 2006 while in the performance
of duty: “While delivering mail then returning to my vehicle was shot at hitting front window.”
His psychologist, Dr. B. John Shahin, diagnosed post-traumatic stress disorder (PTSD) caused by
being shot at twice in the performance of duty. He placed appellant on temporary total disability
beginning August 4, 2006 and referred him to a psychiatrist.

Armando Peña, supervisor customer services, reported that appellant called him on
July 18, 2006 to report that the windshield of his vehicle was shot at. Appellant explained that
he heard “a pop sound” and saw what appeared to be a puff of smoke in the vehicle. “[He] then
exited the vehicle thinking that the vehicle might be on fire because of the smoke he claims he
saw.” When Mr. Peña arrived on the scene, he stated that he could clearly see that the
windshield had been hit. “It appeared to be a bb, a small pellet or a small object that hit the
windshield.” Appellant repeated to Mr. Peña what happened:
“[Appellant] stated that once he entered the vehicle he heard a pop sound and saw
what appeared to be a puff of smoke inside the [vehicle]. He then exited the
vehicle thinking that it might be on fire. At this time [a letter carrier] came along
to assist [appellant] because of his full tour status. Per [appellant], [the letter
carrier] was the one who first noticed the windshield.”
Mr. Peña added: “During this time of waiting for the [incident] report, [appellant’s]
demeanor was that of calmness and in no way did he exhibit any form of anxiety or anguish over
the incident that took place. Nor did he say he would not be able to finish up the rest of the
route.”
The incident report from the L.A. County Sheriff’s Department stated that appellant
heard two “pops” and then saw smoke on the windshield. About three minutes later, appellant
was approached by a woman who identified herself as the manager of the apartment complex.
She told appellant that she lived below where the “shooting” came from. She heard two pops
and told the investigator that the “pop” sound resembled that from a pellet gun. The sheriff’s
department was unable to locate any expended casings or pellets.
On September 5, 2006 the investigating detective reported that the two juveniles had
individually confessed to shooting a pump action BB rifle at a tree. The detective informed
appellant, who did not want the subjects prosecuted due to their ages. Appellant stated that he
could understand because he was a kid once. The detective was very concerned, though,
believing at the time that appellant was the target of an assault.
The U.S. Postal Service Office of Inspector General (OIG) interviewed appellant on
October 3, 2006. Appellant stated that, as he sat in his vehicle and was ready to drive away, he
heard a loud pop and the windshield shattered. He then heard a second pop. Appellant stated
that he looked around to see where the sound was coming from. He stated that the apartment
manger pointed to an apartment window and told him, “They are shooting at you.” Appellant
stated that he initially thought the noise originated from children throwing a firecracker into his
vehicle because the Fourth of July holiday had recently passed and he knew people often had
extra fireworks. He told the OIG that he knew the noise was not from a BB gun. The OIG
determined that a BB, discharged from a pump action BB gun, struck the windshield of
appellant’s vehicle, and those two boys, ages 12 and 14, shot the BB. The Office prepared a
statement of accepted facts that included the following:
“After a thorough investigation of the July 18, 2006 incident by receipt of the
County of Los Angeles Sheriff’s Department, Incident Report dated
July 18, 2006. It is accepted that [appellant] completed a mail delivery at Villa

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Scalla Apartments…. He entered his [employing establishment] vehicle and sat
down, he heard a loud bang “two pops” and saw a puff of smoke on the
windshield of his postal vehicle, he quickly exited the vehicle and realized there
was damage to the middle area of the windshield.
“The investigation revealed two boys, ages 12 and 14, shot a BB gun towards a
tree, however, the pellets hit the windshield of [appellant’s] postal vehicle.
[Appellant] denied being struck by any pellets/bullets. [He] declined pressing
charges against the juveniles due to their ages.”
The Office forwarded the statement of accepted facts to appellant’s psychiatrist and asked
whether there was any psychiatric diagnosis due to the event of July 18, 2006. It requested an
opinion, with medical reasons, on the cause of the diagnosed condition and a detailed
explanation of how such exposure contributed to appellant’s medical condition.
In a decision dated April 25, 2007, the Office denied appellant’s claim for compensation.
It accepted that the July 18, 2006 incident occurred in the performance of duty, but appellant’s
psychiatrist did not submit the requested medical opinion. The Office found that the evidence
failed to establish that appellant’s emotional condition was causally related to the accepted factor
of employment.
Appellant requested reconsideration. He stated there was no evidence that the gun was a
BB gun. Appellant noted that the investigating officer stated on page four of the incident report:
“We believe that damage (EV-1) was caused by a small caliber weapon or a pellet gun.” He also
submitted additional medical evidence.
On August 31, 2006 Dr. Novellyn Hitchens Heard, a Board-certified psychiatrist, related
a brief history of the July 18, 2006 incident: “Reports on July 18, 2006 [appellant’s] vehicle was
shot at while working mandatory overtime as a postal worker and patient feels traumatized.” She
also noted appellant’s unhappiness with management. Dr. Heard reported appellant’s complaints
and findings on mental status examination. She appeared to offer a principal diagnosis of posttraumatic stress disorder.
Appellant also submitted an August 15, 2006 report from Anne Y. Jong, a licensed
clinical social worker, who noted that the July 18, 2006 event involved threatened death, threat to
physical integrity of self, threat to physical integrity of others. Ms. Jong indicated that appellant
responded with helplessness.
In a decision dated November 20, 2007, the Office reviewed the merits of appellant’s
claim and denied modification of its prior decision. It found that Dr. Heard offered no opinion
on causal relationship and gave no indication whether appellant’s condition was due to the
July 18, 2006 incident or to his claims of harassment by management. The Office also found
that Ms. Jong’s report had no probative value because she was not a physician.

3

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.2
Causal relationship is a medical issue,3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,4 must be one of reasonable medical certainty,5
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.6
Medical conclusions unsupported by rationale are of little probative value.7 Medical
conclusions based on inaccurate or incomplete histories are also of little probative value.8 A
social worker is not a “physician” within the meaning of the Act and, therefore, is not competent
to give a medical opinion.9
ANALYSIS
Appellant established that he experienced a specific event, incident or exposure occurring
at the time, place and in the manner alleged. The Office accepted that, on July 18, 2006, while in
1

5 U.S.C. § 8102(a).

2

E.g., John J. Carlone, 41 ECAB 354 (1989).

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

7

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

8

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
9

Kurt R. Ellis, 47 ECAB 505 (1996); see Ernest St. Pierre, 51 ECAB 623 (2000) (reports of a social worker do
not constitute competent medical evidence).

4

the performance of his duties, he entered the employing establishment vehicle, sat down, heard a
loud pop (or two) and saw what appeared to be a puff of smoke. Appellant then exited the
vehicle. He took exception to the Office’s determination that the damage to the windshield came
from a BB gun fired by two boys, ages 12 and 14, who were shooting at a tree. Appellant
contended that there was no evidence the gun was a BB gun. He maintained he was shot at with
a small caliber gun.
The record shows otherwise. The manager of the apartment complex reported that the
pop sound resembled that from a pellet gun. Mr. Peña, who inspected the windshield that day,
stated that it appeared to be a BB, a small pellet, or a small object that hit the windshield. The
County Sheriff’s incident report indicated a pellet gun could be responsible. However, on
September 5, 2006 the investigating detective reported that in separate interviews the two
juveniles confessed to shooting a pump action BB rifle at a tree. The Board therefore finds that
the Office’s statement of accepted facts accurately reflects what happened on July 18, 2006,
based on all the factual evidence developed in the case. The question presented is whether
appellant suffered an injury on July 18, 2006 when, while seated in the employing establishment
vehicle, he heard one or two loud “pops” and saw what appeared to be a puff of smoke.
Appellant’s psychologist, Dr. Shahin, diagnosed post-traumatic stress disorder caused by
being shot at twice in the performance of duty. His description of the incident is far too brief to
establish that he was basing his opinion on a complete and accurate history. Further, Dr. Shahin
did not support his opinion with sound medical reasoning. He simply stated that being shot at
twice caused post-traumatic stress disorder, without discussing the nature of post-traumatic stress
disorder, what signs or symptoms or complaints established the diagnosis in appellant’s case or
how the accepted incident caused the disorder. For these reasons, the Board finds that his
opinion is of diminished probative value and does not establish the required element of causal
relationship.
Dr. Heard, appellant’s psychiatrist, did not offer any opinion on causal relation. She
reported the history appellant related to her, noted his complaints and findings, and appeared to
diagnose post-traumatic stress disorder. But Dr. Heard did not offer an opinion on whether the
accepted incident on July 18, 2006 was responsible for that diagnosis, much less any medical or
psychiatric reasoning to support such an opinion. Her August 31, 2006 report is also of
diminished probative value in establishing appellant’s claim for compensation.
Ms. Jong, the licensed clinical social worker, is not a “physician” under the Act and is not
competent to give an opinion on causal relationship. Her August 15, 2006 report has no bearing
on the issue of causal relationship.
On appeal, appellant contends that Dr. Heard used information that was not relevant to
the July 18, 2006 incident. Presumably, he means Dr. Heard’s reference to his unhappiness with
management. Dr. Heard’s report suffers from two fundamental defects. She did not provide a
complete and accurate history. Dr. Heard merely stated that appellant’s vehicle was shot at. She
did not address the history as noted in the statement of accepted facts. Dr. Heard did not mention
that two kids were playing with a BB gun or that appellant had not been fired upon with bullets.
She did not mention the history appellant gave to his supervisor that he did not know what
happened until after he left the vehicle and spoke with other people. Based on the smoke

5

appellant saw, he initially thought the vehicle might be on fire. Subsequently, he thought he was
the target of an assault or that some children had thrown a firecracker into his vehicle. There
was no mention in Dr. Heard’s report that appellant did not notice the shattered windshield, until
another carrier brought the windshield to his attention. She also did not discuss appellant’s
demeanor following the incident, as reported by the supervisor who arrived on the scene.
Dr. Heard also failed to provide a well-reasoned medical opinion on causal relationship.
She provided a simple declarative statement that in her opinion, to a reasonable degree of
medical certainty, the accepted incident on July 18, 2006 caused appellant to suffer a posttraumatic stress disorder. Dr. Heard did not discuss the nature of that condition and how the
diagnosis is established in appellant’s case. As noted, she was not provided a full on accurate
history of the incident. The medical opinion evidence fails to establish causal relationship. The
Board finds that appellant has not met his burden of proof to establish that he sustained an injury
in the performance of duty.10 The Board will therefore affirm the Office’s November 20, 2007
decision denying modification of the denial of appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
accepted work incident on July 18, 2006 caused an injury. The medical opinion evidence fails to
establish causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
10

Appellant submitted no medical opinion to support that the July 18, 2006 incident caused a groin injury.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Jackson, MS, Employer
__________________________________________

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

Docket No. 08-648
Issued: August 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2007 appellant filed a timely appeal from a November 29, 2007
decision of the Office of Workers’ Compensation Programs, which found that she received an
overpayment in compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in compensation of $6,793.94 because the Office failed to make proper deductions
for health insurance premiums for the period April 18, 2004 to August 4, 2007; (2) whether the
Office properly denied waiver of the overpayment; and (3) whether the Office properly required
repayment of the overpayment by deducting $486.00 every 28 days from appellant’s continuing
compensation.

FACTUAL HISTORY
On April 10, 1989 appellant, then a 37-year-old air traffic controller, filed a Form CA-2,
occupational disease claim, alleging that work-related circumstances involving an August 1986
airplane crash caused an emotional condition. She had stopped work on February 13, 1989.
After an initial denial on July 31, 1989 and a decision denying merit review on May 24, 1990, by
decision dated July 9, 1991, the Office accepted that appellant sustained employment-related
post-traumatic stress disorder. Appellant, who had retired under disability effective May 25,
1989, opted benefits under the Federal Employees’ Compensation Act1 and was placed on the
periodic rolls. She participated in the Federal Employees’ Health Benefits Program (FEHB) and
through the years submitted a number of forms changing her enrollment plans.
By letter dated January 5, 2004, appellant stated that she wanted to change her health
coverage from self and family to self only and attached a health benefits election form dated
November 12, 2003 indicating that she wished to change from Mail Handlers code 452 to Mail
Handlers code 451, high self coverage. A computer-generated FEHB enrollment form indicates
that appellant’s enrollment was changed from code 451 to 455 effective April 18, 2004. Office
computer print-outs contained in the record show that appellant’s FEHB deductions for the
period April 18, 2004 to September 2, 2006 were under the 455 code, standard family coverage
and that no FEHB deductions were made for the period September 3, 2006 to August 25, 2007.
An Office memorandum dated August 1, 2007 provides that appellant changed from
family coverage, code 452, to single coverage, 451, but noted that an Office form erroneously
changed the single coverage, 451, to family coverage, 455, effective April 18, 2004. The
memorandum also noted that appellant’s health benefits were suspended effective September 3,
2006 for failure to pay Mail Handlers union dues but that these were reinstated effective
September 18, 2006 under code 451.
On October 18, 2007 the Office issued a preliminary finding that an overpayment in
compensation in the amount of $6,793.94 had been created. It explained that the overpayment
resulted because the Office failed to make proper deduction for FEHB premiums for code 451
for the period April 18, 2004 to August 4, 2007.2 Appellant was found to be without fault and
was provided an overpayment questionnaire and given instruction on appropriate responses to
the preliminary finding. She was given 30 days to respond.3 On November 29, 2007 the Office
finalized the overpayment decision. It found that appellant was not at fault in the creation of the
overpayment but noted that she had not responded to the preliminary overpayment finding and
thus was not entitled to waiver. The Office ordered repayment by deduction $486.00 every four
weeks from her continuing compensation.
1

5 U.S.C. §§ 8101-8193.

2

The Office specifically stated that the correct deductions under code 451 for the period April 18, 2004 to
August 4, 2007 totaled $12,329.42 whereas the deductions that had been made under code 455 for the period
April 18, 2004 to September 2, 2006 totaled $5,534.48, yielding an overpayment in compensation of $6,793.94. The
Office noted that no health insurance deductions were made for the period September 3, 2006 to August 4, 2007.
3

On May 1, 2004 appellant was paid a refund of $3,249.85 because incorrect health benefit premiums were
deducted for the period July 16, 1998 to April 14, 2004.

2

LEGAL PRECEDENT -- ISSUE 1
The Office of Personnel Management (OPM), rather than the Office, has jurisdiction over
the matter of health insurance deductions from compensation and over enrollment under the
FEHB.4 OPM regulations provide guidelines for the registration, enrollment and continuation of
enrollment for federal employees. In this connection, section 890.502(a)(1) provides that an
employee or annuitant is responsible for payment of the employee’s share of the cost of
enrollment for every pay period during which the enrollment continues. In each pay period for
which health benefits withholdings or direct premium payments are not made but during which
the enrollment of an employee or annuitant continues, he or she incurs an indebtedness due to the
United States in the amount of the proper employee withholding required for that pay period.5 In
addition, section 890.502(c)(1) provides that an agency that withholds less than or none of the
proper health benefits contributions from an individual’s pay, annuity or compensation must
submit an amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of Title 5 of the United States Code, to OPM for
deposit in the Employees Health Benefits Fund.6 When the Office deducts less than the proper
health benefit premium for the coverage selected, an overpayment in compensation is created.7
The Board has recognized that, when an under withholding of health insurance premiums is
discovered, the entire amount is deemed an overpayment in compensation because the Office
must pay the full premium to OPM when the error is discovered.8
ANALYSIS -- ISSUE 1
The record in this case supports that, for the period April 18, 2004 to March 19, 2005, the
Office deducted health benefit premiums based on code 455 for standard family coverage rather
than code 451 for high self coverage, as had been selected by appellant on an FEHB enrollment
form dated November 12, 2003. It was obligated to deduct appropriate health benefit premiums
for code 451.9 An overpayment worksheet documented that the correct deductions under code
451 for the period April 18, 2004 to August 4, 2007 totaled $12,329.42 whereas the deductions
that had been made under code 455 for the period April 18, 2004 to September 2, 2006 totaled
$5,534.48 and that no health insurance deductions were made for the period September 3, 2006
to August 4, 2007. This yielded an overpayment in compensation of $6,793.94. The Board finds
that, because deductions were made under the incorrect health benefit enrollment code for the
period April 18, 2004 to September 2, 2006 and no health benefit deduction was made for the
period September 3, 2006 to August 4, 2007, an overpayment in compensation in the amount of
$6,793.94 was created.
4

Raymond C. Beyer, 50 ECAB 164 (1998).

5

5 C.F.R. § 890.502(a)(1).

6

5 U.S.C. § 8906; 5 C.F.R. § 890.502(c)(1).

7

See John Skarbek, 53 ECAB 630 (2002).

8

James Lloyd Otte, 48 ECAB 334 (1997).

9

5 U.S.C. §§ 890.502(a)(1), 890.502(c)(1).

3

LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”10 Section 10.438 of Office regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by the Office. This information is needed to determine whether or not
recovery on an overpayment would defeat the purpose of the Act or be against equity and good
conscience.11 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.12
ANALYSIS -- ISSUE 2
As the Office found appellant without fault in the creation of the overpayment in
compensation, waiver must be considered and repayment is still required unless adjustment or
recovery of the overpayment would defeat the purpose of the Act or be against equity and good
conscience.13 Appellant, however, had the responsibility to provide financial information to the
Office.14
In its preliminary determination dated October 18, 2007, the Office clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if she failed to furnish the requested financial information within 30 days. Within
the required 30-day period, appellant did not submit a completed overpayment questionnaire or
otherwise submit financial information supporting her income and expenses. As a result, the
Office did not have the necessary financial information to determine if recovery of the
overpayment would defeat the purpose of the Act or if recovery would be against equity and
good conscience. Consequently, as appellant did not submit the financial information required
under section 10.438 of Office regulations, which was necessary to determine her eligibility for

10

5 U.S.C. § 8129.

11

Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by the
Office from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
12

20 C.F.R. § 10.438.

13

Supra note 11.

14

Supra note 12.

4

waiver, the Office properly denied waiver of recovery of the overpayment in compensation in the
amount of $6,793.64.15
LEGAL PRECEDENT -- ISSUE 3
The Office’s implementing regulation provides that, if an overpayment of compensation
has been made to an individual entitled to further payments and no refund is made, it shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.16
ANALYSIS -- ISSUE 3
As stated earlier, appellant did not submit an overpayment recovery questionnaire or
other financial information that the Office requested prior to the final November 29, 2007
overpayment decision. The overpaid individual is responsible for providing information about
income, expenses and assets as specified by the Office.17 When an individual fails to provide
requested financial information, the Office should follow minimum collection guidelines
designed to collect the debt promptly and in full.18 As appellant did not submit any financial
information to the Office as requested, the Board finds that there is no evidence in the record to
show that a recovery rate of $486.00 every 28 days was unreasonable. She has not shown that
the Office improperly required withholding $486.00 from her continuing compensation
payments every 28 days.19
CONCLUSION
The Board finds that an overpayment of $6,793.94 occurred because the Office neglected
to deduct proper health insurance premiums from appellant’s continuing compensation. The
Board further finds that the Office properly denied waiver of the overpayment and did not abuse
its discretion in setting the rate of recovery at $460.00 each compensation period.

15

Id.

16

Id. at § 10.441(a).

17

Supra note 12.

18

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Chapter 6.200.4(c)(2) (September 1994).
19

The Board notes that on appeal appellant stated that she was hospitalized in October 2007. The case record
forwarded to the Board does not contain evidence to support this contention but does indicate that appellant was
hospitalized in October 2006.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2007 be affirmed.
Issued: August 18, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Polk, LA, Employer
__________________________________________

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

Docket No. 14-1842
Issued: January 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2014 appellant filed a timely appeal from a July 11, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $5,202.55 for the
period September 5, 2005 through July 21, 2007 because he received compensation at the
augmented rate when he had claimed no eligible dependents; (2) whether OWCP properly found
that appellant was at fault in the creation of the overpayment and not subject to waiver; and
(3) whether it properly required repayment of the overpayment by withholding $525.00 per
month from appellant’s continuing monthly compensation benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 25, 1991 appellant, then a 35-year-old painter, filed a traumatic injury claim
alleging that he stepped on an oil dip stick cover and his left ankle buckled under him. OWCP
accepted the claim for left ankle strain, derangement of anterior of medial meniscus, and left
unspecified internal derangement of knee. Appellant stopped work on the date of injury and was
eventually placed on the periodic rolls for payment for total disability. He received wage-loss
compensation at the augmented rate of 75 percent due to having eligible dependents of a wife
and a daughter born November 24, 1991. Appellant subsequently had two more children: a
daughter, date of birth May 22, 1993, and a son, date of birth January 23, 1997. On September 5,
1996 he requested that his compensation payments be directly deposited into his bank account.
On September 5, 2005 appellant and his wife separated. Based on a court order dated
September 8, 2005, he was ordered to pay child support payments of $550.00 a month to his wife
until February 8, 2007.2 On May 26, 2006 appellant was granted a divorce with his former
spouse retaining sole custody of the minor children.
On September 19, 2006 appellant submitted a completed Form CA-1032 indicating that
he had no dependents for the 15 months prior. OWCP continued to pay FECA compensation at
the augmented rate and deduct child support from his wages.
On July 22, 2007 appellant remarried.
On September 26, 2007 appellant submitted a completed Form CA-1032 claiming his
new wife and his three children as dependents for the 15 months prior. On Form CA-1032 dated
September 27, 2008 he stated that he was not married but claimed his three children as
dependents for the 15 months prior. On Form CA-1032 dated October 2, 2009 appellant claimed
his wife and children as his dependents for the 15 months prior. On Form CA-1032 dated
September 14, 2010 he claimed his wife and three children as his dependents for the prior 15
months. On Form CA-1032 dated June 23, 2011 appellant claimed his wife and two of his three
children as dependents, noting that his oldest daughter was 19 years old and needed to be taken
off support as she was not in school. In a December 6, 2011 Form CA-1032, appellant claimed
his wife and son as dependents. He noted that his older daughter was 20 years old and not in
school and that his second daughter was 18 years old and not in school. In a September 20, 2012
Form CA-1032, appellant stated that he was not married and claimed his son as his only
dependent, noting that his two daughters were over 18 years old and not in school. In a
September 7, 2013 Form CA-1032, he claimed his wife as a dependent but not his children,
stating that they were too old.
In August 2013, OWCP stopped child support deductions. It noted there was no child
support order in place for appellant’s son, still a minor.
In an April 9, 2014 notice of proposed decision, OWCP found appellant was entitled to
$13,199.00 in compensation for child support payments that had been garnished from his wage2

By order dated October 12, 2006, the 30th Judicial District removed State of Louisiana Department of Social
Services as the payee of child support and named appellant’s former wife as the payee for all payments of child
support.

2

loss compensation payments after his two daughters turned 18 years old, pursuant to the
September 8, 2005 court order, mandating appellant’s child support obligations. It also noted
that appellant’s claim that he had no dependents during the period September 5, 2005 to July 21,
2007 appeared inconsistent with the facts of appellant’s legal obligation.
On April 21, 2014 appellant requested a review of the written record before OWCP’s
Branch of Hearings and Review. On May 1, 2014 OWCP’s Branch of Hearings and Review
returned the case file to the district office for issuance of a final decision.
In an April 21, 2014 statement, which OWCP received May 1, 2014, appellant indicated
that since February 8, 2007 he was “not to have to pay child support” for his three minor children
as the child support order was in place only for the period September 9, 2005 through
February 8, 2007. He indicated that eventually the Department of Social Services was removed
from receiving child support payments and his ex-wife was the one paid the child support
payments. Appellant indicated that there were no other child support orders. He stated that
OWCP continued to take out child support even though the order had ended February 8, 2007.
Appellant stated that he told OWCP to stop taking out child support when his daughters turned
18 years old but he did not stop child support for his son because he was unaware that the child
support order had expired on February 8, 2007. He alleged that once the court order expired on
February 8, 2007, OWCP should have stopped taking child support out but only did so in
August 2013 after he hired an attorney. Appellant alleged the $13,199.00 did not cover all the
money due him as child support payments should have been stopped February 8, 2007 and not
when his two oldest children turned 18 years old.
In a May 27, 2014 preliminary decision, OWCP found appellant was overpaid the
amount of $5,202.55 for the period September 5, 2005 through July 21, 2007 because he
accepted payments at the augmented rate of 75 percent when he had no qualifying dependents. It
further found that he was with fault in the creation of the overpayment because he accepted a
payment that he knew or reasonably should have known was incorrect.
On June 16, 2014 appellant requested a review of the written record before OWCP’s
Branch of Hearing and Review. In a five-page statement, he argued that he did not understand
why he owes OWCP money as he provided OWCP copies of the court order for child support
and OWCP continued to pay child support long after the court order had expired on
February 8, 2007. Appellant did not submit a completed OWCP-20 form or provide any
supporting financial evidence.
By decision dated July 11, 2014, OWCP finalized the overpayment of compensation in
the amount of $5,202.55 for the period September 5, 2005 through July 21, 2007 for which
appellant was found with fault in the creation of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.3 If the
disability is total, the United States shall pay the employee during the disability monthly
3

5 U.S.C. § 8102(a).

3

compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.4 Where the employee has one or more dependents as defined
in FECA, he is entitled to have his basic compensation augmented at the rate of 8 1/3 percent, for
a total of 75 percent of monthly pay.5
A dependent includes an unmarried child who, while living with the employee or
receiving regular contributions from the employee toward his support, is either 18 years of age or
over 18 years of age and incapable of self-support due to physical or mental disability.6 A child
is also considered a dependent if he or she is an unmarried student under 23 years of age who has
not completed four years of education beyond the high school level and is currently pursuing a
full-time course of study at a qualifying college, university or training program.7
If a claimant receives augmented compensation during a period where he or she has no
eligible dependents, the difference between the compensation he or she was entitled to receive at
the two-thirds compensation rate and the augmented compensation received at the three-quarters
rate constitutes an overpayment of compensation.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP erred in declaring an overpayment of compensation for the
period September 5, 2005 through July 21, 2007.
On his September 19, 2006 CA-1032 form appellant claimed no dependents for the 15
months prior. The factual evidence of record reflects that appellant was separated from his first
wife on September 5, 2005 and was court ordered to pay child support for his dependent children
from September 8, 2005 through February 8, 2007. His wages were garnished from his OWCP
benefits to meet the obligations created under this court order. Appellant remarried on July 22,
2007 and claimed augmented compensation on CA-1032 forms dated September 26, 2007 and
September 27, 2008. Because he was under a court order to pay child support commencing
September 8, 2005, he remained entitled to augmented compensation on September 8, 2005 even
though he reported that he had no qualifying dependents.9 Under FECA, an employee is entitled
to augmented wage-loss compensation for dependent children so long as they are unmarried and
under the age of 18 and the employee contributes to their support. In this case, appellant was
receiving augmented compensation benefits based on court-ordered child support payments.
Thereafter, he filed for and was paid augmented compensation based on his marriage to his
second wife and his dependent children. Accordingly, OWCP’s finding that appellant received
4

Id. at § 8105(a).

5

Id. at § 8110(b).

6

Id. at § 8110(a).

7

E.G., 59 ECAB 599 (2008).

8

Diana L. Booth, 52 ECAB 370 (2001).

9

See Clarence Brown, Docket No. 05-307 (issued June 9, 2005). The record did not establish that appellant was
making any court-ordered support payments for his daughter during the period in question. Therefore, he had no
eligible dependents and was entitled to compensation at the basic two-thirds rate.

4

an overpayment of $5,202.55 for the period September 5, 2005 through July 21, 2007 is
reversed.
OWCP paid appellant an additional $5,202.55 due to his augmented rate status from
September 5, 2005 through July 21, 2007. While it subsequently declared an overpayment of
$5,202.55, this finding is reversed because appellant properly received the augmented
compensation due to the dependency status of his three children who were under 18 years of age
during the period in question and for which he was court-ordered to provide child support.10
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment in the amount of $5,202.55 for the period September 5, 2005 through July 21, 2007
as he had eligible dependents and was entitled to augmented compensation.
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 21, 2015
Washington, DC

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

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

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

10

Due to the disposition of this case, the remaining issues on appeal and appellant’s arguments are moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, BALLARD CARRIER
ANNEX, Seattle, WA, Employer
__________________________________________

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

Docket No. 11-1475
Issued: December 7, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2011 appellant filed a timely appeal from the March 24, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
coronary condition on November 22, 2010 in the performance of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the March 24, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal written
request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
On December 17, 2010 appellant, then a 54-year-old customer services supervisor, filed
an occupational disease claim alleging that he sustained injury on November 22, 2010 as a result
of his employment. He experienced shortness of breath and chest pains as a result of performing
an outdoor route inspection in snowy weather. Appellant noted that the route inspection was
unscheduled and he was not dressed for cold and snow.
On December 17, 2010 the employing establishment’s manager of customer services
challenged appellant’s statement, stating that his medical documentation only established a knee
injury, which was not employment related.
In a January 7, 2011 letter, OWCP requested that appellant submit additional medical
evidence in support of his claim. It advised that he should obtain a medical report that provided
dates of examination and treatment, history of injury given by him to the physician, detailed
descriptions of the findings, results of all testing, diagnosis and clinical course of treatment
followed, and the physician’s opinion supported by a medical explanation as to how the reported
work incident caused or aggravated the claimed injury.
In response to OWCP’s request, appellant submitted a statement dated January 28, 2011,
in which he stated that he had earlier instances of chest discomfort in July 2010, but that he was
not diagnosed with coronary artery disease. He provided two unsigned medical reports from
Group Health. The two form reports from Group Health, dated July 13 and September 1, 2010
both noted appellant’s complaints of chest discomfort and arm pain, and prescribed medication;
the September 1, 2010 report concluded that appellant’s “treadmill test looks OK.”
Appellant also submitted a report from Dr. Elisabeth Jacobs, who is Board-certified in
pulmonary disease and internal medicine, dated January 21, 2010. Dr. Jacobs provided an
account of appellant’s history and noted that he had been working out of doors on the day in
question, as well as his physical examination results which were all within normal limits. She
noted appellant’s family history of cardiac disease and recommended a nuclear cardiac study.
Regarding diagnosis and causal relationship, Dr. Jacobs noted that, while she was unable to
determine at the time whether appellant’s symptoms are related to cardiac ischemia, and that
later evaluation on December 10, 2010 had indeed turned out to be negative, she had no doubt
that his dyspnea (shortness of breath) and chest discomfort were related to his exertions at work.
She explained that appellant’s symptoms are caused by a combined effect from “cold, wet,
unaccustomed exertion, deconditioning, and lack of suitable clothing.”
In a March 24, 2011 decision, OWCP denied appellant’s claim on the basis that, without
a medical diagnosis, he failed to carry the burden of proof that he sustained an injury in the
performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his claim including the fact that the individual is an employee of the United States
3

5 U.S.C. §§ 8101-8193.

2

within the meaning of FECA, that the claim was timely filed, that an injury was sustained in the
performance of duty as alleged and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.4
A traumatic injury is defined by OWCP implementing regulations as “a condition of the
body caused by a specific event or incident, or series of events or incidents, within a single
workday or shift. Such condition must be caused by external force, including stress or strain,
which is identifiable as to time and place of occurrence and member or function of the body
affected.”5
A person who claims benefits for a work-related condition has the burden of establishing
by the weight of the medical evidence a firm diagnosis of the condition claimed and a causal
relationship between that condition and factors of federal employment.6 Pain is a symptom, not
a compensable medical diagnosis.7
ANALYSIS
The Board notes initially that, while appellant filed a claim for occupational disease, as
appellant’s allegations pertain to his work activities on one day/one shift in question,
November 22, 2010, his claim is for traumatic injury. OWCP has accepted that appellant walked
an outdoor route on the day in question during inclement weather.
The Board finds that appellant has not met his burden of proof to establish his claim of
injury as he has submitted insufficient medical evidence to establish that he sustained a medical
condition due to his employment factors of November 22, 2010.
OWCP informed appellant that he needed to submit a medical report that included a
diagnosis of his medical condition and medical rationale explaining the relationship of that
condition to his employment. Appellant submitted two unsigned medical reports from “Group
Health” which did not provide a history of injury and only noted his complaints of chest pain.
These reports are of no probative medical value. Probative, rationalized medical opinion
evidence is medical evidence which includes a diagnosis of the medical condition, and
rationalized opinion on whether there is a causal relationship between the employee’s diagnosed
condition and the compensable employment factors. The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.8 None of these reports were signed by a physician and they noted appellant’s
symptoms. They lacked probative value as to diagnosis; history of injury; and causal connection
relating the diagnosis to appellant’s work activities on November 22, 2010.
4

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(ee).

6

See Roy L. Humphrey, 57 ECAB 238 (2005); see Naomi A. Lilly, 10 ECAB 560, 574 (1959).

7

Robert Broome, 55 ECAB 339, 342 (2004).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

Appellant also submitted Dr. Jacob’s January 21, 2011 report. However, Dr. Jacob’s
medical report also does not provide a firm diagnosis of appellant’s condition. The report stated
that appellant had been evaluated for myocardial ischema, but the result was negative, and that
appellant suffered from dyspnea and chest pains. Dyspnea and chest pains are both symptoms,
not diagnosis of compensable medical conditions. Appellant must submit a medical report which
provides a diagnosis of a medical condition, and which explains how appellant’s employment
activities on November 22, 2010 caused the diagnosed condition. As there is no medical
evidence diagnosing his with a medical condition, he had failed to establish the medical
component of his claim.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a medical condition
caused by his employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 24, 2011 is affirmed.
Issued: December 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4