United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, NAVAL AIR STATION,
Alameda, CA, Employer
__________________________________________

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

Docket No. 07-1780
Issued: January 23, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 7, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 25, 2007 finding an overpayment of
compensation and denying waiver of the recovery of the overpayment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the overpayment decision in this
case.
ISSUES
The issues are: (1) whether the Office properly determined that an overpayment of
$1,333.65 was created because she incorrectly received compensation at the augmented rate; and
(2) whether the Office properly denied waiver of the recovery of the overpayment.
FACTUAL HISTORY
On September 7, 1994 appellant, then a 44-year-old personnel clerk, filed an
occupational disease claim alleging a low back condition, as a result of lifting boxes on a project

for about two to three weeks. She experienced pain in her back accompanied by heat and
tightness which spread to her hip. Appellant’s claim was accepted for a low back strain.
Medical and compensation benefits were paid.
On March 5, 2007 the Office issued a preliminary determination that appellant received
an overpayment in the amount of $1,333.65 because it paid her at the augmented compensation
rate of three-fourths. As she had no dependents, she should have been compensated at the
statutory two-thirds rate.1 A preliminary determination was also made that appellant was without
fault in the creation of the overpayment. The Office sent her forms to complete if she wished to
request a waiver of the recovery of the overpayment.
On March 17, 2004 appellant requested waiver of the overpayment due to the fact that the
overpayment occurred through no fault of her own. She noted that she never claimed that she
had any dependents and was not familiar with how compensation was calculated. Appellant
listed her monthly income as her “pay from work” and noted her total monthly income as “small
[approximately] $42,500[.00] per year.” She listed her monthly expenses as $1,225.00 for rent
or mortgage, $400.00 for food, $150.00 for clothing and $300.00 for utilities. Appellant listed
her assets as $100.00 cash on hand, $150.00 in checking account and $33,000.00 as the current
value of her stocks or bonds. She listed no miscellaneous expenses.
In a decision dated April 25, 2007, the Office finalized its determination that appellant
received an overpayment in the amount of $1,333.65 and that she was not at fault in the creation
of the overpayment. It found that waiver was not warranted as there was no evidence that
recovery of the overpayment would be against equity and good conscience or defeat the purpose
of the Act. The Office found that appellant’s monthly income exceeded her monthly expenses
by approximately $1,084.40, noting that appellant had net earnings of $3,159.40 and monthly
expense of $2,075.00.
LEGAL PRECEDENT -- ISSUE 1
Section 8110 of the Act2 provides that a disabled employee with one or more dependents
is entitled to have his or her basic compensation for disability augmented by eight and one-third
percent. If a claimant receives augmented compensation during a period where she has no
1

The Office noted that for the period November 8 through 19, 2004 appellant was paid $994.12 whereas she
should have been paid $883.67 resulting in an overpayment of $110.45. For the period November 20 to
December 18, 2004, the Office noted that appellant was paid $1,802.32 when she should have been paid $1,767.33
for an overpayment of $34.99. For the period December 19, 2004 through January 3, 2005, appellant was paid
$1,093.53 whereas she should have been paid $972.30 resulting in an overpayment of $121.23. For the period
November 28, 2005 through January 21, 2006, appellant was paid $4,438.08 whereas she should have been paid
$3,944.96 which resulted in an overpayment of $493.12. For the period January 22 through February 4, 2006,
appellant was paid $1,109.52 whereas she should have been paid $986.24 which resulted in an overpayment of
$123.28. For the period February 5 through 18, 2006, appellant was paid $1,109.52 whereas she should have been
paid $986.24 resulting in an overpayment of $123.28. Finally for the period March 1 through October 25, 2006,
appellant was paid $2,947.13 whereas she should have been paid $2,619.67 for an overpayment in the amount of
$327.46. The Office then added the total amount of the overpayments together and concluded that appellant
received an overpayment in the amount of $1,333.65.
2

5 U.S.C. § 8110.

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eligible dependents, the difference between the compensation 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.
ANALYSIS -- ISSUE 1
The evidence establishes that appellant has no dependents and, in fact, never claimed any
dependents. However, she received compensation at the augmented rate. Appellant received
gross pay at the augmented rate from November 8, 2004 through January 3, 2005 in the amount
of $3,889.97. She should have been paid $3,623.30 at the statutory rate. This resulted in an
overpayment of $266.67. For the period November 28, 2005 through February 18, 2006,
appellant was paid at the augmented rate in the amount of $6,657.12 whereas she should have
received $5,917.44, resulting in an overpayment in the amount of $739.68. Appellant received
payment for the period March 1 through October 25, 2006 in the augmented amount of
$2,947.13 whereas she should have been paid $2,619.67 resulting in an overpayment of $327.46.
The total amount of these overpayments equals $1,333.65.3 Accordingly, the Office properly
found that appellant received an overpayment in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act4 provides: Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.5 Since the Office found appellant to be without fault in the creation of the
overpayment, the Office may only recover the overpayment if recovery would neither defeat the
purpose of the Act nor be against equity and good conscience. The guidelines for determining
whether recovery of any overpayment would defeat the purpose of the Act or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of her
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.6 An individual’s liquid assets
include but are not limited to cash, the value of stocks, bonds, savings accounts, mutual funds

3

The Board notes that actually, the total amount of these overpayments is $1,333.81.

4

5 U.S.C. § 8101 et seq.

5

5 U.S.C. § 8129(B).

6

20 C.F.R. § 10.436. Office procedures provide that the assets must not exceed a resource base of $4,800.00 for
an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional depended.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).

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and certificate of deposits.7 Nonliquid assets include but are not limited to the fair market value
of an owner’s equity in property such as a camper, boat, second home and furnishings, supplies.8
Section 10.437 of the Office’s regulations provides that recovery of an overpayment
would be against equity and good conscience if: (a) the overpaid individual would experience
severe financial hardship in attempting to repay the debt; or (b) the 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. To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.9
ANALYSIS -- ISSUE 2
The Office hearing representative found that appellant was not at fault in creating the
overpayment of compensation. The overpayment cannot be waived, however, unless recovery
would defeat the purpose of the Act or would be against equity and good conscience.
As to whether recovery would defeat the purpose of the Act in this case, appellant
contends that the Office must have used her gross earnings in determining that her expenses
exceeded her income by $1,084.40 per month and did not account for taxes, social security and
other deductions. It is not clear how the Office determined that appellant had net earnings of
$3,159.40 per month. The Board notes that appellant failed to fully complete the financial
forms. Nonetheless, when asked for her monthly income, appellant indicated that it was “pay
from work” and that her total monthly income was $42,500.00 per year. Accordingly, any
confusion as to appellant’s monthly income could have been prevented had she properly
completed her financial form.10 However, any argument as to whether the Office improperly
determined whether appellant’s monthly income exceeded her monthly expenses is moot as
appellant listed on her financial form $33,000.00 as the current value of stocks and bonds. Since
these assets exceed the resource base of $4,800.00 for an individual with no dependents, under
20 C.F.R. § 10.436 recovery of the overpayment would not defeat the purpose of the Act.
Furthermore, the Board finds that appellant did not establish that recovery would be against
equity and good conscience. The Board notes that appellant has not given up any right or
relinquished a valuable right in reliance on the overpayments.
The Board finds that recovery of the overpayment would not defeat the purpose of the
Act or be against equity and good conscience. Pursuant to 5 U.S.C. § 8129(b), the Office
properly declined to waive the overpayment.
7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (May 2004).
8

Id.

9

20 C.F.R. § 10.437(b)(1) (1999).

10

The overpaid individual has the responsibility to provide financial information used to determine any
repayment schedule. See 20 C.F.R. § 10.438.

4

CONCLUSION
The Board finds that the Office properly determined that an overpayment of $1,333.65
was created and that the Office properly denied waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2007 is affirmed.
Issued: January 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, KINGS BAY
SUBMARINE BASE, Kings Bay, GA, Employer
__________________________________________

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

Docket No. 09-1506
Issued: January 28, 2010

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 May 11, 2009 appellant, through his attorney, filed a timely appeal from an April 13,
2009 nonmerit decision of the Office of Workers’ Compensation Programs denying his request
for reconsideration. As more than one year has elapsed between the filing of this appeal and the
last merit decision, the Board lacks jurisdiction to review the merits of this case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of his case under 5 U.S.C. § 8128.
FACTUAL HISTORY
On October 12, 2004 appellant, then a 46-year-old pipefitter, filed an occupational
disease claim alleging that he sustained spondylolisthesis at L5-S1 due to factors of his federal

employment. The Office accepted his claim for a permanent aggravation of spondylolisthesis at
L5-S1.1 Appellant underwent lumbar fusion surgery in April 2005.
On April 20, 2006 appellant requested a schedule award. By decision dated May 30,
2007, the Office granted him a schedule award for a four percent permanent impairment of the
left leg.
On January 31, 2008 appellant requested reconsideration. He submitted a January 14,
2008 report from Dr. Gary Kaufman, an attending Board-certified neurosurgeon and physiatrist,
who opined that appellant had a 28 percent impairment of the whole person under Table 15.3 on
page 384 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides), which categorizes impairments of the lumbar spine.
In a decision dated April 23, 2008, the Office denied modification of its May 30, 2007 decision.
Appellant submitted progress reports dated January 28, 2008 through March 11, 2009
from Dr. Kaufman. In a report dated May 12, 2008, Dr. Kaufman noted that appellant “certainly
fulfills the criteria for category 5” under the A.M.A., Guides and indicated that he had previously
found a 28 percent impairment. He advised appellant to “contest his impairment rating….” On
March 11, 2009 Dr. Kaufman recommended that he obtain an impairment evaluation from
Dr. Gold.2
By letter dated April 1, 2009, appellant, through his attorney, requested reconsideration
of the April 23, 2008 decision. Counsel indicated that the request was “based on the medical
report of Dr. Gold” which he would submit to the Office when he received the report.3
By decision dated April 13, 2009, the Office denied appellant’s request for further review
of the merits of his claim under section 8128. It noted that he had not submitted a report from
Dr. Gold. The Office found that the medical evidence received subsequent to its April 23, 2008
decision was not relevant in determining the extent of appellant’s impairment rating.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
1

By decision dated January 3, 2005, the Office denied appellant’s claim after finding that the medical evidence
was insufficient to establish that he sustained a medical condition due to the identified work factors. On March 30,
2006 it vacated its January 3, 2005 decision and accepted his claim for an aggravation of L5-S1 spondylisthesis.
2

Dr. Gold’s full name is not known.

3

On April 7, 2009 appellant’s attorney inquired whether the Office would pay Dr. Gold in advance for his report.

4

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

20 C.F.R. § 10.606(b)(2).

2

review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.8 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.9 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.10
ANALYSIS
In a decision dated May 30, 2007, the Office granted appellant a schedule award for a
four percent permanent impairment of the left lower extremity. On January 31, 2008 he
requested reconsideration and submitted a report dated January 14, 2008 from Dr. Kaufman, who
found that appellant had 28 percent whole person impairment according to Table 15.3 on page
384 of the A.M.A., Guides, which lists criteria for rating impairments of the lumbar spine. By
decision dated April 23, 2008, the Office denied modification of its May 30, 2007 decision.
On April 1, 2009 appellant requested reconsideration of the April 23, 2008 decision
based on an anticipated report from Dr. Gold. He did not, however, submit an impairment
evaluation from Dr. Gold. In a report dated May 12, 2008, Dr. Kaufman noted that he had
previously found that appellant had a 28 percent permanent impairment and asserted that he met
the criteria for a Category 5 impairment under the A.M.A., Guides. The Office, however,
previously considered Dr. Kaufman’s impairment evaluation in its April 23, 2008 decision.
Evidence which repeats or duplicates evidence already in the case record has no evidentiary
value and does not constitute a basis for reopening a case.11 Further, Dr. Kaufman’s finding that
appellant had a Category 5 impairment under an unspecified section of the A.M.A., Guides is too
general to be relevant to determining the extent of appellant’s permanent impairment; thus it is
insufficient to warrant reopening the case for further review of the merits.
The remaining progress reports dated January 28, 2008 through March 11, 2009 from
Dr. Kaufman do not address the extent of appellant’s permanent impairment and thus are not

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

9

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

11

F.R., 58 ECAB 607 (2007); Richard Yadron, 57 ECAB 207 (2005).

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pertinent to the issue at hand. Evidence that does not address the particular issue involved does
not warrant reopening a case for merit review.12
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As he did not meet any of the necessary
regulatory requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of his case under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 13, 2009 is affirmed.
Issued: January 28, 2010
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

12

J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, NATIONAL EQUAL
EMPLOYMENT OPPORTUNITY
INVESTIGATIVE SERVICE OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Frederick M. Neiswender, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0305
Issued: October 18, 2018

Case Submitted on the Record

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

JURISDICTION
On November 27, 2017 appellant, through counsel, filed a timely appeal from a June 2,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition with consequential multiple sclerosis (MS) flare-up and immunological compromise in
the performance of duty.
FACTUAL HISTORY
On September 5, 2012 appellant, then a 52-year-old Equal Employment Opportunity
(EEO) service analyst, filed an occupational disease claim (Form CA-2) alleging that a stressful,
hostile work environment caused a flare-up of a preexisting anxiety condition and major
depression, which resulted in a flare-up of preexisting MS, immunologic deterioration, and
infections.3 She noted that she first became aware of her claimed conditions on March 6, 2008.
She stopped work on July 12, 2012, and related her conditions to her federal employment on
August 10, 2012.
In a supplemental statement to the Form CA-2, appellant indicated that her stress began on
August 27, 2010 when she was promoted to her current position. She was concerned about her
ability to complete time sensitive cases “the right way.” Appellant alleged that she worked up to
19 hours a day, including nights and weekends, because she felt compelled to edit the work of
other employees even though it had been approved by managers. She indicated that on her own
initiative, she performed significant case research beyond what she characterized as an unethically
minimal level directed by her supervisors. Appellant also asserted that supervisors demanded that
she work overtime, including on August 18, 2011. Additionally, she alleged that, in
September 2011, Acceptance and Dismissal Manager K.L. assigned her a new type of work at a
higher volume than other analysts. Appellant noted stress related to a September 2011 assignment
that she believed was a “conflict of interest” as it involved one of her former managers. She
contended that her division was short staffed following an analyst’s March 2012 retirement and
that managers became “hostile” when she requested a reduction in workload. Appellant alleged
that Investigative Division Manager V.B. came to appellant’s office at the end of the work day to
remind her of deadlines. She also alleged that while she was hospitalized intermittently from May
to July 2012, managers deliberately let her case deadlines expire then blamed her for not
completing her work on time. Appellant characterized a supervisor’s tone of voice during a
June 2012 meeting as harassment.
By development letter dated September 20, 2012, OWCP notified appellant of the type of
additional evidence needed to establish her claim, including factual evidence of corroboration of
the identified workplace incidents, and a report from her attending physician diagnosing a
condition attributable to those incidents. It afforded her 30 days to submit the necessary evidence.
The employing establishment submitted two October 11, 2012 statements denying
appellant’s allegations. A human resources analyst noted that appellant had filed a prior emotional

3

OWCP assigned the present claim OWCP File No. xxxxxx454.

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condition claim on July 21, 2005 under File No. xxxxxx7924 and an EEO claim for similar
allegations of overwork and harassment. Manager V.B. contended that appellant worked excessive
hours due to disorganization, procrastination, preoccupation with case details, and issues “not
relevant to her core duties,” unnecessary research, and failure to follow managerial directives. In
September 2011, appellant refused to rely on approved templates for new work, and instead
unnecessarily created her own materials. As she viewed all supervisory input as “harassment,”
managers had reassigned many of her cases to other analysts to assure their completion. V.B.
noted that most of the analysts in appellant’s division were able to meet case deadlines as the
agency’s work volume had decreased 20 percent in fiscal year 2012.
A June 11, 2012 EEO initial management inquiry summary noted that unnamed analysts
agreed that the workload was heavy. Fifty percent of the analysts who responded claimed to work
40 to 42 hours a week, and 50 percent claimed to work more than 50 hours a week.
In response, appellant provided October 30, November 14, and December 12, 2012 letters
contending that the employing establishment’s statements were misleading and inaccurate. She
provided a copy of her 2011 annual performance review. Appellant was rated as a 4 out of a
possible 15. Appellant also provided medical evidence related to her MS diagnosis.5
In a letter dated December 31, 2012, the employing establishment controverted appellant’s
claim.
By decision dated March 18, 2013, OWCP denied appellant’s claim for an emotional
condition with consequential MS flare-up and immunological compromise as the evidence
submitted failed to establish that the events occurred as alleged.
On November 1, 2013 appellant requested reconsideration. She provided her April 8, 2011
mid-year performance evaluation, in which her manager recommended speed reading training as
appellant used a ruler while reading and would slide it down the page as she read. Appellant also
provided an undated statement from Coworker C.N., who asserted that she and Coworker P.S.
managed appellant’s incoming mail and other items while appellant was hospitalized in July 2012.
C.N. noted that analysts often worked more than 40 hours a week. She also submitted an
August 22, 2012 EEO response and June 21, 2013 EEO final agency decision finding that
appellant had not established her allegations of harassment, discrimination, disparate treatment, or
a hostile work environment.
In a letter dated December 30, 2013, the employing establishment asserted that during 2012
when the division workload had declined, it was still necessary to reassign “major portions” of
4

An additional claim had been filed under OWCP File No. xxxxxx805, in which OWCP accepted that appellant
sustained an “other acute reaction to stress, unspecified” on October 1, 2001.
5

Appellant was first diagnosed with MS in March 2008. She was treated by Dr. Robert Wilson, an attending
osteopathic physician specializing in neurology, from January 6, 2011 to August 10, 2012. Dr. Gillian Karatinos, a
Board-certified psychiatrist, treated appellant from July 12 to August 22, 2012 for recurrent major depressive disorder,
generalized anxiety disorder, rule out bipolar II disorder, and cognitive problems. Appellant also provided laboratory
reports and imaging studies dated from March 2009 to July 2011, and records from her hospitalization from July 12
to 16, 2012.

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appellant’s cases as she refused to comply with case processing procedures and supervisory
instructions.
In response, appellant submitted several additional statements. She alleged that a
supervisor humiliated her by giving her a copy of a book entitled, The Complete Idiot’s Guide to
Speed Reading. Appellant also contended that in July 2012, a supervisor telephoned her at home
to discuss a leave use issue and the contents of her outgoing voicemail message during extended
leave. She contended that supervisors refused to provide reasonable accommodations following
her hospitalizations in 2012.
Appellant provided May 18 and June 6, 2012 e-mails to and from Manager W.C., in which
she reiterated her allegations of harassment. W.C. assured appellant that he was not mad at her
and had never been. He asked appellant to “calm down” and allow the EEO investigator to
complete her assessment.
Appellant also submitted an excerpt of a September 22, 2012 EEO affidavit by
Manager K.L. noting that, generally, analysts left work at 4:00 p.m., but took work home, and that
appellant was notified when she was hired to “expect to work long hours, weekends and Holidays
and to expect to take work home.” Appellant’s position was FLSA-exempt, with no preset limit
to the number of hours worked in a given week.
By decision dated February 11, 2014, OWCP modified its prior decision to find that
appellant had established as factual that she worked long hours, on weekends, and on holidays. It
denied the claim, however, finding that appellant worked those hours to complete self-assigned
tasks in contravention of supervisory directives. OWCP therefore found that the overwork did not
occur in the performance of duty. It further found that appellant had established as factual that a
supervisor had given her a copy of a speedreading book, but there was no intent to harass appellant.
Additionally, OWCP found that appellant had established that she received a call at home to
discuss her FMLA status and was instructed about the contents of her outgoing voicemail message.
It found, however, that these were administrative matters not considered to be within the
performance of duty, and that no error or abuse was established. OWCP further found that
appellant had not established as factual that she was denied appropriate reference materials to
perform her job successfully, that she was told to perform unethical acts, that she was denied
accommodations following a hospitalization, and that a manager’s tone of voice in a June 2012
meeting constituted harassment.
On February 9, 2015 appellant, through counsel, requested reconsideration. In additional
statements, counsel contended that attached e-mails to appellant from K.L. and V.B. dated from
October 2010 to May 2012, with questions or brief comments about appellant’s cases, were
examples of managerial harassment. Counsel also provided employing establishment case
tracking screen captures dated from February to July 2012, EEO complaint documents regarding
procedural issues, and a January 12, 2015 EEO decision affirming the denial of appellant’s EEO
claim.
Appellant submitted a February 9, 2015 statement from Coworker C.O. alleging that
supervisors did not properly manage appellant’s caseload during her hospitalizations and that

4

analysts often worked more than 40 hours a week. In a February 10, 2015 statement, her husband
reiterated her allegations of overwork and harassment.
The employing establishment submitted statements dated March 20 and April 16, 2015,
contending that appellant was assigned an equitable workload, but engaged in “time-wasting
practices not central to her core duties,” failed to follow standard operating procedures, and
rejected guidance from managers and successful peers. These habits prevented appellant from
completing a reduced workload in early 2012, prior to her hospitalizations.
By decision dated September 21, 2015, OWCP denied modification of its prior decision,
finding that the additional evidence submitted failed to establish a compensable factor of
employment. It found that appellant failed to establish her allegations of harassment,
discrimination, or disparate treatment. OWCP noted that the supervisory statements of record
provided a thorough and credible rebuttal of appellant’s allegations.
On September 19, 2016 appellant requested reconsideration. She contended that the
employing establishment’s settlement of her 2005 EEO claim, and a court’s denial of a motion to
dismiss certain aspects of her current EEO claim, proved her allegations. Appellant submitted
copies of EEO documents, including a January 4, 2016 settlement agreement related to a 2005
EEO claim.6 In exchange for a payment of $40,000.00, appellant released and discharged the
employing establishment from all claims related to those events. The employing establishment
stipulated that the settlement was not an admission of liability or fault.
In a letter dated October 17, 2016, the employing establishment noted that voluminous
EEO investigative documents failed to establish appellant’s allegations of harassment,
discrimination, disparate treatment, or overwork.
Appellant submitted a January 29, 2017 rebuttal, alleging that she had established
overwork as a compensable employment factor. The employing establishment responded by letter
dated March 6, 2017, asserting that appellant had been assigned an equitable workload, but refused
to comply with her supervisor’s instructions.
By decision dated June 2, 2017, OWCP denied modification of its prior decision, finding
that the additional evidence failed to establish a compensable factor of employment. It found that
while the evidence of record established that appellant worked long hours, her supervisors’
statements confirmed that she did so due to disorganization and failure to follow directions.
OWCP further found that appellant failed to establish her allegations of harassment,
discrimination, retaliation, and disparate treatment.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) medical evidence establishing that he or she has an emotional or psychiatric
6
An August 13, 2012 tracking form indicates that the EEO settlement pertained to a complaint filed on
December 16, 2005.

5

disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to the emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,8 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.9
When an employee experiences emotional stress in carrying out his or her employment duties, and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.10 Allegations alone by a claimant are insufficient to establish a factual basis
for an emotional condition claim.11 Where the claimant alleges compensable factors of
employment, he or she must substantiate such allegations with probative and reliable evidence.12
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.13 On the other hand the disability is not covered where it results from such factors as
an employee’s fear of a reduction-in-force or his or her frustration from not being permitted to
work in a particular environment or to hold a particular position.14
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.15
Mere perceptions of harassment, retaliation or discrimination are not compensable under FECA.16

7

George H. Clark, 56 ECAB 162 (2004).

8

28 ECAB 125 (1976).

9

See Robert W. Johns, 51 ECAB 137 (1999).

10

Supra note 8.

11

J.F., 59 ECAB 331 (2008).

12

M.D., 59 ECAB 211 (2007).

13

Roger Williams, 52 ECAB 468 (2001).

14

Supra note 8.

15

Marlon Vera, 54 ECAB 834 (2003).

16

Kim Nguyen, 53 ECAB 127 (2001).

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition with consequential MS flare-up and immunological compromise in the performance of
duty.
Appellant has attributed her emotional condition to performing her regular or specially
assigned duties of her position. She alleged that she began to experience anxiety and to feel
overwhelmed when she was promoted on August 27, 2010. Appellant contended that managers
assigned her an excessive workload with unreasonable deadlines, and that her division was short
staffed following an analyst’s retirement in March 2012. She noted performing unassigned
research and editing tasks to complete cases “the right way.” In a supplemental statement to her
Form CA-2, appellant contended that her supervisors required an unethically minimal amount of
research and used erroneous case templates. She felt compelled to perform additional research,
alter the work of other employees, and create her own reference materials.
In support of her claim, appellant submitted a June 11, 2012 EEO management inquiry
summary in which unspecified coworkers alleged that the unit workload was heavy and required
more than 40 hours a week to complete. Coworkers C.N. and C.O. alleged that analysts worked
more than 40 hours a week. In an excerpt from an undated statement, Manager K.L. noted that
appellant was informed when she was hired to expect to work long hours.
These general statements attesting that analysts worked long hours are insufficient to
establish that appellant was overworked. There were no specific dates or times provided where
appellant was required to work more than 40 hours a week and the employing establishment has
denied that appellant’s regularly or specially assigned duties required overtime work.17 Rather,
the employing establishment contended that appellant engaged in irrelevant, unassigned tasks and
then claimed this time as work hours.
In an October 11, 2012 statement, Manager V.B. contended that appellant refused to
complete her work in accordance with management directives. Instead, appellant spent many
hours on unnecessary or irrelevant research that extended her case processing time and resulted in
missed deadlines, despite 20 percent decrease in agency case volume in fiscal year 2012. In
statements dated March 20 and April 16, 2015, the employing establishment reiterated that
appellant was disorganized and engaged in irrelevant, time-wasting practices.
OWCP accepted that appellant worked more than 40 hours a week, but found that any
overwork was related to appellant’s idiosyncratic case processing methods and irrelevant research.
The managerial statements of record establish that appellant’s self-imposed research, editing, and
template creation tasks were performed outside the scope of her assigned duties and in
contravention of management directives. The Board therefore finds that these extraneous activities

17

A.L., Docket No. 17-0368 (issued June 20, 2018); see Y.J., Docket No. 15-1137 (issued October 4, 2016)
(claimant did not provide the requisite detail regarding specific dates and the duties she performed, which allegedly
overwhelmed her, to establish that her assigned work caused her stress).

7

were not sufficiently related to appellant’s regular, day-to-day duties to constitute a compensable
factor of employment under Cutler.18
Appellant also made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,19 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative or
personnel action established error or abuse by the employing establishment superiors in dealing
with the claimant. Absent evidence of such error or abuse, the resulting emotional condition must
be considered self-generated and not employment generated. In determining whether the
employing establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.20
Appellant alleged that a supervisor telephoned her at home to discuss a leave issue and
provide guidance regarding appellant’s outgoing voicemail message during her extended leave.
OWCP accepted this incident as factual, but found that these were administrative matters not
within the performance of appellant’s assigned duties. The Board notes that while the handling of
leave requests is generally related to the employment, they are administrative functions of the
employer and not duties of the employee.21 The Board has also held that the actions supervisors
must take during an employee’s extended absence are administrative matters not considered to be
within the performance of duty.22 The Board finds that the employing establishment acted
reasonably with regard to these administrative matters.23 There is no evidence that the employing
establishment denied appellant’s leave request or acted unreasonably.24 The Board recognizes that
a supervisor or manager must be allowed to perform his or her duties and that, in performing such
duties, employees will at times dislike actions taken.25 Appellant has presented no corroborating
evidence to support that the employing establishment acted unreasonably in this administrative
matter.

18

R.A., Docket No. 14-1438 (issued September 16, 2015); O. Paul Gregg, 46 ECAB 624 (1995) (where the Board
found that the tasks identified as elements of overwork must bear a sufficient relationship to the employee’s regular
assigned duties to constitute a compensable factor of employment under Cutler).
19

41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

20

David W. Shirey, 42 ECAB 783, 795-96.

21

A.L., supra note 17; see Judy Kahn, 53 ECAB 321 (2002).

22
M.H., Docket No. 12-0130 (issued December 4, 2012) (where the Board held that a supervisor reading and
deleting work-related e-mails on the claimant’s computer during an extended work absence was a normal
administrative function to assure an orderly work flow and that no error or abuse was shown).
23

A.L., supra note 17; M.H., id.

24

Id.

25

A.L., supra note 17, see Michael A. Dass, 53 ECAB 208 (2001).

8

Appellant also alleged that managers utilized erroneous, unethical case processing
techniques, and allowed case deadlines to expire in July 2012 during her hospitalization. The
Board has held that an employee’s dissatisfaction with perceived poor management constitutes
frustration from not being permitted to work in a particular environment or to hold a particular
position and is not compensable under FECA.26 As such, appellant has not established a
compensable employment factor with respect to these administrative matters.27
Appellant further attributed her condition to harassment, discrimination, and a hostile work
environment. To the extent that incidents alleged as constituting harassment or a hostile
environment by a manager are established as occurring and arising from appellant’s performance
of her regular duties, these could constitute employment factors.28 However, for harassment to
give rise to a compensable disability under FECA, there must be evidence that harassment did in
fact occur. Mere perceptions of harassment are not compensable under FECA.29
Appellant alleged that a supervisor’s recommendation for speed reading training, giving
her The Complete Idiot’s Guide to Speed Reading in 2011, and e-mails dated from October 2010
to May 2012 with feedback on her cases, constituted harassment. OWCP accepted that a
supervisor had given appellant the book and acknowledged the feedback e-mails, but found no
evidence of harassment. The Board notes that appellant’s April 8, 2011 performance review
described her difficulties with reading text and of the need for additional training to improve her
case processing speed. The evidence of record does not demonstrate that a supervisor or manager
treated appellant in a disrespectful manner by providing performance feedback.30 Error or abuse
in discharging management duties has not been established. Therefore, these allegations are not
compensable.31
Appellant also contended that the May 18 and June 6, 2012 e-mails to and from Manager
W.C. about her EEO complaint, a supervisor’s tone of voice during a June 2012 meeting, and an
alleged failure to provide accommodations following a June 2012 hospitalization were all
incidents of harassment and discrimination. The employing establishment submitted several
statements denying appellant’s allegations regarding these administrative matters. Appellant has
not established these allegations of harassment with probative and reliable evidence.32
With regard to appellant’s allegation that the supervisory e-mails about the EEO claim
constituted harassment, the Board has long held that EEO complaints by themselves do not
26

Michael Thomas Plante, 44 ECAB 510, 515 (1993).

27

R.A., supra note 18.

28

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

29
Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
30

G.M., Docket No. 17-1469 (issued April 2, 2018).

31

Id.

32

Supra note 29.

9

establish that workplace harassment or unfair treatment occurred.33 Additionally, Manager W.C.
expressed that he was not angry with appellant and asked that she allow the investigation to
proceed. The Board finds that the e-mails establish that the employing establishment acted
reasonably in regard to these administrative matters.34 The evidence does not establish her
allegations of harassment.35
Concerning appellant’s allegations that a supervisor spoke to her in an elevated tone of
voice in a June 2012 meeting, and that managers failed to provide reasonable accommodations,
she failed to submit any evidence to substantiate these assertions as factual. Also, the Board has
held that not every verbal interaction in the workplace is compensable simply because a claimant
takes issue with the tone of voice used by the speaker.36
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.37 The Board
therefore needs not to consider the medical evidence of record.38
On appeal appellant contends that she has established her emotional condition claim, and
that the employing establishment failed to investigate or address her allegations. As explained
above, she has not established her claim for an emotional condition as she has not established a
compensable employment factor.39
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 an emotional
condition in the performance of duty.

33
S.H., Docket No. 17-1942 (issued August 23, 2018). See Parley A. Clement, 48 ECAB 302 (1997). The Board
noted that the EEO January 4, 2016 settlement agreement pertained to workplace events prior to August 28, 2010, and
not to the events appellant alleged caused the claimed emotional condition in the current claim.
34

R.A., supra note 18.

35

See Joel Parker, Sr., supra note 29.

36

D.J., Docket No. 16-1540 (issued August 21, 2018); T.G., 58 ECAB 189 (2006).

37

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Margaret S. Krzycki, 43 ECAB 496 (1992).
38

See Katherine A. Berg, 54 ECAB 262 (2002).

39

R.A., supra note 18.

10

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 2, 2017 is affirmed.
Issued: October 18, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RALPH H. JOHNSON MEDICAL CENTER,
Charleston, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-992
Issued: February 7, 2013

Case Submitted on the Record

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

JURISDICTION
On April 4, 2012 appellant filed timely appeals of October 31 and December 7, 2011
decisions of the Office of Workers’ Compensation Programs (OWCP) that denied his request for
reconsideration without a merit review. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these decisions.
Because more than 180 days elapsed from December 14, 2010, the date of the most recent merit
decision to April 4, 2012, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 5, 2008 appellant, then a 53-year-old medical administration officer, filed
an occupational disease claim alleging that his preexisting emotional condition was aggravated
1

5 U.S.C. § 8101 et seq.

by numerous employment factors. He managed the Myrtle Beach Clinic in South Carolina from
2001 to 2004 and the Savannah Clinic in Georgia since 2004, but received less pay than other
similarly-situated administrators. Shortly after appellant relocated to the Savannah Clinic, a staff
shortage led to a backlog of patient cases from 2004 to 2006. As a result, he worked overtime on
nights and weekends. Appellant also detailed numerous disagreements with management
regarding performance ratings, promotions, bonuses, instructions and disciplinary actions as well
as incidents of harassment.
Appellant also filed a formal complaint of discrimination with the employing
establishment’s Office of Resolution Management. Following a May 9, 2008 investigative
report and an October 31, 2008 hearing before an administrative law judge of the Equal
Employment Opportunity Commission (EEOC), the employing establishment issued a final
order on December 11, 2008. The order adopted the judge’s ruling that appellant was not
subjected to discrimination or harassment on the basis of race, sex, age, disability or reprisal.
By decision dated April 6, 2009, OWCP denied appellant’s claim, finding that the factual
evidence failed to identify a compensable factor of employment.2
Appellant’s then-counsel requested an oral hearing, which was held on July 22, 2009. On
October 1, 2009 an OWCP hearing representative affirmed the April 6, 2009 decision with
modification. She found that the factual evidence established that: (1) a staff shortage resulted
in a backlog of patient cases at the Savannah Clinic from 2004 and 2006; and (2) appellant
worked overtime during this period. The medical evidence, however, did not sufficiently
establish that these job factors aggravated appellant’s preexisting emotional condition. With
respect to his other allegations, such as the matter regarding his pay, the hearing representative
concluded that they were not substantiated and did not involve a compensable factor of
employment.
Counsel requested reconsideration on September 30, 2010 and submitted new evidence.
On December 14, 2010 OWCP denied modification of the October 1, 2009 decision. OWCP
found that the medical evidence did not establish that appellant’s condition was aggravated by
the established factors and that appellant’s other allegations such as harassment, discrimination
and retaliation in the workplace were not substantiated.
Appellant requested reconsideration on August 18, 2011 and submitted new evidence. In
an EEOC decision issued January 21, 2011, Carlton M. Hadden, Director of the Office of
Federal Operations, found that appellant received less compensation than a similarly-situated
female administrator, in violation of the Equal Pay Act. He reversed the employing
establishment’s December 11, 2008 final order, in part. Appellant asserted that this supported
his allegation of discrimination. By decision dated October 31, 2011, OWCP denied appellant’s
request on the grounds that he did not present new evidence warranting further merit review.
Appellant requested reconsideration on November 23, 2011, arguing that the January 21,
2011 EEOC decision constituted new evidence not previously considered by OWCP. By
decision dated December 7, 2011, OWCP denied his request on the grounds that he did not
present new evidence warranting further merit review.

2

This decision, which was originally dated March 13, 2009, was reissued to preserve appellant’s appeal rights.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
ANALYSIS
By decision dated October 1, 2009, an OWCP hearing representative found that
appellant’s allegation of pay disparity did not constitute a compensable factor of employment.
OWCP affirmed this holding on December 14, 2010. On August 18, 2011 appellant timely
requested reconsideration of the December 14, 2010 merit decision. He submitted a January 21,
2011 EEOC decision that found a violation of the Equal Pay Act and reversed, in part, the
employing establishment’s December 11, 2008 final order. OWCP denied appellant’s request on
October 31, 2011, finding that he did not offer new evidence warranting further merit review. A
subsequent request was denied on December 7, 2011 on the same basis.
The Board finds that the January 21, 2011 EEOC decision constitutes relevant and
pertinent new evidence not previously considered by OWCP. An underlying issue of the
December 14, 2010 merit decision was whether the alleged pay disparity constituted a
compensable factor of employment for appellant’s emotional condition claim. The Board has
held that matters relating to pay are administrative functions of the employing establishment and
fall outside the coverage of FECA;6 however, such matters will be considered compensable
factors of employment where the evidence discloses error or abuse on the part of the employing
establishment.7 In this case, appellant submitted a January 21, 2011 EEOC decision that found a
violation of the Equal Pay Act. Since this decision established error on the part of employing
establishment, it is relevant to the issue of whether appellant established a compensable factor of
employment.8 Therefore, OWCP was obligated to conduct a merit review of the claim.9
3

5 U.S.C. § 8128(a).

4

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

5

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

6

See, e.g., Frederick D. Richardson, 45 ECAB 454 (1994); Michael Thomas Plante, 44 ECAB 510 (1993).

7

M.D., 59 ECAB 211 (2007); Ruth S. Johnson, 46 ECAB 237 (1994). See also Thomas D. McEuen, 41 ECAB
387 (1990), reaff’d on recon., 42 ECAB 566 (1991).
8

Pamela I. Holmes, 49 ECAB 581 (1998). While EEOC findings are not dispositive of proceedings brought
under FECA, they are nonetheless instructive to such proceedings. Id. Cf. Jimmy L. Day, 48 ECAB 654 (1997)
(holding that an EEOC decision favorable to claimant, while not binding in its result, was of sufficient probative
value to prima facie shift the weight of the evidence in favor of claimant as it offered significant support to his
allegations of error or abuse and raised a substantial question as to whether the employer committed error or abuse
in personnel matters).
9

D.M., Docket No. 10-1844 (issued May 10, 2011).

3

Reopening a claim for merit review does not require a claimant to submit all evidence
that may be necessary to discharge his burden of proof.10 If OWCP should determine that the
new evidence submitted lacks probative value, it may deny modification of the prior decision,
but only after the case has been reviewed on the merits.11
On remand OWCP shall conduct a merit review of the case, further develop the record as
necessary and issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 7 and October 31, 2011 decisions of
the Office of Workers’ Compensation Programs be set aside and the case remanded for further
merit review.
Issued: February 7, 2013
Washington, DC

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

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

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

10

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See Dennis J. Lasanen, 41 ECAB 933 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

)
)
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)
)
)
)
)
)

Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-564
Issued: December 16, 2010

Case Submitted on the Record

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

JURISDICTION
On December 28, 2009 appellant, through her attorney, filed a timely appeal from an
August 5, 2009 merit decision of the Office of Workers’ Compensation Programs finding that
she received an overpayment of compensation and that she was at fault in its creation. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $35,466.50 overpayment of
compensation as she received compensation for total disability after she returned to work from
February 1, 2007 to September 5, 2008 and also received compensation based on an inaccurate
loss of wage-earning capacity determination from September 6 to November 22, 2008;
(2) whether she was at fault in the creation of the overpayment; and (3) whether the Office
properly determined that it would recover the overpayment by withholding $130.00 from
continuing compensation payments.

FACTUAL HISTORY
On June 28, 2005 appellant, then a 33-year-old transportation security screener, filed a
claim alleging that she sustained an injury to her right ankle and top of foot when a passenger
accidentally kicked her where she had undergone surgery.1 She stopped work on June 28, 2005.
The Office accepted the claim for a right ankle contusion and sprain. In its acceptance
letter, it advised appellant that if she returned to work she must notify it immediately to avoid an
overpayment of compensation. The Office stated, “If you receive a compensation check which
includes payment for a period you have worked, return it to us immediately to prevent an
overpayment of compensation.”
The Office paid appellant compensation for disability beginning August 13, 2005. On
November 14, 2005 it began paying her by direct deposit.
On April 4, 2007 appellant indicated on a (Form EN1032) that she began working on
February 1, 2007 as a correctional officer for the state of North Carolina. She provided earnings
of $12.00 a hour. In a June 5, 2008 EN1032 form, appellant related that she earned $1,354.45 a
month beginning February 2008 working for the North Carolina Department of Corrections.
The Office informally calculated appellant’s wage-earning capacity based on the
information she provided in the June 5, 2008 EN1032 form. It paid her compensation from
August 3 to September 5, 2008 based on its finding that she had actual earnings of $338.61 a
week and a 51 percent wage-earning capacity. The Office calculated her weekly compensation
due at $255.25 a week or $1,021.00 every four weeks.
On September 26, 2008 the Office requested updated pay rate information from the
employing establishment. On September 29, 2008 it paid appellant compensation from
September 6 through 27, 2008 of $852.50 based on its calculation that she had a wage-earning
capacity of 48 percent.
A wage and tax statement (Form W-2) showed that appellant earned $27,590.17 in 2007.
In an October 7, 2008 internal memorandum, the Office calculated her pay rate based upon the
salary provided on her W-2 form. It noted that appellant began working on February 1, 2007 and
so divided $27,590.17 by 48 weeks, to find a weekly pay rate of $574.80. The Office began
paying her on September 28, 2008 based on its calculation that she had an 89 percent wageearning capacity.
On October 14, 2008 the North Carolina Department of Corrections indicated that
appellant worked from January 29, 2007 to the present full time as a correctional officer earning
$545.00 a week or $13.64 a hour as of March 1, 2008. Appellant earned an additional 53 cents
an hour as of July 1, 2008. On December 17, 2008 the Office reduced her compensation

1

The Office previously accepted that appellant sustained a bilateral ankle sprain on September 15, 2004 in file
No. xxxxxx344.

2

effective February 1, 2007 based on her actual earnings of $566.80 a week as a correctional
officer, which it found yielded a wage-earning capacity of 81 percent.2
On December 21, 2008 appellant alleged that she worked only 13 days a month and
earned only $502.02 a week.3 On January 29, 2009 the Office informed her that she needs to
support her allegation that she worked only 13 days a month.4
On April 29, 2009 the North Carolina Department of Corrections indicated that appellant
earned a base salary of $24,451.62 from February 1 to December 31, 2007 with an additional
$2,001.41 for premium pay, $237.67 for holiday pay and $318.07 for straight time. From
January 1 to December 31, 2008 appellant earned $28,920.00 with an additional $4,768.88 for
premium pay, $660.48 for holiday pay and $115.94 for straight time. On May 13, 2009 the
employing establishment again provided updated pay rate information for her date-of-injury pay
band.
On May 14, 2009 the Office determined that appellant had a wage-earning capacity of
$562.69 a week in 2007 and $662.79 a week in 2008 based on the information provided by the
State of North Carolina. It applied the formula set forth in Albert C. Shadrick5 formula to
calculate the amount of compensation she should have received in 2007 and 2008.
On May 15, 2009 the Office advised appellant of its preliminary determination that she
received an overpayment of $35,446.50 because she began working on February 1, 2007 but
received compensation for total disability until September 5, 2008. It included in this amount the
overpayment appellant received because she was paid based on an inaccurate loss of wageearning capacity from September 6 to November 22, 2008. The Office notified her of its
preliminary determination that she was at fault in the creation of the overpayment from
September 6 to November 22, 2008 because she underreported her actual earnings and from
February 1, 2007 to September 5, 2008 because she accepted a payment she knew or should have
known was incorrect. It found that appellant earned an average of $562.69 a week from
February 1 to December 31, 2007 for a wage-earning capacity of 80 percent and earned an
average of $662.79 a week in 2008, for a wage-earning capacity of 93 percent. The Office
calculated the overpayment by subtracting the amount that she should have received from
February 1, 2007 to November 22, 2008 based on her loss of wage-earning capacity, $6,678.98,
from the amount that she actually received during this period, $42,125.48, to find an
overpayment of $35,446.50. It requested that appellant complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. Additionally, the Office
advised her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence or a prerecoupment hearing.
2

By decision dated January 21, 2009, the Office suspended appellant’s compensation under 5 U.S.C. § 8123 for
failing to attend a scheduled medical appointment.
3

In a letter dated January 17, 2007, received by the Office on January 22, 2009, the North Carolina Department
of Correction indicated that appellant would start work on January 29, 2007 and earned $26,104.00 a year.
4

By decision dated April 7, 2009, the Office denied appellant’s claim for a schedule award.

5

5 ECAB 376 (1953); 20 C.F.R. § 10.403(c).

3

On June 10, 2009 appellant completed an overpayment recovery questionnaire. She
asserted that she was without fault in creating the overpayment as she had informed the Office in
writing of her employment. Appellant listed monthly income of $1,558.32 and expenses of
$2,510.57.
By letter dated June 30, 2009, the Office informed appellant’s attorney that it had
received the overpayment recovery questionnaire but had not received a copy of the
overpayment action request form.6 It enclosed another copy of the appeal rights from the
May 15, 2009 preliminary determination. On July 7, 2009 appellant’s attorney requested
reconsideration of the preliminary overpayment determination.
On July 14, 2009 the Office requested additional information regarding appellant’s
overpayment recovery questionnaire.
Appellant responded with the information on
July 27, 2009.
By decision dated August 5, 2009, the Office determined that appellant received an
overpayment of compensation of $35,466.50. It found that she was at fault in creating the
overpayment because she accepted payments that were erroneous and underreported her monthly
wages. The Office indicated that it would withhold $130.00 from continuing compensation
payments to repay the overpayment.
On appeal, appellant’s attorney contends that she provided all information to the Office
and established that she would experience hardship in repaying the debt.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act7 provide that the United
States shall pay compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.8 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.9
A claimant is not entitled to receive total disability compensation and actual earnings for
the same period. Office procedures provide that an overpayment in compensation is created
when a claimant returns to work but continues to receive wage-loss compensation.10
6

On June 16, 2009 the Office reinstated appellant’s compensation after she agreed to attend a scheduled second
opinion examination. It further advised her of its informal reduction of her compensation effective April 11, 2009
based on its wage-earning capacity determination.
7

5 U.S.C. §§ 8101-8193.

8

Id. at § 8102.

9

Id. at § 8129(a).

10

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).

4

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a right ankle contusion and sprain. Appellant
stopped work on June 28, 2005 and received compensation for total disability beginning
August 13, 2005. On February 1, 2007 she began working for the State of North Carolina. The
Office, however, continued to pay appellant compensation for total disability. When an
employee has earnings from employment, she is not entitled to receive total disability benefits
and actual earnings for the same time period.11 Consequently, appellant received an
overpayment of compensation. The Office determined that it paid her compensation for total
disability from February 1, 2007 to September 5, 2008 and paid her compensation based on a
loss of wage-earning capacity determination beginning September 6, 2008. However, it began
paying appellant based on an informal loss of wage-earning capacity determination on August 3,
2008 rather than September 5, 2008. The case, consequently, is remanded for the Office to
determine the amount of the overpayment of compensation that arose because she received
compensation for total disability while she had earnings from nonfederal employment.
Subsequent to August 3, 2008, the Office paid appellant compensation based on its
determination of her loss of wage-earning capacity. As noted, when an employee has earnings
from employment, appellant is not entitled to receive temporary total disability benefits and
actual earnings for the same time period.12 Under these circumstances, the Office offsets actual
earnings pursuant to the Shadrick formula. If a reduction of benefits based upon actual earnings
is not accompanied by a determination that the actual earnings “fairly and reasonably” represent
wage-earning capacity, an informal reduction of benefits utilizing the Shadrick formula is proper
rather than a formal loss of wage-earning capacity determination. The Office did not find that
appellant’s actual earnings fairly and reasonably represented her wage-earning capacity and thus
properly provided an informal determination of the amount owed based on what it believed to be
her actual earnings using the Shadrick formula.13 It paid her compensation from August 5 to
September 5, 2008 based on its finding that she had a 51 percent wage-earning capacity, from
September 6 to 27, 2008 based on its finding of a 48 percent wage-earning capacity and from
September 28 to November 22, 2008 based on its finding of an 89 percent wage-earning
capacity. The Office subsequently received information from the State of North Carolina
showing that in 2008 appellant had a 93 percent wage-earning capacity. Therefore, appellant
received an overpayment of compensation from August 3 to November 22, 2008.
Appellant has not submitted any evidence showing that she did not receive an
overpayment of compensation. As previously discussed, the case is remanded to the Office to
reconsider the amount of the overpayment.

11

Daniel Renard, 51 ECAB 466 (2000); 20 C.F.R. § 10.403(c).

12

Id.

13

5 U.S.C. § 8106(a).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act14 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations15
provides that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
The Board has held that an employee who receives payments from the Office in the form
of direct deposit may not be at fault the first time incorrect funds are deposited into her account,
as the acceptance of the resulting overpayment lacks the requisite knowledge.16 The Board has
also held in cases involving a series of incorrect payments, where the requisite knowledge is
established by a letter or telephone call from the Office or simply with the passage of time and a
greater opportunity for discovery, the claimant will be at fault for accepting the payments
subsequently deposited.17 Previous cases have held that receiving one or two erroneous direct
deposit payments does not necessarily create the requisite knowledge to find that a claimant was
at fault in the creation of the overpayment.18 The Board has found fault in cases where incorrect
payments were made over longer periods of time or for substantially greater amounts than
previously received.19
ANALYSIS -- ISSUE 2
On February 1, 2007 appellant returned to nonfederal employment. She advised the
Office on a EN1032 form dated April 4, 2007 of her return to work. From February 1, 2007
through August 2, 2008 she received compensation for total disability from the Office after she
returned to nonfederal employment. In finding appellant at fault for the creation of the

14

Id. at § 8129(b).

15

20 C.F.R. § 10.433.

16

W.P., 59 ECAB 514 (2008); Tammy Craven, 57 ECAB 689 (2006).

17

See Tammy Craven, supra note 16.

18

Id. at n.6.

19

Id. at n.7.

6

overpayment for this period, the Office determined that she accepted payments through direct
deposit that she knew or should have known to be incorrect.
The Board has found the claimant to be at fault in cases where she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments are incorrect.20 It is not appropriate, however, to
make a finding that a claimant has accepted an overpayment via direct deposit until such time as
a reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentation such as a bank statement or notification from
the Office or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.21
Appellant received compensation by direct deposit for total disability from the time she
resumed work on February 1, 2007 to August 2, 2008. Since Office regulations define fault by
what the claimant knew or should have known at the time of acceptance, one of the
consequences of electronic fund transfers is that in many cases the claimant will not be at fault
for accepting the first incorrect payment because the requisite knowledge is lacking at the time of
deposit and the Board so finds in this case as there is no evidence of record to show the period
covered by this direct deposit.22 A finding that appellant is without fault does not mean,
however, that the claimant may keep the money, but rather that the Office must consider
eligibility for waiver for this period. The case will, therefore, be remanded to the Office for a
determination of the exact period she is not at fault and whether she is entitled to waiver for this
period.
Regarding the remainder of the overpayment created from February 1, 2007 to August 2,
2008, even though the Office may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payment she knew or should have known to be incorrect.23
The Office advised appellant in its August 28, 2005 letter accepting her claim that she had to
immediately report if she returned to work to avoid an overpayment. It was not reasonably for
her to believe that she could earn money from employment and receive compensation from the
Office for total disability.24 Thus, after appellant’s receipt of the first direct deposit for which
fault may not be imputed to her, she knew or should have known, under the reasonableness
standard delineated above, that the subsequent direct deposits were in error. Consequently,
recover for the overpayment created for this period may not be waived.
From August 2 to November 22, 2008 appellant received compensation based on an
inaccurate loss of wage-earning capacity determination. The Office found that she was at fault in
20

Karen K. Dixon, 56 ECAB 145 (2004).

21

See K.H., Docket No. 06-191 (issued October 30, 2006).

22

See Karen K. Dixon, supra note 20.

23

J.K., 60 ECAB ___ (Docket No. 08-1716, issued January 8, 2009); William E. McCarty, 54 ECAB 525 (2003).

24

See L.C., 59 ECAB 569 (2008) (in applying the tests to determine fault, the Office applies a “reasonable
person” test).

7

creating the overpayment for this period because she made an incorrect statement about a
material fact in underreporting her earnings. On a June 5, 2008 EN1032 form, appellant related
that she earned $1,354.45 a month as of February 2008 or $16,253.40 a year. After receiving
this information, on August 3, 2008 the Office informally reduced her compensation based on
the earnings she reported on the EN1032 form. It paid appellant’s compensation from August 3,
2008 until September 27, 2008 based on its calculation that she had a wage-earning capacity of
around 50 percent. On April 29, 2009, however, the employing establishment related that she
earned $28,920.00 from January 1 through December 31, 2008 plus premium pay. A claimant
has an obligation to show good faith and exercise a high degree of care in reporting events that
might affect the amount of her compensation.25 The EN1032 form advised appellant that a false
or evasive answer to any question could be grounds for severe penalties. As she did not provide
the Office with accurate information regarding her earnings on the June 5, 2008 EN1032 form,
she is not without fault in creating the overpayment from August 3 to September 27, 2008.
Subsequent to September 28, 2008, the Office began paying appellant based on
information it received from her W-2 form. It paid her compensation from September 28 to
November 22, 2008 based on its finding that she had an 89 percent wage-earning capacity. The
Office later determined that appellant had a wage-earning capacity during this period of 93
percent. The difference in amount, however, was not created because of her failure to report a
material fact but because discrepancies in information provided by the employing establishment.
Consequently, the Board finds that appellant is not at fault in creating the overpayment from
September 28 to November 22, 2008. On remand, the Office should determine if she is entitled
to wavier for this period.
On appeal, appellant’s attorney contends that she provided the Office with all requested
information and that recovery of the overpayment would create a hardship. For the portions of
the overpayment that she is not without fault in creating, however, she is not entitled to waiver of
the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation as she received
compensation for total disability after she returned to work from February 1, 2007 through
August 2, 2008 and also received compensation based on an inaccurate loss of wage-earning
capacity determination from August 2 to November 22, 2008. The Board finds, however, that
the case is not in posture for decision regarding the amount of the overpayment. The Board
further finds that she was not at fault for the first direct deposit of compensation after February 1,
2007 but was at fault for the overpayment commencing subsequent to the first direct deposition
of compensation. The case is remanded for a determination of waiver for the period covered by
the first direct deposit.26 The Board further finds that appellant is without fault in creating the
overpayment from September 28 to November 22, 2008. On remand, the Office should consider
whether she is eligible for waiver for this portion of the overpayment.
25

See F.C., 59 ECAB 190 (2007).

26

In view of the Board’s finding that the Office must consider waiver for a portion of the overpayment, it is
premature to address the issue of recovery.

8

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside. The case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: December 16, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Terre Haute, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1087
Issued: September 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 10, 2014 appellant filed a timely appeal from an October 22, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on August 14, 2013.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence after the issuance of the October 22, 2013 decision. The
Board lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On September 6, 2013 appellant, then a 40-year-old vocational trade instructor, filed a
traumatic injury claim (Form CA-1) alleging scrapes and abrasions to his hand and a lower back
strain as a result of an attempted assault by an inmate during a trip to the local hospital on
August 14, 2013. Appellant’s supervisor, Diane Quinones, checked a box indicating that
appellant had been injured in the performance of duty. She also checked a box indicating that
her knowledge of the facts about this injury correlated with the statements of appellant and/or
other witnesses. Ms. Quinones noted that appellant had returned to work the next day.
Appellant submitted a prescription slip for Augmentin with an illegible signature. He
also submitted unsigned discharge instructions from Terre Haute Regional Hospital dated
August 14, 2013, indicating diagnoses of scrapes and abrasions, and back pain and injury. The
discharge instructions listed appellant’s treating provider as Robin Likens, nurse practitioner.
In a radiological report dated August 14, 2013, Dr. Janalyn Ferguson, a Board-certified
radiologist, obtained an x-ray of appellant’s lumbar spine. She noted no evidence of fracture or
other acute abnormality.
On September 17, 2013 OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he respond to its inquiries and submit a
comprehensive medical report from an attending physician including dates of examination and
treatment, the history and date of injury given to him by the physician, a detailed description of
findings, results of all x-ray and laboratory tests, a diagnosis and clinical course of treatment and
an opinion based on medical explanation as to how the claimed work incident caused or
aggravated his claimed injury. Appellant resubmitted his prescription slip, unsigned discharge
instructions, and Dr. Ferguson’s radiological report, but did not respond to OWCP’s inquiries.
By decision dated October 22, 2013, OWCP accepted that appellant was a federal civilian
employee who filed a timely claim; that the incident occurred; that a medical condition had been
diagnosed; and that he was within the performance of duty. However, it denied appellant’s claim
for compensation. OWCP found that the medical evidence of record was insufficient to establish
that appellant’s diagnosed conditions were causally related to the incident of August 14, 2013.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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

3

5 U.S.C. § 8101 et seq.

2

employment injury.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.7 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.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.12 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.13

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4 at n.5.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4 at n.5.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
OWCP accepted the employment incident of August 14, 2013. The issue is whether
appellant has submitted sufficient evidence to establish that he sustained scrapes and abrasions to
the hand, as well as back strain, as a result of this incident. The Board finds that appellant has
not submitted sufficient medical evidence to establish an injury causally related to the August 14,
2013 employment incident.
The Board notes that, pursuant to the Federal (FECA) Procedure Manual, Part 2 -Claims, Initial Development of Claims, Chapter 2.800.6(a) (June 2011), where the condition
reported is a minor one, such as a burn, laceration, insect sting or animal bite, which can be
identified on visual inspection by a lay person, a case may be accepted without a medical report
and no development of the case need be undertaken, if the injury was witnessed or reported
promptly, no dispute exists as to the occurrence of the injury and no time was lost from work due
to disability.14 This section of the procedure manual further states that in cases of serious injury
(motor vehicle accidents, stabbings, shootings, etc.) if the agency does not dispute the facts of
the case, and there are no questionable circumstances, the case may be accepted for a minor
condition, such as laceration, without a medical report, while simultaneously developing the case
for other more serious conditions. This is true even if there is lost time due to such a serious
injury.
Board case precedent supports the application of this principle only when the claimed
injury is sufficiently described in the evidence of record. The Board reviewed a similar case in
M.A., Docket No. 13-1630 (issued June 18, 2014). In M.A., the employee was a letter carrier
who was bitten by a dog on his right hand, while he was reaching into a mailbox, such that the
fingernail of the middle finger of his right hand was almost served in half. Appellant’s
supervisor attested that appellant was bitten by a dog on his right hand and that he sustained a
severe cut on the middle finger of his right hand as a result. The Board found that the simple dog
bite could be accepted without a medical report, as the supervisor had viewed the dog bite and
accepted that it was work related. In S.A., Docket No. 13-2152 (issued March 20, 2014), cited
for support in M.A., the Board concluded that consistent descriptions of a laceration of the third
finger of the left hand constituted sufficient evidence of a minor condition that could be
identified on visual inspection by a lay person and that other circumstances established
appellant’s claim.
In the instant case, the record does not contain a sufficient description of the claimed
scrapes and abrasions to warrant application of the “minor injury” exception to the requirement
for medical evidence. There is no evidence of record indicating which hand was injured, or
describing the extent of the scrapes and abrasions or where they were located, as a result of the
incident of August 14, 2013. The only description of this condition was “scrapes and abrasions.”
This description is imprecise and vague and, therefore, the injury is not sufficiently described in
the evidence of record to support acceptance of scrapes and abrasions without a medical report.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011). M.A., Docket No. 13-1630 (issued June 18, 2014).

4

The Board also finds that appellant’s claimed back strain is not a minor condition that can
be identified on visual inspection by a lay person and, therefore, appellant must submit medical
evidence establishing that the employment incident caused or aggravated his back strain.15 There
is no medical evidence of record containing a rationalized medical opinion explaining how the
incident of August 14, 2013 caused or aggravated appellant’s claimed back strain. The mere fact
that a disease or condition manifests itself during a period of employment or the claimant’s belief
that the disease or condition was caused or aggravated by employment factors or incidents is
insufficient to establish causal relationship.16 As such, appellant has not met his burden of proof
to establish a claim for back strain related to the August 14, 2013 incident.
The Board notes, however, that OWCP’s implementing regulations allow for
authorization of medical treatment in emergency circumstances. While 20 C.F.R. § 10.300
explains that authorization of emergency medical treatment is usually provided by issuance of a
Form CA-16, section 10.304 allows for authorization of emergency treatment, in the absence of a
Form CA-16, in cases involving emergencies or unusual circumstances.17 While there was no
Form CA-16 issued in this case, the record reveals that appellant was treated at Terre Haute
Regional Hospital on August 14, 2013. Upon return of the case record, after such development
deemed necessary, OWCP shall adjudicate whether appellant’s treatment on August 14, 2013
should be authorized in this case due to an emergency or unusual circumstances.
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 did not establish that he sustained an employment-related
injury on August 14, 2013.

15

Supra note 7.

16

Dennis M. Mascarenas, supra note 10; Charles E. Evans, 48 ECAB 692, 693 (1997).

17

See also K.J., Docket No. 13-271 (issued May 23, 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6