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

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

Docket No. 17-1649
Issued: July 20, 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 July 25, 2017 appellant, through counsel, filed a timely appeal from an April 4, 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an emotional condition
in the performance of duty on April 8, 2016, as alleged.
FACTUAL HISTORY
On April 13, 2016 appellant, then a 57-year-old city carrier acting as a supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on April 8, 2016 she developed stress and chest
pain after a union steward, P.A., whom she was supervising, engaged in a verbal altercation and
made a bodily threat towards her. She stopped work on April 13, 2016.
In support of her claim, appellant submitted an April 12, 2016 emergency department
treatment note in which Dr. Jason Vieder, a Board-certified osteopath specializing in emergency
medicine, noted a history of chest pain and diagnosed chest pain, unspecified. Dr. Vieder advised
that appellant could return to work on April 14, 2016. In a brief report dated April 22, 2016,
Dr. Saima Khan indicated that appellant was seen that day and should be excused from work for
the period April 23 through July 21, 2016.
An employing establishment accident report dated April 14, 2016, signed by J.N.,
supervisor of customer services and acting postmaster, indicated that at 12:30 p.m. on April 8,
2016 appellant, an acting supervisor, had a verbal altercation with union steward P.A. in the break
room and on the workroom floor. The report indicated that a discussion was held with appellant
and that the subordinate employee was disciplined.
The employing establishment controverted appellant’s request for continuation of pay.
J.N. noted that when appellant would act as a supervisor, there were disagreements between she
and P.A. He indicated that he placed P.A. off work on April 11, 2016, and that, after he completed
an investigation of the incident, he concluded that, although P.A. acted in an insubordinate manner,
there was no violence in the workplace. J.N. returned P.A. to duty on April 13, 2016, which
displeased appellant.
By development letter dated May 2, 2016, OWCP informed appellant of the type of
evidence needed to support her claim. In a responsive statement dated May 18, 2016, appellant
indicated that on April 8, 2016 P.A. interfered with a conversation she was having with another
carrier, and that he continued walking toward her, yelling at her, saying she could not tell him what
to do. She indicated that supervising P.A. had been a challenge and, upon hearing the altercation,
T.P., acting director of operations, told P.A. to follow the direct orders of his supervisor, who was
appellant. Appellant indicated that, although she continued to work that day, on April 9, 2016, she
had chest pain, which she had not had before.
In an April 8, 2016 statement, T.P. indicated that on that day another carrier, N.J., called
in after hearing shots fired along her route and that, although he immediately went out to find her,
she had called P.A. and returned to the station. After filling out forms, she and P.A. went into the
break room and he asked appellant to take a message to N.J. T.P. related that he then heard P.A.
on the workroom floor claiming that appellant had disrespected him by asking him to stay out of
her conversation with N.J. She indicated that appellant looked distressed.

2

In a statement dated April 9, 2016, D.T., a coworker, advised that, on April 8, 2016, at
about 12:30 p.m., he witnessed his supervisor (appellant) asking a coworker a question and P.A.
started yelling at her and being rude and, after appellant told him in a calm voice that she was not
talking to him, he came out of the break room yelling and invading her space. When she tried to
walk away, he keep coming towards her, telling her what he was going to do or not do.
In an undated statement N.C., a coworker, also described the altercation between P.A. and
the supervisor, appellant, indicating that P.A. kept telling appellant that she could not tell him what
to do even when appellant told him that she was his supervisor, and told him to go back into the
break room and leave the workroom floor. He related that when appellant stepped back, P.A.
continued toward her, and when T.P. came out of the office, he told P.A. to follow the instructions
of your supervisor and leave the workroom floor. N.C. concluded that appellant was visibly upset.
In a treatment note dated April 22, 2016, Dr. Khan reported that appellant was seen for a
complaint of anxiety and panic attack that started several weeks earlier when she was threatened
by a coworker. She noted that appellant continued to have panic attack symptoms several times
per week. Dr. Khan indicated that stress-testing in the emergency department was completely
normal and that appellant had not returned to work because she was fearful of her coworker. She
concluded that appellant could remain off work for a couple of weeks due to anxiety and panic
attacks that were employment related. In a second April 22, 2016 report, Dr. Khan indicated that
appellant could work from home and return to work at another station on July 22, 2016. She
diagnosed anxiety and panic attacks due to work-related harassment and advised that appellant
could not return to the employing establishment for fear of getting anxiety and panic attacks.
By decision dated June 10, 2016, OWCP denied appellant’s claim, finding that the claimed
incident did not occur as alleged because, even though words were exchanged between appellant
and P.A., there was no bodily threat to her person.
Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings
and Review. She did not appear at the hearing which was held on February 14, 2017. OWCP’s
hearing representative informed counsel of the evidence needed to support the claim. The record
was held open for 30 days. Nothing further was submitted.
By April 4, 2017 decision, OWCP’s hearing representative affirmed the June 10, 2016
decision, finding that the factual component of the claim had not been established.
LEGAL PRECEDENT
To establish a stress-related condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or stress-related
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the claimed condition; and (3) rationalized medical opinion evidence establishing
that the identified compensable employment factors are causally related to the claimed stressrelated condition.3 If a claimant does implicate a factor of employment, OWCP should then

3

Leslie C. Moore, 52 ECAB 132 (2000).

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determine whether the evidence of record substantiates that factor.4 When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.5
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,6 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.7
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 her emotional reaction to a
special assignment or other requirement imposed by the employing establishment or by the nature
of the work.8 Allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim.9 Where the claimant alleges compensable factors of employment, she
must substantiate such allegations with probative and reliable evidence.10 Personal perceptions
alone are insufficient to establish an employment-related emotional condition.11
ANALYSIS
The Board finds that appellant has not established an emotional condition in the
performance of duty on April 8, 2016.
Appellant asserted that on Friday, April 8, 2016, she had a verbal altercation with P.A., a
union steward, who threatened bodily harm, and this caused her stress and chest pain. The Board
finds that this verbal altercation did not rise to the level of a compensable factor of employment.
The Board has held that, while verbal abuse may constitute a compensable factor of
employment, not every statement uttered in the workplace will be covered by FECA.12 In such
cases, the Board will review the evidence of record to determine whether the allegations of the

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

28 ECAB 125 (1976).

7

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

8

Supra note 6.

9

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

10

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

11

Roger Williams, 52 ECAB 468 (2001).

12

L.K., Docket No. 08-0849 (issued June 23, 2009).

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claimant are substantiated by reliable and probative evidence.13 A mere raised or harsh voice does
not of itself constitute verbal abuse or harassment.14
In the case at hand, while the record supports that appellant and P.A. had a verbal
disagreement on April 8, 2016, there is no evidence to support that this included a bodily threat.
With regard to appellant’s claim that bodily harm was threatened by P.A., the evidence of record
must support a finding that such specific threats occurred.15 Herein, the two witnesses merely
indicated that P.A. was being loud and rude. The supervisor of customer services, J.N., noted that
he had a discussion with P.A. and appellant, and that, after an investigation, although P.A. acted
in an insubordinate way, there was no violence in the workplace. He also noted that P.A. was
suspended from April 11 to 13, 2016 when he was allowed to return to work. It was only then that
appellant stopped work. While the altercation on April 8, 2016 may have engendered offensive
and hurtful feelings, it did not sufficiently affect the conditions of employment to constitute a
compensable factor of employment.16
Thus, the Board finds that appellant has not established a compensable factor of
employment. Appellant, therefore, has not met her burden of proof to establish that she sustained
an emotional condition in the performance of duty on April 8, 2016.17
As appellant has not established any compensable employment factors, the Board need not
consider the medical evidence of record.18
On appeal counsel asserts that the April 4, 2017 decision is contrary to fact and law. As
explained above, the evidence of record is insufficient to establish a compensable employment
factor and as such appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty on April 8, 2016.

13

See J.F., supra note 9.

14

T.G., 58 ECAB 189 (2006).

15

See M.S., Docket No. 06-1633 (issued November 30, 2006).

16

See J.C., 58 ECAB 594 (2007).

17

See supra note 12.

18

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

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ORDER
IT IS HEREBY ORDERED THAT the April 4, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 20, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF DEFENSE, DECA
SOUTHWEST REGION, Fort Lee, VA,
Employer
__________________________________________

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

Docket No. 13-2
Issued: March 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2012 appellant filed a timely appeal from an August 3, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment in compensation
in the amount of $2,117.57 was created for the period June 14, 2010 through February 12, 2011;
(2) whether appellant was at fault in the creation of the overpayment; and (3) whether OWCP
properly set the rate of recovery.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is appellant’s third appeal to the Board. By decision dated November 5, 2010, the
Board determined that his July 3, 2009 claim for total disability compensation commencing
December 20, 2007 should not be treated as a request for reconsideration but was a request for
modification of a February 16, 2007 wage-earning capacity determination. The Board set aside
OWCP’s finding that appellant had filed an untimely request for reconsideration and remanded
the case for OWCP to evaluate whether modification of the wage-earning capacity determination
was warranted.2 In a November 6, 2012 decision, the Board found the case was not in posture
for decision as to whether OWCP’s February 16, 2007 wage-earning capacity determination
should be modified as a supplemental opinion was required from a second opinion examiner, as
to whether appellant’s condition materially changed. The Board further found that the case was
not in posture for decision as to whether the claim should be expanded to include a back
condition. The Board, however, affirmed the denial of the claim for expansion for the conditions
of stress and depression.3 The facts of the case as set forth in the Board’s prior decisions are
incorporated by reference herein.
Appellant had a January 3, 1996 work injury that OWCP accepted for a right wrist
contusion, right de Quervain’s tendinitis, right carpal tunnel syndrome and a consequential right
knee condition. She has not worked since May 2007. Appellant received disability
compensation at the augmented rate for dependents, based on the fact that she had a dependent
son born on December 19, 1991.
In EN1032 forms completed by appellant on multiple occasions, Part C, the section on
dependents, explained who was considered a dependent and how having a dependant, such as a
child, entitled her to greater compensation:
“A claimant who has no eligible dependants is paid compensation at 66-2/3
percent of the applicable pay rate. A claimant who has one or more eligible
dependents is paid compensation at 75 percent of the applicable pay rate. You
must answer the questions below to ensure your compensation is paid at the
correct rate.”
“You may claim compensation for a dependent if you have one or more of the
following: (1) a husband or wife that lives with you; (b) an unmarried child,
including an adopted child or stepchild, who lives with you and is under 18 years
of age; (c) an unmarried child who is 18 or over, but who cannot support himself
or herself because of mental or physical disability; (d) an unmarried child under
23 years of age who is a full[-]time student and has not completed four years of
school beyond the high school level; [and] (3) a parent who totally depends upon
you for support.”

2

Docket No. 10-340 (issued November 5, 2010).

3

Docket No. 12-825 (issued November 6, 2012).

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Appellant claimed no dependents in EN1032 forms certified April 19, 2009,
May 1, 2011 and April 19, 2012. A January 13, 2011 OWCP telephone conversation
memorandum indicated that she had “question about dependent change due to son is now
in the military and has left the household for good. Advised that [claimant] must send
this info in writing before a change in dependent status can be made. [Appellant’s] son is
only 19 y[ea]rs old.” In a January 12, 2011 letter, appellant indicated that as of
January 3, 2011, she no longer had any dependents living with her.
In a February 16, 2011 letter, OWCP advised appellant that beginning
February 13, 2011 she would no longer receive augmented compensation for a
dependent. On March 24, 2011 it issued a preliminary determination that an
overpayment of $3,663.12 existed for the period December 19, 2009 through
February 12, 2011 due to a change in compensation rate from the augmented threefourths rate to the basic two-thirds rate due to a change in dependent status as her son
turned age 18 on December 19, 2009.
On March 26, 2011 appellant contested the preliminary overpayment decision on
the grounds that her son was unmarried and a full-time student until June 13, 2010 and
that he was unable to support himself until he enlisted in the U.S. Marine Corps on
December 27, 2010. She noted that her son enlisted in the delayed entry program for the
U.S. Marine Corps on November 2, 2009 and graduated from high school in June 2010.
A March 26, 2011 completed overpayment recovery questionnaire (Form OWCP-20) was
provided. In a September 22, 2011 conference, appellant stated that her son was an
unmarried full-time student until he graduated high school on June 13, 2010. She
indicated that she supported him until he enlisted in the U.S. Marines in December 2010.
OWCP clarified that in regards to supporting appellant’s son, this was not the type of
“incapable of self-support” that is defined for a person to be classified as a dependent.
Appellant stated that she was not contending that her son was incapable of self-support
by virtue of physical or mental disability but that she was his sole support until he went
into the U.S. Marine Corps.
On February 14, 2012 OWCP made a preliminary determination that appellant
received a $2,117.57 overpayment from June 14, 2010 through February 12, 2011
because she received compensation at the augmented rate for dependants when her son
no longer qualified as an eligible dependent after he graduated from high school on
June 13, 2010. In attached worksheets, it calculated that she received $18,997.14 in
compensation from June 15, 2010 through February 12, 2011 but was only entitled to
$16,879.57, a difference of $2,117.57. OWCP found appellant was at fault in creating
the overpayment because there was no evidence after June 13, 2010 that her son was a
full-time student or incapable of self-support and she was aware of and placed on notice
of the definition of self-support as explained in the EN1032 form.
On February 28, 2012 appellant requested a prerecoupment hearing, which was
held on June 13, 2012. She did not disagree with the fact or amount of overpayment, but
argued that she was without fault in creating the overpayment. Appellant stated that an
OWCP document, which she could not identify, told her that her son was a dependent
after age 18 as long as he could not support himself. She also stated that she could not

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afford to pay the overpayment back. Appellant was provided 30 days to submitted
supportive documentation. No additional information was received.
By decision dated August 3, 2012, OWCP’s hearing representative finalized the
preliminary determination that appellant was at fault in creating a $2,117.57 overpayment
from June 14, 2010 through February 12, 2011 as she received augmented compensation
for her son who no longer qualified as an eligible dependent and that appellant knew or
should have known she was not entitled to augmented compensation. The hearing
representative further found that the overpayment should be recovered at the rate of 10
percent of appellant’s compensation or $200.00 every four weeks until the full amount of
the overpayment plus applicable interest was repaid.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.4 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.5
The basic rate of compensation paid under FECA is 66 2/3 percent of the injured
employee’s monthly pay. Section 8110 of FECA provides that a claimant is entitled to
augmented compensation to three fourths of the employee’s rate of monthly pay if he or she has
a dependent.6 Section 8110(a)(3) provides that a child is considered a dependent if he or she is
under 18 years of age, is over 18 but is unmarried and incapable of self-support because of a
physical or mental disability or is an unmarried student, as defined under section 8101(17).7
FECA provides that compensation will continue at the augmented rate if the child has reached 18
years of age and is a student. Section 8101(17) defines a student as an individual under 23 years
of age who has not completed four years of education beyond the high school level and who is
regularly pursuing a full-time course of study or training at a school, college or university or
other educational or training institute an additional type of educational or training institute as
defined by the Secretary. The federal regulations provide that an additional type of educational
or training institute means a technical, trade, vocational, business or professional school
accredited or licensed by the federal or a state government that provides courses of not less than
three months duration and prepares the individual for a livelihood in a trade, industry, vocation
or profession.8 If a claimant receives augmented compensation during a period where he or she
has no eligible dependents, the difference between the compensation to which he or she was
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8110.

7

Id. at § 8110(a)(3).

8

20 C.F.R. § 10.5(aa)(1).

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entitled at the two-thirds compensation rate and the augmented compensation received at the
three-fourths rate constitutes an overpayment of compensation.9
ANALYSIS -- ISSUE 1
Appellant does not contest the fact of the overpayment. Since her son turned 18 on
December 19, 2009 but attended high school until he graduated on June 13, 2010, she received
augmented compensation because her son was an eligible dependent. After June 13, 2010
appellant’s son was no longer a student regularly pursuing a full-time course of study or training
at a school, college or university or other educational or training institute. Although she
contended that she supported her son until he enlisted into the U.S. Marine Corps in
December 2010, she provided no evidence that her son was incapable of self support due to
physical or mental disability. As explained in the EN1032 forms and OWCP’s February 26,
2011 letter, appellant was on notice of the definition of self-support. Accordingly, she was no
longer entitled to augmented compensation after June 13, 2010 as her son was not a qualified
dependent. This creates an overpayment of compensation for the period from June 14, 2010
through February 12, 2011.
OWCP provided a detailed accounting of the amount of compensation appellant should
have received at the statutory 66 2/3 percent rate since there were no qualified dependents. The
worksheets reflect that, from June 15, 2010 through February 12, 2011, appellant was paid
$18,997.14 at the augmented rate but should have been paid $16,879.57. This amounts to an
overpayment amount of $2,117.57. Thus, the Board finds that OWCP’s calculation of a
$2,117.57 overpayment was correct. Accordingly, OWCP properly determined the fact and
amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.10
Section 10.433 of the implementing regulations specifically provide that OWCP may
consider waiving an overpayment if the individual to whom it was made was not at fault in
accepting or creating the overpayment.11 On the issue of fault, 20 C.F.R. § 10.433(a) provides
that an individual will be found at fault if he or she has done any of the following: (1) made an
incorrect statement as to a material fact which he or she knew or should have known to be
incorrect; (2) failed to provide information which he or she knew or should have known to be
material; or (3) accepted a payment which he or she knew or should have known was incorrect.
9

5 U.S.C. § 8110(a) (3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

10

5 U.S.C. § 8129; see P.M.., Docket No. 07-2169 (issued March 3, 2009); Linda E. Padilla, 45 ECAB
768 (1994).
11

Id. at § 10.433(a).

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The regulations further provide that each recipient of compensation benefits is
responsible to ensure that payments he or she receives from OWCP are proper.12 Whether or not
OWCP determines that an individual was at fault with respect to the creation of an overpayment
depends on the circumstances surrounding the overpayment.13
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in creating the overpayment based on the third
criterion, that she accepted payments which she knew or should have known to be incorrect.14
For it to establish that she was at fault in creating the overpayment, it must show that, when she
received the compensation in question, she knew or should have known that the payment was
incorrect.15 With respect to whether an individual is with fault, section 10.433(b) of OWCP’s
regulations provide that whether OWCP determines that an individual was with fault with
respect to the receipt of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she was being overpaid.16
The Board finds that appellant was at fault in creating the overpayment. The EN1032
forms provided information notifying her as to the status of dependents for augmented
compensation. Appellant was advised as to the requirements for claiming a child as a dependent
and informed that a claimant with no dependents was paid at the 66 2/3 percent basic rate, not
the 75 percent augmented rate. The evidence establishes that, when placed on compensation, she
received it at the augmented rate as her son was under the age of 18. When appellant’s son
turned 18 years old on December 19, 2009 appellant continued to receive compensation at the
augmented rate until he graduated from high school on June 13, 2010. While appellant argued
that her son was unmarried and she continued to support him until he enlisted in the U.S. Marine
Corps in December 2010, she knew or reasonably should have known that she was not entitled to
augmented compensation after her son’s graduation from high school on June 13, 2010. As
noted, her son did not qualify as a full-time student. Additionally, there is no evidence to support
that appellant’s son was unable to support himself because of a mental or physical disability.
While appellant advised that she received an OWCP document that told her she could
receive augmented compensation for her son as long as he was incapable of self support, and
there was no qualification that this lack of self-support had to be due to physical or mental
disability, there is no evidence of such a document on record and she presented no corroborating
evidence. While she may have been unclear as to the definition of self-support, she knew or
should have known that the payments made at the augmented rates after her son graduated high
school on June 13, 2010 were incorrect in view of the cautionary language in the EN1032 forms
12

Id.

13

Id. at § 10.433(b).

14

Steven R. Cofrancesco, 57 ECAB 62 (2006).

15

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

16

Supra note 13.

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that she signed. Appellant is at fault in creating the overpayment and is not eligible for waiver of
recovery. OWCP is required by law to recover the overpayment.17
LEGAL PRECEDENT -- ISSUE 3
Whenever an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regards to the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to minimize any
resulting hardship upon such individual.18
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly directed recovery of the overpayment at the rate of
10 percent of appellant’s compensation or $200.00 every four weeks from her continuing
compensation.
In setting the rate of recovery at $200.00 every four weeks, OWCP’s hearing
representative noted that appellant did not provide sufficient documentation to determine a
repayment schedule that would allow for consideration of minimization of financial hardship.
There was no current overpayment statement or documented financial evidence. It is appellant’s
responsibility to provide information about income, expenses and assets.19 Section 10.441(a) of
OWCP’s regulations, as noted, directs OWCP to take certain matters into consideration in
establishing the repayment schedule, including the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other relevant factors, so
as to minimize any hardship.20 In view of these circumstances where appellant did not submit
requested financial information after the prerecoupment hearing, OWCP properly considered the
appropriate factors in determining the recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation from June 14, 2010 through February 12, 2011 as she continued to receive
augmented compensation following her son’s June 13, 2010 high school graduation, in the
amount of $2,117.57. The Board further finds that appellant was with fault in creating the
overpayment and that OWCP properly set the rate of recovery from continuing compensation.

17

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB
264 (2007).
18

20 C.F.R. § 10.441(a); see supra note 14.

19

Id. at § 10.438.

20

Supra note 18.

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ORDER
IT IS HEREBY ORDERED THAT the August 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.J, Appellant
and
DEPARTMENT OF THE ARMY, U.S. CORPS
OF ENGINEERS, Memphis, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket Nos. 21-0467 &
20-0812
Issued: March 24, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL IN DOCKET NO. 21-0467 AND
DISMISSING PETITION FOR RECONSIDERATION
IN DOCKET NO. 20-0812
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 4, 2021 appellant sought an appeal from a purported October 19, 2020
decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards
assigned Docket No. 21-0467.
The Board has duly considered the matter and notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA).1 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
the date appellant filed his appeal. 2 As of the filing of the current appeal, the most recent OWCP
decision was dated February 11, 2020. However, by an October 19, 2020 decision in Docket No.
20-0812, the Board affirmed OWCP’s February 11, 2020 decision, finding that OWCP properly
denied appellant’s request for reconsideration as it was untimely filed and failed to demonstrate

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

clear evidence of error.3 As there is no final adverse decision issued by OWCP within 180 days
of the filing of this appeal4 over which the Board may properly exercise jurisdiction, the Board
concludes that the appeal docketed as No. 21-0467 must be dismissed.
To the extent that appellant’s February 4, 2021 appeal may be construed as a timely petition
for reconsideration of the Board’s October 19, 2020 decision in Docket No. 20-0812, the Board
notes that its decision became final upon the expiration of 30 days from the date of issuance. 5
Further, as appellant did not file his disagreement with the Board’s October 19, 2020 decision until
February 4, 2021, this submission may not be deemed as a timely petition for reconsideration as it
was filed in excess of 30 days from the date of issuance. 6 Thus, the petition for reconsideration of
the October 19, 2020 Board decision must be dismissed as untimely filed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0467 is dismissed.
IT IS FURTHER ORDERED THAT the petition for reconsideration in Docket No.
20-0812 is dismissed as untimely filed. 7

3

Docket No. 20-0812 (issued October 19, 2020).

4

Supra note 2.

5

20 C.F.R. § 501.6(d).

6

See id. at § 501.7(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
7

2

Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 09-358
Issued: September 21, 2009

Case Submitted on the Record

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

JURISDICTION
On November 19, 2008 appellant filed a timely appeal from an October 20, 2008 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective October 26, 2008 on the grounds that he had no residuals of his
accepted injuries.
On appeal appellant disagrees with the findings of an employing establishment
investigation and contends that the termination was in error.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated January 4, 1999, the
Board reversed Office decisions dated May 7 and August 20, 1996 that terminated appellant’s
monetary compensation pursuant to 5 U.S.C. § 8106(c), based on his refusal to accept suitable

employment.1 The Office returned appellant to the compensation rolls effective the date of the
termination.2
By report dated February 4, 2002, Dr. David Beckmann, a Board-certified internist, noted
that he last examined appellant on December 27, 2001. He advised that appellant had permanent
work-related restrictions that limited sitting to about 15 minutes and that he could not walk, lift,
bend, squat, climb, kneel, twist or stand. Dr. Beckmann noted that appellant was also treated for
depression and that his condition would not improve. On September 4, 2004 Dr. Judy L.
Fruehbrodt, Board-certified in family medicine, advised that she had been appellant’s primary
care physician since 2003 and that he had chronic low back pain resulting from the December 1,
1988 employment injury. Appellant was unable to sit for greater than 15 minutes without pain,
unable to stand, walk, reach, reach above his shoulder, or twist for any significant period of time
and unable to push, pull, lifting, squat, kneel or climb without significant discomfort.
Dr. Fruehbrodt concluded that his condition was permanent. In reports dated September 26,
2005, she reiterated his work limitations and advised that appellant’s back pain had worsened.
Dr. Fruehbrodt also noted that appellant had depression. In a work capacity evaluation dated
October 16, 2007, she advised that appellant could sit for less than 15 minutes, could stand and
walk for less than 10 minutes, and could not lift, bend, squat, climb, kneel or twist and could not
push or pull. Dr. Fruehbrodt further advised that appellant’s depression limited his ability to
concentrate and that he was permanently disabled due to severe back pain and depression.
The Office of the Inspector General of the employing establishment, provided an
investigative report dated May 2, 2008, alleging that appellant was more active than his
physicians reported. On August 31, 2007 appellant was observed and videotaped while doing
errands: he drove to pick up his mail, then to Wal-Mart where he purchased a deer hunting
license for archery, drove to his residence where he sat in his truck for approximately 30 minutes
and then was joined by a female and they drove to a residence several miles away. On
September 10, 2007 while observed picking up his mail, it was noted that he bent at the waist
and picked up an object lying nearby. Appellant then drove to what was believed to be his
daughter’s residence. He was observed walking briskly around the property for about 20
minutes as he played with a dog, running and kicking at the ground. The report stated that
appellant appeared to walk standing tall at a normal gait and did not show signs of discomfort.
Appellant drove to the grocery store where he shopped for approximately 38 minutes, pushing a
shopping cart and loading groceries which he then placed in the back of his truck. He was
observed reaching over his head to pull the truck’s back window down. Appellant drove to his
residence where he parked next to a motor home. He carried the grocery bags into the motor
1

Docket No. 97-441 (issued January 4, 1999). The Board found that the Office erred in not considering
appellant’s subsequent psychiatric condition. On December 1, 1988 appellant, then a 48-year-old part-time
distribution clerk, sustained an employment-related ruptured L2-3 disc. After a brief return to work, he stopped on
January 14, 1989 and has not returned. In 1976 he underwent surgery for a service-connected herniated disc at L5S1, for which he receives a 60 percent disability rating from the Department of Veterans Affairs (VA). He also
receives a 100 percent disability rating from the VA for service-connected chronic anxiety and depression.
2

On January 9, 2002 the Office issued a preliminary finding that an overpayment in compensation was created
because optional life insurance was not deducted from appellant’s wage-loss compensation when his benefits were
reinstated. On April 24, 2002 the Office determined that the cost of collection of the overpayment would exceed the
amount to be recovered, and terminated collection action.

2

home, bent over to unlock storage cabinets on the outside of the motor home, knelt on one knee
to look into the storage area and then carried several additional grocery bags and a gallon
container up the steps into his apartment building.
On October 17, 2007 appellant was contacted by the employing establishment and related
that he was permanently disabled and that his back condition was getting worse. He contended
that he could not raise his arm over his shoulders, could only stand or sit for 5 to 10 minutes, and
could not drive for long but added that he wanted to travel extensively. The employing
establishment contacted the Minnesota Department of Natural Resources which provided
appellant’s records from 2004 to 2007. Appellant registered a snowmobile in 2003, valid until
2006; registered a pleasure boat in 2006, valid through 2008; registered to hunt small game and
bought an archery license each year and fishing licenses in 2006 and 2007. On April 10, 2008
agents interviewed appellant in North Carolina. Appellant acknowledged that he hunted with a
cross-bow and owned a boat. He stated that he bought a motor home and was in the process of
moving out of his apartment, noting that in November 2007 he drove to New Mexico and several
months later drove to North Carolina but that he could not perform sedentary work due to
constant pain. Appellant stated that he limped most of the time and could not stand or walk on
some days due to his legs going numb and was not able to run due to intense pain and could only
pick something up from the ground if he knelt down, but sometimes he could do things and
sometimes could not. The employing establishment provided a report of surveillance of
appellant on August 31 and September 10, 2007; a transcript of a telephone conversation
between the employing establishment and appellant on October 17, 2007; a transcript of an
interview with employing establishment agents and appellant on April 10, 2008; rating decisions
from the VA dated March 1, 1979, December 20, 1996, March 31, 1997 and June 10, 1998;
copies of snowmobile and boat registrations; hunting and fishing licenses and a surveillance
video.
On June 13, 2008 the Office referred appellant to Dr. Anil K. Agarwal, a Board-certified
orthopedic surgeon, for a second opinion evaluation. By report dated July 29, 2008, Dr. Agarwal
reviewed the statement of accepted facts and medical evidence, including magnetic resonance
imaging scan reports. Appellant’s chief complaint was of neck pain with headaches, low back
pain and sciatic pain bilaterally since 1988.3 He advised that appellant was well developed and
well nourished and looked muscular for his age, noting that appellant stated that he worked out
three times a week with eight-pound dumbbells. On physical examination of the lumbar spine,
Dr. Agarwal noted tenderness to palpation and decreased range of motion with hypoesthesia in a
nondermatomal distribution and a positive Waddell’s sign on straight leg raising. Examination
of the thoracic spine was normal. The cervical spine demonstrated tenderness to palpation and
painful range of motion. Upper and lower extremity examinations were normal. Dr. Agarwal
diagnosed mild acute lumbar strain, temporary aggravation, healed and malingering disorder. He
advised that the December 1, 1988 employment injury temporarily aggravated a preexisting
condition and that appellant reinjured his lower spine when he slipped on ice in April 1989. As

3

Dr. Agarwal noted that, while he was provided with video evidence, he could not view the tape because it was
broken upon arrival. Appellant was also furnished a video that was broken. Compare J.M., 58 ECAB ____ (Docket
No. 06-661, April 25, 2007). The statement of accepted facts described the findings of the employing establishment
investigation.

3

of appellant’s physical examination, there were no objective neuromuscular deficits or residuals,
and no objective signs suggestive of radiculopathy.
Dr. Agarwal further explained there was no obvious positive motor weakness or sensory
deficit and appellant’s complaint of decreased sensation in his lower extremities did not conform
with dermatomal distribution. The straight leg raising revealed a positive Waddell’s sign,
indicating that appellant’s subjective complaints were not supported by objective findings.
Dr. Agarwal advised that appellant had reached maximum medical improvement many years
prior in 1989 and, by February 1995, a physician noted a positive Waddell’s sign indicating that
appellant was malingering. A July 1995 functional capacity evaluation noted that appellant had
symptom magnification and exaggerated pain and malingering behavior. Dr. Agarwal opined
that appellant was a good candidate for light duty or a sedentary job and, while he had a 100
percent service-connected disability for chronic anxiety and depression, appellant was not
disabled as he had no pathological symptoms, his mood was dysphoric with good reactivity and
stable affect, he had good cognitive function, judgment was intact, insight was present, and
global assessment of function was more than 80. He noted that appellant had been hunting and
fishing periodically over the prior three years and had plans for long distance motor home travel.
Dr. Agarwal concluded that appellant’s prognosis was good, reiterating that there was no
obvious motor or sensory loss or other positive objective physical findings, and did not need a
functional capacity evaluation was not necessary and the physician recommended a home
exercise program and age-appropriate physical examinations. In an attached work capacity
evaluation, he advised that appellant could work for eight hours a day with sitting, reaching, and
operating a motor vehicle at work and to and from work limited to four to six hours; walking two
to three hours; standing to three to four hours; reaching above shoulder, twisting, bending,
stooping, squatting, kneeling and climbing for one to two hours daily.
On August 29, 2008 the Office proposed to terminate appellant’s compensation benefits
on the grounds that the medical evidence, as characterized by Dr. Agarwal’s report, established
that he no longer suffered disability or residuals due to the accepted condition. By letter dated
September 14, 2008, appellant disagreed with the proposed termination, advising that he was in
Wyoming and the proposed termination was forwarded to him on September 10, 2008. He
disagreed with Dr. Agarwal’s conclusions, stating that his medical examination was a sham and
his report untrue.
By decision dated October 20, 2008, the Office finalized the termination of compensation
benefits effective October 26, 2008.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.4 Its burden of proof in terminating compensation includes the necessity of

4

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

furnishing rationalized medical opinion evidence based on a proper factual and medical
background.5
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective October 26, 2008. The accepted conditions in this case are low
back strain and ruptured disc at L2-3. The medical evidence relevant to the Office’s termination
includes a work capacity evaluation dated October 16, 2007 in which Dr. Fruehbrodt, an
attending family practitioner, reported that appellant could sit for less than 15 minutes, could
stand and walk for less than 10 minutes, and could not lift, bend, squat, climb, kneel or twist and
could not push or pull. Dr. Fruehbrodt further advised that appellant’s depression limited his
ability to concentrate and that he was permanently disabled due to severe back pain and
depression. Neither an emotional condition nor a pain condition has been accepted as
employment related. Furthermore, pain is a symptom not a compensable medical diagnosis.6
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factor. The opinion of a physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factor identified by
the claimant.7 Dr. Fruehbrodt did not provide a rationalized explanation as to why the accepted
conditions caused appellant’s continuing symptoms, and a medical report is of limited probative
value on a given medical question if it is unsupported by medical rationale.8
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.9 The Board finds that the weight of the medical evidence
rests with the July 29, 2008 second opinion evaluation of Dr. Agarwal who provided a
comprehensive evaluation based on his review of the statement of accepted facts and medical
record, the history of injury, and appellant’s complaints of continued pain. Dr. Agarwal advised
that appellant had no objective findings on his physical examination, and concluded that there
was no need for further treatment referable to the December 1, 1988 employment injury other
than over-the-counter medications and a home exercise program. He specifically advised that
appellant had no obvious motor or sensory deficit, had a positive Waddell’s sign indicating that
he was malingering, and did not have ongoing residuals of his accepted conditions. Appellant
submitted no medical evidence in response to the notice of proposed termination. His contention
5

Id.

6

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

7

Sedi L. Graham, 57 ECAB 494 (2006).

8

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006).

9

C.B., 60 ECAB ____ (Docket No. 08-1583, issued December 9, 2008)

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that the medical evaluation made by Dr. Agarwal was a sham is not supported by the physicians
thorough reports. The Board finds that appellant has no disability or residuals due to the
accepted conditions. The Office properly terminated his compensation benefits effective
October 26, 2008.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective October 26, 2008.
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 21, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.T., Appellant
and
U.S. POSTAL SERVICE, GLENRIDGE
STATION, Atlanta, GA, Employer
__________________________________________

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

Docket No. 11-1994
Issued: May 22, 2012

Case Submitted on the Record

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

JURISDICTION
On September 7, 2011 appellant filed a timely appeal from a May 10, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for an
additional schedule award and a June 10, 2011 decision that denied his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award decision.
ISSUES
The issues are: (1) whether appellant has more than a 15 percent impairment of the right
arm for which he received a schedule award; and, (2) whether OWCP properly refused to reopen
appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a February 1, 2008 decision, the
Board found that appellant failed to establish that he had a right arm impairment greater than the
15 percent previously awarded and that OWCP properly refused to reopen his case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).2 The law and the facts of the
previous Board decision are incorporated herein by reference.
On March 8, 2011 appellant submitted a schedule award claim. In a February 28, 2011
report, Dr. William M. Craven, an attending Board-certified orthopedic surgeon, advised that he
had evaluated appellant’s right shoulder in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides).3 He found that appellant had a diagnosis-based impairment of class 1 for the right
shoulder rotator cuff tear, with a grade of C and a grade 1 modifier for functional history. Under
clinical studies, Dr. Craven reported that appellant had a positive magnetic resonance imaging
study. He concluded that appellant had an upper extremity impairment of 15 percent.4
In a March 11, 2011 report, an OWCP medical adviser reviewed the record and advised
that current right shoulder range of motion measurements should be obtained to determine if the
range of motion method should be used in evaluating appellant’s schedule award claim. By
letter dated April 1, 2011, OWCP advised appellant that, based on OWCP’s medical adviser’s
review, a current medical assessment was needed to include right shoulder range of motion
measurements.
In an April 8, 2011 report, Dr. Craven provided right shoulder examination findings,
including range of motion measurements. Forward flexion was measured at 150 degrees,
abduction of 145 degrees, internal rotation of 15, external rotation of 15, extension of 20, and
adduction of 30. Dr. Craven diagnosed right shoulder adhesive capsulitis and traumatic rotator
cuff tear. He advised that appellant had reached maximum medical improvement and repeated
his impairment analysis under the A.M.A., Guides, stating that the diagnosis-based calculation
was consistent with appellant’s range of motion deficits. Dr. Craven reiterated that appellant had
15 percent right upper extremity impairment.
By report dated May 4, 2011, a second OWCP medical adviser reviewed the record. He
advised that maximum medical improvement was reached on September 23, 2010. Under
Table 15-34, Shoulder Range of Motion, forward elevation (flexion) of 150 degrees yielded a 3
percent impairment, backward elevation (extension) of 20 degrees yielded a 2 percent
impairment, abduction of 145 degrees yielded a 3 percent impairment, adduction of 30 degrees
yielded a 1 percent impairment, internal rotation of 15 degrees yielded a 4 percent impairment,
2

Docket No. 07-1048 (issued February 1, 2008). In the instant case, adjudicated under file number xxxxxx973,
on May 21, 2003 OWCP accepted that appellant had work-related chronic right shoulder tendinitis. In a March 30,
2006 decision, appellant was granted a schedule award for a 15 percent impairment of the right arm.
3

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

4

Appellant also submitted a number of treatment notes from Dr. Craven and other physicians dated
September 19, 2006 to September 30, 2010 that did not contain an impairment evaluation.

2

and external rotation of 15 degrees yielded a 2 percent impairment, for a total right upper
extremity impairment of 15 percent. The medical adviser concluded that, as appellant previously
received a schedule award for a 15 percent right arm impairment, the evidence did not establish
greater impairment.
By decision dated May 10, 2011, OWCP denied appellant’s claim for an additional
schedule award on the grounds that the medical evidence did not establish that he had more than
a 15 percent impairment of the right arm, for which he was granted a schedule award on
March 30, 2006.
On June 2, 2011 appellant requested reconsideration asserting that he had no use of his
right shoulder starting in March 2003. He submitted a May 2, 2005 report in which Dr. Earl
Thurmond, Board-certified in internal medicine, stated that appellant became totally disabled on
March 3, 2003 due to right rotator cuff tendinopathy and degenerative disc disease of the lumbar
spine, complicated by kidney stones, hepatitis C and hypertension.
In a nonmerit decision dated June 10, 2011, OWCP denied appellant’s reconsideration
request. It found that his argument was irrelevant to the issue of permanent impairment and that
the May 2, 2005 medical report was previously of record and duplicative.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition will be used.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

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

10

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

3

Clinical Studies (GMCS).11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).12 The sixth edition of the A.M.A., Guides also provides that, under certain
circumstances, range of motion may be selected as an alternative approach in rating impairment.
An impairment rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.13
ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish that he is entitled to greater than the 15
percent right upper extremity impairment previously awarded.
In a February 26, 2011 report, Dr. Craven, an attending orthopedist, advised that
appellant had a diagnosis-based impairment of class 1 for a right shoulder rotator cuff tear, with
a grade of C, which yielded an upper extremity impairment of 15 percent. Table 15-5, Shoulder
Regional Grid, indicates that a class 1, full thickness rotator cuff tear, has a maximum
impairment of 13 percent.14 This default rating can then be adjusted by utilizing the grade
modifiers found in the net adjustment formula.15 Dr. Craven indicated that appellant had a grade
1 impairment for functional history; but did not provide a grade for physical examination or
clinical studies and did not apply the net adjustment formula. His February 28, 2011 report is
therefore insufficient to establish that appellant has greater than 15 percent right arm impairment.
In an April 8, 2011 report, Dr. Craven provided range of motion measurements for
appellant’s right shoulder and concluded that he had a 15 percent impairment of his right arm,
explaining that the diagnosis-based calculation under the A.M.A., Guides was consistent with
appellant’s range of motion measurements. As found by the medical adviser in a May 4, 2011
report, under Table 15-34, Dr. Craven’s finding of 150 degrees of flexion yields a 3 percent
impairment; 20 degrees of extension yields a 2 percent impairment 145 degrees of abduction
yields a 3 percent impairment; 30 degrees of adduction yields a 1 percent impairment; 15 degrees
of internal rotation yields a 4 percent impairment; and 15 degrees of external rotation yields a 2
percent impairment. The medical adviser properly added the abnormal shoulder motion values
to total 15 percent right upper extremity impairment.16
There is no other medical evidence of record submitted subsequent to the March 30, 2006
schedule award that was affirmed by the Board in its February 1, 2008 decision that provides a
rating for appellant’s right shoulder impairment. Appellant therefore did not establish that he is
entitled to a schedule award greater than the 15 percent awarded on March 30, 2006.
11

Id. at 385-419.

12

Id. at 411.

13

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.
14

Id. at 403.

15

Id. at 405-12, section 15.3.

16

Id. at 474, section 16.4i.

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.17 Section 10.608(a) of the Code of Federal Regulations provide that a
timely request for reconsideration may be granted if OWCP determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).18 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.19 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.20
OWCP procedures provide that claims for increased schedule awards may be based on
incorrect calculation of the original award or new exposure.21 To the extent that a claimant is
asserting that the original award was erroneous based on his medical condition at that time, this
would be a request for reconsideration. A claim for an increased schedule award may be based
on new exposure or on medical evidence indicating the progression of an employment-related
condition, without new exposure to employment factors, resulting in a greater permanent
impairment than previously calculated.22
ANALYSIS -- ISSUE 2
With his June 2, 2011 reconsideration request, appellant asserted that he had no use of his
right shoulder beginning in 2003. It is the claimant’s burden to establish permanent impairment
of a scheduled member or function as a result of an employment injury. OWCP procedures
provide that, to support a schedule award, the file must contain medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”), describes the impairment in sufficient
detail, and gives a percentage of impairment based on a specific diagnosis, in accordance with
the relevant edition of the A.M.A., Guides.23
17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.608(a).

19

Id. at § 10.608(b)(1) and (2).

20

20 C.F.R. § 10.608(b).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.7(b) (January 2010).
22

A.A., 59 ECAB 726 (2008).

23

Federal (FECA) Procedure Manual, supra note 21 at 2.808(6)(b) (January 2010).

5

Appellant’s assertion, without supportive medical evidence,24 is insufficient to
demonstrate that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. Consequently, he was not entitled
to a review of the merits of his claim based on the first and second above-noted requirements
under section 10.606(b)(2).25
With respect to the third above-noted requirement under section 10.606(b)(2), on
reconsideration appellant submitted a May 2, 2005 report from Dr. Thurmond that had
previously been reviewed by both OWCP and the Board. Evidence that repeats or duplicates
evidence of record has no evidentiary value and does not constitute a basis for reopening a
case.26
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by OWCP, it properly denied his reconsideration request.27
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant failed to establish that he is entitled to a schedule award
greater than the 15 percent right upper extremity impairment previously awarded. The Board
further finds that OWCP properly refused to reopen appellant’s case for further consideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

24

See discussion infra.

25

20 C.F.R. § 10.606(b)(2).

26

Freddie Mosley, 54 ECAB 255 (2002).

27

Supra note 19.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 10 and May 10, 2011 are affirmed.
Issued: May 22, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0091
Issued: July 25, 2017

Case Submitted on the Record

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

JURISDICTION
On October 21, 2016 appellant, through counsel, filed a timely appeal from an August 19,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment.
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.

FACTUAL HISTORY
On May 4, 2015 appellant, then a 58-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he experienced pain and difficulty walking as a result of
repetitively standing, climbing, driving, and walking a minimum of eight hours a day in the
performance of duty. He did not stop work.
In an attached narrative statement, appellant indicated that he was diagnosed with
peripheral polyneuropathy in both feet on October 8, 2013. He described that his employment
duties involved casing mail, which required walking to and from a letter case and to receive
letters and flats. Appellant related that he also walked to receive his parcel bucket and to load
his truck for distribution. He alleged that his feet were very sore to walk on and that he
experienced significant pain after work.
Appellant was treated by Dr. David E. Hoffman, a Board-certified neurologist. In an
October 8, 2013 report, Dr. Hoffman indicated that he examined appellant due to paresthesia in
both feet, which had been ongoing for about 18 months. He noted that appellant worked as a
mail carrier and that his job involved walking for about seven hours a day. Dr. Hoffman related
that appellant complained of tingling in his toes and adjacent soles, tightness, and feeling
constricted in his forefeet. He reviewed appellant’s history and provided findings on physical
examination. Dr. Hoffman observed unelicitable ankle reflexes and distal sensory loss over the
lower limbs including vibration. He opined that appellant had peripheral polyneuropathy, which
was “aggravated by being on his feet virtually 8 hours a day, 5 days a week.” Dr. Hoffman
recommended that appellant retire at the end of the year since “walking [had] been an
aggravating factor regarding the symptomatic polyneuropathy.”
In an October 8, 2013 electromyography (EMG) and nerve conductive velocity (NCV)
study report, Dr. Hoffman related appellant’s complaints of tightness and numbness affecting
both feet for the past 18 months. He observed electrical evidence of a length-dependent,
predominantly axonal sensorimotor polyneuropathy.
Dr. Hoffman concluded that the
electrodiagnostic study was abnormal.
Dr. Hoffman continued to treat appellant. In an October 13, 2014 report, he indicated
that appellant returned for follow-up examination of remote seizures and polyneuropathy.
Dr. Hoffman related that appellant’s clinical examination and electrodiagnostic testing done a
year ago confirmed a length-dependent, predominantly axonal, sensorimotor polyneuropathy.
He explained that appellant had worked for the employing establishment for 29 years and that he
drove a mail truck. Dr. Hoffman related appellant’s complaints that his feet were bothersome
and that his neuropathy became symptomatic as the day progressed, especially on cold days. He
reported that appellant should limit his workweek to 40 hours.
In an April 23, 2015 report, Dr. Hoffman noted that appellant had worked for nearly 30
years for the employing establishment delivering mail on foot. He opined that appellant’s “work
activities [were] definitely aggravating the preexisting condition of polyneuropathy.” Upon
examination, Dr. Hoffman reported good gait balance with no falls. He also observed palpable
low pulses and no trophic changes over appellant’s feet. Dr. Hoffman indicated that clinical
neurological examination was abnormal. He explained that there was distal hypesthesia over

2

both legs, including vibration, temperature perception, light touch, and to a lesser extent,
kinesthesia. Dr. Hoffman related that electrodiagnostic testing on that date was again abnormal,
diagnosing a length-dependent, predominately axonal, sensorimotor polyneuropathy. He opined
that appellant had a symptomatic polyneuropathy, primarily involving sensory complaints, as
confirmed by electrodiagnostic testing and clinical neurologic examination.
By letter dated June 18, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish an occupational disease claim. It requested that he submit additional
medical evidence to establish that the diagnosed condition of peripheral polyneuropathy was
caused or aggravated by his employment. Appellant was afforded 30 days to submit the
requested information. OWCP issued a similar letter dated June 18, 2015 to the employing
establishment.
Dr. Hoffman responded to OWCP’s development letter in a letter dated July 7, 2015. He
indicated that he was enclosing an October 8, 2013 electrodiagnostic study report and
October 13, 2014 examination note, which clearly defined appellant’s problem. Dr. Hoffman
reported that appellant had polyneuropathy in both feet and that his symptoms worsened as the
day progressed. He related that appellant had worked for the employing establishment for more
than 29 years driving a truck and walking on his feet much of the day. Dr. Hoffman noted that
the temperature in New York was often very cold, which was an aggravating factor to increase
his foot discomfort. He explained:
“The polyneuropathy was not caused by his employment. Nevertheless, the
neuropathy is permanent and his work duties significantly aggravate symptoms
related to his preexisting condition. The neuropathy was confirmed by
electrodiagnostic testing. In my professional opinion, his duties as a postal
worker (standing and walking for several hours each day) substantially aggravates
the pain associated with his polyneuropathy.”
OWCP denied appellant’s claim in a decision dated August 5, 2015. It accepted his
repetitive duties as a letter carrier, especially walking, and a diagnosis of peripheral
polyneuropathy. OWCP denied appellant’s claim because the medical evidence of record failed
to establish that his diagnosed condition was causally related to the accepted employment
factors. It determined that Dr. Hoffman failed to provide medical rationale explaining how
appellant’s employment aggravated his bilateral foot condition.
On September 29, 2015 OWCP received appellant’s request for reconsideration.
Appellant also submitted a letter from Dr. Hoffman dated September 9, 2015.
Dr. Hoffman explained that because of appellant’s neurological condition, he was rendered more
vulnerable in the effects of walking. He related that appellant’s condition limited his ability to
be on his feet for extended periods without significant foot pain. Dr. Hoffman noted, however,
that his neurological condition was not caused by walking and was not secondary to “repetitive
stress.” He reported that given the severity of appellant’s underlying neurological condition,
prolonged walking was more painful than it would have been if appellant did not have that
condition.

3

By decision dated February 23, 2015, OWCP denied modification of its prior decision. It
found that the new medical evidence from Dr. Hoffman lacked a well-reasoned medical
explanation as to how appellant’s mail carrier duties aggravated his preexisting peripheral
polyneuropathy.
On May 23, 2016 OWCP received appellant’s request, through counsel, for
reconsideration. Counsel noted that he was enclosing a medical report dated January 26, 2016
from Dr. Hoffman, which was not previously considered.
In a January 26, 2016 letter, Dr. Hoffman clarified that the underlying neuropathy itself
was not worsened by walking, but the symptoms of neuropathy were intensified by walking. He
indicated that when neuropathic pain developed while walking, the appropriate choice was to
stop walking and rest. Dr. Hoffman noted that when walking is a mandatory part of a job
description, such as mail delivery, the choice of sitting and resting was not available because the
job must be completed. He related that the required walking for mail carriers translated into foot
pain and disability that could have been eased if walking could have been curtailed.
Dr. Hoffman opined that the “disability from [appellant’s] neuropathy was significantly
contributed to by the imperative of having to be on his feet several hours a day delivering mail.”
He indicated that walking “provoke[d] symptoms of the underlying neuropathy” similar to the
way sitting provoked symptoms of underlying spinal disease. Dr. Hoffman reported that the
demands of job-related walking significantly increased disability (pain) related to appellant’s
neuropathy.
Dr. Hoffman provided a June 27, 2016 letter in which he reiterated that appellant’s work
did not cause his polyneuropathy nor aggravate the underlying pathology of his polyneuropathy.
He noted that regardless of the cause of appellant’s condition, worsening pain while walking
could be an uncomfortable by-product. Dr. Hoffman opined: “I do not believe that the repetitive
activities of walking his postal route constituted a medical problem. I do believe that those
activities intensified the symptoms of his preexisting medical condition.” He further clarified
that appellant’s neuropathy was not caused or worsened by his work activities, but the
underlying neuropathy itself rendered his feet more sensitive to walking. Dr. Hoffman
concluded that appellant’s “job duties involved considerable walking, which served to aggravate
his preexisting condition, from a symptomatic point of view only.”
By decision dated August 19, 2016, OWCP denied modification of its prior decision. It
found that the medical evidence of record failed to establish causal relationship between
appellant’s peripheral polyneuropathy and his employment duties. OWCP determined that
Dr. Hoffman merely opined that appellant’s repetitive walking worsened the symptoms of
appellant’s peripheral neuropathy, but he did not provide a well-rationalized opinion that
appellant’s medical condition was caused or aggravated by his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
3

Supra note 2.

4

evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
Appellant has alleged that he developed peripheral polyneuropathy in both feet as a result
of his employment duties. OWCP accepted his employment factors and a diagnosis of peripheral
polyneuropathy, but it denied his claim because the medical evidence of record failed to establish
causal relationship between appellant’s medical condition and the accepted factors of
employment. The Board finds that appellant has not met his burden of proof to establish that his
bilateral foot condition was causally related to his employment.
In support of his claim, appellant submitted various reports and letters by Dr. Hoffman
dated October 8, 2013 to June 27, 2016. He related appellant’s complaints of paresthesia,
tingling, and tightness in his feet and toes. Dr. Hoffman reviewed appellant’s history and noted
that he worked as a mail carrier for nearly 30 years, which required walking for about seven
hours a day. Appellant indicated that his feet became symptomatic as the day progressed,
especially on cold days. Upon initial examination on October 8, 2013, Dr. Hoffman observed
unelicitable ankle reflexes and distal sensory loss over the lower limbs including vibration. He
noted that neurological examination and electrodiagnostic testing were abnormal for lengthdependent, predominately axonal, sensorimotor polyneuropathy. Dr. Hoffman opined that
appellant had peripheral polyneuropathy, which was “aggravated by being on his feet virtually 8
hours a day, 5 days a week.” The Board finds that Dr. Hoffman accurately described appellant’s
history and provided findings on physical examination. Although he provided an opinion on
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

causal relationship, he did not provide any medical rationale or explanation as to how appellant’s
bilateral foot condition was aggravated by being on his feet all day. The Board has found that a
medical report is of limited probative value on the issue of causal relationship if it contains a
conclusion regarding causal relationship which is unsupported by medical rationale.9
In a letter dated July 7, 2015, Dr. Hoffman clarified that appellant’s polyneuropathy was
not caused by his employment. He explained that appellant’s “work duties significantly
aggravate symptoms related to his preexisting condition.” Dr. Hoffman related that appellant’s
employment duties, specifically standing and walking for several hours each day, substantially
aggravated the pain associated with appellant’s polyneuropathy. In a June 27, 2016 letter, he
concluded that considerable walking, which was one of appellant’s job duties, served to
aggravate appellant’s preexisting condition, from a “symptomatic point of view only.”
It is undisputed that appellant has a diagnosed peripheral polyneuropathy. His work
duties are also undisputed. However, Dr. Hoffman did not provide an explanation, based on
medical rationale, as to how appellant’s employment duties would have physiologically caused
or contributed to his polyneuropathy condition.10 On the contrary, he explicitly denied that
appellant’s employment duties caused or aggravated appellant’s bilateral feet condition, but
instead appears to attribute a worsening of appellant’s symptom of pain to his employment
duties. The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of causal relationship based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.11
On appeal, counsel alleges that the August 18, 2016 OWCP decision was contrary to fact
and law. He has not, however, provided any evidence or additional argument to establish that
OWCP improperly denied appellant’s occupational disease claim. Causal relationship is a
medical question that must be established by probative medical opinion from a physician.12 The
Board finds that appellant has not met his burden of proof to establish his claim.
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 his burden of proof to establish an
occupational disease claim causally related to the accepted factors of his federal employment.

9

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009).

10

See M.M., Docket No. 15-607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

11

Patricia J. Bolleter, 40 ECAB 373 (1988).

12

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2017
Washington, DC

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

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

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

7