United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warren, OH, Employer
__________________________________________

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

Docket No. 12-97
Issued: July 19, 2012

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 October 19, 2011 appellant filed a timely appeal from a July 21, 2011 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 the case.
ISSUES
The issues are: (1) whether OWCP properly found a $1,589.64 overpayment of
compensation from March 28, 2008 to March 31, 2010, due to an incorrect pay rate; (2) whether
OWCP properly denied waiver of this overpayment; (3) whether OWCP properly found an
overpayment of $11,936.00 from April 1 to August 28, 2010; and (4) whether OWCP properly
found appellant at fault in creating the overpayment and therefore not entitled to waiver.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 2008 appellant, then a 48-year-old part-time flexible carrier, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a left ankle injury in the
performance of duty on March 17, 2008. She slipped and fell on snow and stopped work as of
the date of injury. OWCP accepted the claim for a fracture of the left distal tibia and left ankle
sprain.
A memorandum of telephone call (Form CA-110) dated April 18, 2008 reported that
appellant had worked less than 11 months, but her job would have afforded employment for 11
months. With respect to pay rate for compensation purposes, the record contains an undated
document indicating that her hourly rate was $19.61. An April 21, 2008 telephone memorandum
noted that appellant worked from January 5, 2008 at $19.84 per hour, earning a total of
$7,216.30. A listing of work hours indicated that she worked 40 hours per week on some weeks
and between 32 and 40 hours in other weeks.
Appellant began receiving compensation for wage loss. On June 24, 2008 she submitted
a June 23, 2008 claim for compensation (Form CA-7) from June 7 to 20, 2008. Appellant
indicated on the form that she had not worked outside federal employment during the period
claimed. For the period March 28 to June 20, 2008, she was initially paid compensation based
on a pay rate of $452.54 per week.2 In response to an inquiry from OWCP as to wages of a
comparable employee with similar job duties, the employing establishment submitted a June 30,
2008 form report. It advised that a part-time flexible carrier working 260 days per year would
earn $35,098.84 annually, plus $1,798.00 in holiday pay.
In a worksheet dated July 9, 2008, OWCP calculated that, based on appellant’s actual
earnings for 10 weeks, her weekly pay rate was $721.63, an amount higher than the pay rate
based on a comparable employee.3 It also found that appellant’s employment would have been
available for 11 months. Appellant retroactively received compensation from March 28, 2008
based on a pay rate for compensation purposes of $721.63 per week.
On April 5, 2009 appellant completed a Form CA-1032 regarding her employment for the
prior 15 months. She reported that she worked as a mail carrier from January 1 to
March 17, 2008. In a note dated April 9, 2009, appellant reported that she had worked for
several employers prior to her employment with the postal service. She listed a retail employer,
an osteopath and a local school system as employers.
In a report dated April 7, 2010, the employing establishment’s Office of Inspector
General noted that appellant had submitted a CA-1032 form dated April 5, 2008 with a
supplemental statement dated April 9, 2009 and a June 23, 2008 CA-7 form. The report stated
that in November 2009 the owner of a medical journal publication had been interviewed and
2

This represented a daily wage of $156.88 ($19.61 x 8) multiplied by 150 and divided by 52.

3

OWCP incorrectly determined that the comparable employee pay rate would be $706.41 per week, based on
$35,098.84 plus $1,298.00 in holiday pay, divided by 52. The actual amount is $36,396.84 annually or $699.94 per
week.

2

stated that appellant had been paid for writing five articles since March 2008. The investigative
report stated that on December 15, 2009 two criminal complaints had been filed in the Ohio
Municipal Court for violation of Ohio Revised Code § 2921.13(B). The criminal charges were
based on providing false information on the CA-1032 and CA-7 forms with respect to income
earned.
The exhibits provided included a copy of the criminal complaints filed for knowingly
making a false statement for the purpose of misleading a public official. A Municipal Court
Judgment entry indicated that on April 1, 2010 appellant entered a plea of no contest and was
found guilty.
By decision dated September 7, 2010, OWCP terminated appellant’s compensation
effective April 1, 2010. It found that, pursuant to 5 U.S.C. § 8148, she was not entitled to
compensation after being found guilty of a state criminal statute regarding fraud in receipt of
benefits.
In a memorandum dated November 29, 2010, OWCP found that an overpayment of
compensation had occurred from March 28, 2008 to August 28, 2010. The memorandum
indicated that an incorrect pay rate had been used since March 28, 2008. OWCP found that the
correct pay rate should have been $699.94 per week, based on comparable earnings of a similar
employee earning $35,098.84 annually as base pay, plus $1,298.00 holiday pay. It found that
appellant had also been overpaid based on fraud. The calculations as to the amount referred to
gross compensation paid from March 28, 2008 to August 28, 2010 as $68,772.93 and gross
compensation owed from March 28, 2008 to March 31, 2010 as $55,124.09, resulting in a
difference of $13,648.54. OWCP found that there was an underpayment of deductions for life
insurance from April 1 to August 28, 2010, resulting in an overpayment of $13,525.64.
On November 30, 2010 OWCP made a preliminary determination that an overpayment of
$13,525.64 was created based on an incorrect pay rate from March 28, 2008 to August 28, 2010
and from April 1 to August 28, 2010. Appellant was found without fault in the creation of the
overpayment due to the pay rate used; but found at fault as to that portion of overpayment related
to fraud in receipt of benefits. Appellant was advised of her right to a prerecoupment hearing.
By decision dated January 3, 2011, OWCP finalized its overpayment determinations.
A hearing before an OWCP hearing representative was held on January 11, 2011 with
respect to the termination of compensation effective April 1, 2010. By decision dated March 9,
2011, the hearing representative affirmed the September 7, 2010 OWCP decision.4
On April 12, 2011 a hearing before an OWCP hearing representative was held with
respect to the overpayment decision. On May 16, 2011 appellant submitted an overpayment
recovery questionnaire reporting monthly income of $3,200.00 and expenses of $4,328.36. She
listed $9,267.00 in assets from checking and savings accounts and cash on hand. Appellant
noted that she had a spouse and one dependent and included a list of her income and expenses.
4

The Board does not have jurisdiction over the March 9, 2011 OWCP decision. A notice of appeal must be filed
within 180 days from the date of issuance of a final OWCP decision. 20 C.F.R. § 501.3(e).

3

By decision dated July 21, 2011, the hearing representative affirmed the November 30,
2010 decision. The hearing representative denied waiver with respect to an overpayment of
$1,589.64, finding that appellant’s allowable expenses were $2,739.36.
LEGAL PRECEDENT -- ISSUE 1
Section 8114(d) of FECA provides:
“Average annual earnings are determined as follows-“(1) If the employee worked in the employment in which he was
employed at the time of his injury during substantially the whole year
immediately preceding the injury and the employment was in a position
for which an annual rate of pay-“(A) was fixed, the average annual earnings are the annual rate of
pay; or
“(B) was not fixed, the average annual earnings are the product
obtained by multiplying his daily wage for particular employment,
or the average thereof if the daily wage has fluctuated, by 300 if he
was employed on the basis of a 6-day workweek, 280 if employed
on the basis of a 5½-day week and 260 if employed on the basis of
a 5-day week.
“(2) If the employee did not work in employment in which he was employed at
the time of his injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are a sum equal to the
average annual earnings of an employee of the same class working substantially
the whole immediately preceding year in the same or similar employment by the
United States in the same or neighboring place, as determined under paragraph
(1) of this subsection.”
ANALYSIS -- ISSUE 1
OWCP found an overpayment of compensation occurred during the period March 28,
2008 to March 31, 2010 because appellant had been paid compensation based on an incorrect
rate of pay. Appellant received wage-loss compensation based on a pay rate of $721.63 per
week. This pay rate was based on her actual earnings for the 10 weeks she had worked prior to
the employment injury. The Board finds, however, the correct pay rate must be determined in
accord with the provisions of 5 U.S.C. § 8114.
The evidence from the employing establishment noted that, although appellant had not
been employed for substantially the whole year prior to the injury, the position would have

4

afforded employment for substantially a whole year.5 Therefore, the applicable section is 5
U.S.C. § 8114(d)(2), which determines the pay rate based on “average annual earnings of an
employee of the same class working substantially the whole immediately preceding year in the
same or similar employment by the United States in the same or neighboring place.” According
to the employing establishment, a similarly situated flexible carrier would have annual earnings
of $36,396.84 annually or $699.94 per week.
Based on the evidence of record, there was an overpayment of compensation as appellant
received compensation based on an incorrect rate of pay. As to the amount, the case will be
remanded to OWCP for clarification of its calculations. In this case, there are two overpayments,
one based on an incorrect pay rate and the other based on fraud under 5 U.S.C. § 8148. Rather,
than treat the overpayments separately OWCP attempted to combine the overpayments in one
calculation. An OWCP hearing representative found an overpayment of $1,589.64 based on the
incorrect pay rate. This figure was based on OWCP’s calculations that the overall overpayment
in this case was $13,525.64 (the hearing representative deducted $11,936.00 as the overpayment
based on 5 U.S.C. § 8148). The Board is unable to determine whether the amount of $1,589.64
is correct based on the evidence of record. The calculations provided in the November 28, 2010
memorandum refer to gross compensation and deductions for life insurance for periods through
August 28, 2010. The overpayment period based on an incorrect pay rate is March 28, 2008 to
March 31, 2010. The amount should be a straightforward calculation based on the net
compensation appellant received during this period, compared to the net compensation she
should have received for this period based on the correct pay rate. The difference in these
amounts is the overpayment amount. The case will be remanded to OWCP for further findings
conforming to this decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) 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 [FECA] or would be against equity and good
conscience.”6 Since OWCP found appellant to be without fault in the creation of the
overpayment, it may only recover the overpayment if recovery would neither defeat the purpose
of FECA nor be against equity and good conscience. The guidelines for determining whether
recovery of an overpayment would defeat the purpose of FECA 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.
Title 20 C.F.R. § 10.436 provides that recovery of an overpayment would defeat the
purpose of FECA if recovery would cause hardship because the beneficiary “needs substantially
all of his or her current 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

5

According to OWCP’s procedures, substantially a whole year means 11 months. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4 (December 1995).
6

5 U.S.C. § 8129(b).

5

as determined by OWCP from data provided by the Bureau of Labor Statistics.7 For waiver
under the “defeat the purpose of [FECA]” standard, appellant must show that she needs
substantially all of her current income to meet current ordinary and necessary living expenses
and that her assets do not exceed the resource base.8 An individual is deemed to need
substantially all of her current income to meet ordinary and necessary living expenses if monthly
income does not exceed expenses by more than $50.00.9
Under 20 C.F.R. § 10.437, 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; and (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.
An individual’s liquid assets “include but are not limited to cash, the value of stocks,
bonds, saving accounts, mutual funds and certificate of deposits.”10 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 …”11
ANALYSIS -- ISSUE 2
OWCP found that recovery of the overpayment would not defeat the purpose of FECA.
With respect to ordinary and necessary living expenses, the hearing representative reviewed in
detail the information provided by appellant. Under OWCP’s procedures, the hearing
representative may determine that some of the claimed expenses, such as credit card debt, are
duplicative of other claimed expenses and may find some expenses are not ordinary and
necessary.12 In this case, the hearing representative explained that there appeared to be
duplicative credit card debt and that the $430.00 claimed amount for television and telephones
should be reduced to $150.00 to reflect an ordinary and necessary expense. The hearing
representative also noted that several student loan payments were noted, with no documentation
as to whether the debt was that of appellant.13 Appellant did not provide any supporting
documentation, such as bills or financial statements.

7

OWCP’s 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 dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).
8

See Robert E. Wenholz, 38 ECAB 311 (1986).

9

Jorge O. Diaz, 51 ECAB 124, 128 (1999); Marlon G. Massey, 49 ECAB 650 (1998); Carroll R. Davis,
46 ECAB 361, 363 (1994).
10

Federal (FECA) Procedure Manual, supra note 7, Chapter 6.200.6(a) (June 2009).

11

Id.

12

Id.

13

The hearing representative did include one student loan payment as it appeared to be a debt of the parent.

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The Board finds that the hearing representative explained her rationale with respect to the
finding that appellant did not need substantially all of her current income to meet current
ordinary and necessary living expenses. An individual is deemed to need substantially all of her
current income to meet ordinary and necessary living expenses if monthly income does not
exceed expenses by more than $50.00.14 It is also noted that appellant reported $9,267.00 in
liquid assets, which does exceed the resource base of $8,960.00 for an individual with a spouse
and one dependent.15 The Board finds that the evidence of record does not establish that
recovery of the overpayment would defeat the purpose of FECA.
With respect to whether recovery would be against equity and good conscience, the
above discussion establishes that appellant would not experience severe financial hardship in
attempting to repay the debt.16 In addition, there was no evidence that appellant gave up a
valuable right in reliance of the overpayment. Accordingly, the Board finds OWCP properly
denied waiver of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding
section 8148, which provides for forfeiture of compensation benefits by an individual convicted
of fraud with respect to receipt of compensation and prohibits the payment of compensation
benefits to an individual while incarcerated pursuant to a felony conviction. Section 8148(a)
states:
“Any individual convicted of a violation of section 1920 of title 18 or any other
Federal or State criminal statute relating to fraud in the application for a receipt of
any benefit under this subchapter or subchapter [3] of the this chapter, shall forfeit
(as of the date of such conviction) any entitlement to any benefit such individual
would otherwise be entitled to under this subchapter of subchapter [3] for any
injury occurring on or before the date of such conviction. Such forfeiture shall be
in addition to any action the Secretary may take under section 8106 or 8129.”17
In addition, OWCP’s regulations provide:
“When a beneficiary either pleads guilty or is found guilty on either Federal or
State criminal charges of defrauding the Federal Government in connection with a
claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial, for any injury occurring on or before the
date of such guilty plea or verdict. Termination of entitlement under this section
14

Supra note 9.

15

Supra note 7.

16

OWCP’s procedures state that the factors considered in determining financial hardship are those used under
defeating the purpose of FECA. Federal (FECA) Procedure Manual, supra note 7, Chapter 6.200.6(b) (June 2009).
17

5 U.S.C. § 8148(a).

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is no affected by any subsequent change in or recurrence of the beneficiary’s
medical condition.”18
ANALYSIS -- ISSUE 3
The record establishes that appellant was charged with violation of Ohio Revised Code
§ 2921.13(B) in connection with providing false information on her CA-1032 form. Appellant
pled no contest and the Municipal Court accepted the plea and entered a guilty verdict on
April 1, 2010. The language of 5 U.S.C. § 8148(a) clearly states that conviction of a state
criminal charge relating to fraud with respect to the receipt of benefits under FECA results in a
forfeiture of entitlement to compensation benefits. Title 20 C.F.R. § 10.17 establishes that
entitlement to compensation is terminated as of the date the plea is accepted or a guilty verdict
returned. Based on the evidence of record appellant was not entitled to compensation as of
April 1, 2010.
The evidence of record indicates that, for the period April 1 to August 28, 2010, appellant
received $11,936.00 in net compensation benefits. The hearing representative noted that
appellant received five payments of $2,228.00, plus an additional 10 days of compensation from
April 1 to 10, 2010. Since the entire amount received after April 1, 2010 represents an
overpayment of compensation, OWCP properly found an overpayment of $11,936.00 was
created.
LEGAL PRECEDENT -- ISSUE 4
Section 8129(b) 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 FECA or would be against equity and good
conscience.”19 A claimant who is at fault in creating the overpayment is not entitled to waiver.20
On the issue of fault 20 C.F.R. § 10.433 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.”
ANALYSIS -- ISSUE 4
Although the hearing representative noted the provisions of 20 C.F.R. § 10.433, the
findings on the issue of fault consisted of a statement that appellant had received compensation
“after her fraud conviction and that she must be considered at fault for the overpayment created
beginning with that date.” There is no additional explanation or discussion as to which specific
provision or provisions of 20 C.F.R. § 10.433 appellant was found to have violated. There is no
18

20 C.F.R. § 10.17.

19

5 U.S.C. § 8129(b).

20

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

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discussion of the specific facts relevant to appellant’s plea or reference to any other relevant
evidence of record on the issue of fault.
The case will be remanded to OWCP for proper findings on the issue of fault. After such
further development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that there was an overpayment of compensation based on an incorrect
rate of pay, but the case must remanded as to the amount. OWCP properly found that appellant
was not entitled to waiver of this overpayment based on incorrect pay rate. The Board further
finds an overpayment of $11,936.00 was created pursuant to 5 U.S.C. § 8148. The case is
remanded for further development as to a finding of fault.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2011 is affirmed in part and set aside and remanded with
respect to the amount of an overpayment based on an incorrect pay rate and a finding of fault
with respect to an overpayment based on 5 U.S.C. § 8148.
Issued: July 19, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
McLouth, KS, Employer
__________________________________________

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

Docket No. 19-1047
Issued: November 13, 2019

Case Submitted on the Record

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

JURISDICTION
On April 10, 2019 appellant filed a timely appeal from an April 2, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty on January 29, 2019 as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 2, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On February 14, 2019 appellant, then a 50-year-old sales services distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that on January 29, 2019 she developed
anxiety after receiving a telephone call regarding the return of a postmaster, who she alleged had
assaulted a letter carrier. She stated that she was afraid to go to work as she would be required to
work alone with this postmaster. A witness, K.K., indicated on the claim form that she had made
the telephone call to appellant. Appellant stopped work on January 30, 2019. On the reverse side
of the claim form, the employing establishment controverted the claim indicating that there was
no proof that she sustained an injury as a result of a telephone call.
In a report dated January 29, 2019, Dr. Darin Elo, a Board-certified emergency room
physician, related that appellant was seen that day for anxiety.
In a development letter dated March 4, 2019, OWCP advised appellant of the deficiencies
in her claim and explained the type of factual and medical evidence needed to establish her claim.
It requested additional factual and medical evidence and provided a questionnaire for her
completion. OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP received additional evidence. In a January 29, 2019 narrative report, Dr. Elo
diagnosed anxiety/nerves and sweats as the reason for appellant’s visit. He noted that she had
explained that she became afraid after learning that she had to work with another employee who
had anger issues with fellow employees.
In a January 31, 2019 emergency room form, Kerry McClay, a licensed social worker,
diagnosed adjustment disorder with anxiety. She related that appellant had explained that an
employee she believed was dangerous had been assigned to work at her employing establishment.
Ms. McClay related that this individual had previous volatile incidents including a recent incident
during which he dislocated a fellow employee’s shoulder. Appellant had related being fearful of
this individual as he enjoyed talking about violence.
In an e-mail dated April 7, 2017, appellant informed her supervisor that she did not want
to be left alone with R.H. because she was afraid of him. She related that K.K. had informed her
of an incident during which R.H. appeared visibly upset. Appellant related that she was told by
K.K. that R.H. had “gotten into it” with one of the letter carriers. She alleged that R.H. enjoyed
harassing people and she indicated that she should not be required to work alone with R.H. as he
was angry with her because “he can’t have my job.”
In a March 22, 2019 report, Ms. McClay diagnosed adjustment disorder with anxiety due
to fears at being forced to work with a postmaster she considered abusive.
On March 22, 2019 appellant completed the questionnaire and noted that she had worked
for R.H. before, and his behavior was unprofessional. She noted that he returned to work at the
employing establishment on January 30, 2019. Appellant stated that she had been notified at
approximately 2:30 p.m. on January 29, 2019 by K.K. that she would be working with R.H. on his
return to the employing establishment.

2

In an April 1, 2019 statement, the employing establishment denied appellant’s allegations
that R.H. had assaulted an employee on August 9, 2018. It explained that two employees had
complained to R.H. that more staff was needed to get the work done. The employing establishment
denied that an assault had occurred. It explained that it had, by then, placed R.H. on a detail at
another location. The employing establishment noted that at no time did appellant allege that he
assaulted or threatened her.
By decision April 2, 2019, OWCP denied appellant’s claim as she had failed to establish
the factual element of fact of injury. It further found the medical evidence insufficient to meet the
burden of proof. OWCP concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

G.J., Docket No. 19-0801 (issued September 16, 2019); see S.K., Docket No. 18-1648 (issued March 14, 2019);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
7
T.G., Docket No. 19-0071 (issued May 28, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).

3

employment, the disability comes within the coverage of FECA.8 On the other hand, the disability
is not covered when 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.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on January 29, 2019 as alleged.
Appellant has not related her anxiety and disability to the performance of her regular work
duties on January 29, 2019. She alleged that she learned by telephone call on January 29, 2019
that R.H. would be returning to her work location. Appellant explained that she was afraid of him
because he had previously dislocated a coworker’s shoulder. She has not asserted, and there is no
evidence of record, that R.H. had threatened or caused her physical harm. Appellant’s concern
that she would be working with him, which she asserted would be a dangerous work environment,
was based on her anticipation of danger after discovering that he would be returning to work. The
Board has held that fear-of-future injury is not compensable.10 This is true even if the employee
is found to be medically disqualified to continue employment because of the anticipated
employment factors. The fear that one might sustain further injury is self-generated and is not
compensable.11
As appellant has not established that she was actually threatened by R.H., the Board finds
that her fear-of-future injury does not constitute a compensable injury under FECA. Therefore,
she has not met her burden of proof to establish that she sustained an emotional condition in the
performance of duty on January 29, 2019, as alleged. As appellant did not establish
compensability, the Board need not consider the medical evidence of record.12
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 on January 29, 2019.

8

L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10

See R.L., Docket No. 18-1462 (issued May 9, 2019); R.H., Docket No. 13-1193 (issued May 29, 2014); B.R.,
Docket No. 12-1943 (issued July 24, 2013).
11

R.H., id.; Joseph G. Cutrufello, 46 ECAB 285 (1994).

12

See D.A., Docket No. 18-1715 (issued May 24, 2019); Katherine A. Berg, 54 ECAB 262 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 13, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF COMMERCE,
Ashland, NC, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1065
Issued: December 3, 2008

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 February 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 3, 2007 in which an Office hearing
representative affirmed the termination of her compensation benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
and medical benefits effective December 7, 2006 on the grounds that her disability due to her
accepted conditions had ceased.
FACTUAL HISTORY
On May 18, 2000 appellant, then a 51-year-old temporary census enumerator, filed a
traumatic injury claim for injuries sustained to her chest, ribs, neck and arms on May 16, 2000
when she was involved in a motor vehicle accident.1 She stopped work at the time of the
1

Appellant’s appointment as an enumerator ended on July 8, 2000.

accident. The Office accepted the claim for multiple contusions, lower limb and aggravation of
displaced cervical intervertebral disc. On April 3, 2001 appellant underwent an authorized C6
corpectomy with C5 to C7 anterior fusion. By letter dated September 26, 2002, the Office
placed her on the periodic rolls for temporary total disability effective February 8, 2002.
On December 17, 2003 appellant was involved in a nonwork-related motor vehicle
accident.
In a November 18, 2004 report, Dr. Richard T. Sheridan, an Office referral physician and
Board-certified orthopedic surgeon, opined that appellant was capable of performing her date-ofinjury position and no longer had residuals due to her accepted employment injuries.
On January 6, 2005 the Office proposed to terminate appellant’s compensation benefits
based on Dr. Sheridan’s report.
In a January 13, 2005 report, Dr. Samuel King, a general practitioner and appellant’s
attending physician, provided findings and diagnoses related to appellant’s nonemploymentrelated motor vehicle accident of December 17, 2003. He also indicated that appellant was
“already permanently disabled prior to this accident.”
By decision dated February 18, 2005, the Office terminated appellant’s compensation
benefits effective February 19, 2005 on the grounds that her injury-related disability had ceased.
On March 16, 2005 appellant requested an oral hearing. By decision dated November 1,
2005, an Office hearing representative found there was a conflict of medical opinion between
Dr. Sheridan and Dr. King as to whether appellant had any residuals from the May 16, 2000
work injury. The hearing representative further found additional factual and medical information
was needed in regards to the nonemployment-related motor vehicle accident of December 17,
2003 and the statement of accepted facts needed to be amended to include such information.
Following such information, the Office was directed to refer appellant to an impartial medical
examiner to resolve the conflict in medical evidence between Dr. Sheridan and Dr. King.
Appellant’s benefits were retroactively reinstated.
In a letter dated February 21, 2006, the Office requested appellant’s attorney to provide
the details of the December 17, 2003 motor vehicle accident and submit all relevant medical
reports.
In letters of March 8 and April 18, 2006, appellant described the December 17, 2003
nonemployment-related motor vehicle accident and advised that the only injuries sustained were
related to her knees. Physical therapy notes were received by the Office indicating that she
received treatment from March 17 through 31, 2004 related to bilateral knee complaints.
In an April 4, 2006 report, Dr. King advised that appellant was seen for a follow up on
the injuries she received in a motor vehicle accident of May 16, 2000. He noted complaints of
right neck pain and occasional spasms as well as pain radiating into the glenohumeral joint of the
right shoulder. Dr. King noted that there were no significant radicular changes and stated that
this was her baseline. He indicated that appellant has had no new precipitating events and was
doing her activities of daily living without significant difficulty. Dr. King provided his
2

examination findings and diagnosed a cervical strain, chronic and minimal; intermittent muscle
spasms; right upper extremity paresthesias; right glenohumeral joint capsulitis and tendinitis; and
history of old cervical disc herniation with discectomy and fusion at C5-6 with arousal of
degenerative disc disease and osteoarthritis. He opined that appellant could “continue with her
normal activities of daily living. Again, I have placed no permanent restrictions upon her.”
On August 22, 2006 the Office referred appellant along with an amended statement of
accepted facts, a list of questions and the medical record to Dr. Thomas F. Scott, a Boardcertified orthopedic surgeon, to resolve the conflict in medical opinion as to whether appellant
had any residuals of her employment-related injury.
In a September 22, 2006 report, Dr. Scott noted appellant’s history of injury and
treatment, including the nonemployment-related motor vehicle accident of December 17, 2003,
and set forth his examination findings. He noted that appellant complained of pain in her head
and neck with difficulty in her right arm and discomfort in the area of her chest. Dr. Scott stated
that there was considerable disparity in the history obtained from appellant as from that gleaned
from review of the records as well as physical findings on observation and during the course of
the formal physical examination. He stated that “the examiner cannot help but conclude that this
claimant may lack veracity or ability to cooperate during the course of the examination.”
Dr. Scott opined that appellant’s accepted employment injuries had resolved. He did not detect
any residuals of lower limb contusions. Dr. Scott stated that appellant may have some
aggravation of preexisting cervical disc difficulty which was permanent, but there was no
material change which altered the course of the underlying preexisting degenerative cervical disc
disease. He further opined that appellant was capable of performing the duties of a census
enumerator and that any present physical limitations were unrelated to the accepted employment
injury. Dr. Scott opined that, in spite of appellant’s lack of mobility during the course of the
physical examination, she did not sustain any permanent injuries as a result of the employmentrelated motor vehicle accident of 2000.
On November 2, 2006 the Office proposed to terminate appellant’s compensation
benefits. It determined that, based on Dr. Scott’s report, appellant’s injury-related disability had
ceased and she was capable of resuming her regular duties as a census enumerator. Appellant
was afforded 30 days within which to submit any additional evidence.
In a letter dated November 22, 2006, appellant’s attorney indicated that appellant had an
appointment scheduled for December 4, 2006 with Dr. Joseph Rapier, Jr., a Board-certified
orthopedic surgeon.
By decision dated December 7, 2006, the Office finalized the termination of appellant’s
compensation benefits effective that date. It found that the weight of the evidence rested with
the opinion of Dr. Scott, the impartial medical examiner.
Appellant’s counsel requested an oral hearing which the Office scheduled for
April 17, 2007. On April 16, 2007 counsel withdrew his request for an oral hearing and
requested a review of the written record instead. In a May 15, 2007 letter, counsel indicated that
the Office’s decision of December 7, 2006 was in error as it failed to consider the opinion of
Dr. Rapier, which indicated a continuing disability.

3

In a December 4, 2006 report, Dr. Rapier noted the history of injury, appellant’s
subsequent treatment, his partial review of the medical records and presented his findings on
physical examination. He stated:
“As far as the orthopedic problem is concerned, I feel that [appellant] probably
sustained a strain to the cervical spine at the time of the accident which
aggravated preexisting dormant degenerative disc disease. This is based mainly
on her history. Evidently, [appellant] subsequently came to a discectomy and
fusion but she continued to have significant neck pain.”
Dr. Rapier opined that appellant’s neck pain was most likely due to the degenerative changes in
her cervical spine. He noted that he did not find any definitive evidence of radiculopathy.
Dr. Rapier further opined that he did not see appellant returning to work.
By decision dated December 3, 2007, the Office hearing representative affirmed the
December 7, 2006 decision terminating appellant’s compensation. The hearing representative
found the report of the impartial medical examiner, Dr. Scott, constituted the weight of the
medical evidence in establishing that appellant’s accepted conditions had resolved.
LEGAL PRECEDENT
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.2 Having determined that an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.3 The Office’s burden of proof in terminating compensation includes
the necessity of furnishing rationalized medical opinion evidence based on a proper factual and
medical background.4
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.5 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.6

2

Bernadine P. Taylor, 54 ECAB 342 (2003).

3

Id.

4

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

5

5 U.S.C. § 8123(a); F.R., 58 ECAB ___ (Docket No. 05-15, issued July 10, 2007); Regina T. Pellecchia, 53
ECAB 155 (2001).
6

See Gloria J. Godfrey, 52 ECAB 486 (2001).

4

ANALYSIS
The Office accepted appellant’s claim for multiple contusions, lower limb and
aggravation of displaced cervical intervertebral disc and placed her on the periodic rolls. It has
the burden of justifying the termination of appellant’s compensation for these medical
conditions.
To resolve the conflict in medical evidence between appellant’s treating physician,
Dr. King, and Dr. Sheridan, the second opinion physician, the Office referred the case to an
impartial medical specialist, Dr. Scott, who concluded, in his September 22, 2006 report, that
appellant had no residuals from the accepted work-related conditions and she was capable of
resuming her date-of-injury position of census enumerator. In support of this conclusion,
Dr. Scott provided an accurate factual and medical history, findings on physical examination and
an unequivocal rationalized medical opinion that appellant had no continuing disabling residuals
of the accepted employment injury. He stated he did not detect any residuals of lower limb
contusions. Dr. Scott further stated that, while appellant may have some permanent aggravation
of preexisting cervical disc disease, there was no material change which altered the course of the
underlying preexisting degenerative cervical disc disease. In support of his opinion, he also
noted the disparity in physical findings on observation and during the formal examination.
Dr. Scott indicated that there was no basis on which to attribute any continuing condition to the
2000 work injury. The Office relied on Dr. Scott’s opinion in its December 7, 2006 decision
which found that appellant had no residuals or continuing disability stemming from her May 16,
2000 employment injury and was therefore not entitled to compensation or medical benefits.
The Board finds that Dr. Scott’s impartial medical opinion establishes that appellant’s
accepted conditions resolved without continuing disability or residuals from her accepted
May 16, 2000 employment injury. Dr. Scott’s opinion is sufficiently probative, rationalized and
based upon a proper factual background. Therefore, the Office properly accorded Dr. Scott’s
opinion as the special weight of an impartial medical examiner.7
Appellant subsequently submitted a December 4, 2006 report by Dr. Rapier. Based
mainly on appellant’s history, Dr. Rapier opined that appellant sustained a strain to the cervical
spine at the time of the accident which aggravated preexisting dormant degenerative disc disease.
He further opined that appellant’s neck pain was most likely due to the degenerative changes in
her cervical spine. Dr. Rapier’s report, however, does not clearly support that appellant had
continuing disability or residuals due to her accepted work injuries. As noted, his opinion is
based mainly on appellant’s history. Dr. Rapier did not have a complete medical history nor did
he provide any rationale explaining how appellant’s employment injury resulted in a continuing
aggravation of her preexisting degenerative disc disease in her cervical spine. Furthermore,
while he opined that appellant was totally disabled, he did not specifically relate such disability
to the accepted employment injury or explain why appellant’s residuals of the accepted
conditions precluded her from performing the duties of her date-of-injury position. Thus,

7

Darlene R. Kennedy, 57 ECAB 414 (2006).

5

Dr. Rapier’s report is insufficient to give rise to a new conflict or otherwise show that the
termination was improper.8
Accordingly, the Board finds that Dr. Scott’s opinion constituted the weight of medical
opinion and supports the Office’s December 7, 2006 decision to terminate appellant’s
compensation.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective December 7, 2006.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 3, 2007 is affirmed.
Issued: December 3, 2008
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

8

See M.S., 58 ECAB ___ (Docket No. 06-797, issued January 31, 2007).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF NUCLEAR POWER,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 12-945
Issued: September 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 16, 2012 appellant filed a timely appeal from the March 2, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his hearing loss claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
hearing loss in the performance of duty.
FACTUAL HISTORY
On November 4, 2011 appellant, then a 55-year-old former laborer, filed an occupational
disease claim alleging that he sustained a hearing loss due to exposure to excessive noise at
1

5 U.S.C. §§ 8101-8193.

work. He indicated that he first became aware of his claimed condition on November 1, 2011
and that he first became aware that it was caused or aggravated by his federal employment on
November 1, 2011. Appellant stated that he began to have trouble hearing television and radio
and that he began to need to have words repeated in conversations. In an addition to the form
made on November 9, 2011, Aldora Bell, a health services official from the employing
establishment, indicated that appellant was last exposed to the conditions alleged to have caused
his claimed hearing loss condition on July 30, 1981. She indicated that appellant’s claimed
hearing loss condition was first reported to her on November 9, 2011.
In a hearing loss questionnaire completed on November 21, 2011, appellant indicated that
he first noticed his hearing loss on November 1, 2011 and that he first related his hearing loss to
his work exposure on November 1, 2011.2 He submitted a November 1, 2011 audiogram from
an unidentified source which shows hearing loss at various frequencies between 250 and 8,000
Hertz. This audiogram was not approved by a physician as being accurate.
In a January 13, 2012 letter, OWCP advised appellant that he needed to submit additional
factual and medical evidence in support of his claim. It informed him that he had not submitted
sufficient evidence to show that his claim was filed in a timely manner.
In a January 23, 2012 letter, Ms. Bell indicated that appellant was last exposed to factors
to which he attributed his hearing loss on August 3, 1981, the date he last worked for the
employing establishment. She stated that the audiograms taken by the employer did not
document hearing loss and that, therefore, it was not possible for the employing establishment to
have any immediate actual knowledge of injury. A noise exposure statement from the employer
indicated that appellant would have been exposed to noise at work from tools such as wagon
drills and chipping tools for about six hours per day, five days per week.
The record contains three audiograms obtained by the employing establishment on the
following dates: March 23, 1977, January 24 and May 20, 1980. There is no indication that any
of the audiograms were approved by a physician as being accurate.
On February 29, 2012 an OWCP medical adviser indicated that he had reviewed the
March 23, 1977, January 24 and May 20, 1980 audiograms and stated, “All show normal hearing
thresholds for all frequencies bilaterally. No evidence of [hearing loss].”
In a March 2, 2012 decision, OWCP denied appellant’s claim for a work-related hearing
loss on the grounds that his claim was not filed in a timely manner. It noted that his claim was
denied because the evidence did not support that his claim was filed within three years of the
date of injury or that his immediate supervisor had actual knowledge within 30 days of the date
of injury. OWCP noted that the date of appellant’s last exposure to noise at the employing

2

In an undated hearing loss form submitted on November 28, 2011, appellant detailed his work history, noting
that he last worked for the employing establishment in 1981.

2

establishment was August 3, 1981 and indicated that his claim for compensation was filed on
November 4, 2011. It stated:
“In order to satisfy the time limitations statutory filing requirements the agency,
in connection with a recognized environmental hazard, has an employee testing
program and a test shows the employee to have positive findings, which would
constitute that the [employing establishment] had actual knowledge of your
hearing loss in a timely manner. However, the medical testing provided from
your employment with [the employing establishment] shows that your hearing
was within normal limits. Your employment with [the employing establishment]
ended on August 3, 1981. Any exposure to noise after this date would not be
considered as related to your [employing establishment] position, in this claim.”
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6 OWCP evaluates industrial hearing loss in accordance with
the standards contained in the A.M.A., Guides.7 As medical issues can only be resolved by
medical opinion evidence, the reports of a nonphysician cannot be considered by the Board in
adjudicating such issues.8
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.9 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

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

7

A.M.A., Guides 248-60 (6th ed. 2009).

8

Arnold A. Alley, 44 ECAB 912, 920-21 (1993).

9

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

3

for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”10
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.11 Actual knowledge and written notice of injury
under section 8119 serve to satisfy the statutory period for filing an original claim for
compensation.12
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.13 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.14 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.15 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.16
10

5 U.S.C. § 8122(a).

11

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

12

Laura L. Harrison, 52 ECAB 515 (2001).

13

Larry E. Young, supra note 11.

14

Id.

15

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

16

Debra Young Bruce, 52 ECAB 315 (2001).

4

ANALYSIS
On November 4, 2011 appellant filed an occupational disease claim alleging that he
sustained a hearing loss due to exposure to excessive noise at work. He indicated that he first
became aware of his claimed condition on November 1, 2011 and that he first became aware that
it was caused or aggravated by his federal employment on November 1, 2011. In a March 2,
2012 decision, OWCP denied appellant’s claim for a work-related hearing loss on the grounds
that his claim was not filed in a timely manner.
The Board finds that OWCP did not adequately explain its determination that appellant
filed his claim in an untimely manner and the record does not otherwise clearly show that it was
untimely filed. OWCP essentially supported its finding of untimely filing by noting that
appellant’s date of last possible exposure to hazardous noise was August 3, 1981 and that he did
not file his hearing loss claim until November 4, 2011.17 However, it did not identify specific
evidence (such as appellant’s statements, statements of supervisors/coworkers or medical
evidence of record) which supported its determination under the relevant standards for gauging
the timeliness of occupational injury claims, i.e., whether appellant first becomes aware, or
reasonably should have been aware, of a possible relationship between his condition and his
employment more than three years before the November 4, 2011 filing of his claim.18 In the
present case, appellant consistently indicated that he first became aware of his claimed condition
on November 1, 2011 and that he first became aware that it was caused or aggravated by his
federal employment on November 1, 2011.19 There is no substantial evidence of record that
appellant was aware or reasonably should have been aware of a possible relationship between his
hearing loss and work factors more than three years before November 4, 2011. For these
reasons, appellant’s hearing loss claim was timely filed.
Despite the fact that the Board has found that appellant filed a timely hearing loss claim
and the record shows exposure to hazardous noise at work, the Board further finds that his claim
is denied on the basis that he did not submit sufficient medical evidence to show that he
sustained a hearing loss in the performance of duty.
The record contains four audiograms dated March 23, 1977, January 24 and May 20,
1980 and November 1, 2011. However, these audiograms do not constitute probative medical
evidence because they were not approved by a physician as accurate.20 Appellant did not submit
any valid medical evidence to support his claim that workplace noise exposure, which ended no
17

The employing establishment initially indicated that appellant’s last date of exposure was July 30, 1981, but it
later confirmed that the actual date was August 3, 1981.
18

This is not a case where appellant’s immediate supervisor had actual knowledge within 30 days of the date of
injury. See supra notes 11 and 12.
19

The November 1, 2011 date coincides with the date of an audiogram which shows hearing loss at various
frequencies between 250 and 8,000 Hertz. With respect to the audiograms obtained before appellant was last
exposed to hazardous noise at work on August 3, 1981, an OWCP medical adviser stated, “All show normal hearing
thresholds for all frequencies bilaterally. No evidence of [hearing loss].”
20

See supra note 8. See also J.H., 59 ECAB 377 (2008).

5

later than August 3, 1981, caused or contributed to his claimed hearing loss. For this reason, he
did not meet his burden of proof to establish that he sustained a work-related hearing loss.
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 did not meet his burden of proof to establish that he
sustained a hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified to reflect that appellant filed a timely
hearing loss claim but did not submit sufficient medical evidence to establish his claim.
Issued: September 5, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, DETROIT
PERFORMANCE CLUSTER, Detroit, MI,
Employer
__________________________________________

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Appearances:
Paul H. Kullen, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1126
Issued: January 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 5, 2011 appellant, through her representative, filed a timely appeal from the
January 6, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for a period of claimed disability. 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 her burden of proof to establish that she had disability
for the period December 8, 2004 to November 30, 2005 due to her accepted left shoulder
conditions.
1
2

20 C.F.R. § 8101 et seq.

In a March 29, 2011 letter, Paul H. Kullen purports to be appellant’s representative in connection with the
present appeal. He did not respond within the allotted time to the Board’s April 8, 2011 request to provide a
statement signed by appellant authorizing him to serve as her representative. Although appellant filed a valid appeal
with the Board, Mr. Kullen is not presently authorized to serve as her representative in connection with this appeal.

FACTUAL HISTORY
On December 6, 2005 appellant, then a 53-year-old mail processing clerk, filed an
occupational disease claim alleging that she sustained a left shoulder condition due to the
repetitive lifting, pushing and pulling required by her job. She indicated that she first became
aware that factors of her employment were contributing to her left shoulder condition on or about
December 8, 2004. OWCP accepted appellant’s claim for left shoulder rotator cuff tear, disorder
of bursae and tendons in the left shoulder and localized primary osteoarthritis of the left
shoulder. Appellant stopped work on December 8, 2004 and did not return. She retired from the
employing establishment effective April 16, 2006.
On August 24, 2009 appellant filed a Form CA-7, claim for compensation, for the period
December 8, 2004 to April 8, 2006. OWCP paid her disability compensation for periods
beginning December 1, 2005. The subject of the present appeal is appellant’s claim for disability
from December 8, 2004 to November 30, 2005 due to her accepted left shoulder conditions.
Appellant submitted a November 1, 2005 report from Dr. Jerome Ciullo, an attending
Board-certified orthopedic surgeon, who stated that she should consider such future treatments as
surgery, physical therapy and activity modification. In reports dated December 1, 2005,
January 19, March 2 and April 11, 2006, Dr. Ralph B. Blasier, an attending Board-certified
orthopedic surgeon, recommended various periods of disability. None of the recommended
disability periods covered the period December 8, 2004 to November 30, 2005.
In a September 8, 2009 report, Dr. Blasier stated that he first saw appellant on
December 1, 2005 and therefore he had no direct knowledge of her condition before that date.
He noted that, based on her history, appellant’s condition from December 8, 2004 to April 8,
2006 was stable with restrictions of no over-shoulder work, no repetitive or forceful pushing,
pulling or reaching, and no heavy lifting more than 10 pounds occasionally or 5 pounds
frequently. Appellant reported to Dr. Blasier that her supervisor told her that she was hired as a
mail processing clerk, a job that required lifting 70 pounds, and that her supervisor further
advised that if she could not do that job there was no work for her at the employing
establishment. Dr. Blasier posited that therefore she was not employable during the period
December 8, 2004 to April 8, 2006 for practical purposes.3
In a February 19, 2010 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she had disability for the period
December 8, 2004 to November 30, 2005 due to her accepted left shoulder conditions.
In an August 1, 2005 report, Dr. Robert Ho, an attending Board-certified neurosurgeon,
discussed the history of appellant’s cervical problems. He noted that she reported neck pain that
extended into her left arm with weakness of hand gripping, but he indicated that electromyogram
(EMG) testing of the arms was normal. Dr. Ho did not describe any particular condition of the
left shoulder. Appellant also submitted a statement in which her counsel at the time argued that
she did not seek care for her left shoulder condition at an earlier date because this pain was
masked by her neck pain.
3

OWCP contacted the employing establishment and found that no job offer was made to appellant during the
period December 8, 2004 to April 8, 2006.

2

In a July 12, 2010 decision, OWCP affirmed its February 19, 2010 decision finding that
appellant had not established entitlement to disability compensation for the period December 8,
2004 to November 30, 2005.
Appellant requested reconsideration and submitted evidence that included January 13 and
March 3, 2003 reports in which Dr. Fernando Diaz, an attending Board-certified neurosurgeon,
discussed his treatment of her cervical condition during that time. She reported to him that she
had pain that radiated from her neck to her left arm. In reports dated May 16, July 1 and 25,
2005 and February 2, 2006, Dr. Ho described his treatment of appellant’s cervical condition. In
his February 2, 2006 report, he mentioned her left shoulder rotator cuff tear, but he provided no
opinion of how her work-related left shoulder condition affected her ability to work.
In a January 6, 2011 decision, OWCP affirmed the July 12, 2010 decision finding that the
submitted medical evidence still did not show work-related disability for the period December 8,
2004 to November 30, 2005.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. 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 compensable employment factors. The
opinion of the 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 factors identified by the claimant.5
Whether a particular employment injury causes disability for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of
reliable, probative and substantial medical evidence.6
ANALYSIS
OWCP accepted that appellant sustained a work-related left shoulder rotator cuff tear,
disorder of bursae and tendons in the left shoulder and localized primary osteoarthritis of the left

4

J.F., Docket No. 09-1061 (issued November 17, 2009).

5

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6

W.D., Docket No. 09-658 (issued October 22, 2009).

3

shoulder. Appellant claimed that she had disability for the period December 8, 2004 to
November 30, 2005 due to her accepted left shoulder conditions.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she had disability for the period December 8, 2004 to November 30, 2005 due to her accepted
left shoulder conditions.
Appellant submitted several reports, dated between December 2005 and April 2006, in
which Dr. Blasier, an attending Board-certified orthopedic surgeon, recommended various
periods of disability. The submission of these reports does not establish her disability claim as
none of the recommended disability periods covered the period December 8, 2004 to
November 30, 2005. In a September 8, 2009 report, Dr. Blasier stated that appellant had advised
him that the employing establishment did not offer her a job between December 8, 2004 and
April 8, 2006 and therefore he posited that she was not employable during this period for
practical purposes.7 However, he acknowledged that he first saw her on December 1, 2005 and
therefore he had no direct knowledge of her condition before that date. The mere fact that the
employing establishment did not offer appellant work for a given period would not show that she
had disability due to her work-related left shoulder conditions for that period. Dr. Blasier did not
provide a rationalized medical opinion that she had disability for the period December 8, 2004 to
November 30, 2005 due to her accepted left shoulder conditions.8
Appellant submitted several reports, dated between August 2005 and February 2006, in
which Dr. Ho, an attending Board-certified neurosurgeon, discussed the history of her cervical
problems. Dr. Ho noted that appellant reported neck pain that extended into her left arm with
weakness of hand gripping, but he indicated that EMG testing of the arms was normal. In a
February 2, 2006 report, he mentioned her left shoulder rotator cuff tear, but he did not provide
an opinion that he had disability for the period December 8, 2004 to November 30, 2005 due to
her accepted left shoulder conditions.9
For these reasons, appellant did not submit rationalized medical evidence showing that
she had disability for the period December 8, 2004 to November 30, 2005 due to her accepted
left shoulder conditions and OWCP properly denied her 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.

7

OWCP called the employing establishment and conformed that no work was offered during this period.

8

Appellant submitted a November 1, 2005 report in which Dr. Ciullo, an attending Board-certified orthopedic
surgeon, stated that she should consider such future treatments as surgery, physical therapy and activity
modification. Dr. Ciullo did not provide a clear opinion on disability for the period December 8, 2004 to
November 30, 2005.
9

Appellant submitted January 13 and March 3, 2003 reports in which Dr. Diaz, an attending Board-certified
neurosurgeon, discussed his treatment of her cervical condition during that period. These reports do not relate to the
period of disability claimed by appellant in the present case.

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had
disability for the period December 8, 2004 to November 30, 2005 due to her accepted left
shoulder conditions.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2012
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Sioux City, IA,
Employer
__________________________________________

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Appearances:
Martin Ozga, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-927
Issued: January 24, 2012

Case Submitted on the Record

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

JURISDICTION
On March 3, 2011 appellant, through her attorney, filed a timely appeal from a
January 13, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
August 12, 2007.
FACTUAL HISTORY
The case has been before the Board on prior appeals. On August 16, 2003 appellant, then
a 43-year-old part-time flexible clerk, filed an occupational disease claim alleging that she
1

5 U.S.C. § 8101 et seq.

sustained a low back injury due to repetitive work activities of bending and lifting. In decisions
dated October 11, 2005, October 18, 2006 and October 12, 2007, the Board set aside merit
decisions of OWCP that denied appellant’s claim and remanded the case for further
development.2
On January 28, 2008 OWCP accepted the claim for a temporary aggravation of
degenerative lumbar intervertebral disc. It found the temporary aggravation had ceased as of
November 20, 2006, based on the reports of an orthopedic surgeon selected as a second opinion
examiner, Dr. Anil Agarwal. According to the employing establishment, appellant worked in a
light-duty position from November 27, 2004 and then stopped work on August 11, 2007.
On March 8, 2010 the Board reversed a May 6, 2009 OWCP decision regarding the
accepted condition. The Board found that OWCP did not meet its burden of proof to establish
the accepted aggravation had resolved by November 20, 2006. The facts and the law contained
in the Board’s prior decisions are incorporated herein by reference.
On March 17, 2010 OWCP accepted the claim for degeneration of lumbar or lumbosacral
intervertebral disc. On October 22, 2010 appellant submitted a claim for compensation Form
CA-7 commencing August 12, 2007.
With respect to the evidence regarding appellant’s stoppage of work in 2007, there is a
note dated June 1, 2007 from her stating that she was requesting a light-duty job to accommodate
her work restrictions. By letter dated June 5, 2007, appellant’s supervisor acknowledged that she
had requested light duty “under the new restrictions” from her physician. The supervisor stated
that the documentation did not list the current restrictions in their entirety but referred back to an
April 13, 2005 duty status report. The supervisor noted that the restrictions had shown no
improvement since 2005, and “in review of your file your current medical limitations are too
restrictive to reasonably accommodate at this time.” In a letter dated August 7, 2007, appellant
stated that, due to her medical condition, she was no longer able to perform her work duties. She
stated that she was resigning effective August 11, 2007.
The record contains e-mail correspondence from the employing establishment to OWCP
dated April 1, 2008 with respect to appellant’s work stoppage.
Appellant resigned
August 10, 2007. In response to a question as to whether the light-duty job remained available,
the employing establishment stated, “Yes.”
The record contains a June 21, 2007 “return to work certification” from Dr. Kevin
Folchert, a family practitioner, who indicated that the “date to return to work” was July 16, 2007,
and he provided work restrictions that included a 25-pound lifting restriction. In a report dated
July 23, 2007, Dr. Folchert stated that appellant was not working due to back pain. He provided
a history and diagnosed chronic low back pain. Dr. Folchert stated that appellant’s back pain is
“exacerbated from her work” and therefore work restrictions had been given. By report dated
July 31, 2008, he stated that she had chronic back pain “secondary to a previous work[-]related
injury.” Dr. Folchert stated that appellant had a permanent disability.
2

Docket No. 05-1395 (issued October 11, 2005); Docket No. 06-1549 (issued October 18, 2006); Docket No. 071214 (issued October 12, 2007).

2

In a letter dated November 3, 2010, an employing establishment personnel specialist
stated that limited-duty work was available on or after June 5, 2007 and limited-duty work would
have been available if appellant had not resigned. A worksheet dated March 5, 2007 indicated
that appellant’s work duties were “prep flats only.”
By decision dated January 13, 2011, OWCP denied a recurrence of disability. It found
the medical evidence was insufficient and the factual evidence established the light-duty job
remained available.
LEGAL PRECEDENT
OWCP’s regulation defines the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn … or when the physical requirements
of such an assignment are altered so that they exceed his or her established
physical limitations.”3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.4 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
ANALYSIS
In the present case, appellant had been working in a modified position from
November 27, 2004. She claimed compensation as of August 12, 2007, although it appeared
from the medical evidence that she was not working in June or July 2007. As the above legal
precedent indicates, appellant may establish a recurrence of disability if she shows a change in
3

20 C.F.R. § 10.5(x).

4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
5

Maurissa Mack, 50 ECAB 498 (1999).

3

the nature and extent of an injury-related condition or a change in the nature of the light-duty job.
If the light-duty job is withdrawn, this would establish a change in the nature of the light-duty
job.
The record does not establish a change in the nature and extent of the employment-related
condition on or about August 12, 2007. Appellant submitted medical evidence to the employing
establishment in early June 2007, but it is not clear from the record what evidence was
submitted. It is her burden of proof to submit the evidence necessary to establish her claim.6
Dr. Folchert did not provide a narrative report that discussed a change in the accepted
employment-related condition of lumbosacral degeneration of intervertebral disc or a period of
disability. The June 21, 2007 report is a form report noting work restrictions. In the July 23,
2007 report, Dr. Folchert referred to back pain being exacerbated by work, without further
explanation. To the extent he was indicating that the modified-duty job was exacerbating
appellant’s underlying condition, this would be a claim for a new injury.7 Dr. Folchert briefly
stated in the July 31, 2007 report that appellant had chronic back pain secondary to a previous
work injury, without providing medical rationale to support the opinion. The Board finds the
medical evidence does not contain a rationalized medical opinion, based on a complete
background, establishing a change in the nature and extent of an employment-related condition at
the time appellant stopped working in 2007.
As to whether the modified-duty job was withdrawn by the employing establishment, the
evidence reflects that appellant sought a new modified position on June 1, 2007 and submitted
evidence regarding new work restrictions. The employing establishment did not provide a new
position and appellant resigned effective August 11, 2007. It advised that the modified job she
had been performing would have remained available had she not resigned from federal
employment. There is, therefore, no probative evidence establishing a change in the nature and
extent of the modified-duty position.
The Board finds that appellant has not established a change in the nature and extent of an
injury-related condition at the time she stopped working in 2007 or a change in the nature and
extent of the light-duty job. Appellant has therefore not established entitlement to compensation
for wage loss as of August 12, 2007.
On appeal, counsel argues that the January 13, 2011 OWCP decision is not consistent
with the Board’s March 8, 2010 decision. He noted that the Board placed the burden of proof on
OWCP to demonstrate that the accepted condition had resolved by November 20, 2006, and had
reversed OWCP’s decision, but the issue in this case is appellant’s claim for wage-loss
compensation commencing August 12, 2007. Appellant was working in a modified-duty
position and it is her burden of proof to establish entitlement to compensation after she resigned
from federal employment.
Counsel also argued that light duty was not available to appellant, noting the June 5, 2007
letter from the postmaster. The evidence of record, however, reflects that it was appellant who
6

J.F., 58 ECAB 124 (2006).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997).

4

requested a new light-duty job and submitted new medical evidence. The June 5, 2007 letter was
a response to appellant’s June 1, 2007 request. In addition, appellant submitted a resignation
letter stating she could not perform her job duties. The employing establishment clearly stated
that the light-duty job remained available. There was no probative evidence presented that
OWCP had withdrawn the light-duty job that appellant had been performing prior to
June 1, 2007. The Board notes that 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 employment-related disability
commencing on or about August 12, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 13, 2011 is affirmed.
Issued: January 24, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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Appearances:
Patricia Ring Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1255
Issued: January 5, 2011

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 April 1, 2010 appellant filed a timely appeal from a March 19, 2010 merit decision of
the Office of Workers’ Compensation Programs denying her claim for compensation. Pursuant
to the Federal Employees’ Compensation Act and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty.
FACTUAL HISTORY
On February 3, 2010 appellant, then a 32-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on October 8, 2009 she was assaulted and punched in the face
by a coworker, which caused migraine headaches, severe depression and scratches and bruises to
her right arm. She stopped work on October 8, 2009. On the reverse side of the form,
appellant’s supervisor indicated by check marks that appellant was injured in the performance of

duty and that the injury was not caused by a third party. Her supervisor further reported that his
knowledge of the facts of her injury agree with statements of her and/or witnesses and advised
that the employing establishment did not controvert continuation of pay.
In a December 30, 2009 medical note, Dr. Dida Ganjoo, a treating physician, reported
that appellant was first treated in her office on December 11, 2009 and diagnosed her with severe
depression, panic attacks, post-traumatic stress disorder and migraine headaches. She further
noted that appellant was incapacitated and unable to return to work until further notice.
By letter dated February 16, 2010, the Office requested additional factual information
from both appellant and the employing establishment, including details regarding her
employment history with relevant names, addresses, telephone numbers, dates and locations,
exposure to stress, medical records of prior emotional conditions and a copy of the police report
from the October 8, 2009 incident. Neither appellant nor the employing establishment responded
to the Office’s request for information.
By decision dated March 19, 2010, the Office denied appellant’s claim because she did
not establish that she sustained an injury and specifically failed to establish that the event
occurred as alleged.1
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
Appellant alleges a traumatic injury arising out of an altercation or assault. To determine
whether a federal employee has sustained a traumatic injury in the performance of duty it must
first be determined whether a fact of injury has been established. 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 and that such event, incident or exposure
caused an injury.6
1

Following the Office’s March 19, 2010 decision, appellant submitted additional evidence to the Office. As this
evidence was not before the Office at the time of its final decision, the Board may not review this evidence for the
first time on appeal. 20 C.F.R. § 510.2(c)(1).
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Paul Foster, 56 ECAB 1943 (2004).

2

To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and with her subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury and
failure to obtain medical treatment may, if otherwise unexplained, case substantial doubt on an
employee’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8 Larson, in
addressing assaults, notes that, when it is clear that the origin of the assault is purely private and
personal and the employment contributed nothing to the episode, whether by engendering or
exacerbating the quarrel or facilitating the assault, the assault should be held noncompensable.
An assault, to be compensable, must either arise in the course of employment or if it does not,
must be directed at the employee because of his employment.9 Generally, the Board has held
that personal disputes between coworkers are not compensable if they arise outside the scope of
employment.10
ANALYSIS
The Board finds that appellant failed to establish that she sustained an injury while in the
performance of duty on October 8, 2009.
Appellant must establish all of the elements of her claim in order to prevail. Before the
medical evidence submitted can be considered, she must prove her employment, the time, place
and manner of injury, a resulting personal injury and that her injury arose in the performance of
duty. The evidence received prior to the March 19, 2009 decision does not provide any detail
regarding appellant’s altercation with a coworker. Appellant submitted a CA-1 form which
simply recounted the incident as alleged by her and was signed off by her supervisor. Though
she has alleged with specificity the time and place of the incident and there is no evidence to the
contrary, she has not provided the sufficient detail needed to establish that the altercation
occurred in the manner allege.
Appellant’s CA-1 form alleges that she was assaulted and punched in the face by a
coworker. She failed to adequately describe the circumstances of her injury and failed to provide
evidence to substantiate her claim. Appellant did not describe the circumstances before and after
the assault, whether any coworkers witnessed the alleged incident or where, specifically, the
assault took place. She did not provide a copy of the October 8, 2009 police report, a detailed

7

Id.

8

Willie J. Clements, Jr., 43 ECAB 244 (1991).

9

Bruce Wright, 43 ECAB 284 (1991).

10

George A. Rodriguez, 57 ECAB 224 (2005).

3

personal statement or any witness statements describing the assault.11 Appellant has failed to
submit sufficient evidence to establish that her claim was properly denied.12
Although appellant sought medical treatment on December 11, 2009 for the claimed
physical affects of the alleged attack, she did not adequately explain why she delayed treatment
for over two months and failed to file a claim until February 3, 2010. She submitted a
December 30, 2009 medical report from Dr. Ganjoo, who diagnosed her with severe depression,
panic attacks, post-traumatic stress disorder and migraine headaches. While Dr. Ganjoo’s
medical note provides a diagnosis, it does not support appellant’s allegation that she was
assaulted in the workplace. Therefore, her medical report is not relevant in establishing
appellant’s factual basis to support her claim.
On February 16, 2010 the Office informed appellant of the evidence needed to support
her claim; however, the record before the Board contains no evidence. Evidence submitted by
appellant after the final decision cannot be considered by the Board, although she may submit
new evidence, along with a request for reconsideration directly to the Office. As previously
noted, the Board’s jurisdiction is limited to reviewing the evidence that was before the Office at
the time of its decision. On that record, appellant failed to provide evidence to prove the fact of
injury, its time, place and manner and that the injury was causally related to her federal
employment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty.

11

Paul Foster, supra note 6; Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

The need for additional evidence also arises because the Board has no way of knowing the circumstances
surrounding the alleged assault. The record before the Board does not reflect whether this altercation occurred over
nonwork matters. Generally, the Board has held that personal disputes between coworkers that arise outside the
scope of employment and are then imported into the workplace are not compensable. (James P. Schilling, 54 ECAB
914 (2003); Agnes V. Blackwell, 44 ECAB 200 (1992)). Thus, appellant must offer evidence to establish a causal
connection between the altercation and her employment.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 19, 2010 is affirmed.
Issued: January 5, 2011
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

5