United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY,
FORT SAM HOUSTON, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
William Hackney, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0927
Issued: February 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 1, 2016 appellant, through counsel, filed a timely appeal from a February 29,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on June 30, 2014.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 3, 2014 appellant, then a 40-year-old security specialist, filed a traumatic injury
claim (Form CA-1) alleging that at 1:00 p.m. on Monday, June 30, 2014 he sustained injuries to
his neck, shoulder, and right leg due to a fall on the stairway going from the second to the first
floor of his home in San Antonio, TX.3 He attached a statement in which he explained that on
June 30, 2014 he was relocating his telework items from his home to the Commissary at Fort
Sam Houston, TX, at the direction of his supervisor. Appellant indicated that, as he was carrying
a box of reference materials and supplies down the stairs in his home, his right leg gave out and
he tumbled down the last six steps and he impacted the wall at the bottom of the stairs head. He
submitted July 7 and 17, 2014 reports in which an attending physician listed a date of injury as
June 30, 2014 and a diagnosis of “right leg/head.” The physician indicated that appellant was
totally disabled.
In the supervisor portion of the Form CA-1, appellant’s immediate supervisor indicated
that appellant’s duty station was at Fort Sam Houston and that his regular work hours were 7:30
a.m. to 4:00 p.m., Monday through Friday. In a July 9, 2014 statement attached to the Form CA1, the supervisor contended that appellant had not sustained an injury in the performance of duty
on June 30, 2014 because his alleged injury occurred at home despite the fact that he had
directed appellant on three occasions prior to June 30, 2014 to report to the Fort Sam Houston
Commissary at 7:00 a.m. on June 30, 2014.4 He noted that he knew nothing about appellant
making trips back and forth from his home to the Fort Sam Houston Commissary to haul office
supplies. The supervisor indicated that appellant never asked him permission to carry out this
task and he did not approve it. He noted that appellant’s duty station on June 30, 2014 was the
Fort Sam Houston Commissary. The supervisor indicated that on June 26, 2014 he advised
appellant that he was taking him off his teleworking schedule of five days per week and that he
had to work at the Fort Sam Houston Commissary.5
In a July 22, 2014 e-mail to an injury compensation specialist for the employing
establishment, appellant’s immediate supervisor indicated that his comment to appellant to
“bring [appellant’s] work things” with him when he reported to the Fort Sam Houston
Commissary on June 30, 2014 was not meant to imply that he had approved trips to and from his
residence.
In a July 24, 2014 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of his claim.
Appellant submitted an August 21, 2014 report in which an attending physician again
listed a date of injury as June 30, 2014 and a diagnosis of “right leg/head” and indicated that he
was totally disabled.
3

Appellant stopped work on June 30, 2014.

4

The record contains a June 13, 2014 e-mail in which appellant’s supervisor directed him to report to the Fort
Sam Houston Commissary for work on June 30, 2014.
5

The record contains a June 27, 2014 statement in which a store director for the employing establishment
indicated that he was present when appellant’s immediate supervisor advised appellant that he was taking him off
his teleworking schedule of five days per week.

2

By decision dated August 26, 2014, OWCP denied appellant’s claim for a June 30, 2014
work injury. It found that he had established a work incident on June 30, 2014, but that he had
not submitted medical evidence establishing that a specific condition was sustained due to the
work incident.
On October 28, 2014 appellant requested reconsideration of OWCP’s August 26, 2014
decision. He submitted a statement in which he indicated that he felt that the multiple trips he
took to and from his home were necessary to move his many files, reference materials, office
supplies, and other work items. Appellant also submitted a letter to his congressman in which he
asserted he was following his supervisor’s order to move his work belongings from his home to
the Fort Sam Houston Commissary. He also submitted additional medical reports from June and
July 2014.
In a November 18, 2014 letter, an injury compensation specialist for the employing
establishment noted that appellant was not in the performance of duty when his accident
occurred on June 30, 2014. She advised that he was not authorized to be at his residence at the
time of injury. The specialist noted that reference should be made to the July 9, 2014 statement
of appellant’s immediate supervisor and a July 22, 2014 e-mail the immediate supervisor sent to
appellant which indicated that appellant did not have permission to go back and forth to his
residence on June 30, 2014. She indicated that appellant was expected to be at his duty station.
By decision dated March 9, 2015, OWCP denied appellant’s claim for a work-related
injury on June 30, 2014. It noted that it was modifying the basis for the denial because he did
not show that his June 30, 2014 fall occurred in the performance of duty. OWCP discussed the
statements indicating that appellant was not authorized to travel back and forth between his home
and the Fort Sam Houston Commissary on June 30, 2014 and indicated, “The evidence is
sufficient to modify the decision dated August 26, 2014 from a denial based on one of the five
basic elements for FECA coverage (fact of injury, medical) to a denial based on another basic
element (performance of duty). Your case remains denied as you have not met the performance
of duty element of your claim.”
In a December 8, 2015 letter, appellant, through counsel, requested reconsideration of
OWCP’s March 9, 2015 decision. Counsel argued that appellant was responding to a direct
order from his supervisor to pack up and move his things from his home to the Fort Sam Houston
Commissary when he was injured on June 30, 2014. He noted that appellant’s supervisor “did
not direct [appellant] to pack up his things on a day prior to Monday June 30, 2014, he
specifically told [appellant] to pack them up on June 30, 2014, and bring them with him.”
In a February 16, 2016 letter to OWCP, an injury compensation specialist for the
employing establishment noted that appellant was directed to be at his designated duty station at
7:00 a.m. on June 30, 2014. She repeated some of the statements she made in her November 18,
2014 letter.
In a February 29, 2016 decision, OWCP denied modification of its March 9, 2015
decision denying appellant’s claim for a June 30, 2014 work-related injury. It again found that
he did not sustain an injury in the performance of duty on that date.

3

LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”6 The
phrase “sustained while in the performance of duty” has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of “arising out of
and in the course of employment.”7 The phrase “in the course of employment” is recognized as
relating to the work situation, and more particularly, relating to elements of time, place, and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in the master’s business, at a place where he or
she may reasonably be expected to be in connection with the employment and while he or she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.”8 This alone is not sufficient to establish entitlement to benefits for
compensability. The concomitant requirement of an injury “arising out of the employment” must
be shown, and this encompasses not only the work setting, but also a causal concept, the
requirement being that the employment caused the injury.9
As a general rule, off-premises injuries sustained by employees having fixed hours and
place of work, while going to or coming home from work or during a lunch period, are not
compensable as they do not arise out of and in the course of employment but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.10 When
an employee has a definite place and time for work and the time for work does not include the
lunch period, the trip away from, and back to the premises for the purposes of getting lunch is
indistinguishable in principle from the trip at the beginning and end of the workday and is
governed by the same rules and exceptions.11 Exceptions to the general rule have been made in
order to protect activities that are so closely related to the employment itself as to be incidental
thereto,12 or which are in the nature of necessary personal comfort or ministration.13
6

5 U.S.C. § 8102(a).

7

Charles Crawford, 40 ECAB 474, 476-77 (1989).

8

Mary Keszler, 38 ECAB 735, 739 (1987).

9

Eugene G. Chin, 39 ECAB 598, 602 (1988).

10

Mary Keszler, 38 ECAB 735, 739-40 (1987).

11

Donna K. Schuler, 38 ECAB 273, 274 (1986).

12

The Board has stated that these exceptions have developed where the hazards of the travel may fairly be
considered a hazard of the employment and that they are dependent upon the particular facts and related situations:
“(1) where the employment requires the employee to travel on the highways; (2) where the employer contracts to and
does furnish transportation to and from work; (3) where the employee is subject to emergency calls as in the case of
firemen; and (4) where the employee uses the highway to do something incidental to his employment, with the
knowledge and approval of the employer.” Betty R. Rutherford, 40 ECAB 496, 498-99; Lillie J. Wiley, 6 ECAB 500,
502 (1954).
13

See, e.g., Harris Cohen, 8 ECAB 457, 457-58 (1954) (accident occurred while the employee was obtaining
coffee); Abraham Katz, 6 ECAB 218, 218-19 (1953) (accident occurring while the employee was on the way to the
lavatory).

4

OWCP’s procedures address off-premises injuries sustained by workers who perform
service at home:
“Ordinarily, the protection of [FECA] does not extend to the employee’s home,
but there is an exception when the injury is sustained while the employee is
performing official duties. In situations of this sort, the critical problem is to
ascertain whether at the time of injury the employee was in fact doing something
for the employer. The official superior should be requested to submit a statement
showing-(a) What directives were given to or what arrangements had been made
with the employee for performing work at home or outside usual working
hours;
(b) The particular work the employee was performing when injured; and
(c) Whether the official superior is of the opinion the employee was
performing official duties at the time of the injury, with appropriate
explanation for such opinion.”14
ANALYSIS
On July 3, 2014 appellant filed a CA-1 form alleging that at 1:00 p.m. on Monday,
June 30, 2014 he sustained neck, shoulder, and right leg injuries due to a fall on the stairway
going from the second to the first floor of his home in San Antonio, TX. He explained that on
June 30, 2014 he fell while he was in the process of relocating his telework items from his home
to the Fort Sam Houston Commissary at the direction of his supervisor. Appellant indicated that
he was carrying a box of reference materials and supplies when he fell.
The Board finds that appellant has not met his burden of proof because he was not in the
course of his employment at the time of his claimed injury and therefore was not in the
performance of duty.15
Appellant’s supervisor indicated that appellant had not sustained an injury in the
performance of duty on June 30, 2014 because his alleged injury occurred at home at 1:00 p.m.
on that date despite the fact that he had directed appellant on three occasions prior to June 30,
2014 to report to the Fort Sam Houston Commissary at 7:00 a.m. on June 30, 2014. He noted
that he knew nothing about appellant making trips back and forth from his home to the Fort Sam
Houston Commissary to haul office supplies. The supervisor stated that he was never asked

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1)
(August 1992); see also S.F., Docket No. 09-2172 (issued August 23, 2010).
15

See supra note 7.

5

permission to carry out this task and had not approved it.16 He noted that appellant’s duty station
on June 30, 2014 was the Fort Sam Houston Commissary.
Appellant has not shown that his claimed June 30, 2014 injury occurred at a time when
he may reasonably be stated to have been engaged in the master’s business, at a place where he
may have reasonably been expected to be in connection with the employment, and while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.17 He has not met these important indicia of being in the performance of duty at the time
of his June 30, 2014 fall. Appellant was not at a place where he may have reasonably been
expected to be in connection with the employment when he fell on June 30, 2014 because his
duty station on that date was the Fort Sam Houston Commissary and his supervisor directed him
to report there at 7:00 a.m. on that date.
Appellant’s supervisor indicated that he had not authorized appellant to travel back and
forth between his home and the Fort Sam Houston Commissary on June 30, 2014. Although he
told appellant to “bring his work things” with him when he reported to the Fort Sam Houston
Commissary on June 30, 2014, this comment could not be reasonably interpreted as approval for
appellant to leave his workplace and travel back and forth between his home and his duty station
during the workday without prior approval. Appellant was expected to report to his duty station
at the Fort Sam Houston Commissary and perform his usual duties at the time of his fall on
June 30, 2014. Therefore, he was not reasonably fulfilling the duties of his employment or
engaged in doing something incidental thereto at the time of his June 30, 2014 fall.
OWCP’s procedures provide that, ordinarily, the protection of FECA does not extend to
the employee’s home, but there is an exception when the injury is sustained while the employee
is performing official duties. In situations as such, the critical problem is to ascertain whether at
the time of injury the employee was in fact doing something for the employer.18 In such
circumstances, the official superior is to be asked if the employee was performing official duties
at the time of the injury.19 In this case, appellant’s supervisor provided a clear opinion that
appellant was not performing official duties at the time of the injury.
On appeal counsel argues that appellant’s claimed June 30, 2014 injury occurred in the
performance of duty because appellant was authorized to travel back and forth between his home
and the employing establishment premises in order to bring all his things (including years of
files, computer, printer, etc.) from his home to his office on that date. However, he has not
provided any evidence which establishes that appellant was authorized to engage in such
activities as part of his regular or incidental job duties. Appellant argued that his supervisor gave
him permission orally to ferry his files from his home to the office workstation, however, there is
no documented evidence of same.
16

Appellant’s supervisor indicated that his comment to appellant to “bring his work things” with him when he
reported to the Fort Sam Houston Commissary on June 30, 2014 was not meant to imply that he had approved trips
to and from his residence.
17

See supra note 8.

18

See supra note 14.

19

See id.

6

For these reasons, appellant has not established an injury in the performance of duty on
June 30, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury in
the performance of duty on June 30, 2014.
ORDER
IT IS HEREBY ORDERED THAT the February 29, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1402
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On July 21, 2020 appellant, through counsel, filed a timely appeal from a January 23, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish exposure to
tuberculosis (TB) in the performance of duty, as alleged.
FACTUAL HISTORY
On June 23, 2016 appellant, then a 50-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that she was exposed to TB due to factors of her federal employment,
including working around inmates in a closed environment within a federal prison. She noted that
she first became aware of her condition and realized its relation to factors of her federal
employment on April 21, 2016. Appellant stopped work on April 21, 2016.
In a June 23, 2016 statement, appellant stated that she initially believed that she had
contracted the flu in March 2016 until she was diagnosed with TB on April 21, 2016. She
indicated that she immediately notified her union representative and the employing establishment
of her diagnosis, noting that it was work related as she was frequently around inmates and came
in direct contact with them. Appellant explained that her office was in the unit with no windows
or ventilation. She noted that inmates regularly came to her office to ask questions or to sign
forms. Appellant further noted that she also regularly checked cells, patted down inmates, and
performed all the duties of an officer. She indicated that she was previously diagnosed as a TB
carrier in early childhood, which she disclosed to the employing establishment when she was first
hired 15 years prior. Appellant asserted that she had no symptoms until March 2016.
In a July 21, 2016 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. In a separate development letter of even date, OWCP
requested that the employing establishment provide additional information regarding appellant’s
occupational disease claim, including comments from a knowledgeable su pervisor regarding the
accuracy of appellant’s statements. It afforded both parties 30 days to respond.
A May 27, 2016 chest computerized tomography (CT) scan demonstrated minor spinal
pleural thickening in the left of very limited degree with some reactive airway changes, as well as
evidence of a limited hiatal hernia.
In an August 2, 2016 work capacity evaluation (Form OWCP-5c), Dr. Sara Vizcay, Boardcertified in family practice, diagnosed TB and indicated that appellant could not work.
In an August 15, 2016 response to OWCP’s development questionnaire, appellant asserted
that she had been exposed to TB at work between 2001 and 2016. She indicated that, during her
10-hour work shifts, she had been exposed to infected inmates and that her coworkers who worked
in the same work environment had also been exposed.
Dr. Vizcay, in an August 15, 2016 Form OWCP-5c, continued to hold appellant off from
work and referred appellant to a pulmonologist.
By decision dated September 12, 2016, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that her diagnosed condition was causally
related to the accepted factors of her federal employment.
2

In a March 13, 2017 medical report, Dr. Vizcay noted that appellant developed flu-like
symptoms in March 2016 and was subsequently diagnosed with TB on April 21, 2016. Appellant
reported that she was frequently around inmates at work. Dr. Vizcay indicated that appellant could
not climb up and down stairs without experiencing shortness of breath exacerbations. She also
observed that appellant experienced difficulty sleeping and had chronic pain and depression
secondary to her work injuries. Dr. Vizcay examined appellant and diagnosed exposure to TB,
positive TB skin test without active disease, restrictive airway disease, and latent TB. She noted
that appellant’s CT scan showed minor apical pleural thickening on the left lung and some reactive
airway peribronchial changes. Dr. Vizcay opined that appellant was exposed to TB at work
because the etiology of this disease is associated with being in secluded places like prisons,
homeless shelters, and/or any crowded condition like appellant’s employing establishment. She
concluded that appellant’s statements regarding appellant’s work injuries around April 21, 2016
were consistent with her medical findings.
In a June 6, 2017 medical report, Dr. Vizcay reiterated her findings and diagnoses, but
additionally diagnosed depression and anxiety secondary to chronic pain. She noted that
appellant’s pulmonary function capacity test performed that day was in the 77 th percentile.
Dr. Vizcay opined to a reasonable medical certainty that appellant was exposed to TB at work.
On September 12, 2017 appellant, through counsel, requested reconsideration. Counsel
argued that, although appellant acknowledged her latent TB, she came in contact with prisoners
with TB at the employing establishment.
By decision dated November 2, 2018, OWCP affirmed, as modified, its September 12,
2016 decision, finding that appellant had not factually established that the employment exposure
to TB had occurred, as alleged.
On November 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated January 23, 2020, OWCP denied modification of the November 2, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 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

3

Supra note 2.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury. 5 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. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which he or she believes caused or adversely affected a
condition for which compensation is claimed. 8
ANALYSIS
The Board finds that this case is not in posture for decision.
In her June 23, 2016 statement, appellant claimed that she was exposed to TB at work, as
her work duties required her to be in direct contact with inmates in a federal prison and perform
all officer duties, including patting down inmates and regularly checking cells. In her August 15,
2016 response to OWCP’s development questionnaire, she further explained that she had been
exposed to TB at work between 2001 and 2016 during her 10-hour work shifts when she had been
exposed to infected inmates. Appellant indicated that her coworkers who worked in the same work
environment had also been exposed.
In a July 21, 2016 development letter, OWCP requested that the employing establishment
provide additional information regarding appellant’s occupational disease claim, including
comments from a knowledgeable supervisor regarding the accuracy of appellant’s statements. The
employing establishment, however, did not respond to the specific questions in its July 21, 2016
development letter.
The Board finds that it is unable to make an informed decision in this case as the employing
establishment did not respond to the request for comment made by OWCP in the July 21, 2016
development letter. 9

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

8

T.W., Docket No. 18-0788 (issued July 22, 2019); J.C., Docket No. 16-1663 (issued January 18, 2017); Lori A.
Facey, 55 ECAB 217 (2004).
9

See S.S., Docket No. 19-1021 (issued April 21, 2021); C.K., Docket No. 20-1493 (issued March 29, 2021).

4

It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence, particularly when such evidence is of the character normally
obtained from the employing establishment or other government source. 10
This case will, accordingly, be remanded to OWCP for further development of the evidence
regarding appellant’s allegations of TB exposure at the employing establishment. OWCP shall
request that the employing establishment provide a detailed statement and relevant evidence and/or
argument regarding appellant’s allegations. Following this and any other necessary development,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 28, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

10

See M.A., Docket No. 20-1590 (issued May 12, 2021); S.S., id.; D.O., Docket No. 20-0006 (issued September 9,
2020); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)
)

Docket No. 21-1341
Issued: March 24, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 8, 2021 appellant, through counsel, filed an appeal from a March 11, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1341.
The Board has duly considered the matter and notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 For final
adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority

1

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

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180 th day following the March 11, 2021 decision was September 7, 2021. As appellant
did not file an appeal with the Board until September 8, 2021, more than 180 days after the
March 11, 2021 OWCP decision, the Board finds that the appeal docketed as No. 21 -1341 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 21-1341, must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1341 is dismissed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.3(e).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id.
at § 501.6(d).
4

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syosset, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0937
Issued: October 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 31, 2019 appellant, through her representative, filed a timely appeal from an
October 9, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the October 9, 2018 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability
commencing on or after December 10, 2007 causally related to her accepted October 24, 2007
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On October 26, 2007 appellant, then a 48-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injury to her low back and left leg on
October 24, 2007 when bending and lifting/handling mail while in the performance of duty. She
stopped work on October 24, 2007.
By decision dated February 20, 2008, OWCP denied appellant’s traumatic injury claim.
Appellant appealed to the Board and, by decision dated January 27, 2009,5 the Board remanded
the case for further development of the evidence. On remand, OWCP accepted that she sustained
a lumbar sprain and temporary aggravation of preexisting degenerative disc disease of the lumbar
spine (resolved) based on the March 26, 2009 report of Dr. Sanford R. Wert, a Board-certified
orthopedic surgeon who served as an OWCP referral physician. 6 Appellant then filed claims for
compensation (Forms CA-7) alleging that she had been disabled from work due to her accepted
October 24, 2007 employment injury commencing December 10, 2007 and continuing.
Appellant submitted a May 13, 2009 report from Dr. Jamie P. Skurka, a chiropractor, who
opined that, due to the October 24, 2007 employment incident, appellant had lumbar spine
subluxations as demonstrated by x-rays which had caused disability since January 8, 2008.
In July 2009, OWCP requested that Dr. Wert provide a supplemental report on the question
of whether appellant had any disability following her accepted October 24, 2007 employment
injury. In an August 5, 2009 report, Dr. Wert advised that he was unable to comment on whether
or not appellant was disabled at any time following her employment injury. 7
By decision dated October 16, 2009, OWCP denied appellant’s claim, finding that she did
not submit medical evidence sufficient to establish disability commencing on or after

4

Docket No. 08-1879 (issued January 27, 2009); Docket No. 12-1348 (issued February 25, 2013); Docket No. 161318 (issued February 15, 2017).
5

Id.

6

In his March 26, 2009 report, Dr. Wert noted that the temporary aggravation of appellant’s preexisting
degenerative disease should have ceased following her four-month course of physical therapy. He found no objective
evidence of any ongoing disability and indicated that she was capable of resuming the regular duties of a distribution
clerk.
In an apparent typographical error, Dr. Wert inadvertently listed the date of appellant’s employment injury as
March 24, 2007, rather than October 24, 2007.
7

2

December 10, 2007 due to her accepted October 24, 2007 employment injury. By decisions dated
January 5, 2011 and January 11, 2012, it denied modification of its denial of her disability claim. 8
Appellant appealed her claim to the Board and, by decision dated February 25, 2013,9 the
Board affirmed OWCP’s January 11, 2012 decision.
Appellant, through her representative, requested reconsideration of OWCP’s denial of her
disability claim on three more occasions and OWCP again denied her claim in decisions dated
February 28 and September 14, 2014, and February 9, 2016.10 Appellant appealed to the Board
and, by decision dated February 15, 2017,11 the Board affirmed OWCP’s February 9, 2016
decision.
On February 5, 2018 appellant, through her representative, again requested reconsideration
of OWCP’s denial of her disability claim.
Appellant submitted numerous reports of Dr. Sharma dated between December 31, 2015
and September 4, 2018. The reports memorialize Dr. Sharma’s periodic examinations of appellant
and contain such diagnoses as right L5 radiculopathy, lumbar spondylosis, lumbar spinal stenosis,
lumbar spondylolisthesis, and lumbar herniated disc. In the history portion of a March 14, 2016
report, Dr. Sharma indicated that appellant reported experiencing back and right lower extremity
symptoms since suffering an injury at work in 2007.
Appellant also submitted reports of a November 21, 2015 magnetic resonance imaging
(MRI) scan of her lumbar spine, September 14, 2017 x-rays of her left elbow and hand, and a
September 15, 2017 computerized tomography (CT) scan of her lumbar spine.
By decision dated October 9, 2018, OWCP denied appellant’s claim because she had not
submitted medical evidence sufficient to establish disability commencing on or after December 10,
2007 causally related to her accepted October 24, 2007 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was 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. 12 In general the term disability under FECA means incapacity because
8

In these decisions, OWCP found that the submitted evidence, including a June 7, 2010 report from Dr. Erlinda D.
Austria, a Board-certified orthopedic surgeon, and a January 14, 2011 report from Dr. Skurka did not contain a
rationalized opinion on disability.
9

Supra note 4.

10

In these decisions, OWCP found that the medical evidence submitted by appellant, including October 2, 2013
and March 11, 2014 and reports from Dr. Deborah Eisen, a Board-certified family practitioner, and a November 11,
2015 report from Dr. Amit Sharma, a Board-certified internist, were not sufficient to establish appellant’s disability
claim.
11

Supra note 4.

12

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

3

of injury in employment to earn the wages which the employee was receiving at the time of such
injury.13 This meaning, for brevity, is expressed as disability for work. 14
The medical evidence required to establish a causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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. 15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability
commencing on or after December 10, 2007 causally related to her accepted October 24, 2007
employment injury.
Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s February 9, 2016 decision because the Board
considered that evidence in its February 25, 2013 and February 15, 2017 decisions and found it
insufficient to establish causal relationship between appellant’s claimed period of disability and
the accepted October 24, 2007 employment injury. Findings made in prior Board decisions are
res judicata absent any further review by OWCP under section 8128 of FECA. 16
Appellant submitted numerous reports of Dr. Sharma dated between December 31, 2015
and September 4, 2018 which contain diagnoses as right L5 radiculopathy, lumbar spondylosis ,
lumbar spinal stenosis, lumbar spondylolisthesis, and lumbar herniated disc. However, these
reports do not contain an opinion relative to appellant’s disability from work. 17 The Board has
held that medical evidence that does not offer an opinion regarding the cause of an employee’s
disability is of no probative value on the issue of causal relationship. 18 The reports submitted by
appellant do not provide an opinion on the causal relationship between the accepted October 24,
2007 employment injury and the claimed period of disability, i.e., December 10, 2007 and
continuing. As such, they are of no probative value on the underlying issue of this case. 19

13

See 20 C.F.R. § 10.5(f).

14

See S.W., supra note 12. See also A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L. Kaaumoana,
54 ECAB 150 (2002).
15

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

16

See B.B., Docket No. 17-0294 (issued May 11, 2018). On appeal her representative argues that appellant’s
disability claim is established by some of the medical reports submitted prior to the issuance of OWCP’s February 9,
2016 decision. However, as noted, the Board has already reviewed these reports and deemed them insufficient to
establish appellant’s claim.
17

Appellant also submitted reports of diagnostic testing obtained between November 21, 2015 and
September 15, 2017. However, these reports are of no probative value on the underlying issue of this case because
they do not contain an opinion on causal relationship. See R.G., Docket No. 18-1045 (issued February 1, 2019).
18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19

Id.

4

On appeal the representative argues that OWCP should have begun paying appellant wageloss compensation commencing December 10, 2007 based on the reports of Dr. Wert, an OWCP
referral physician. However, in his August 5, 2009 report, Dr. Wert advised that he was unable to
comment on whether or not appellant was disabled at any time following her accepted employment
injury.
As the record does not contain a rationalized opinion on causal relationship between
appellant’s October 24, 2007 employment injury and the claimed period of disability, the Board finds
that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability
commencing on or after December 10, 2007 causally related to her accepted October 24, 2007
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 2, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Murfreesboro, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2434
Issued: June 12, 2009

Case Submitted on the Record

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

JURISDICTION
On September 10, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated June 20, 2008, denying his claim for compensation and
an August 8, 2008 decision, denying his request for reconsideration without a merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a traumatic injury on April 8, 2008; and (2) whether the Office properly denied
appellant’s request for reconsideration without further merit review.

FACTUAL HISTORY
On April 29, 2008 appellant, then a 52-year-old housekeeping aid, filed a traumatic injury
claim alleging that on April 8, 2008 he injured his left shoulder taking trash out of large
containers. He did not stop work.
In an April 29, 2008 magnetic resonance imaging (MRI) scan report, Dr. Iantha L.
Harney, a Board-certified diagnostic radiologist, noted appellant’s left shoulder pain and reduced
range of motion from a pulling injury. She diagnosed severe tendinopathy of the supraspinatus
and infraspinatus tendons with a full thickness tear of the supraspinatus across its entire width.
Dr. Harney also diagnosed longitudinal partial thickness tearing of the infraspinatus at the
myotendinous junction. She found a torn anterior inferior labrum, degenerative blunting of the
posterior labrum and suspected focal tear of the posterior inferior labrum.
In an April 9, 2008 emergency room report, a registered nurse noted appellant’s
complaint of left shoulder pain, particularly when lifting his arm. The nurse indicated that
appellant had been lifting heavy trash the previous night. In a report of the same date,
Dr. Naeem Uddin, a Board-certified family practitioner, noted that appellant had right shoulder
pain due to overuse with pain worsening with movement. He reported that appellant denied any
trauma. Dr. Uddin diagnosed synovitis and tendinitis due to overuse.
In a hospital report dated April 17, 2008, a registered nurse noted examination findings
and appellant’s complaint of left shoulder pain after lifting a trash bag out of a trash can four
days prior. On April 17, 2008 Dr. David Lin, a Board-certified diagnostic radiologist, noted that
appellant was lifting when he heard a popping sound in his left shoulder. He indicated that views
of appellant’s left shoulder revealed no fractures or dislocations and the rotator cuff space
appeared maintained.
In progress notes dated April 28, 2008, Linda Layhl, a nurse practitioner with the
employing establishment, noted that appellant was unable to tolerate an MRI scan due to
shoulder pain. On April 29, 2008 she noted that the MRI scan results revealed tears to the
tendons in appellant’s shoulder.1 In work restriction forms dated between April 21 and 30, 2008,
Ms. Layhl advised limited duty with no use of the left arm. On May 6, 2008 appellant sought
Office authorization for left shoulder surgery.
On May 12, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit additional evidence.
In an April 30, 2008 report, Dr. Charles Kaelin, a Board-certified orthopedic surgeon,
noted that on April 9, 2008 appellant had picked up a large, heavy trash can and felt immediate
pain in his left shoulder. He noted that appellant had no previous history of shoulder problems.
Upon examination, Dr. Kaelin found that the left upper extremity was neurovascularly intact. He
found that appellant was unable to abduct or forward flex beyond 30 to 35 degrees. Dr. Kaelin
reviewed the MRI scan results and diagnosed moderate left shoulder degenerative changes in the

1

An illegible signature also appears under Ms. Layhl’s signature on these progress notes.

2

acromioclavicular joint and a “re-tear” of the rotator cuff. He recommended surgery. Dr. Kaelin
also provided an April 30, 2008 physical therapy referral.
By decision dated June 20, 2008, the Office denied appellant’s claim finding that he did
not establish that the claimed medical condition was related to the April 8, 2008 incident.
Appellant subsequently submitted April 28 and 29, 2008 progress notes from Ms. Layhl
that were already of record. In a June 23, 2008 note, Ms. Layhl indicated that appellant was
awaiting approval for surgery and that he continued to use a sling for his left shoulder. On
July 16, 2008 appellant requested reconsideration.
By decision dated August 8, 2008, the Office denied appellant’s request for
reconsideration without a merit review. It found that the evidence submitted in support of the
reconsideration request was cumulative and repetitious.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.3
To determine whether 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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty

2

5 U.S.C. §§ 8101-8193.

3

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

Id.

3

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
ANALYSIS -- ISSUE 1
The record reflects that appellant was lifting a trash container on April 8, 2008.
However, the medical evidence does not establish that lifting a trash container caused or
aggravated his claimed left shoulder injury.
On April 30, 2008 Dr. Kaelin noted that appellant picked up a heavy trash can and felt
pain in his left shoulder. He diagnosed degenerative changes in the acromioclavicular joint and
re-tear of the rotator cuff of the left shoulder. However, Dr. Kaelin appears to be noting the
history provided by appellant instead of providing his own opinion on causal relationship. To
the extent that he supported causal relationship, he did not provide medical rationale6 explaining
how lifting a trash can caused or aggravated appellant’s diagnosed condition. Dr. Kaelin also did
not explain the apparent discrepancy in his report, where he advised that appellant had no prior
shoulder problems but where he also diagnosed a “re-tear” of the rotator cuff, which is
suggestive of a preexisting left shoulder condition. Therefore, Dr. Kaelin’s opinion is
insufficient to establish appellant’s claim.
On April 9, 2008 Dr. Uddin indicated that appellant had right shoulder pain but did not
sustain any trauma. He diagnosed synovitis and tendinitis from overuse. However, Dr. Uddin
did not address causal relationship between the April 8, 2008 lifting incident and the claimed left
shoulder condition. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.7 Thus, this
report is insufficient to establish appellant’s claim.
Similarly, reports of diagnostic testing are insufficient to establish appellant’s claim. In
an April 17, 2008 x-ray report, Dr. Lin noted that appellant heard a popping sound in his left
shoulder while he was lifting. However, he provided no opinion on whether the lifting incident
caused any diagnosed condition. As well, Dr. Harney did not specifically address whether the
act of lifting trash cans on April 8, 2008 caused or aggravated a diagnosed condition. As noted,
medical evidence without an opinion on causal relationship is of limited probative value.
The record also contains several reports from nurses. However, nurses are not
“physicians” as defined under the Act and therefore their opinions are of no probative value.8
5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
6

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
7

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

8

Roy L. Humphrey, 57 ECAB 238 (2005); see 5 U.S.C. § 8101(2) (defining the term “physician”); see also
Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a
qualified physician).

4

Consequently, the medical evidence is insufficient to establish that appellant sustained a
compensable injury on April 8, 2008.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.9 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.10
ANALYSIS -- ISSUE 2
In reconsideration request appellant did not assert that the Office erroneously applied or
interpreted a specific point of law and he did not advance a relevant legal argument not
previously considered by the Office.
Although appellant submitted progress notes from a nurse with his reconsideration
request, these documents do not constitute relevant and pertinent new evidence not previously
considered by the Office. In particular, his progress notes dated April 28 and 29, 2008 from
Ms. Layhl were already of record and had been considered by the Office. The Board has held
that the submission of evidence which repeats or duplicates evidence already in the case record
does not constitute a basis for reopening a case.11 Appellant also submitted a new June 23, 2008
progress note from Ms. Layhl who noted appellant’s status. However, the underlying issue is
medical in nature, namely whether appellant established that he sustained an injury causally
related to his employment on April 8, 2008. Although the June 23, 2008 progress note was new,
it is not relevant as it cannot be considered medical evidence as it was signed by a nurse.12
Therefore, this report does not constitute relevant or pertinent evidence.
Consequently, the Office properly denied appellant’s request for reconsideration without
a merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury on April 8, 2008 in the performance of duty. The Board also finds
that the Office properly denied appellant’s request for reconsideration without a merit review.
9

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

10

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

11

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

12

See supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 8 and June 20, 2008 are affirmed.
Issued: June 12, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Corona, CA, Employer
__________________________________________
Appearances:
Joanne Wright, for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0849
Issued: December 20, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 18, 2021 appellant, through her representative, filed a timely appeal from an
April 7, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 21-0849.
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 9, 1991 appellant, then a 31-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 9, 1991 a dog bit her on her right thigh while in the

1

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

Docket No. 13-1316 (issued November 18, 2013); Docket No. 20-0235 (issued July 13, 2020).

performance of duty. OWCP accepted her claim for open wound of the right thigh with
complications. It assigned the claim OWCP File No. xxxxxx218.
Appellant subsequently filed a Form CA-1 on July 1, 2013 alleging that on June 12, 2013
she sustained post-traumatic stress disorder (PTSD) as a result of an altercation with her
supervisor. She stopped work on June 12, 2013. OWCP assigned that claim OWCP File No.
xxxxxx348. By decision dated September 19, 2013, it denied appellant’s emotional condition
claim, finding that the evidence of record was insufficient to establish that the June 12, 2013
incident occurred, as alleged.
Under the present claim, OWCP File No. xxxxxx218, appellant filed claims for
compensation (Form CA-7) for total disability from work from December 28, 2013 through
March 24, 2014. She submitted medical evidence indicating that she was receiving medical
treatment for chronic right lower limb pain and PTSD. By decision dated May 19, 2014, OWCP
denied appellant’s disability claims finding that the medical evidence of record was insufficient to
establish that she was unable to work due to her accepted March 9, 1991 employment injury. The
decision noted that appellant had stopped work on June 12, 2013 and had filed a new Form CA-1
claim.
In a September 19, 2017 letter, appellant, through her representative, requested that OWCP
expand the acceptance of appellant’s claim in OWCP File No. xxxxx218 to include the additional
conditions of reflex sympathetic dystrophy (RSD)/neuropathy, PTSD, and a broken ankle. By
decision dated November 21, 2017, OWCP denied appellant’s request to expand the acceptance
of her claim.
In a November 30, 2017 decision, OWCP expanded the acceptance of appellant’s claim in
OWCP File No. xxxxxx218 to include complex regional pain syndrome of the right lower limb.
On December 7, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. Following a preliminary review, by decision dated
April 12, 2018, an OWCP hearing representative set aside the November 21, 2017 decision and
remanded the case for further development of the medical evidence.
After further development, by decision dated July 11, 2018, OWCP expanded the
acceptance of appellant’s claim to include closed right ankle fracture and closed fracture of the
lateral malleolus. By a separate decision of even date, it denied her request to expand the
acceptance of her claim in OWCP File No. xxxxxx218 to include the condition of PTSD.
On July 3, 2019 appellant, through her representative, requested reconsideration of the
July 11, 2018 decision. By decision dated July 18, 2019, OWCP denied appellant’s request for
reconsideration of the merits of the claim under 5 U.S.C. § 8128(a).
Appellant appealed to the Board. By decision dated July 13, 2020, the Board set aside the
July 18, 2019 nonmerit decision and remanded the case for OWCP to review the merits of
appellant’s claim.

2

By de novo decision dated April 7, 2021, OWCP denied modification of its prior decision.
It found that the evidence submitted was insufficient to establish that appellant sustained PTSD
causally related to her accepted March 9, 1991 employment injury.
The Board, having duly considered the matter, concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files and when
two or more injuries occur to the same part of the body. 3 For example, if a new injury case is
reported for an employee who previously filed an injury claim for a similar condition or the same
part of the body, doubling is required. 4 As appellant has filed claims in both OWCP File Nos.
xxxxxx218 and xxxxxx348 alleging that she sustained PTSD as a result of her federal employment,
the Board finds that the claims must be administratively combined for a full and fair adjudication. 5
This will allow OWCP to consider all relevant claim files and accompanying evidence in
developing appellant’s claims. Additionally, as appellant has pursued compensation benefits
under both OWCP File Nos. xxxxxx218 and xxxxxx348 for the same period of wage-loss
compensation benefits, there may be evidence that bears directly on the matter before OWCP in
both files.6 While the record currently before the Board does contain some medical records from
OWCP File No. xxxxxx348, it does not contain all of the relevant evidence needed to properly
adjudicate appellant’s claim.
The case must therefore be remanded to OWCP to administratively combine the current
case record with OWCP File No. xxxxxx348. Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; M.E., Docket No. 21-0094 (issued May 27, 2021); L.M., Docket No. 19-1490 (issued January 29, 2020); L.H.,
Docket No 18-1777 (issued July 2, 2019).
5

See Order Remanding Case, K.F., Docket No. 19-0554 (issued October 21, 2019).

6

See Order Remanding Case, J.D., Docket No. 19-1585 (issued October 9, 2020).

3

IT IS HEREBY ORDERED THAT the April 7, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: December 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1844
Issued: December 11, 2007

Case Submitted on the Record

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

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from the May 18, 2007 merit decision of
the Office of Workers’ Compensation Programs which found that she received a $16,760.01
overpayment of compensation and that the overpayment was not subject to waiver. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the overpayment issues.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation; (2) if
so, whether the Office properly determined that the amount of the overpayment was $16,760.01;
and (3) whether the Office properly determined that appellant was at fault in the creation of the
overpayment of compensation, thereby, precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On April 27, 2005 appellant, then a 59-year-old nurse, sustained an injury in the
performance of duty when she assisted a patient getting out of bed. The Office accepted the

claim for lumbar and neck strain. Appellant received compensation for temporary total disability
from the periodic rolls.
On September 26, 2006 the employing establishment notified the Office that appellant
had received a voluntary separation incentive payment (VSIP) in the amount of $16,760.01 on
July 20, 2006. On December 1, 2006 the Office was informed that appellant voluntarily retired
effective June 30, 2006.
On May 11, 2007 the Office requested information from appellant concerning her wages
during the period January 1, 2004 to December 31, 2006.
On April 18, 2007 the Office made a preliminary finding that appellant was overpaid
$16,760.01 in compensation because she received a lump-sum VSIP payment dated July 14,
2006, while receiving Office benefits. The Office also made a preliminary finding that appellant
was at fault in creating the overpayment.
The Office received a copy of an April 20, 2006 letter from appellant’s employing
establishment notifying appellant that she was approved for optional retirement with VSIP
effective June 30, 2006 and that the gross incentive pay would be $25,000.00.
In a decision dated May 18, 2007, the Office finalized its preliminary findings. It found
that appellant received an overpayment of $16,760.01 because she received a VSIP of
$16,760.01, while receiving compensation for total disability and that she accepted a payment
that she knew or reasonably should have known was incorrect.1
In a May 14, 2007 letter, received by the Office on May 25, 2007, appellant requested
that the Office grant a waiver of repayment based on the following reasons: repayment would be
a financial hardship; she contacted governmental agencies and was told she was eligible to
receive the buyout; therefore, she did not know that the VSIP would be determined an
overpayment; the money was immediately spent rebuilding her home which had been devastated
by Hurricane Katrina such that she not have it available; and it was not her fault that she was
given the VSIP.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act provides that the United
States shall pay compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.2 Section 8116, however, limits the right of an
employee to receive compensation: While an employee is receiving compensation she may not
receive salary, pay, or remuneration of any type from the United States.3 More specifically,
1

The Office decision indicated that the overpayment will be recovered in the manner described on the “attached
EN2223 enclosure” however no enclosure was included in the record; therefore, the Board does not have jurisdiction
over the manner of repayment.
2

5 U.S.C. § 8102(a).

3

Id. at § 8116(a) (with specified exceptions).

2

section 10.421 of the implementing regulations provides that an employee may not receive
compensation for total disability concurrently with separation pay.4 When the Office discovers
concurrent receipt, it must declare an overpayment of compensation and give the usual due
process rights.5
ANALYSIS -- ISSUE 1
While receiving compensation for total disability resulting from her April 27, 2005
employment injury, appellant entered into a VSIP agreement that paid her $16,760.01 in
exchange for her voluntary resignation. Although compensation under the Act is paid for the
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury6 and although she was no less disabled for having accepted the buyout, the law
is clear: she may not concurrently receive compensation for total disability and separation pay.
When they entered into the VSIP agreement, neither appellant nor the employing
establishment, it appears, understood that Office regulations prohibiting concurrent receipt
effectively removes the incentive for voluntary separation, at least where the employee is totally
disabled for work as a result of an employment injury. Suspension or recovery by the Office of
an amount of compensation equal to the total amount of the incentive or payable for the number
of weeks the incentive represents, effectively leaves the employee no consideration in exchange
for her resignation. While the Board appreciates appellant’s position, it may not rewrite the law.
Because her separation pay created an overpayment of compensation, the Board must affirm the
Office’s May 18, 2007 decision on the issue of fact of overpayment.7
LEGAL PRECEDENT -- ISSUE 2
Employing establishments may offer separation pay or buyouts to encourage employees
to leave federal employment voluntarily. FECA Bulletin 96-02 provides:
“Separation pay is offered in different forms by different agencies. Sometimes it
is defined as a number of weeks of pay and other times as a specific amount of
money. How separation pay is defined is determined by the law governing the
operations of the establishment in question. For example, in 1992 the Postal
Service calculated its payments as six months of the employee’s base pay, while
the Department of Defense, beginning in 1993, used the amount of severance pay
to which the individual would have been entitled, or $25,000.00, whichever was

4

20 C.F.R. § 10.421(c).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996).

6

This is the definition of disability. 20 C.F.R. § 10.5(f).

7

Kathleen L. Alder, Docket No. 03-1339 (issued August 1, 2003) (holding that the claimant may not receive
compensation for temporary total disability during the period presented by her separation incentive, which was half
a year); Lynne M. Schaack, Docket No. 05-695 (issued November 9, 2005.).

3

less. The method of offset differs somewhat according to how the separation pay
is defined.”8
The Bulletin further notes that, where separation pay is based on an amount of money,
the amount should be applied to the amount of compensation for wage loss on a dollar-for-dollar
basis.9
Office procedures provide that compensation for temporary total disability may not be
paid for the period covered by separation pay.10 Where separation pay is based on weeks of pay,
the Office should suspend compensation payments for the period in question, effective the date
of separation, by a 100 percent offset for the number of weeks (not the amount of money) that
the separation pay represents.11 Where separation pay is based on an amount of money, the total
dollar amount of separation pay should be applied to the amount of compensation for wage loss
on a dollar-for-dollar basis. The claimant should be advised of the approximate time the offset
will end.12
ANALYSIS -- ISSUE 2
The employing establishment notified the Office that appellant received a VSIP in the
amount of $16,760.01. According to Office procedures, the total dollar amount of this separation
pay should be applied to the amount of compensation appellant received for wage loss on a
dollar-for-dollar basis. The Office followed these procedures when it determined that appellant
received an overpayment of compensation equaling the total dollar amount of the separation pay,
or $16,760.01.
The Board, however, can find no justification for this method of offset. Neither the
Office bulletin that announced this method,13 nor the Office procedure manual that incorporates
it14 identifies a rational basis for distinguishing the separation pay offered by different
establishments. The Office procedure manual simply explains that separation pay is offered in
different forms by different agencies, sometimes as a number of weeks of pay, other times as a
specific amount of money. A buyout based on a number of weeks of pay can be expressed as an
amount of money and a buyout based on an amount of money can be expressed as a number of
weeks of pay. So the distinction appears arbitrary. The mere fact that different agencies offer

8

FECA Bulletin No. 96-02 (issued November 5, 1995).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.c(1) (April 1996).

11

Id. at Chapter 2.1000.17.d(1).

12

Id. at Chapter 2.1000.17.d(3).

13

FECA Bulletin No. 96-02 (issued November 5, 1995).

14

Id at Chapter 2.1000.17.d(3) see accompanying text.

4

separation pay in one form or the other is no basis for the Office to apply different methods of
offset, particularly when one method works a harsher result on some federal employees.15
For example an employee who works for the Postal Service who receives a VSIP worth
six months of base pay in the amount of $25,000.00. Under Office procedures, because the
employing establishment based the separation pay on an amount of time, the Office would offset
the employee’s compensation 100 percent, effective the date of separation, for a period of six
months. The compensation paid over these six months or the overpayment arising in this
scenario, is always going to be significantly less than $25,000.00, because compensation is paid
tax free at a rate of three-fourths of the employee’s monthly pay, assuming she has a
dependent.16 So this employee finds herself in a more favorable position than appellant simply
because her employing establishment offered the same incentive in one form and not the other.
The Board finds that the Office has not justified calculating the overpayment in
appellant’s case under the harsher dollar-for-dollar method of offset. For this reason, the Board
finds that the case is not in posture for a decision on the issue of the amount of the overpayment.
On remand, the Office shall calculate the amount of the overpayment by applying the method of
offset used when a buyout is based on weeks of pay.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act17 provides as follows:
“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 this subchapter or would be
against equity and good conscience.”18
No waiver of an overpayment is possible if the claimant is at fault in creating the
overpayment.19
On the issue of fault, 20 C.F.R. § 10.433(a) provides in pertinent part: An individual is
with fault in the creation of an overpayment who: (1) made an incorrect statement as to a
material fact which the individual knew or should have known to be incorrect; or (2) failed to
furnish information which the individual knew or should have known to be material; or (3) with

15

Lynne M. Schaack, supra note 7.

16

5 U.S.C. §§ 8105(a), 8110(b). A dollar of compensation is, therefore, worth more than a dollar of monthly pay.
The Office’s dollar-for-dollar method of offset erroneously equates the two.
17

5 U.S.C. § 8129(b).

18

Id.

19

Gregg B. Manston, 45 ECAB 344 (1994).

5

respect to the overpaid individual only, accepted a payment which the individual knew or should
have been expected to know was incorrect.20
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“(b) Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”21
ANALYSIS -- ISSUE 3
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment of $16,760.01. In order for it to establish that she was at fault in creating the
overpayment of compensation, the Office must establish that, at the time appellant received the
compensation checks in question, she knew or should have known that the payment was
incorrect.22
In a May 14, 200723 letter to the Office, appellant argued that she was not at fault as she
asked various governmental agencies as to whether she was eligible for the buyout while
informing them of her workers’ compensation status and was informed that she was eligible. In
determining whether a claimant is at fault in creating an overpayment, the Office will consider
the circumstances surrounding the overpayment.24 It did not consider the circumstances. In the
May 18, 2007 decision, the Office did not address appellant’s argument that she was without
fault in creating the overpayment. For this reason, the Board finds that the case is not in posture
for a decision on the issue of the amount of fault. On remand, the Office shall address
appellant’s argument that she was without fault.
CONCLUSION
The Board finds that the case is not in posture for a decision regarding whether the Office
properly determined that appellant received a $16,760.01 overpayment and whether the Office
properly found that she was at fault in the creation of the overpayment such that it was not
subject to waiver. The case is remanded to the Office for further development to be followed by
the issuance of an appropriate decision.

20

Kenneth E. Rush, 51 ECAB 116 (1999).

21

5 U.S.C. § 10.433(b).

22

Diana L. Booth, 52 ECAB 370, 373 (2001).

23

The date used is the date of the letter as the envelope was not retained in the record.

24

Neill D. Dewald, 57 ECAB ___ (Docket No. 06-117, issued February 21, 2006).

6

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part with respect to fact of overpayment. With
respect to the amount of overpayment and the issue of waiver, the case is aside and the case
remanded to the Office for further proceedings consistent with this decision.
Issued: December 11, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Hickory, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-693
Issued: September 17, 2012

Case Submitted on the Record

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

JURISDICTION
On February 7, 2012 appellant filed a timely appeal from the December 21, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his injury
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 sustained an injury in the performance of duty on
August 28, 2010, as alleged.
FACTUAL HISTORY
On August 31, 2010 appellant, then a 64-year-old mail handler, filed a traumatic injury
claim alleging that he injured his right shoulder on August 28, 2010 after he unlatched an all1

5 U.S.C. § 8101 et seq.

purpose carrier (APC), which was full of mail in tubs. “The tub was so heavy that when I
grabbed it and turned something pulled.”
The acting supervisor stated that on August 28, 2010 at 2:15 p.m. she instructed appellant
to “go prep on the 100.” Appellant stated that he gave her a hard time, that he did not think it
was right, that he thought he should be on the dock. He was very angry and disrespectful and
mumbled something about the acting supervisor not being a good supervisor. Fifteen minutes
later the acting supervisor did not see appellant at the 100 and eventually found him outside her
office, at which time he handed her a request for or notification of absence. “Appellant said he
was sick and was going home.”
A coworker stated that on August 28, 2010 appellant approached him at the flat sorter
“and told [him] that he was going home because he felt that [someone else] should be working
on the flat sorter and he should be on the dock.”
Dr. Jeremy C. Johnson, an orthopedic surgeon, examined appellant on August 31, 2010.
He reported a one and a half year history of cervical spine pain radiating down the arm into the
hand. Dr. Johnson noted: “The patient denies any trauma.”
Dr. Johnson examined appellant again on September 10, 2010. He stated: “At the time
of [appellant’s] original exam[ination] he stated [that] he had no trauma. Now the patient is
stating that on August 28[, 2010] while at work at [the employment establishment] he was lifting
45[-] to 50[-]pound objects and since that time he has had neck and upper extremity pain.”
Dr. Johnson released appellant to work with no restrictions.
Appellant stated that he reported the injury to the acting supervisor on August 28, 2010.
He gave her a “sick slip form” and went home because she did not ask him if he wanted to go to
the hospital. Appellant also explained that the accident happened on a Saturday, and the earliest
he could set an appointment with his doctor was August 31, 2010. He told Dr. Johnson that he
had hurt his shoulder by lifting 50-pound tubs from an APC, but Dr. Johnson misunderstood and
checked his shoulder for an old injury. At a later appointment, when Dr. Johnson stated that he
did not know appellant had a new workers’ compensation claim, appellant told him and “we got
the matter straightened out.”
In a May 17, 2011 decision, OWCP denied appellant’s injury claim. It found that the
evidence failed to establish that the August 28, 2010 incident occurred, as alleged.
At a hearing before an OWCP hearing representative, appellant testified that his
coworker’s statement was wrong. He explained that he hurt his shoulder before the coworker
came to work. Appellant had started work on the flat sorter and got the mail out of the APC
“and it hit my shoulder and when I turned and twisted, every -- it got about 40 containers in an
APC and every one of them weigh from 50 to 60 pounds and I twisted wrong and I pulled my
neck but he know that.” He then told his coworker that he got hurt, that it was not his regular
job, and that he would not have gotten hurt if [someone else] had been on that job.
Appellant also explained that when he went to prep on the 100 as the acting supervisor
instructed, “the container was so high, I pulled one out, it was taller than I was and it was so
heavy I twisted and everything pulled all in my neck and my back, my right.” When the acting
2

supervisor found him outside her office, he told her, “I said look. I’m sick, I got hurt, I’m going
home.”
In a December 21, 2011 decision, OWCP’s hearing representative affirmed the denial of
appellant’s traumatic injury claim. She found that inconsistencies were sufficient to raise doubts
whether the incident on August 28, 2010 occurred at the time, place and in the manner alleged.
On appeal, appellant stated that all available evidence had been submitted. He contends
that he got hurt on the job and sought compensation and his doctor’s bills paid.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim. When an employee
claims that he sustained an injury in the performance of duty, he must submit sufficient evidence
to establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged. He must also establish that such event, incident or exposure caused
an injury.3
A person who claims benefits under FECA has the burden of establishing by a
preponderance of the reliable, probative and substantial evidence the essential elements of his
claim, including the fact that he sustained an injury at the time, place and in the manner alleged.4
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 his subsequent course of action. In determining whether a prima facie 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, cast sufficient doubt on a
claimant’s statements. The employee has not met this burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.5
ANALYSIS
The Board finds that there are inconsistencies in the evidence. Appellant claims
compensation for a right shoulder injury occurring on August 28, 2010, when he grabbed a
heavy tub of mail and turned. He testified that he told a coworker he got hurt. Appellant also
testified that he told the acting supervisor he was sick, he got hurt and he was going home.

2

Id. at § 8102(a).

3

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

4

Henry W.B. Stanford, 36 ECAB 160 (1984); Samuel L. Licker, 4 ECAB 458 (1951).

5

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).

3

The coworker, however, stated that appellant approached him at the flat sorter “and told
me that he was going home because he felt that [someone else] should be working on the flat
sorter and he should be on the dock.” From the coworker’s account, appellant mentioned
nothing about an injury.
Appellant’s account also differs from the one given by the acting supervisor, who
explained that he gave her a hard time when she asked him to “go prep on the 100.” When she
found him a short time later outside her office, he handed her a notification of absence and stated
he was sick and going home. From the acting supervisor’s statement, appellant mentioned
nothing about injuring his right shoulder. The acting supervisor’s account is consistent with the
coworker’s, as both indicated that appellant was upset about having to prep the 100. Appellant
told both individuals that he thought he should be on the dock.
The inconsistencies also exist in the medical evidence. Appellant stated that when he
saw Dr. Johnson, the orthopedic surgeon, on August 31, 2010, he told him that he had hurt his
shoulder by lifting 50-pound tubs of mail from an APC. Dr. Johnson, however, reported that
appellant denied any trauma. When he subsequently saw appellant on September 10, 2010,
although appellant previously denied any trauma, he now reported that he had lifted 45- to 50pound objects at the employing establishment on August 28, 2010 and since that time had neck
and upper extremity pain. Appellant testified that he explained things to Dr. Johnson, and they
got the matter straightened out, but if they did, Dr. Johnson did not confirm it. Dr. Johnson did
not correct his reports.
This brings the number of people who are mistaken, according to appellant, to three: the
coworker, the acting supervisor and the attending orthopedic surgeon. If appellant had actually
injured his right shoulder handling heavy tubs of mail, and if he had told these three individuals
about his injury, it would be reasonable to expect each of them, to confirm his account. None of
them did and none of them have submitted supplemental statements explaining that they were
mistaken in their original accounts of what happened.
As noted, an injury need not be confirmed by eyewitnesses, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his subsequent
course of action. In this case, appellant’s statements about what happened and what he told
people are not consistent with the rest of the evidence. Such inconsistencies cast doubt on
whether he injured his right shoulder at the time, place and in the manner alleged. For this
reason, the Board finds that appellant has not met his burden of proof to establish that he
sustained an employment injury in the performance of duty on August 28, 2010, as alleged. The
Board will affirm OWCP’s December 21, 2011 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on August 28, 2010, as alleged.

4

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

5