United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, NICETOWN
FINANCE STATION, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-214
Issued: June 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 30, 2007 appellant, through her attorney, filed a timely appeal of a May 29,
2007 merit decision of an Office of Workers’ Compensation Programs’ hearing representative,
denying her claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award
for her left thumb and hip. On appeal, appellant contends that the impartial medical examiner’s
report cannot carry the weight of the medical opinion evidence, because he failed to provide an
accurate factual background regarding her employment-related left thumb injury and any
measurements on physical examination regarding this injury as well as her employment-related
left hip injury. She also contends that the impartial medical examiner failed to refer to the tables
and charts of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001) in finding that she sustained no permanent
impairment.

FACTUAL HISTORY
On February 17, 2000 appellant, then a 40-year-old distribution window clerk, filed a
traumatic injury claim alleging that on February 16, 2000 she broke her left thumb which
required sutures. As she was closing a safe she mistakenly smashed her left thumb inside the
safe. Appellant stopped work on February 18, 2000 and she returned to full-time full-duty work
on February 23, 2000. The Office accepted the claim for left thumb fracture.
On December 2, 2000 appellant filed a claim alleging that she sustained a recurrence of
disability on April 5, 2000 causally related to the February 16, 2000 employment injury. She
indicated that she originally injured her left leg and hip and left thumb on October 11, 1999 and
reinjured them on February 16, 2000. Appellant underwent left hip surgery on April 24, 2000.
By decision dated August 17, 2001, the Office denied her claim on the grounds that the medical
evidence of record failed to establish that she sustained a recurrence of disability on April 5,
2000 due to the February 16, 2000 employment injuries. On September 10, 2001 appellant
requested an oral hearing before an Office hearing representative. By decision dated May 8,
2002, an Office hearing representative set aside the August 17, 2001 decision and remanded the
case to the Office for further development of the medical evidence to determine whether
appellant’s left hip injury and resultant surgery were due to the February 16, 2000 employment
injuries. The hearing representative directed the Office to refer her to an appropriate specialist
for a second opinion medical examination.
By letter dated June 17, 2002, the Office referred appellant, along with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Richard J. Mandel, a
Board-certified orthopedic surgeon, for a second opinion medical examination. In an August 27,
2002 medical report, Dr. Mandel stated that appellant’s thumb had full range of motion, full
strength and intact neurovascular status. Her hip had no swelling or tenderness and full range of
motion. Appellant had equal leg lengths, intact motors and normal gait. Dr. Mandel stated that
appellant was status post an incomplete intertrochanteric fracture of the left hip and open fracture
of the distal phalanx of the left thumb due to the February 16, 2000 employment incident. He
speculated that the hip injury could have been initiated by appellant’s fall at the employing
establishment on October 1, 1999 but stated that the February 16, 2000 employment incident
caused the need for hip surgery. Dr. Mandel stated that both fractures had healed with no
permanent residuals. Appellant required no further medical treatment and was able to continue
working in a full-duty capacity.1
By letter dated September 3, 2002, the Office accepted appellant’s claim for a left hip
fracture and authorized the April 24, 2000 hip surgery based on Dr. Mandel’s August 27, 2002
report.
On January 22, 2003 appellant filed a claim for a schedule award. She submitted an
October 29, 2002 report of Dr. David Weiss, a Board-certified family practitioner. On physical
examination, Dr. Weiss provided, among other things, range of motion measurements for
appellant’s left hip and thumb, circumferencial measurements for her quadriceps and muscle and
1

Dr. Mandel indicated that, following her April 24, 2000 surgery and physical therapy, appellant returned to
full-duty work on January 3, 2001.

2

grip strength of her left hip and hand. He diagnosed status post open fracture to the left thumb at
the distal phalanx, status post disfiguring scar to the left thumb, post-traumatic osteoarthritis to
the left thumb at the interphalangeal joint, status post femoral neck fracture to the left hip and
status post open reduction internal fixation of proximal left femoral fracture. Dr. Weiss opined
that the February 16, 2000 employment injuries caused appellant’s subjective and objective
findings. He determined that she sustained a 30 percent impairment of the left lower extremity
and a 6 percent impairment of the left upper extremity based on the A.M.A., Guides.
On October 1, 2003 Dr. M.F. Quinlan, an Office medical adviser, reviewed appellant’s
medical records. He stated that Dr. Weiss’ impairment ratings of the leg were based primarily on
muscle weakness which was not apparent at the time of Dr. Mandel’s second opinion medical
examination. Similarly, Dr. Quinlan stated that the severe swelling found by Dr. Weiss was not
present at the time of Dr. Mandel’s examination. He recommended an impartial medical
examination due to major discrepancies in the physical findings of Dr. Weiss and Dr. Mandel.
By letter dated June 24, 2004, the Office referred appellant, along with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. William H. Simon, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict
in the medical opinion evidence. In a July 12, 2004 report, Dr. Simon provided his findings on
physical examination which included range of motion measurements for appellant’s left hip and
fingers. He found that appellant had sustained a healed fracture of the left thumb and
degenerative disc disease of the lumbar spine with left-sided lumbar radiculopathy. Appellant
was status post internal fixation of the left hip for an impacted base neck fracture. Dr. Simon
opined that she did not sustain a hip fracture on February 16, 2000 based on his review of the
case record. He stated that the hip surgery was for an old impacted base neck fracture that she
sustained prior to the February 16, 2000 employment injuries. Dr. Simon opined that appellant
sustained a left thumb fracture which was completely healed and did not result in any restriction
in use. He noted that she was working full time. Dr. Simon concluded that appellant had no
objective residuals of the accepted employment injuries.
By decision dated July 30, 2004, the Office denied appellant’s claim for a schedule
award. It accorded special weight to Dr. Simon’s July 12, 2004 opinion as an impartial medical
specialist in finding that she did not have any permanent impairment of the left thumb and hip
due to the February 16, 2000 employment injuries. In a letter dated August 2, 2004, appellant,
through her attorney, requested an oral hearing before an Office hearing representative.
By decision dated May 8, 2006, an Office hearing representative set aside the July 30,
2004 decision and remanded the case to the Office for further development of the medical
evidence. She found that Dr. Simon’s July 12, 2004 report was insufficient to resolve the
conflict in the medical opinion evidence as he found that appellant’s left hip fracture was not
work related even though it had been accepted as such by the Office. The hearing representative
further found that sufficient clarification could not be obtained from Dr. Simon. She directed the
Office to refer appellant to a new impartial medical specialist to resolve the conflict.
On remand, the Office, by letter dated July 14, 2006, referred appellant, along with a
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. Walter W. Dearolf, a Board-certified orthopedic surgeon, for a second impartial medical

3

examination. In a September 22, 2006 report, Dr. Dearolf reviewed a history of appellant’s
February 16, 2000 employment injuries, medical treatment and social background. On physical
examination of the left upper extremity, he reported full range of motion of the left elbow, wrist,
thumb and hand. Appellant’s grip strength was nearly equal as to the opposite side. She had a
well-healed surgical scar on the left thumb. Appellant’s sensation was intact in the thumb and
tendon function was normal. She had a negative Tinel’s and Phalen’s sign at the wrist. On
examination of her back, Dr. Dearolf reported no tenderness. Appellant’s left hip had full
flexion, abduction, internal and external rotation equal to the opposite side. There was a negative
sitting root and straight leg raising test. Both knees had full motion without effusion and the left
knee had no tenderness. There was no quad weakness, hip flexors, atrophy about the thigh or
calf and toe extensor weakness or sensory disturbance. Abduction and adduction strength were
equal. Reflexes were symmetric and there was a well-healed six-inch scar over the anterolateral
aspect of the hip. There was an area of mild tenderness over the trochanteric bursa and some
mild tenderness in the buttock near the ischium.
Dr. Dearolf opined that appellant sustained a laceration of the left thumb and a fracture of
the left hip as a result of the February 16, 2000 employment incident. He further opined that she
had no residuals of these employment-related injuries and that restrictions were not warranted.
Dr. Dearolf found no evidence of permanent impairment of the left thumb or hip. He concluded
that appellant reached maximum medical improvement long before his examination and that she
did not require further medical treatment.
By decision dated October 19, 2006, the Office found that appellant was not entitled to a
schedule award for the left thumb and hip. It found that Dr. Dearolf’s September 22, 2006
opinion was entitled to special weight accorded an impartial medical specialist. In an
October 25, 2006 letter, appellant, through her attorney, requested an oral hearing before an
Office hearing representative.
By decision dated May 29, 2007, an Office hearing representative affirmed the
October 19, 2006 decision. He found that Dr. Dearolf’s September 22, 2006 opinion that
appellant did not have any permanent impairment of the left thumb and hip was entitled to
special weight accorded an impartial medical specialist.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

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equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.6 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.7
ANALYSIS
Appellant contends that she is entitled to a schedule award for permanent impairment to
her left thumb and hip. The Office accepted that she sustained a fracture of the left thumb and
hip. The Board notes that a conflict arose in the medical opinion evidence between Dr. Mandel,
an Office referral physician, and Dr. Weiss, an attending physician and as to the extent of
appellant’s impairment. Dr. Mandel opined that appellant’s employment-related fractures had
healed and she had no permanent residuals. Dr. Weiss opined that appellant sustained a
30 percent impairment of the left lower extremity and a 6 percent impairment of the left upper
extremity based on the A.M.A., Guides.
The Office initially referred appellant to Dr. Simon, selected as the impartial medical
specialist. In a July 12, 2004 report, Dr. Simon opined that appellant did not sustain a left hip
fracture due to the February 16, 2000 employment incident. He further opined that her left
thumb fracture was completely healed and did not require any use restrictions. Dr. Simon
concluded that appellant had no objective residuals of the February 16, 2000 employment
injuries. In a May 8, 2006 decision, an Office hearing representative found that Dr. Simon’s
July 12, 2004 report was not entitled to special weight accorded an impartial medical specialist
as he did not opine that appellant sustained an employment-related left hip fracture, which had
been accepted by the Office.
On remand, the Office referred appellant to Dr. Dearolf for a second impartial medical
examination. In a September 22, 2006 report, Dr. Dearolf reviewed a history of her February 16,
2000 employment injury, medical treatment and social background. He reported full range of
motion of the left elbow, wrist, thumb and hand on physical examination. Dr. Dearolf stated that
appellant’s grip strength was nearly equal as to the opposite side. He noted a well-healed
surgical scar on the left thumb. Dr. Dearolf stated that appellant’s sensation was intact in the
thumb and tendon function was normal. Appellant had a negative Tinel’s and Phalen’s sign at
5

Supra note 3.

6

5 U.S.C. § 8123.

7

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, 54 ECAB 351 (2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager,
54 ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

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the wrist. Dr. Dearolf reported no tenderness of the back. He also reported that the left hip had
full flexion, abduction, internal and external rotation equal to the opposite side. There was a
negative sitting root and straight leg raising test. Dr. Dearolf found that both knees had full
motion without effusion and the left knee had no tenderness. He also found that there was no
quad weakness, hip flexors, atrophy about the thigh or calf, toe extensor weakness or sensory
disturbance. Abduction and adduction strength were equal. Dr. Dearolf reported symmetric
reflexes and a well-healed six inch scar over the anterolateral aspect of the hip. There was an
area of mild tenderness over the trochanteric bursa and some mild tenderness in the buttock near
the ischium.
Dr. Dearolf opined that appellant sustained a laceration of the left thumb and a fracture of
the left hip as a result of the February 16, 2000 employment incident. He further opined that she
had no residuals of the employment-related injuries and that restrictions were not warranted.
Dr. Dearolf found no evidence of permanent impairment of the left thumb or left hip and no
objective evidence of employment-related impairment. He stated that appellant reached
maximum medical improvement long before his examination. Dr. Dearolf concluded that she
did not require further medical treatment.
The Board finds that Dr. Dearolf provided detailed findings on examination in his
September 22, 2006 report. Although he stated that appellant sustained a laceration of the left
thumb and not a fracture which was the condition accepted by the Office, he opined that the
former condition was related to the February 16, 2000 employment incident and explained there
were no objective residuals with regard to the thumb. Dr. Dearolf also found no objective
residuals of appellant’s employment-related left hip fracture. Therefore, there was no objective
basis for an impairment rating for either the left thumb or hip under the A.M.A., Guides. For
these reasons, Dr. Dearolf’s report constitutes the special weight of the medical opinion evidence
afforded an impartial medical specialist.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award
for her left thumb and hip.

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ORDER
IT IS HEREBY ORDERED THAT the May 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 19-1354
Issued: March 13, 2020

Case Submitted on the Record

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

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a Board decision dated March 13, 2018, which became final 30 days after issuance,
and is not subject to further review.2 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from December 3, 2018, the date of OWCP’s last decision, was
June 1, 2019. As this fell on a Saturday, appellant had until the following business day, Monday, June 3, 2019, to file
the appeal. Since using June 4, 2019, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal
Service postmark is May 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 11, 2008 appellant, then a 51-year-old administrative assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed constant pain in both elbows,
hands, arms, and her neck and back as a result of her employment duties. She indicated that she
first became aware of her condition and first realized that it resulted from her employment on
January 15, 2008. On the reverse side of the claim form, the employing establishment reported
that appellant was last exposed to the conditions alleged to have caused her conditions on
“February 12, 2008.” OWCP accepted her claim for bilateral lateral epicondylitis, bilateral medial
epicondylitis, sciatica, and neck sprain. It subsequently expanded acceptance of appellant’s claim
to include bilateral carpal tunnel syndrome.5 OWCP paid wage-loss compensation for total
disability on the periodic rolls, effective June 7, 2009.
On December 5, 2014 OWCP mailed appellant an EN1032 form for her completion. The
form instructed her to report all employment for which she received a salary, wages, income, sales
commissions, piecework, or payment of any kind. Appellant was also directed to report all selfemployment activities or involvement in business enterprises, including (but not limited to)
farming, sales work, operating a business, and providing services in exchange for money, goods,
or other services. The kinds of services that she was required to report included such activities as
carpentry, mechanical work, painting, contracting, child care, keeping books and records, and
managing and overseeing a business of any kind, including a family business. The form also
instructed appellant to report any work or ownership interest in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to another.
The cover letter for the EN1032 form included the following warning: “A false or evasive
answer to any question, or the omission of an answer, may be grounds for forfeiting your
compensation benefits and subject you to civil liability.” The forms contained certification clauses
which informed appellant of the consequences of not accurately reporting her employment

4

Docket No. 17-1362 (issued March 13, 2018).

5

Under OWCP File No. xxxxxx455, OWCP accepted appellant’s September 15, 2008 occupational disease claim
for cervical spondylosis without myelopathy or radiculopathy, cervical disc degeneration, lumbar spondylosis without
myelopathy or radiculopathy, lumbar spondylolisthesis, bilateral pes planus, neck sprain, bilateral medial and lateral
epicondylitis, and bilateral carpal tunnel syndrome as causally related to her employment duties. On September 1,
2010 OWCP combined the current case under OWCP File No. xxxxxxx045 with OWCP File No. xxxxxx455 with the
latter file as the master file.

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activities, such as being subjected to criminal penalties and losing the right to receive workers’
compensation benefits.
On December 27, 2014 appellant completed and signed the EN1032 form. In response to
the question of whether she worked for an employer for the past 15 months, she reported “No.”
Appellant also responded “No” to the question of whether she was self-employed or involved in
any business enterprise in the past 15 months.
On June 12, 2015 OWCP received a narrative statement from appellant. Appellant
indicated that she needed to correct an answer on the yearly paperwork form. She explained that
her husband had purchased a snow cone trailer and had added her name to the permits, trailer, and
limited liability company (LLC) just in case anything happened to him. Appellant reported that
she answered “No” on the EN1032 form and that she did not think about the snow cone trailer
until her husband opened it for business over the summer.
In a July 23, 2015 letter, the employing establishment’s Office of Inspector General (OIG)
informed OWCP that an investigation into appellant revealed that she had been operating her own
business and had failed to report the employment activities to OWCP. It requested that OWCP
issue a forfeiture decision due to her failure to disclose her employment.
On July 27, 2015 OWCP received an OIG summary report of investigation, which
indicated that during surveillance OIG agents had observed appellant working at a snow cone
business, carrying merchandise and buckets, unloading supplies from a trailer, writing on the
outside menu of the business, setting up tables and umbrellas, staking signs in the ground, and
serving snow cones to customers.
In a completed Form EN1032 dated February 7, 2016, appellant answered “yes” that she
was self-employed or involved in a business enterprise from the period April 1 to
September 1, 2015. She explained that she and her husband bought a snow cone stand and that
she bought and delivered cups, checked on the employees, and visited with customers a couple of
times. Appellant noted a pay rate of $8.00/hour.
In a February 7, 2016 narrative statement, appellant explained that her husband had added
her name to the title of the snow cone stand that he had bought because he had lung cancer. She
indicated that, while grocery shopping with her husband, they occasionally bought cups, straws,
or napkins and dropped them off at the snow cone stand. Appellant also related that the snow cone
stand was two blocks from her house and that she occasionally stopped by to see how the business
was operating and visit with customers. She reported that neither she nor her husband were paid
or received any wages while operating the snow cone stand.
By decision dated August 18, 2016, OWCP found that appellant had forfeited her wageloss compensation for the period September 27, 2013 through December 27, 2014 for failure to
report her business and employment activities or earnings on a Form EN1032. The forfeiture
period covered the 15 months preceding the December 27, 2014 EN1032 form. OWCP found that
appellant had knowingly provided false information about earnings and self-employment on that

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EN1032 form. It also determined that all compensation paid during the period would be considered
an overpayment subject to recovery in accordance with 5 U.S.C. § 8129.6
OWCP received a September 21, 2016 letter by Dr. John Ellis, Board-certified in family
medicine, who related that appellant had severe anxiety and depression due to the multiple
work-related injuries to her neck, upper extremities, lumbar spine, and feet. Dr. Ellis noted that
she was under the influence of narcotic pain medicine when she filled out the Form EN1032 in
2014 and opined that she was not fully aware of what she was signing.
In an October 18, 2016 report, Dr. Gary A. Rouse, a clinical psychologist, related that,
since his original evaluation in September 2008, appellant had continued to decline emotionally
and physically. He opined that she was not competent or knowledgeable enough to understand
what she was signing or attesting to or to understand the complexity or legal implications of
partnerships and LLCs.
In a January 31, 2017 statement, appellant explained that she had not received money from
her husband’s snow cone business nor did she perform any job activities. She reported that her
husband had recently dissolved the LLC.
On August 18, 2017 appellant requested reconsideration of the August 18, 2016 forfeiture
decision. In a statement dated August 9, 2017, she asserted that she believed that she was not
required to report her investment income as work activities since there was no evidence that the
three to five hours total spent at the business could be construed as integral to the operation of the
business. Appellant cited to FECA Procedure Manual 2.402.5 and S.G.,7 and contended that the
Board has distinguished between the reporting requirements for income received from passive
investment and earnings and income received by performing work and earning wages. She also
alleged that she was not fully aware when she signed the LLC documents due to her deteriorating
mental health, severe anxiety, and depression. Appellant also cited to B.Y.,8 alleging that the Board
had previously found that, in finding that a claimant forfeited compensation, OWCP could not rely
solely on video tape and summary submitted by the employing establishment’s OIG. She also
noted her disagreement with the OIG investigation and her interview with the OIG agents.

6

By separate decision dated August 18, 2016, OWCP also issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $43,832.60 for the period September 27, 2013 through
December 27, 2014 as a result of the forfeiture. It found that she was at fault in the creation of the overpayment
because she failed to report her business and employment activities or earnings from the snow cone business that she
owned with her husband. By decision dated December 12, 2016, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $43,832.60 for the period September 27,
2013 to December 27, 2014. It also found that appellant was at fault in the creation of the overpayment, and therefore
was not eligible for waiver for recovery of the overpayment. On June 2, 2017 appellant filed an appeal to the Board
regarding the December 12, 2016 overpayment decision. By decision dated March 13, 2018, the Board affirmed the
December 12, 2016 OWCP decision, which finalized the overpayment of compensation in the amount of $43,832.60
for the period September 27, 2013 to December 27, 2014 and found that she was at fault in the creation of the
overpayment.
7

Docket No. 11-0942 (issued April 4, 2012).

8

Docket No. 11-1798 (issued July 24, 2012).

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By decision dated November 17, 2017, OWCP denied modification of the August 18, 2016
forfeiture decision.
On November 20, 2018 OWCP received appellant’s appeal request form, which requested
reconsideration of the November 17, 2017 decision. In a narrative statement, appellant alleged
that OWCP ignored many issues, including her arguments concerning why any of the OIG
interviews or photographs were applicable. She also contended that OWCP erred by ignoring
evidence and arguments concerning whether her comprehension was impaired. Appellant cited to
the Board’s holding in C.G.,9 and alleged that she had provided probative supporting evidence that
she would have difficulty understanding the obligations required on a Form EN1032.
Appellant also resubmitted Dr. Ellis’ September 21, 2016 report and Dr. Rouse’s
October 28, 2016 report.
OWCP received a statement from appellant dated June 1, 2017. Appellant alleged that
OWCP had not supported its forfeiture determination because there was no evidence establishing
that she knowingly failed to report self-employment or earnings on the Form EN1032 signed on
December 27, 2014. She explained that the three to five hours spent at the business were not
considered valuable on the open labor market and that her activities could not be construed as
integral to the operation of the business. Appellant also asserted that, although the business was
licensed in May 2014, it had not opened for business in April 2015. She further indicated that the
file contained statements from her psychologist who noted that she was not fully aware of what
she was signing when she signed the LLC.
By decision dated December 3, 2018, OWCP denied appellant’s request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.10 This discretionary authority, however, is subject
to certain restrictions.11 One such limitation is that the request for reconsideration must be received
by OWCP within one year of the date of the decision for which review is sought.12 Timeliness is
determined by the document receipt date of the request for reconsideration as is indicated by the
“received date” in the Integrated Federal Employees’ Compensation System (iFECS).13
9

Docket No. 11-0454 (issued May 22, 2012).

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

12
Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). For merit decisions issued on or after
August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for
which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016).
13

Id. at Chapter 2.1602.4(b).

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Imposition of this one-year filing limitation does not constitute an abuse of discretion.14 OWCP
may not deny a reconsideration request solely because it was untimely filed. When a claimant’s
request for reconsideration is untimely filed, it must nevertheless undertake a limited review to
determine whether it demonstrates clear evidence of error.15 If an application demonstrates clear
evidence of error, OWCP will reopen the case for merit review.16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.17 It is not enough merely to demonstrate that the
evidence could be construed so as to produce a contrary conclusion.18 The evidence submitted
must not only be of sufficient probative value to create a conflict in medical opinion or demonstrate
a clear procedural error, but must be of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.19
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.20
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.21
ANALYSIS
The Board finds that this case is not in posture for decision.
The most recent merit decision of OWCP was the November 17, 2017 decision. One year
from November 17, 2017 elapsed on November 17, 2018. As November 17, 2018 fell on a
Saturday, appellant had until the next business day on Monday, November 19, 2018 to file her
reconsideration request.22 OWCP received her reconsideration request on November 20, 2018
which was more than one year after the November 17, 2017 decision. Appellant’s request
14

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
15

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
16
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).
17

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
18

See Leona N. Travis, 43 ECAB 227, 240 (1991).

19

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

20

Supra note 12 at Chapter 2.1602.5a (October 2011).

21

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

22

Supra note 12 at Chapter 2.1602.4 (February 2016).

6

therefore was untimely filed.23 The proper standard of review for an untimely reconsideration
request is the clear evidence of error standard.24 In denying her request, OWCP applied the
standard of review for timely requests for reconsideration.25 As it applied the incorrect standard
of review to the untimely request for reconsideration, the Board will set aside OWCP’s
December 3, 2018 decision and remand the case for proper review under the clear evidence of
error standard as required by regulations.26
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision of the Board.
Issued: March 13, 2020
Washington, DC

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

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

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

23

See E.H., Docket No. 19-0859 (issued December 10, 2019).

24

Supra note 15.

25

See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

26

See 20 C.F.R. § 10.607(b); see also M.C., Order Remanding Case, Docket No. 18-0866 (issued March 26, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND CENTERS,
China Lake, CA, Employer

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Appearances:
Sally F. LaMacchia, Esq. for the appellant
Office of Solicitor, for the Director

Docket No. 15-1724
Issued: February 16, 2016

Case Submitted on the Record

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

JURISDICTION
On August 6, 2015 appellant, through counsel, filed a timely appeal from a July 30, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
reimbursement of travel expenses exceeding 100 miles roundtrip.
FACTUAL HISTORY
On January 10, 2006 appellant, then a 56-year-old information technology specialist,
filed a traumatic injury claim (Form CA-1) alleging that she injured her right knee, right hand,
1

5 U.S.C. § 8101 et seq.

and wrist, after tripping on a hose and falling onto a sidewalk on December 21, 2005. She
stopped work on July 24, 2008 and has not returned. OWCP initially accepted the claim for right
knee contusion and contusions of right hand and wrist. It subsequently accepted right carpal
tunnel syndrome, enthesopathy of the right wrist and carpus, right knee lateral meniscus tear,
psychogenic pain, and aggravation of degenerative joint disease of the right knee.
OWCP paid wage-loss benefits. It also authorized appellant’s surgical procedures, which
included: a May 31, 2007 right knee surgery; a July 24, 2008 right carpal tunnel and right flexor
tenosynevectomy; an August 12, 2009 right knee total arthroplasty and patelloplasty; and a
December 2, 2011 right knee closed reduction.
All surgeries were performed by
Dr. Mohamed Z. Lameer, an orthopedic surgeon, in Lancaster, CA, or Palmdale, CA.2 From
August 2008 to July 2012 and in October 2012, appellant received approved physical therapy at
the Heritage Physical Therapy Facility and the Total Rehabilitation Services Facility located near
her home in Ridgecrest, CA.
On May 23, 2012 appellant underwent an approved revision right knee total arthroplasty
with polyethylene exchange, performed by Dr. Paul Burton, an orthopedic surgeon, in
Redlands, CA. She then underwent approved right-sided peroneal nerve injections under
fluoroscopy by Dr. Shanin A. Sadik, a Board-certified anesthesiologist, in Palmdale, CA, and
approved acupuncture treatments and physical therapy also in Palmdale, CA from October 2013
to the present as prescribed by Dr. Sadik.
Appellant resides in Ridgecrest, CA.
She currently receives medical care in
Palmdale, CA from Dr. Sadik and other practitioners at Universal Pain Management Group, as
well as medical care in Redlands, CA from Dr. Burton. Appellant, through counsel, requested
authorization for reimbursement of travel expenses related to obtaining treatment from Dr. Sadik
in Palmdale, CA and Dr. Burton in Redlands, CA. OWCP determined that travel to Dr. Sadik in
Palmdale, CA from appellant’s home in Ridgecrest, CA was approximately 92 miles each way,
and travel to Dr. Burton’s office in Redlands, CA from appellant’s home in Ridgecrest, CA was
approximately 125 miles each way.3
In an August 23, 2013 letter, OWCP indicated that it had received requests for
authorization for mileage reimbursements for the following dates of service: April 9, 2013 for
294 miles; April 10, 2013 for 294 miles; May 21, 2013 for 294 miles; May 22, 2013 for 294
miles; June 7, 2013 for 275 miles; June 13, 2013 for 275 miles; July 1, 2013 275 miles; July 3,
2013 for 275 miles; July 8, 2013 for 275 miles; and July 15, 2013 for 275 miles. Appellant was
notified that her request for mileage reimbursement in excess of 100 miles roundtrip for
treatment was not authorized and informed of the provision of 20 C.F.R. § 10.315. OWCP
approved reimbursement for travel up to 100 miles roundtrip.

2

Dr. Lameer’s last medical note of file dated February 29, 2012 indicated that he would see appellant in one to
two weeks.
3

OWCP advised that travel distances were based on online mapping website entry of the starting and ending
cities.

2

In a January 27, 2014 letter, appellant’s counsel disagreed with OWCP’s denial of
reimbursement for travel over 100 miles roundtrip. She quoted the relevant regulations and
noted that several of her clients who live in Ridgecrest, CA could not find nearby treating
physicians and all had to travel over 100 miles roundtrip for treatment. Counsel requested
written approval or a formal disallowance on this issue.
In a February 10, 2014 letter, appellant requested approval to travel beyond the 100 miles
roundtrip allowed by OWCP. She indicated that, other than emergency care, there was no
adequate medical staff in Ridgecrest, CA where she lives. Appellant needed a specialist and that
the doctors she called refused to take her case due to the nature of her injury or because they did
not accept OWCP claimants. She noted that at some unspecified point in the past, an emergency
room doctor told her that he would not treat her knee when she had a dislocation.
In a March 1, 2014 letter, appellant advised that she had to travel to the closest location
that would treat her. She noted that her workplace was in a very remote area and that the
medical care in Ridgecrest, CA where she lives was very limited. Appellant described an
incident when she had a fourth dislocation of her knee and that the emergency room in
Ridgecrest refused to treat her. She had made calls to all the orthopedic doctors in Ridgecrest,
Lancaster, and Palmdale, but none would treat her complicated case.
In an April 14, 2014 letter, OWCP advised appellant that her general statements were
insufficient and requested that she provide specific information to support the need to travel over
100 miles roundtrip to obtain medical treatment. Appellant was asked to provide a detailed
statement explaining why she believed it was reasonable and necessary for her to travel
approximately 92 miles each way to and from Palmdale, CA to see Dr. Sadik and travel
approximately 124 miles each way to and from Redlands, CA to see Dr. Burton. She was also
requested to provide documentation of medical providers from whom she sought treatment and
evidence of their refusal to provide her with treatment for the work injury. Appellant was
afforded 30 days to provide the requested information.
In a May 15, 2014 letter, appellant’s counsel indicated that it was OWCP’s responsibility
to determine what is considered a reasonable distance and the criteria for such determination;
appellant only needed to submit a written request for prior authorization. She requested either
written approval for travel beyond 100 miles roundtrip to attend medical appointments or a
formal disallowance with appeal rights. No additional information was received.
By decision dated June 12, 2014, OWCP denied travel mileage reimbursement for
distances in excess of 100 miles round trip for appellant’s medical appointments in Palmdale,
CA and Redlands, CA. It found that although she lived in a “relatively remote” area, she had not
provided evidence that physicians closer to her home would not treat her. OWCP advised that
the medical authorization and billing service’s (ACS) online provider search portal revealed
several doctors in the city of Ridgecrest, CA where appellant resides and numerous doctors in
Lancaster, CA (approximately 84 miles one way) and Barstow, CA (approximately 77 miles one
way) who could treat her and provided the list of these physicians. It noted that neither appellant
nor counsel provided evidence to explain the necessity of travelling to Palmdale and Redlands to
seek treatment and why such travel was reasonable and necessary. OWCP noted that appellant

3

remained entitled to reimbursement of travel up to the maximum generally allowable distance of
100 miles roundtrip.
On June 19, 2014 OWCP received appellant’s request for a review of the written record
by an OWCP hearing representative. In a September 9, 2014 brief, appellant’s counsel reiterated
some of her prior arguments. She also noted that Dr. Lameer, appellant’s initial physician in
Lancaster, CA, had treated her until early 2012, when he refused to treat her any longer. Counsel
noted that appellant had made many calls to doctors in the Ridgecrest area and found that those
doctors either did not accept workers’ compensation patients or were not suited to treat her
medical needs. She advised that the medical groups which accepted workers’ compensation
patients and which might meet some of her medical needs, did not perform full knee
replacements or revisions at their Ridgecrest location. It was noted that appellant had contacted
SoCal Orthopedic Institute and Valley Orthopedic Institute. Counsel indicated that appellant
began treatment with Dr. Burton in Redlands, CA in April 2012 and saw him on a quarterly
basis. Appellant also saw Dr. Sadik approximately once a month. Counsel cited FECA Bulletin
No. 14-02 and argued that OWCP had failed to determine what was a reasonable distance to
travel based on availability of services, when it would pay mileage in excess of 100 miles round
trip to see a physician in Lancaster or Barstow, but deny reimbursement of her current
physicians. A signed affidavit from appellant summarizing the same was attached.
By decision dated January 30, 2015, an OWCP hearing representative affirmed the
June 12, 2014 decision, determining that there was no basis to authorize travel to Dr. Sadik in
Palmdale, CA and Dr. Burton in Redlands, CA as there were closer facilities with appropriate
specialists who could treat appellant’s conditions. She found that there was no evidence that
Dr. Lameer had discharged appellant from his care in early 2012 and nothing in the file indicated
that he had released her from his care or he refused to continue to treat her. The hearing
representative noted that there were orthopedic facilities nearer to appellant’s residence which
had pain management specialists and orthopedists in one facility. These were Antelope Valley
Orthopedics in Lancaster, CA, a distance of 81.5 miles one way; Ridgecrest AVORS Medical
Group, a distance of 4.29 miles from appellant’s home; and LA Orthopedic Institute in Palmdale,
CA, a distance of 89 miles away. The hearing representative noted that while appellant may
continue to receive treatment from Drs. Sadik and Burton, she was not entitled to reimbursement
for travel expenses, over 100 miles.
On May 8, 2015 OWCP received appellant’s counsel’s request for reconsideration dated
May 8, 2015. Counsel made the following contentions: that there are no physicians closer to
appellant’s residence who were willing and able to provide the medical treatment appellant
required; that driving caused appellant a great deal of pain and she would travel a shorter
distance for treatment if she knew of a closer facility that would treat her, that appellant had met
her burden to prove that it was reasonable and necessary to travel 90 to 125 miles each way for
her treatment with Drs. Sadik and Dr. Burton, respectively, and that OWCP failed to provide any
evidence to support its finding that other appropriate physicians and physical therapy facilities of
the appropriate specialty were available to appellant. She indicated that once a month appellant
saw Dr. Sadik in Palmdale for a total of 2,160 miles a year and that she saw Dr. Burton in
Redlands quarterly, for a total of 1,000 miles per year. If appellant was to be treated at the
facilities noted by OWCP, the difference in mileage would only be 24 to 204 miles, depending
on the facility. Counsel further argued that it was speculation on OWCP’s part that appellant

4

would be able to schedule appointments with both an orthopedic and pain management specialist
in the same trip. She contended that appellant had to travel the requested distance as Drs. Sadik
and Burton were the only physicians able to treat her medical needs. Counsel noted that
appellant traveled the distance even though her accepted knee injuries made the trip very hard.
She argued that since OWCP appeared willing to reimburse for travel to facilities at distances of
163 to 178 miles round trip and appellant currently traveled 180 miles roundtrip to Dr. Sadik in
Palmdale and 250 miles roundtrip to Dr. Burton, OWCP should reimburse appellant fully or
provide her reimbursement of 178 miles roundtrip with Dr. Burton.
In an attached May 3, 2015 statement, appellant indicated that on or about April 19,
2012, she called Valley Orthopedic Institute, the Antelope Valley Orthopedics, and LA
Orthopedic Institute and was told that neither facility had the ability to perform or treat a knee
revision and they did not accept workers’ compensation.
By decision dated July 30, 2015, OWCP denied modification of its prior decision. It
noted that The Heritage Physical Therapy Facility and the Total Rehabilitation Services Facility,
both in Ridgecrest, where appellant previously had physical therapy, had not been reexplored for
continuing care and there was no evidence that Dr. Lameer, appellant’s initial orthopedic
surgeon, had released appellant from his care in early 2012.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree of the period of any disability, or aid in lessening the amount of
any monthly compensation. The employee may initially select a physician to provide medical
services, appliances, and supplies, in accordance with such regulations and instructions as
OWCP considers necessary and may be furnished reasonable and necessary transportation and
expenses incident to the securing of such services, appliances, and supplies.4
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies. To determine a reasonable travel distance, it will consider the
availability of services, the employee’s condition, and the means of transportation. Effective
August 29, 2011, the most recent regulations provide that a roundtrip distance of up to 100 miles
is considered a reasonable distance to travel.5 If roundtrip travel of more than 100 miles is
contemplated, or air transportation or overnight accommodations will be needed, the employee
must submit a written request to OWCP for prior authorization with information describing the
circumstances and necessity for such travel expenses. OWCP will approve the request if it

4

5 U.S.C. § 8103(a).

5

20 C.F.R. § 10.315(a).

5

determines that the travel expenses are reasonable and necessary and are related to obtaining
authorized medical services, appliances, or supplies.6
Pursuant to FECA Bulletin No. 14-02, issued January 29, 2014, when a claimant submits
a travel reimbursement in excess of 100 miles for a single date of service, the bill will
automatically be suspended and the Central Bill Processing provider will send notification to the
OWCP claims examiner.7 FECA Bulletin No. 14-02 notes that in some limited circumstances it
may be necessary for a claimant to travel more than 100 miles on a regular basis, such as when
the claimant lives in a remote area.8
In interpreting this section, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. The only limitation on OWCP’s authority is that of
reasonableness.9 OWCP may authorize medical treatment but determine that the travel expense
incurred for such authorized treatment was unreasonable or unnecessary.10
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s requests
for travel reimbursement over 100 miles roundtrip. It is noted that issues of authorization for
medical treatment and reimbursement of travel expenses for medical treatment are separate and
distinct. OWCP may authorize medical treatment but determine that the travel expense incurred
for such authorized treatment was unreasonable or unnecessary, as in this case.11
The record reflects Dr. Lameer, located in Lancaster, CA within 100 miles round trip of
appellant’s residence, performed her 2007, 2009, and 2011 right knee surgeries and the 2008
right wrist surgery. Prior to 2013, appellant underwent physical therapy at the Heritage Physical
Therapy Facility and the Total Rehabilitation Services Facility located near in her home in
Ridgecrest, CA. On May 23, 2012 Dr. Burton, located in Redlands, CA, performed a revision
surgery on her right knee. Appellant then began seeing Dr. Sadik in Palmdale, CA, who, in turn,
made the physical therapy and acupuncture treatment referrals to Universal Pain Management
Center in Palmdale. Appellant currently travels 184 to 250 miles roundtrip to obtain medical
services for her injury from Dr. Sadik and Dr. Burton, respectively. OWCP accepted that
appellant lives in a relatively remote location, but denied reimbursement for travel to Dr. Sadik
in Palmdale, CA, approximately 92 miles each way, and Dr. Burton in Redlands, CA,
approximately 125 miles each way as there is no supporting factual evidence to establish that it
6

Id. at § 10.315(b).

7

FECA Bulletin No. 14-02 (issued January 29, 2014).

8

Id.

9

A.O., Docket No. 08-580 (issued January 28, 2009); see also Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP
has broad discretionary authority in the administration of FECA and must exercise that discretion to achieve the
objectives of section 8103).
10

W.M., 59 ECAB 132 (2007); Mira R. Adams, 48 ECAB 504 (1997).

11

W.M., id.

6

was reasonable and necessary for her to travel such distances to obtain medical services for her
injury.
As noted above, OWCP regulations provide that, generally, a round trip of up to 100
miles is a reasonable distance to travel.12 There may be circumstances where travel
reimbursement of more than 100 miles is appropriate. An example of those circumstances might
be an appellant who lives in a remote area with limited medical services and physicians of an
appropriate specialty. To establish that a travel reimbursement of more than 100 miles is
warranted, OWCP regulations indicate that the claimant must provide information describing the
circumstances and necessity for such travel expenses.
Appellant was seeing Dr. Lameer, an orthopedic specialist, for her knee and it is
reasonable that she would continue to need care from an orthopedist following her knee revision.
While she asserted that Dr. Lameer had discharged her from his care in early 2012, the evidence
fails to establish that he either released appellant from his care or informed her that he would not
continue to treat her. OWCP also provided a list of closer facilities with appropriate specialists
who could treat appellant’s conditions.
With regard to the availability of services, appellant and her counsel have not provided
evidence to explain the necessity of traveling the specifically requested distances to Palmdale
and Redlands to seek care and why such travel is reasonable. She generally contends that there
were no available services in her area, or that the facilities she contacted from OWCP’s list did
not accept workers’ compensation cases or could not treat her medical needs. While appellant
provided a signed affidavit advising that on or about April 19, 2014 she contacted the Valley
Orthopedic Institute in Lancaster, the Antelope Valley Orthopedics, and LA Orthopedics
Institute in Palmdale and that these facilities do not accept workers’ compensation cases, there is
no evidence to show that this rejection was due to the complexity of her case or that the facilities
have an actual policy of denying medical care to injured workers. She provided no evidence to
support her statements about the lack of available services or the specific need for the distances
for which she was requesting authorization for reimbursement.
As noted, OWCP provided appellant a list of facilities with appropriate specialists who
were willing to accept federal workers’ compensation patients. It additionally noted that the
Heritage Physical Therapy Facility and the Total Rehabilitation Services Facility, both in
Ridgecrest, where appellant previously had physical therapy, had not been reexplored for
continuing care.
Appellant’s counsel suggested that OWCP compromise and provide payment for at least
168 miles roundtrip with Dr. Sadik and for at least 178 miles roundtrip for visits to Dr. Burton
based on the contention that OWCP appeared willing to reimburse appellant at distances of 163
to 178 miles. However, neither appellant nor counsel have provided any compelling reason to
show why treatments with Dr. Sadik and associated therapy/acupuncture treatments at Universal
Pain Management, and quarterly follow-up visits with Dr. Burton was reasonable and necessary
when there are appropriate specialists and facilities closer to appellant’s home.
12

20 C.F.R. § 10.315(a).

7

While appellant lives in a relatively remote area, appellant and counsel have not provided
evidence to explain the necessity of traveling the specifically requested distances to Palmdale
and Redlands to seek care and why such travel is reasonable. Although OWCP had authorized
travel expenses to Dr. Sadik and Dr. Burton in the past, this past practice does not establish a
right to continuing authorization.13 As indicated in FECA Bulletin No. 14-02, any travel
reimbursement request of more than 100 miles was to be reviewed by an OWCP claims
examiner.14
The Board finds that OWCP did not abuse its discretion in denying appellant’s travel
reimbursement requests.15 No probative evidence was presented with respect to the necessity of
travel over the 100-mile standard set forth in OWCP regulations or that OWCP abused its
discretion in denying reimbursement for travel expenses. OWCP has administrative discretion
with respect to authorization of travel reimbursement.16
On appeal, appellant’s counsel offers arguments pertaining to OWCP’s conflict statement
and an upcoming impartial medical examination. However, this issue is not presently before the
Board.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for travel reimbursement.

13

See W.H., Docket No. 14-1662 (issued February 3, 2015).

14

Supra note 7.

15

See V.K., Docket No. 12-1103 (issued October 12, 2012).

16

Daniel J. Perea, 42 ECAB 214 (1990) (abuse of discretion by OWCP is generally shown through proof of
manifest error, clearly unreasonable exercise of judgement, or administrative actions which are contrary to both
logic and probable deductions from established facts).

8

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 16, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Baltimore, MD, Employer
__________________________________________

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

Docket No. 10-910
Issued: April 11, 2011

Case Submitted on the Record

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

JURISDICTION
On February 18, 2010 appellant, through counsel, filed a timely appeal from the
September 14 and November 2, 2009 merit decisions of the Office of Workers’ Compensation
Programs that denied authorization for surgery and terminated his compensation benefits. He
also timely appealed from a December 23, 2009 nonmerit decision which denied reconsideration.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.2
ISSUES
The issues are: (1) whether the Office properly exercised its discretion in denying
appellant’s request for additional left shoulder surgery; (2) whether the Office properly
terminated his wage-loss compensation and medical benefits effective November 2, 2009; and
1
2

5 U.S.C. § 8101 et seq.

The record on appeal contains evidence received after the Office issued its December 23, 2009 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision. 20
C.F.R. § 501.2(c)(1) (2009).

(3) whether the Office properly denied appellant’s November 23, 2009 request for
reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a 54-year-old patient services assistant, sustained an injury at work on
June 11, 2001 when his chair slid from beneath him and he fell to the floor. He landed on his
buttocks, using his outstretched left arm to break the fall. Appellant jammed his left shoulder,
which had recently been surgically repaired.3 He also injured his neck and low back. The Office
accepted appellant’s claim for left shoulder strain resolved. Appellant resumed full duty on
September 21, 2001. On October 17, 2006 the Office granted appellant a schedule award for 45
percent impairment of the left upper extremity.4
Appellant developed in 2006, an infection in his surgically-treated left shoulder. The
Office approved an April 1, 2008 procedure to remove the infected left shoulder prosthesis.5
Antibiotic beads were inserted in the joint space during surgery. Appellant was left without a
functioning left shoulder joint. He received wage-loss compensation.
Dr. Edward G. McFarland, a Board-certified orthopedic surgeon, proposed a multi-stage
left shoulder reconstruction process involving a bone graft followed by another shoulder
implant.6 The Office referred the matter to an Office medical adviser, Dr. Arnold T. Berman, a
Board-certified orthopedic surgeon. In a report dated October 19, 2008, Dr. Berman expressed
reservations about additional surgery.7 He did not find the proposed surgery to be reasonable
given the high risk of recurrent infection and the limited mobility that would arise from the new
shoulder joint. Dr. Berman explained that appellant’s shoulder musculature had been severely
compromised due to the April 2008 removal of the prosthesis. While a new prosthesis could
provide additional stability to the shoulder, it was unlikely there would be any motion because of
the poor condition of the musculature. Dr. Berman advised against authorizing surgery and
suggested a second opinion from a specialist in shoulder replacement surgery.
Dr. Robert A. Smith, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant November 14, 2008. He noted that appellant had undergone left shoulder
3

Appellant had a preexisting left shoulder condition dating back to 1991 when he reportedly fell from a six-story
building. In January 2001 he underwent a left total shoulder arthroplasty. At the time of the June 11, 2001
employment injury, appellant had been working in a light-duty capacity and was undergoing physical therapy due to
his preexisting left shoulder condition.
4

The overall impairment included components for loss of shoulder motion (27 percent) and for appellant’s
January 2001 total shoulder arthroplasty (24 percent).
5

The Office authorized surgery based on the September 10, 2007 report of Dr. Willie E. Thompson, a Boardcertified orthopedic surgeon and district medical adviser, who opined that the requested surgery was related to the
“work injury of June 11, 2001 by aggravation of a preexisting condition.”
6

Dr. McFarland performed the April 1, 2008 left shoulder resection arthroplasty. He first examined appellant in
October 2007 at which time he reported that appellant had fallen “six floors [in] a work-related accident back in
1991.” Dr. McFarland did not mention him having subsequently injured his left shoulder at work on June 11, 2001.
7

Dr. Berman assumed the latest proposed surgery was work-related based on the Office’s authorization of
appellant’s April 1, 2008 surgery.

2

replacement surgery in January 2001, followed by the June 11, 2001 employment injury.
Dr. Smith noted that during 2006, appellant started to have pain which signaled the onset of an
infection in the left shoulder that ultimately lead to removal of the infected prosthetic device in
April 2008. He explained that an infectious process, in and of itself, could cause septic
loosening of a prosthetic device with destruction of the bone, which appeared to have happened
in appellant’s case. Dr. Smith thought it was highly unlikely that appellant developed an
infection in June 2001 as a result of the employment injury as it was unlikely that an infection
would have gone unnoticed until 2006. Most septic joint infections developed through a
hematogenous-type mechanism where bacteria gain entrance to the arthroplasty through the
bloodstream. Dr. Smith noted that there was no evidence that the June 11, 2001 employment
incident caused an open injury to the shoulder. He further noted that appellant had a history of
diabetes, which also predisposed him to infection. Dr. Smith concluded there was no causal
relationship between appellant’s current left shoulder septic condition and the June 11, 2001
employment incident. Regarding the accepted condition of left shoulder strain, he advised that
appellant had reached maximum medical improvement and required no further medical
treatment. Dr. Smith acknowledged that appellant’s current left shoulder condition required
further care, but advised that no further surgery should be undertaken unless there was proof of
complete eradication of any deep infection in the joint. If the infection could be eradicated, a
new prosthetic device could be reinserted in the shoulder. Dr. Smith found that appellant could
only work in a sedentary position with no use of the left upper extremity.
In a report dated February 4, 2009, Dr. McFarland noted that appellant could return to
sedentary duties with no use of his left upper extremity. He advised that appellant’s left arm
should remain in a sling at all times while in the workplace. Dr. McFarland reviewed
Dr. Smith’s November 14, 2008 evaluation, but he did not comment on any issues beyond
appellant’s ability to resume working. On March 9, 2009 appellant returned to work full time as
a supply technician.8
In August 2009, Dr. McFarland requested authorization for left shoulder surgery
scheduled for September 29, 2009. The proposed surgery involved removal of the antibiotic
beads, iliac crest bone grafting and a reverse prosthesis.
The Office found a conflict in medical opinion between Dr. Smith and Dr. McFarland on
the issues of causation, the need for further surgery and appellant’s physical restrictions/work
capacity. Appellant was referred to Dr. William I. Smulyan, a Board-certified orthopedic
surgeon selected as the impartial medical specialist.
On August 26, 2009 Dr. Smulyan advised that appellant had preexisting left shoulder
osteoarthritis resulting in a total shoulder arthroplasty in 2001. He noted that appellant sustained
a shoulder sprain on June 11, 2001 and currently had chronic shoulder pain. Due to septic
arthritis, appellant had an April 2008 resection arthroplasty, with antibiotic bead placement in the
left shoulder. Dr. Smulyan found no causal relationship between appellant’s preexisting left
shoulder osteoarthritis and the June 11, 2001 employment injury. He also found no causal
relationship between the June 11, 2001 injury and the subsequent infection of the left shoulder.
Dr. Smulyan explained that there was no evidence of any acute infection after the June 11, 2001
8

According to the employer, appellant applied for the position and was selected based upon merit promotion
procedures.

3

injury and that the injury did not relate to appellant’s subsequent need for further extensive
treatment of the left shoulder. He found that the accepted June 11, 2001 left shoulder sprain had
resolved without residuals. Dr. Smulyan did not disagree with the proposed surgery, but
acknowledged the potential risk of further infection. He agreed that appellant was not capable of
using his left upper limb in a rapid work setting. Dr. Smulyan advised that appellant would
probably be better working as a supply technician than as a patient services assistant and stated:
“while [appellant] continues to experience significant difficulty because of having had septic
arthritis in his left shoulder, the injury of June 11, 2001, which was a sprain of the shoulder has
resolved and has caused no residuals.”
By decision dated September 14, 2009, the Office denied appellant’s request for surgery.
It found that the surgery recommended by Dr. McFarland was not causally related to the June 11,
2001 employment injury, which resolved without residual. The Office based its determination
on Dr. Smulyan’s August 26, 2009 opinion.9
On September 22, 2009 the Office issued a proposed termination of compensation and
medical benefits based on Dr. Smulyan’s August 26, 2009 opinion. It afforded appellant 30 days
to submit additional evidence or argument to the extent he disagreed with the proposed
termination of benefits.
The Office subsequently received preoperative examination reports dated June 14, 2007,
February 11 and March 20, 2008 that were prepared in anticipation of appellant’s previous
April 1, 2008 surgery. It also received February 2, 2009 progress notes from Dr. Latoya
Edwards, a Board-certified family practitioner, and physical therapy treatment records from
April to September 2009. Dr. Edwards also provided a September 17, 2009 preoperative
examination report, including recent laboratory results and a September 14, 2009
electrocardiogram.
In a November 2, 2009 decision, the Office terminated appellant’s compensation and
medical benefits. It noted that the evidence received after the September 22, 2009 notice did not
address Dr. Smulyan’s August 26, 2009 findings.
On November 23, 2009 appellant requested reconsideration of the termination decision.
In a November 20, 2009 report, Dr. McFarland advised that appellant was recovering from a
reverse total shoulder arthroplasty with iliac crest bone grafting performed on
September 29, 2009. He commented that it was a fairly extensive operation due to significant
deficits in appellant’s shoulder “from a work-related accident.” Dr. McFarland explained the
recovery process and the type of treatment appellant would require. He offered a prognosis of a
“relatively pain-free existence….”
By decision dated December 23, 2009, the Office denied appellant’s request for
reconsideration.

9

Appellant underwent surgery by Dr. McFarland on September 29, 2009.

4

LEGAL PRECEDENT -- ISSUE 1
An injured employee is entitled to receive all medical services, appliances or supplies
which a qualified physician prescribes or recommends and which the Office considers medically
necessary to treat the work-related injury.10 The Office has broad discretion in reviewing
requests for medical services under 5 U.S.C. § 8103(a), with the only limitation on the Office’s
authority being that of reasonableness.11 Abuse of discretion is generally shown through proof
of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are
contrary to both logic and probable deductions from established facts.12
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the medical expenditure was incurred for treatment
of the effects of an employment-related injury or condition.13 Proof of causal relationship must
include rationalized medical evidence.14 In addition to demonstrating causal relationship, the
injured employee must show that the requested services, appliances or supplies are medically
warranted.15
ANALYSIS -- ISSUE 1
The Board finds that the Office properly exercised its discretion in denying authorization
of appellant’s request for left shoulder surgery. Dr. McFarland proposed to remove the antibiotic
beads inserted in April 2008. He also recommended an iliac crest bone graft and a reverse
prosthesis. However, Dr. McFarland did not specifically relate this procedure to the injury
appellant sustained at work on June 11, 2001. When he initially examined him in October 2007,
he made no mention of the history of appellant’s June 11, 2001 employment injury. Instead,
Dr. McFarland referenced a 1991 work-related injury when appellant fell six stories. He also did
not explain whether the proposed surgery was a consequence of the April 1, 2008 Officeapproved surgery. There is no evidence of record to suggest that the proposed surgery stemmed
from any complications associated with the April 1, 2008 surgical procedure.
Dr. Berman reviewed the case file in October 2008. He advised against surgery because
of the high risk of recurrent infection and the limited mobility that would arise from the new
shoulder joint. The Office followed Dr. Berman’s recommendation and referred appellant to
Dr. Smith, who found that the proposed surgery was unrelated to the injury appellant sustained at
work on June 11, 2001. Dr. Smith explained that there was no evidence of an open injury to the
shoulder at the time of the June 11, 2001 injury that might account for the introduction of
bacteria to the bloodstream and had appellant developed an infection in 2001, it was highly
unlikely that such an infection would have gone unnoticed until 2006.
10

5 U.S.C. § 8103(a)(2006); 20 C.F.R. § 10.310(a)(2009).

11

Joseph E. Hofmann, 57 ECAB 456, 460 (2006).

12

Id.; Daniel J. Perea, 42 ECAB 214, 221 (1990).

13

Debra S. King, 44 ECAB 203, 209 (1992).

14

Joseph E. Hofmann, supra note 11.

15

Id. at 460-61.

5

The Office found a conflict in medical opinion between Dr. McFarland and Dr. Smith.
Dr. Smulyan, who the Office designated as an impartial medical examiner, agreed with
Dr. Smith that appellant’s left shoulder septic condition was unrelated to the June 11, 2001
injury. He explained that because there was no evidence of any acute infection after the June 11,
2001 injury, there was no causal relationship between the June 11, 2001 injury and appellant’s
subsequent need for further extensive treatment of the left shoulder. As such, there was no
causal relationship between the latest proposed surgery and appellant’s accepted injury of
June 11, 2001.16 Dr. Smulyan’s August 26, 2009 opinion is sufficient justification for the
Office’s decision to deny authorization for further left shoulder surgery.
Accordingly, the Board finds that the Office properly exercised its discretion.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.17 Having determined that an employee has a disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has either ceased or that it is no longer related to the
employment.18 The right to medical benefits for an accepted condition is not limited to the
period of entitlement to compensation for disability.19 To terminate authorization for medical
treatment, the Office must establish that appellant no longer has residuals of an employmentrelated condition which require further medical treatment.20
ANALYSIS -- ISSUE 2
Dr. McFarland, Dr. Smith and Dr. Smulyan all agreed that appellant had an ongoing left
shoulder condition that severely restricted his use of the left upper extremity. The Office
accepted appellant’s claim for left shoulder strain. While it authorized removal of his infected
left shoulder prosthesis, it did not formally accept a left shoulder septic condition as being
causally related to the June 11, 2001 employment injury.
Although Dr. McFarland sought authorization for surgery to address appellant’s current
left shoulder complaints, he did not specifically attribute the ongoing complaints to the June 11,
2001 employment injury.
It is noteworthy that Dr. McFarland reviewed Dr. Smith’s
November 14, 2008 report and, except for noting his agreement with the reported work
restrictions, Dr. McFarland essentially remained silent. Dr. McFarland did not specifically
express disagreement with Dr. Smith’s opinion regarding the lack of a causal relationship
between appellant’s current left shoulder septic condition and the June 11, 2001 employment

16

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

17

Curtis Hall, 45 ECAB 316 (1994).

18

Jason C. Armstrong, 40 ECAB 907 (1989).

19

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

20

Calvin S. Mays, 39 ECAB 993 (1988).

6

injury. Dr. Smith also noted with regards to appellant’s accepted condition of left shoulder
strain, that he had reached maximum medical improvement and required no further treatment.
Dr. Smulyan similarly found no causal relationship between the June 11, 2001
employment injury and appellant’s left shoulder septic arthritis. He noted that “while [appellant]
continues to experience significant difficulty because of having had septic arthritis in his left
shoulder, the injury of June 11, 2001, which was a sprain of the shoulder has resolved and has
caused no residuals.” As discussed supra, there was no true conflict in medical opinion between
Dr. Smith and Dr. McFarland, thus relegating Dr. Smulyan’s August 26, 2009 report to “second
opinion” status.
The record demonstrates that appellant no longer suffers from residuals of his accepted
June 11, 2001 employment injury. Appellant’s left shoulder strain has resolved, and there is no
indication that his current left shoulder condition is due to complications from the Officeapproved April 1, 2008 surgery. As such, the Office properly terminated entitlement to wageloss compensation and medical benefits effective November 2, 2009.
LEGAL PRECEDENT -- ISSUE 3
The Office has the discretion to reopen a case for review on the merits.21 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or (iii)
constitutes relevant and pertinent new evidence not previously considered by the Office.22 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 without reopening
the case for a review on the merits.23
ANALYSIS -- ISSUE 3
Appellant requested reconsideration utilizing the appeal request form that accompanied
the November 2, 2009 decision. His November 23, 2009 request for reconsideration neither
alleged nor demonstrated that the Office erroneously applied or interpreted a specific point of
law. Additionally, appellant did not advance a relevant legal argument not previously considered
by the Office. Therefore, he is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(2).24 Appellant also failed to
satisfy the third requirement under section 10.606(b)(2).25 He did not submit any relevant and
pertinent new evidence with his November 23, 2009 request for reconsideration. Although
21

5 U.S.C. § 8128(a).

22

20 C.F.R. § 10.606(b)(2).

23

Id. at § 10.608(b).

24

Id. at § 10.606(b)(2)(i) and (ii).

25

Supra note 24.

7

Dr. McFarland’s November 20, 2009 report was not previously of record, his latest report did not
specifically address the relevant issue of whether appellant had any ongoing residuals
attributable to his June 11, 2001 employment injury. He indicated that appellant had recently
undergone a fairly extensive operation due to significant deficits in his shoulder “from a workrelated accident.” When he first examined appellant on October 17, 2007, Dr. McFarland only
referenced a 1991 work-related accident where appellant reportedly fell six floors. Because his
most recent report did not specifically mention appellant’s June 11, 2001 employment injury, it
is unclear which “work-related accident” Dr. McFarland is referring to. Absent reference to the
June 11, 2001 employment injury, Dr. McFarland’s report is not relevant to the issue on
reconsideration. Consequently, appellant is not entitled to a review of the merits of his claim.26
CONCLUSION
The Office properly denied appellant’s request for additional surgery for his left shoulder
condition. It also properly terminated his wage-loss compensation and medical benefits effective
November 2, 2009. The Board further finds that the Office properly denied appellant’s
November 23, 2009 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 23, November 2 and September 14
2009 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 11, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

26

Supra note 23.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Fresno, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-976
Issued: August 23, 2007

Case Submitted on the Record

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

JURISDICTION
On February 27, 2007 appellant filed an appeal of the June 21, 2006 and January 9, 2007
merit decisions of the Office of Workers’ Compensation Programs denying his traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury on April 13,
2006 while in the performance of duty.
FACTUAL HISTORY
On April 18, 2006 appellant, a 57-year-old tax examiner technician, filed a traumatic
injury claim alleging that on April 13, 2006 he fractured his right leg as he was placing his
wheelchair in the back of his van at the end of his shift. He stated that his vehicle was parked in
the employing establishment parking garage.

Reports dated April 19 and 25, 2006, from Dr. David Thompson, a treating physician,
reflect that appellant suffered from chronic paraplegia at the time of the accident. He stated that
appellant had fractured his right tibia and had undergone amputation of the lower right leg as a
result of an April 13, 2006 fall in his employer’s parking lot. On June 16, 2006 Dr. Shahzadk
Jahromi, a treating physician, reported that appellant sustained a broken right leg when he fell in
a parking garage while lifting a wheelchair into his truck on April 13, 2006. A field nurse report
for the period May 11 through June 7, 2006 reflected that appellant was a paraplegic and had
used his wheelchair at work for 20 years prior to the alleged incident.
In a June 19, 2006 telephone conference, Supervisor Melanie Woods of the employing
establishment stated that appellant was on government property when the April 13, 2006 incident
occurred; that the incident occurred directly after his shift ended (12:00 a.m. to 12:10 a.m.); that
the parking garage and building were leased for and used solely by the employing establishment;
that appellant had an assigned parking space to accommodate his handicap; and that the general
public was not allowed to use the parking garage.
By decision dated June 21, 2006, the Office denied appellant’s claim. The Office
accepted that the incident occurred as alleged on the industrial premises that was “owned or
under the control of the employing establishment and occurred within a reasonable time after the
end of the tour of duty.” However, the Office determined that the injury did not arise out of and
in the course of the performance of appellant’s duties as a federal employee, but rather, was
caused solely by risks involved in putting his wheelchair into his truck.
In an April 14, 2006 report, Dr. Robin Datta, Board-certified in the fields of emergency
and family medicine, stated that appellant sustained tibia and fibula fractures while loading his
wheelchair into his vehicle in an employing establishment garage on April 13, 2006.
On September 18, 2006 appellant requested reconsideration of the Office’s June 21, 2006
decision. He contended that his injury occurred in the performance of duty, as the garage in
which the injury occurred was used exclusively by federal employees.
By decision dated January 9, 2007, the Office denied modification of its June 21, 2006
decision. The Office found that appellant’s activity of loading his wheelchair into his vehicle did
not further his master’s business and that his injury did not result from a risk incidental to
employment, but rather from a personal activity.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.1 The phrase “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
1

See 5 U.S.C. § 8102(a).

2

employment. The phrase “course of employment” is recognized as relating to the work situation
and more particularly, relating to elements of time, place and circumstance.2
In the compensation field, to occur in the course of employment, in general, an injury
must occur: (1) at a time when the employee may reasonably be said to be engaged in his
employer’s business; (2) at a place where he may reasonably be expected to be in connection
with the employment; and (3) while he was reasonably fulfilling the duties of his employment or
engaged in doing something incidental thereto.3
The Board has accepted the general rule of workers’ compensation law that, as to
employees having fixed hours of work, injuries occurring on the premises of the employing
establishment, while the employee is going to or from work, before or after working hours or at
lunch time, are compensable.4 Given this rule, the Board has noted that the course of
employment for employees having a fixed time and place of work includes a reasonable time
while the employee is on the premises engaged in preparatory or incidental acts. However,
presence at the employing establishment’s premises during work hours or a reasonable period
before or after a duty shift, is insufficient, in and of itself, to establish entitlement to benefits for
compensability. The claimant must also establish the concomitant requirement of an injury
arising out of the employment. This encompasses not only the work setting, but also the causal
concept that some factor of the employment caused or contributed to the claimed injury. In order
for an injury to be considered as arising out of the employment, the facts of the case must show
that substantial employer benefit is derived or an employment requirement gave rise to the
injury.5
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities, unrelated to his or her employment. The
Board has noted that the standard to be used in determining that an employee has deviated from
his or her employment requires a showing that the deviation was aimed at reaching some specific
personal objective.6
ANALYSIS
In its January 9, 2007 decision, the Office found that appellant was not injured in the
performance of duty on April 13, 2006, but rather, was engaged in a strictly personal activity that
was a deviation from his regular employment activities. The Board finds that appellant’s act of
2

See Annie L. Ivey, 55 ECAB 480 (2004). See also Alan G. Williams, 52 ECAB 180 (2000).

3

Id.

4

See James P. Schilling, 54 ECAB 641 (2000); see also Narbik A. Karamian, 40 ECAB 617 (1989).

5

See Eileen R. Gibbons, 52 ECAB 209 (2001). See also Cheryl Bowman, 51 ECAB 519 (2000); Shirlean
Sanders, 50 ECAB 299 (1999); Charles Crawford, 40 ECAB 474 (1989).
6

Rebecca LeMaster, 50 ECAB 254 (1999).

3

loading his wheelchair into his vehicle at the end of the workday was a reasonable and necessary
activity connected to his employment and contemplated by the employing establishment.
Therefore, appellant was engaged in an action incidental to the duties of his employment.
Appellant had fixed hours of work and was injured when he fell immediately following
the end of his tour of duty. The parking garage in which the injury occurred was leased for and
used solely by employees of the employing establishment. Appellant had an assigned parking
space to accommodate his handicap and the general public was not allowed to use the parking
garage. Thus, the employing establishment permitted and contemplated its use by its employees
and particularly by appellant. Under these circumstances, the Board finds that the parking
garage in which appellant was injured was a part of the employer’s premises.7
An employee going to or coming from work is covered under workers’ compensation
while on the premises of the employer so long as the interval before or after his shift is
reasonable and appellant is engaging in preparatory or incidental acts. What constitutes a
reasonable interval depends not only on the length of time involved, but also on the
circumstances occasioning the interval and the nature of the employment activity.8 The evidence
establishes that appellant was preparing to leave the employing establishment at the end of his
shift when he was injured at approximately 12:10 a.m., while loading his wheelchair into his van.
The Board finds that, when the injury occurred, appellant had been on the premises for a
reasonable time after his specific working hours performing an act reasonably incidental to his
employment. There is no evidence of record indicating that appellant was engaged in any
activity other than preparing to leave the employing establishment and placing his wheelchair in
his vehicle. He was at a place he was reasonably expected to be in connection with his
employment. Further, appellant was engaged in an activity which may be characterized as
reasonably incidental to the conditions of his employment.
In Venicee Howell,9 the employee was injured immediately following her shift as she was
walking to her supervisor’s desk to obtain a “Bid sheet” in order to apply for a position
advertised by the employing establishment. The Board found that she was engaged in an activity
that was reasonably incidental to the conditions of her employment. The Board noted that,
although the activity was not required by the employing establishment, it was connected with the
work she was employed to perform. In the instant case, appellant’s activity of loading his
wheelchair into his personal vehicle was clearly not required by the employing establishment.
However, as in Howell, it can be characterized as an activity reasonably incidental to his
employment. As a result of his paraplegia, appellant used his wheelchair at work everyday for
20 years prior to the April 13, 2006 incident. The employing establishment provided him with
an assigned parking space in order to accommodate his handicap. The evidence establishes that
appellant required the use of his wheelchair in order to perform the duties of his job and that the
employing establishment was aware of this requirement. Thus, the act of loading the wheelchair
into his vehicle was not a deviation from his regular employment duties.
7

Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004); Wilmar Lewis Prescott, 22 ECAB 318 (1971).

8

Narbik A. Karamian, supra note 4.

9

48 ECAB 414 (1997).

4

In Howard M. Faverman,10 the employee sustained injuries on his way to the employee
cafeteria when he crashed into a wall and fell to the floor 55 minutes before his shift began.
Claimant stated that he routinely arrived early because he needed extra time to prepare for the
daily activities. However, he did not identify any specific preparatory or incidental activity
related to his employment that required him to be present 55 minutes before his tour of duty
began. The Board found that claimant was not involved in any preparatory activity reasonably
incidental to his employment activities on the morning of the claimed injury. Only as a matter of
personal convenience did appellant choose to arrive at the employing establishment early. His
act of walking to the employee cafeteria was a deviation from his regular employment duties. In
contrast, in this case, appellant’s act of placing his wheelchair in his van was not a matter of
personal convenience or a deviation from his employment duties, but rather was a matter of
necessity. In order for appellant, a wheelchair-bound paraplegic, to return home, he had no
choice but to place his wheelchair in his van.
In Kathryne Lyons,11 the employee fractured her right foot when she fell on employing
establishment property, while engaged in a three-mile recreational walk 10 minutes prior to
reporting to work. The Board found that she was not engaged in activities that could be
characterized as reasonably incidental to the conditions of her employment, in that she had
arrived at work early only as a matter of personal convenience and was engaged in a personal
activity when injured. Lyons can be distinguished from the case at hand. In Lyons, the claimant
engaged in personal exercise before her shift began, unbeknownst to the employing
establishment. Further, there was no relationship whatsoever between the activity in which she
was engaged and the duties of her employment. In this case, appellant’s wheelchair was
essential to his ability to perform the duties of his job. Therefore, placing his wheelchair into his
van at the end of the day was as reasonably incidental to conditions of his employment as a
doctor placing his medical bag into his car.
The Board finds that appellant was engaged in an action incidental to the duties of his
employment and that he was in the performance of duty on April 13, 2006 at the time of the
accepted incident.12
CONCLUSION
The Board finds that appellant was on the premises of the employing establishment at the
time of the April 13, 2006 incident and that the incident occurred during the course of appellant’s
federal employment.

10

57 ECAB ___ (Docket No. 05-1496, issued October 19,2005).

11

49 ECAB 295 (1998).

12

See William Robidoux, Docket No. 97-165 (issued December 3, 1998) (where claimant fell on employing
establishment property while going to his vehicle to retrieve personal effects, the Board found that he was engaged
in an activity incidental to his employment, because it was reasonable that he might leave personal effects in his
car).

5

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2007 and June 21, 2006 decisions of
the Office of Workers’ Compensation Programs are reversed.
Issued: August 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6