United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Dallas, TX, Employer
__________________________________________

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

Docket No. 14-1158
Issued: August 19, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from an October 28, 2013 nonmerit
decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing representative.
Because more than 180 days elapsed from the last merit decision dated April 22, 2013 to the
filing of this appeal on April 21, 2014 pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant abandoned her request for a hearing under 5 U.S.C.
§ 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 8, 2013 appellant, then a 48-year-old, field representative, filed a traumatic
injury claim alleging that on February 2, 2013 she sustained injuries to her lower back, hips and
left knee and leg when she slipped on snow and black ice. She stopped work.
In a decision dated April 22, 2013, OWCP denied appellant’s claim. It found insufficient
evidence to establish that she sustained an injury while in the performance of duty as she was not
scheduled to work on the day the injury occurred.
In a letter postmarked May 16, 2013 and received on May 23, 2013, appellant requested
an oral hearing before an OWCP hearing representative.
On August 7, 2013 OWCP notified appellant that a hearing would be held on
September 18, 2013 by video teleconference. It provided the scheduled time and location
address of the hearing. The notice was sent to appellant’s address of record.
By decision dated October 28, 2013, an OWCP hearing representative found that
appellant abandoned her hearing request. Appellant failed to appear and there was no evidence
that she contacted OWCP either before or after the scheduled hearing to explain her failure to
appear.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.2 Unless otherwise directed in writing by the claimant, OWCP’s
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.3 It has the burden of proving that it
mailed to appellant and her representative a notice of a scheduled hearing.4
A claimant who fails to appear at a scheduled hearing may request in writing within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing.5

2

20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b).

4

K.D., Docket No. 11-77 (issued August 18, 2011); Michelle R. Littlejohn, 42 ECAB 463 (1991).

5

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011).

2

ANALYSIS
After OWCP denied her traumatic injury claim, appellant filed a timely request for an
oral hearing. It properly notified her that a hearing would be held by video teleconference on
September 18, 2013 and provided information by which to attend the conference. The notice
was properly sent to her address of record.6
The record does not contain any evidence that appellant requested a postponement of the
scheduled hearing or evidence that she wrote to OWCP within 10 days of the scheduled hearing
to show good cause for her failure to appear. Accordingly, the Board finds that appellant
abandoned her hearing request. The Board will therefore affirm OWCP’s October 28, 2013
decision.
On appeal, appellant contends that she was released from the hospital four days before
the scheduled hearing conference and was given specific instructions to go home and rest. The
Board notes, however, that the August 7, 2013 OWCP letter clearly set forth the time and date of
the hearing and provided necessary information to postpone or reschedule the hearing. Because
no timely explanation was given to the Branch of Hearings and Review, either prior to or
subsequent to the scheduled September 18, 2013 hearing, the Board finds that the conditions for
abandonment as specified in OWCP’s regulations were met. OWCP, therefore, properly found
that appellant abandoned her request for a hearing.
CONCLUSION
The Board finds that appellant abandoned her request for a hearing.

6

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. See James A. Gray, 54 ECAB 277 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

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

Docket No. 21-1357
Issued: March 15, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 14, 2021 appellant filed a timely appeal from a May 19, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 5, 2021 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
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).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2019 appellant, then a 57-year-old scheduling officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2019 she experienced an asthma attack
when exposed to dust while in the performance of duty. She stopped work on the date of injury.
In support of her claim, appellant submitted an October 17, 2019 hospital emergency
department report by Dr. Richard D. Zane, Board-certified in emergency medicine. Dr. Zane
related that appellant had a history of asthma, and had not experienced a severe exacerbation since
2014 until that day while in her office in the baggage claim area at work. He attributed the current
episode to odor and mold caused by water leaking through the ceiling tiles in her office. On
examination, Dr. Zane observed diminished expiratory sounds with end expiratory wheezing,
coughing, tachycardia, dyspnea, respiratory distress, and tremulousness. As nebulizer treatments
in the emergency department did not improve appellant’s symptoms, she was admitted to the
intensive care unit. Dr. Zane diagnosed an asthma exacerbation attack.
In an October 17, 2019 intensive care unit report, Dr. Richard William Vandivier, Boardcertified in internal medicine and pulmonology, noted that appellant presented with acute shortness
of breath while at work. He noted “[s]he states that there has been some construction and leaking
of moldy odor fluid in her office which likely precipitated her shortness of breath.”
In an October 18, 2019 hospital discharge report, Dr. Vandivier diagnosed an asthma
exacerbation and prescribed medication. He noted that it was important for appellant to avoid any
environmental triggers, particularly at her workplace, “to prevent this from occurring again.”
In a development letter dated June 12, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide comments from a knowledgeable
supervisor on the accuracy of appellant’s statements and the type of tasks performed which
resulted in the exposure and the duration. It afforded both parties 30 days to provide the necessary
evidence.
In response, the employing establishment provided a June 22, 2020 statement confirming
that in the area where appellant was seated on October 17, 2019, there were missing ceiling tiles
and large trashcans placed to collect dripping water. There was also a “smell that was not right.
[Appellant] began coughing and using her emergency inhaler.” She left the area at her supervisor’s
instruction, but her breathing became more erratic. Paramedics were called to the scene and
recommended appellant be taken to an emergency department. Appellant’s husband then
transported her to the hospital.
In a June 24, 2020 statement, appellant’s supervisor, asserted that on the date appellant
experienced an asthma attack, “[w]hen entering the office there was a strong mildew smell with
several wet ceiling tiles and trash cans filled with water.” Appellant began coughing 30 minutes
after her arrival. She exited the office to get fresh air, then began struggling to breathe. Paramedics
were summonsed and administered medication, which did not relieve appellant’s symptoms.
Appellant’s husband then transported her to the hospital.

2

By decision dated July 23, 2020, OWCP accepted that the October 17, 2019 incident
occurred as alleged but denied appellant’s claim as the medical evidence of record did not contain
a diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On August 11, 2020 appellant requested reconsideration.
medical evidence.

She submitted additional

In an August 4, 2020 report, Dr. Mark Nathanson, an osteopath specializing in family
medicine, noted treating appellant for severe, persistent asthma for more than five years.
Appellant also submitted employing establishment e-mails dated from October 18
through 20, 2019 noting that a water pipe had broken above her work area, causing extensive
leakage and significant odor. In an October 18, 2019 e-mail, a safety specialist, cautioned that
there were “layers of particles that can easily set off [appellant’s] asthma again.”
By decision dated September 16, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
On December 2, 2020 appellant requested reconsideration. She submitted an October 1,
2020 report by Dr. Nathanson, who noted that appellant had been doing fairly well with her asthma
until an exacerbation at work caused by black mold on waterlogged tiles which caused appellant
to be hospitalized due to the injury. Dr. Nathanson diagnosed a resolved severe exacerbation of
moderate persistent allergic asthma, vocal cord dysfunction, and stable asthma. He prescribed
medication.
By decision dated March 5, 2021, OWCP modified its July 23, 2020 decision to find that
appellant had established a diagnosis that could reasonably be connected to the claimed condition.
The claim remained denied as the medical evidence of record was insufficient to establish causal
relationship.
On May 12, 2021 appellant requested reconsideration. She submitted a May 7, 2021
statement reiterating her account of the events of October 17, 2019. Appellant also submitted an
April 26, 2021 note from Dr. Nathanson noting that her “[a]cute attack which led to
hospitalization” was “caused by dust and other particulate components which stemmed from wet
ceiling tiles at her place of work.” He opined, “this is what brought on her attack.”
By decision dated May 19, 2021, OWCP denied appellant’s request for reconsideration. It
found, “[s]pecifically, causal relationship is a medical issue and you did not submit any medical
evidence in support of your request for reconsideration. We have not received a well-rationalized
medical report.…”

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 6
ANALYSIS
The Board finds that this case is not in posture for decision.
In denying appellant’s request for reconsideration, OWCP did not reference
Dr. Nathanson’s April 26, 2021 report addressing the causal relationship between the claimed
asthma attack to appellant’s exposure to wet ceiling tiles and particulates at the employing
establishment.
In the case of William A. Couch,7 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that Dr. Nathanson’s April 26, 2021 report was
reviewed and considered by OWCP in its May 19, 2021 decision. 8 In its May 19, 2021 decision,
OWCP denied appellant’s request for reconsideration, finding that she failed to submit any medical
evidence in support of her request for reconsideration. As it did not review or consider
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(a).

6

Id. at § 10.608(b).

7

41 ECAB 548, 553 (1990).

8

See T.G., Docket No. 19-1930 (issued January 8, 2021).

4

Dr. Nathanson’s April 26, 2021 report, it failed to follow its own procedures by properly
discussing the relevant evidence of record. 9
As the Board’s decisions are final as to the subject matter appealed, it is crucial that OWCP
address all relevant evidence properly submitted to OWCP prior to the issuance of its decision. 10
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record. Following this and other such further development as deems necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9
All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
10

20 C.F.R. § 501.6(d); supra note 8; W.G., Docket No. 20-1536 (issued December 17, 2021); see also A.V., Docket
No. 20-1251 (issued January 28, 2021).

5

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 15, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Arlington, VA, Employer
)
__________________________________________ )
S.S., Appellant

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

Docket No. 19-0066
Issued: May 8, 2019

Case Submitted on the Record

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

JURISDICTION
On October 10, 2018 appellant filed a timely appeal from a May 31, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 8, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 31, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 18, 2017 appellant, then a 52-year-old deputy marshal, filed a traumatic injury
claim (Form CA-1) for a wrist/arm injury, which he attributed to using a battering ram on
January 16, 2017 to breach the door of a fugitive’s residence while in the performance of duty. He
indicated that he struck the door three times with the ram and developed wrist pain that radiated
up his arm. The employing establishment indicated that appellant received continuation of pay
(COP) beginning January 16, 2017.3
A January 17, 2017 report from Dr. Jeffrey N. Guttman, a Board-certified orthopedic
surgeon, related that appellant presented with left wrist pain and was “[status post] injury yesterday
while knocking down door … using a battering ram … at the time of injury.” Dr. Guttman noted
the pain to be moderately severe, sharp, and localized to the distal ulna, and that pain is worse with
forearm rotation. Under medical history, he concluded, “noncontributory to the current problem.”
In his examination of appellant’s left wrist, Dr. Guttman noted soft tissue swelling, tenderness over
the distal ulna, that range of motion testing was limited by pain, strength was limited by pain, but
he found no gross instability on stress testing. After a left wrist x-ray taken the same day, he
diagnosed a distal ulna fracture, and a triangular fibrocartilage complex (TFCC) tear, and
prescribed a wrist support brace. Dr. Guttman authorized magnetic resonance imaging (MRI)
scan, prescribed nonsteroidal anti-inflammatory drugs, and indicated that appellant could perform
only light-duty work until further notice. He ordered a follow-up appointment after the MRI scan.
In Part B of an undated authorization for examination and/or treatment (Form CA-16),
Dr. Guttman diagnosed left wrist sprain, with a differential (rule out) diagnosis of occult fracture
and TFCC tear.4 He checked a box marked “Yes,” indicating his belief that appellant’s condition
was caused or aggravated by appellant’s employment.
A January 18, 2017 left wrist MRI scan revealed: (1) an incomplete fracture at the base of
the ulnar styloid; (2) ulnar and central TFCC tear; (3) a lunotriquetral ligament tear; and (4) ulnar
subluxation of the extensor carpi ulnaris (ECU) tendon with tear of the subsheath.
In a February 21, 2017 follow-up report, Dr. Guttman diagnosed left distal ulna fracture
and TFCC tear with a January 16, 2017 date of injury. He prescribed occupational therapy and
advised appellant to follow up in four weeks. In his March 21, 2017 follow-up treatment notes,
3

Under OWCP File No. xxxxxx449, appellant has an accepted traumatic injury claim for right finger closed
dislocation, left wrist sprain, and left elbow contusion, with a July 21, 2010 date of injury. Under OWCP File No.
xxxxxx190, he has an accepted traumatic injury claim for left wrist sprain and bilateral knee contusion, with a
February 24, 2006 date of injury. To date these claims have not been administratively combined with the current
claim, OWCP File No. xxxxxx265.
4
On January 17, 2017 the employing establishment authorized medical treatment for appellant’s wrist/arm (Form
CA-16).

2

Dr. Guttman continued to diagnose left distal ulna fracture and TFCC tear. He noted that
appellant’s pain was improving and less sharp, while remaining mild-to-moderately severe and
was worse with forearm rotation. Dr. Guttman provided instructions on a home exercise program
and recommended continued physical therapy. Appellant was to follow up in another four weeks.
When appellant returned on April 24, 2017, his left wrist diagnoses were unchanged and
Dr. Guttman administered a corticosteroid injection. Dr. Guttman advised appellant to follow up
in two to three weeks.
By development letter dated May 19, 2017, OWCP noted that appellant’s claim originally
appeared to be a minor injury that resulted in minimal or no lost time from work. It further noted
that it initially authorized payment for a limited amount of medical expenses, but because the
medical expenses had exceeded $1,500.00, the case had been reopened for consideration. OWCP
informed appellant that his claim was deficient and advised him of the type of medical evidence
needed to establish the claim.5 It afforded appellant 30 days to submit the necessary medical
evidence.
In a May 22, 2017 follow-up report, Dr. Guttman continued to diagnose left distal ulna
fracture and TFCC tear with a January 16, 2017 date of injury “while knocking down door.” He
advised that appellant was able to return to work full duty with no restrictions.
By decision dated June 30, 2017, OWCP denied appellant’s claim, finding that he had not
met his burden of proof to establish causal relationship between the January 16, 2017 employment
incident and the claimed left wrist conditions.
Following its June 30, 2017 decision, OWCP received requests for physical/occupational
therapy from Dr. Guttman dated February 21, March 21, and April 24, 2017. It also received a
February 27, 2017 initial physical therapy evaluation, and physical therapy progress notes through
April 21, 2017.
On July 31, 2017 appellant requested reconsideration. He submitted an amended copy of
the Form CA-16, which was dated January 25, 2017. Dr. Guttman noted that appellant injured his
left wrist at work. The form report also included findings of left wrist distal ulna fracture and
TFCC tear. Dr. Guttman also noted light-duty work restrictions effective January 17, 2017.
By decision dated October 26, 2017, OWCP, following a merit review, denied
modification of the prior decision, finding that the evidence submitted remained insufficient to
establish causal relationship.
OWCP subsequently received additional physical therapy treatment records dated through
June 16, 2017.
On December 12, 2017 appellant requested reconsideration. He submitted a December 1,
2017 report from Dr. Guttman, which noted that he previously treated appellant for a left distal
ulna fracture and TFCC tear status post a work-related injury on January 16, 2017. Dr. Guttman
5
OWCP noted that appellant’s physician should differentiate the current claimed injury from the symptoms of his
preexisting left wrist injuries as noted under OWCP File Nos. xxxxxx190 and xxxxxx449.

3

further noted that, at the time of injury, appellant worked as a U.S. Marshal and was injured while
using a battering ram to knock down a door. He explained that appellant’s history, physical
examination, x-rays, and MRI scans were all consistent with the diagnosis. Dr. Guttman also
indicated that appellant denied any prior history of wrist pain or injury. In closing, he stated that
it was his opinion, within a reasonable degree of medical certainty, that the diagnosis was directly
causally related to the work-related injury on January 16, 2017, as described by appellant.
By decision dated March 8, 2018, OWCP reviewed the merits of the claim based on
Dr. Guttman’s note of December 1, 2017. However, it denied modification of the prior decision,
finding that the newly submitted evidence remained insufficient to establish causal relationship.
On May 23, 2018 appellant again requested reconsideration via the appeal request form
that accompanied OWCP’s March 8, 2018 merit decision. No additional evidence was received.
By decision dated May 31, 2018, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 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.8
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.9 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.10

6
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). 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). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.606(b)(3).

10

Id. at § 10.608(a), (b).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On May 23, 2018 appellant requested reconsideration via the appeal request form that
accompanied OWCP’s March 8, 2018 decision. He neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, appellant did not advance
a relevant legal argument not previously considered by OWCP. Accordingly, the Board finds that
appellant is not entitled to a review of the merits based on either the first or second requirements
under 20 C.F.R. § 10.606(b)(3).11
The Board further finds that appellant did not submit any relevant and pertinent new
evidence in support of his May 23, 2018 request for reconsideration. Therefore, appellant also
failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).12
As appellant has not met any of the requirements of 20 C.F.R. § 10.606(b)(3) in his
May 23, 2018 request for reconsideration, the Board finds that, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

11

R.R., Docket No. 18-1562 (issued February 22, 2019).

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 8, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS, Fallon, NV, Employer
__________________________________________

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

Docket No. 10-1179
Issued: November 18, 2010

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 March 24, 2010 appellant, through her attorney, filed a timely appeal of a
February 22, 2010 merit decision of the Office of Workers’ Compensation Programs denying her
consequential injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
osteoporosis as a consequence of an infection sustained during a work-related surgery.
FACTUAL HISTORY
On January 29, 2009 appellant, then a 52-year-old supply technician, filed an
occupational disease claim alleging that as a result of her accepted back injury and surgery in
April 2007 she developed an infection which was not discovered until a second surgery on
December 21, 2007. She alleged that during her second surgery her spine required scraping and
she contracted osteoporosis. Appellant underwent a bone density scan on October 13, 2008 due

to a postmenopausal estrogen deficiency. Dr. Timothy W. Hockenberry, a Board-certified
family practitioner, found significantly reduced bone density or osteoporosis. He diagnosed
osteoporosis on June 1, 2009.
In a letter dated July 20, 2009, the Office requested that appellant provide additional
medical evidence in support of her claim and allowed 30 days for a response.
Dr. David A. Jones, a Board-certified orthopedic surgeon, on April 9, 2008 stated that she
underwent lumbar spine surgery for a work-related injury which resulted in an infection,
exploration of her spine wound and removal of hardware. He stated that appellant’s current
treatment for infection was directly related to her previous surgery and work injury. Dr. Jones
submitted notes dated May 16 and July 3, 2008 addressing her treatment for back pain.
Dr. Randall L. Goode, a Board-certified anesthesiologist, on July 21, 2009 diagnosed chronic
low back pain and lumbar spondylosis.
By decision dated August 26, 2009, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish a causal relationship between the diagnosis of
osteoporosis and her accepted employment injury with resulting surgeries. Appellant, through
counsel, requested an oral hearing on September 10, 2009 that was held on December 10, 2009.
The hearing representative noted that appellant’s previous claim was accepted for herniated disc
as well as complications. Appellant testified that she had developed osteoporosis at L1-2 during
her second surgery as her spine was scraped to remove the infection.
The hearing representative issued a decision on February 22, 2010 affirming the Office’s
August 26, 2009 decision, she found that there was insufficient rationalized medical opinion
evidence explaining the relationship between appellant’s diagnosed osteoporosis and her
accepted employment injury.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
As is noted by Larson in his treatise on workers’ compensation, once the work-connected
character of any injury has been established, the subsequent progression of that condition
remains compensable so long as the worsening is not shown to have been produced by an
independent nonindustrial cause and so long as it is clear that the real operative factor is the
progression of the compensable injury, associated with an exertion that in itself would not be
unreasonable under the circumstances.1
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, she must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
1

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994).

2

be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.2
ANALYSIS
The Office accepted that appellant sustained a herniated disc as a result of her
employment and authorized surgery. Appellant underwent a second surgery due to an infection.
She filed a notice of occupational disease contending that as a result of her accepted employment
injury and surgeries she developed osteoporosis at L1-2.
The Board finds that appellant has not submitted sufficient medical evidence to establish
a causal relationship between her osteoporosis and the accepted back injury and surgeries.
Dr. Jones opined that her second spine surgery in 2007 was due to an infection resulting from the
first surgery; but he failed to provide a diagnosis of osteoporosis or address whether this
condition was related to her surgeries. For these reasons, his reports are not sufficient to meet
appellant’s burden of proof.
Dr. Hockenberry diagnosed osteoporosis based on a bone scan. He did not provide any
opinion as to the cause of appellant’s osteoporosis. Rather, Dr. Hockenberry indicated that this
condition was the result of postmenopausal estrogen deficiency. These reports did not provide a
history of employment injury or address whether there is a causal relationship between
appellant’s osteoporosis and her employment. Due to these deficiencies, these reports are not
sufficiently detailed to meet her burden of proof.
On July 21, 2009 Dr. Goode diagnosed chronic low back pain and lumbar spondylosis.
He did not diagnose osteoporosis or suggest that appellant’s employment injury or resulting
surgery caused a consequential condition. The Board finds that appellant has not submitted
detailed medical opinion evidence to establish a causal relationship between her osteoporosis and
her accepted back injury and resulting surgeries.
CONCLUSION
The Board finds that appellant failed to establish that she developed osteoporosis as a
result of her accepted employment injuries.

2

Charles W. Downey, 54 ECAB 421 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2010
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Duluth, MN, Employer
__________________________________________

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Appearances:
Patricia Amos, for the appellant
Office of Solicitor, for the Director

Docket No. 10-2202
Issued: July 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 30, 2010 appellant filed a timely appeal from an August 12, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found a $9,065.11 overpayment of
compensation from December 10, 2003 to February 14, 2009; and (2) whether OWCP properly
found appellant was at fault in creating the overpayment.
FACTUAL HISTORY
The case was before the Board on two prior appeals. By decision dated September 25,
2008, the Board found OWCP had failed to establish that as of December 29, 2000 the selected
1

5 U.S.C. § 8101 et seq.

position of personnel manager represented appellant’s wage-earning capacity.2 In an order dated
February 25, 2010, the Board remanded the case for further development regarding an
overpayment of $9,065.11.3 The Board noted that, while OWCP found an overpayment based on
an incorrect pay rate, OWCP did not explain its finding in this regard. As the Board noted, an
OWCP hearing representative stated that the correct pay rate was determined by the date of
injury (January 21, 1997), without providing further explanation or referring to the “monthly
pay” provisions of 5 U.S.C. § 8101(4). In addition, the Board noted that, while OWCP found
appellant to be at fault because he accepted payments he should have known were incorrect, it
provided no explanation or support in the record for its findings.
On return of the case record, an OWCP hearing representative reviewed the record and
issued an August 12, 2010 decision. She stated that the Office had incorrectly paid
compensation for wage loss using a pay rate of $878.41 on December 10, 2003, the date
appellant selected FECA benefits instead of Office of Personnel Management (OPM) retirement
benefits. Later, the hearing representative found the correct pay rate was the date of injury,
January 21, 1997, at $769.01 per week. Based on the amount of compensation appellant
received from December 10, 2003 to February 14, 2009, and the amount he should have received
using the correct pay rate, the overpayment was $9,065.11. With respect fault, the hearing
representative stated that appellant should have known that he was not entitled to compensation
based on a pay rate higher than the date-of-injury pay rate.
LEGAL PRECEDENT -- ISSUE 1
Under 5 U.S.C. § 8101(4), “‘monthly pay’ means the monthly pay at the time of injury,
or the monthly pay at the time disability begins, or the monthly pay at the time compensable
disability recurs, if the recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever is greater .…”4
ANALYSIS -- ISSUE 1
In the February 25, 2100 order, the Board specifically noted that monthly pay is
determined pursuant to 5 U.S.C. § 8101(4), but OWCP had failed to cite this section in its
November 10, 2009 decision. The August 12, 2010 OWCP decision also fails to analyze the
issue of pay rate using the proper statutory authority.
As noted above, there are three possible dates to determine a claimant’s rate of pay: date
of injury, date disability begins, or date compensable disability recurs, if more than six months
after a return to regular full-time employment. The date providing the greater pay rate is used.
In this case, appellant had elected OPM benefits as of December 29, 2000. On February 13,
2007 appellant elected FECA benefits retroactive to December 10, 2003. On April 13, 2007
2

Docket No. 08-751 (issued September 25, 2008).

3

Docket No. 10-456 (issued February 25, 2010).

4

See also 20 C.F.R. § 10.5(s), which defines “pay rate for compensation purposes” as the employee’s pay at the
time of injury, the time disability begins or the time compensable disability recurs if the recurrence begins more than
six months after the employee resumes regular full-time employment.

2

OWCP issued compensation payments covering the period commencing December 10, 2003.
The compensation was based on a weekly pay rate of $878.45, which OWCP found was
appellant’s pay rate on December 10, 2003. OWCP’s hearing representative finds that this is an
incorrect pay rate date because it represented a date appellant went from OPM to FECA benefits,
not a recurrence of disability. There are no actual findings on this issue with respect to 5 U.S.C.
§ 8101(4). It did not appear that appellant had returned to regular full-time employment for six
months following the employment injury, but OWCP did not discuss appellant’s work history
after the injury. The Board also notes that appellant submitted a December 10, 2003 report from
Dr. Doreen Landrum, a psychologist, who discussed disability for work.
The Board finds OWCP did not properly discuss the relevant facts and explain the
determination that a rate of pay on December 10, 2003 was incorrect under 5 U.S.C. § 8101(4).
In addition, OWCP failed to properly explain its finding that the proper pay rate date was
January 21, 1997, the date of injury. Even if the pay rate on December 10, 2003 is ultimately
determined to be incorrect, OWCP does not consider whether a date disability began would
provide a greater pay rate than the date of injury. On the CA-1 claim form appellant indicated
that he did not seek medical treatment until March 10, 1997. A June 16, 1997 letter from the
employing establishment indicates that appellant did not immediately stop working; there are
intermittent dates of leave claimed and it appeared he claimed continuous sick leave or leave
without pay from April 8, 1997. The record indicates OWCP did not begin paying compensation
for wage loss until April 21, 1997. OWCP’s procedures state that, when a claimant does not stop
work immediately after the injury, the record should reflect a date disability began and a pay rate
on that date.5 The Board notes that the August 12, 2010 OWCP’s decision specifically stated
that appellant had been a “WS7 Step 4” on January 21, 1997 and became a Step 5 on
April 13, 1997. Therefore it is important to determine the date disability began and the proper
pay rate on that date.
Accordingly, the case will be remanded to properly determine the pay rate for
compensation purposes in accord with 5 U.S.C. § 8101(4). OWCP should discuss the relevant
facts and make proper findings on the issue presented. If it confirms that an overpayment was
created based on an incorrect rate of pay, OWCP should calculate the amount of an
overpayment, clearly explaining the amount of compensation appellant received during the
overpayment period and the amount he should have received.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA6 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(3)
(May 1996).
6

Supra note 1.

3

good conscience.”7 Waiver of an overpayment is not permitted unless the claimant is “without
fault” in creating the overpayment.8
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: “(1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
In this case, OWCP found that appellant was at fault because he accepted payments he
knew or should have known were incorrect. In the August 12, 2010 decision, OWCP’s hearing
representative found “the claimant was aware that he was not entitled to receive compensation at
a pay rate higher than the pay rate on the date of injury.” No evidence was cited in support of the
finding as to fault. The record indicates that on April 6, 2007 OWCP advised appellant that he
would be receiving compensation as of March 1, 2007, with a weekly pay rate used to determine
gross compensation of $878.95. OWCP did not explain how this pay rate was calculated or
provide additional information on the issue. As the above discussion illustrates, OWCP itself did
not properly cite and apply the appropriate statutory authority regarding the pay rate in this case.
In its decision, OWCP did not refer to any probative evidence of record establishing that
appellant knew or should have known that the pay rate was incorrect, and therefore specific
payments he received were incorrect. The finding as to fault is reversed.
CONCLUSION
The Board finds OWCP did not properly explain its findings with respect to an
overpayment of compensation based on an incorrect pay rate for compensation purposes during
the period December 10, 2003 to February 14, 2009, and the case is remanded for further
development. The Board further finds that OWCP did not establish that appellant was at fault in
creating an overpayment of compensation.

7

Id. at § 8129(b).

8

Norman F. Bligh, 41 ECAB 230 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 12, 2010 is set aside and remanded with respect to fact
and amount of an overpayment of compensation. The August 12, 2010 decision is reversed as to
finding that appellant was at fault in creating an overpayment.
Issued: July 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 17-0958
Issued: November 13, 2017

Case Submitted on the Record

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

JURISDICTION
On April 2, 2017 appellant, through her representative, filed a timely appeal from a
January 25, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s occupational disease claim is timely pursuant to 5 U.S.C.
§ 8122(a).
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case, as set forth in the
prior decision, are incorporated herein by reference. The relevant facts are as follows.
On March 19, 2015 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim (Form CA-2) for an injury to her lumbar back and both legs.4 She indicated that
she first became aware of her disease or illness on October 12, 2008. The employing
establishment advised that appellant stopped work on October 12, 2008. Before she stopped
work, appellant explained that she had been working full duty for eight months including
repetitive lifting, bending, and standing. As of March 19, 2015, she had not yet resumed work.
Appellant had previously sustained a work-related traumatic injury (Form CA-1) on
June 13, 2006, which OWCP accepted for cervical sprain, left shoulder sprain, and lumbar
sprain, under OWCP File No. xxxxxx157.5
With respect to her current occupational disease claim, appellant submitted an undated
statement in which she indicated that while working on June 13, 2006 she fell backwards,
landing first on her buttocks, and then on her back. She further stated that she returned to work
on February 18, 2008. Appellant indicated that both her treating physician and an OWCP
referral physician provided work restrictions, but appellant’s supervisor reportedly told her that
she would not comply with these restrictions. Appellant’s union filed a grievance and an Equal
Employment Opportunity (EEO) complaint while appellant returned to full-duty work.
Appellant further explained that she worked full duty until October 12, 2008 when she had to
stop work because her condition had worsened. She stated that she was advised to see
Dr. Deborah Eisen, a Board-certified family practitioner, who saw her on August 6, 2014 and
informed her that her condition was an occupational disease.
In a March 2, 2015 report, Dr. Eisen stated that appellant presented on August 6, 2014 for
evaluation and treatment of an unresolved employment-related condition. She diagnosed
aggravation of a bulging disc into a herniated lumbar disc. Dr. Eisen explained that appellant’s
condition was actually an occupational disease that occurred over an eight-month period, as well
as anterolisthesis at L4-5, and lumbar sprain. She further indicated that the aggravated injury
occurred because restrictions were not followed, and that appellant’s duties from February 18 to
October 12, 2008 caused her current diagnosed conditions.

3

Docket No. 15-1691 (issued February 11, 2016).

4

Appellant signed the claim form on March 4, 2014. However, elsewhere on the Form CA-2 she identified a
subsequent date, August 6, 2014, as the date she first realized her condition was employment related. The
employing establishment completed its portion of the Form CA-2 on March 19, 2015, and advised that appellant
first reported her condition on March 17, 2015.
5

As discussed infra, OWCP also accepted an October 16, 2008 recurrence of disability under File No.
xxxxxx157. The complete case record associated with appellant’s June 13, 2006 traumatic injury claim is not
currently available to the Board.

2

On April 15, 2015 the employing establishment controverted appellant’s claim on the
basis of causal relationship and timely filing. It noted that she did not file the claim within three
years of October 12, 2008; the date she reportedly became aware of her condition. The
employing establishment also argued that appellant had not established a causal relationship
between her condition and factors of employment. Lastly, it noted that she had been receiving
compensation under OWCP File No. xxxxxx157 that was terminated on August 17, 2012
because the condition was not injury related. The employing establishment represented that
appellant was again claiming the “same condition.”
In a May 7, 2015 letter, OWCP advised appellant of the deficiencies in her claim and
afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a narrative statement and reports dated February 23 through June 2,
2015 from Dr. Eisen who diagnosed anterolisthesis at L4-5, herniated lumbar disc, and lumbar
strain and advised that appellant was totally disabled for work.
On January 31, 2014 Dr. Vadim Kushnerik, a pain management specialist, diagnosed
herniated discs causing nerve compression and opined that appellant’s employment injury on
June 13, 2006 and exacerbation in 2008 caused her lumbar condition.
By decision dated July 7, 2015, OWCP denied appellant’s occupational disease claim
because it was untimely filed.
In its decision dated February 11, 2016, the Board affirmed OWCP’s July 7, 2015
decision on the basis that appellant’s claim was untimely filed under 5 U.S.C. § 8122. The
Board found that the three-year time limitation for filing her claim began to run on October 12,
2008 and expired on October 12, 2011. As such, appellant’s March 19, 2015 occupational
disease claim was untimely. The Board further found that there was no evidence that appellant’s
immediate superior had actual knowledge or was reasonably put on notice within 30 days of
October 12, 2008. The Board specifically found that there was no evidence that “written notice
of injury was given within 30 days.” Additionally, the Board found that there were no
exceptional circumstances within the meaning of FECA that would excuse appellant’s untimely
filing.
On August 28, 2016 appellant’s representative requested reconsideration and submitted a
copy of an October 24, 2008 claim for a recurrence of disability (Form CA-2a) that appellant
filed under OWCP File No. xxxxxx157. She claimed to have sustained a recurrence of total
disability on October 16, 2008, which was related to her June 13, 2006 original injury. Appellant
stated that there was a limited-duty agreement in place, but it was not honored and her condition
had been aggravated while working full duty for a period of seven months. Her immediate
supervisor signed the Form CA-2a on October 24, 2008. Additionally, the employing
establishment indicated that appellant had been offered a limited-duty assignment and when her
doctor requested that her limitations be modified, it accommodated the new restrictions.
On reconsideration, appellant’s representative argued that her uncertainty as to the
appropriate claim to file (recurrence or new occupational disease) did not mean that management
was unaware of the worsening of appellant’s condition over a period of time. He further argued

3

that the Form CA-2a had been submitted within 30 days of the date of injury, and as such, the
claim was timely.
By decision dated January 25, 2017, OWCP denied modification of its prior decision
finding that appellant’s occupational disease claim was untimely filed and the Form CA-2a failed
to substantiate that appellant’s supervisor had knowledge of her employment-related lumbar and
bilateral leg conditions within 30 days of the date of injury. It further found that a claim for a
recurrence sustained on October 16, 2008 was filed and accepted under File No. xxxxxx157.
Considering the acceptance of the recurrence under the other claim number, OWCP found that it
was unclear how appellant’s immediate superior would have had actual knowledge or was
reasonably put on notice within 30 days of the October 12, 2008 date of injury that she had
developed an “occupational disease” from performing her employment duties.
LEGAL PRECEDENT
An original claim for compensation for disability or death must be filed within three
years after the injury or death.6 A claim filed outside this time frame must be disallowed unless
the immediate superior had actual knowledge of the injury or death within 30 days.7 Knowledge
by the immediate superior, another official at the employing establishment, or any employing
establishment physician or dispensary that an employee has sustained an injury, alleges that an
injury has been sustained, or alleges that some factor of the employment has resulted in a
physical condition constitutes actual knowledge.8
In a case of latent disability, the time for filing a claim does not begin to run until the
employee has a compensable disability and is aware or by the exercise of reasonable diligence
should have been aware of the causal relationship of the compensable disability to his
employment.9 An employee with actual or constructive knowledge of her employment-related
condition, who continues to be exposed to injurious working conditions, must file a claim within
three years of the date of last exposure to the implicated conditions.10

6

5 U.S.C. § 8122(a).

7

Id. at § 8122(a)(1).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a(3) (March 1993). Such knowledge
or notification must be such as to put the employing establishment reasonably on notice of an on-the-job injury or
death. See Chapter 2.801.3a(3)(c). It is not sufficient that the immediate superior, official or dispensary worker at
the employing establishment was aware that the employee complained of back pain, suffered a myocardial
infarction, etc. Id. To constitute actual knowledge, it must be found that the immediate superior, other official, or
dispensary worker was aware that the employee related the back pain, MI, etc. to an injury sustained while in the
performance of duty or to some factor of the employment. Id.
9

5 U.S.C. § 8122(b).

10

E.g., James A. Sheppard, 55 ECAB 515, 518 (2004); supra note 8 at Chapter 2.801.6.

4

ANALYSIS
On the March 19, 2015 Form CA-2, appellant represented that she first became aware of
her claimed condition on October 12, 2008. Additionally, the employing establishment
represented that October 12, 2008 was the date that she was last exposed to the conditions that
allegedly caused her disease or illness. Appellant had stopped work on that date and had not
since returned as of the March 19, 2015 date of filing.
In its prior decision, the Board found that the three-year period for filing a timely claim
commenced on October 12, 2008 and ended October 12, 2011. Because appellant waited until
March 19, 2015 to file her Form CA-2, the Board found that the claim was untimely filed. The
Board further found that there was no evidence that appellant’s immediate superior had actual
knowledge or was reasonably put on notice within 30 days of October 12, 2008. The Board
specifically found that there was no evidence that “written notice of injury was given within 30
days.” Thus, the Board affirmed OWCP’s denial of the claim as untimely pursuant to 5 U.S.C.
§ 8122.
Appellant was previously injured in a work-related fall on June 13, 2006, addressed in
OWCP File No. xxxxxx157. Her accepted conditions under that prior traumatic injury claim
included cervical, left shoulder, and lumbar sprains.
On reconsideration, appellant’s
representative submitted a copy of an October 24, 2008 Form CA-2a that appellant filed in
connection with OWCP File No. xxxxxx157. An employing establishment representative -“official superior” -- signed and dated the Form CA-2a on October 24, 2008.
In its January 25, 2017 decision, OWCP acknowledged that under File No. xxxxxx157 it
previously accepted a recurrence of disability beginning October 16, 2008. Although the
employing establishment received the Form CA-2a within 30 days of the claimed October 2008
occupational disease, the senior claims examiner found that the October 24, 2008 Form CA-2a
was insufficient to place appellant’s immediate superior on notice of her claimed October 12,
2008 “occupational disease.” The Board agrees.
The October 24, 2008 Form CA-2a noted that there was a limited-duty agreement in
place but it was not honored by management, and consequently, appellant’s condition had been
aggravated while working full duty for a period of seven months. An employing establishment
representative signed the Form CA-2a on October 24, 2008. Appellant’s representative
essentially argued that the uncertainty as to which claim form to file (Form CA-2 or Form
CA-2a) did not negate the fact that the employing establishment had been notified that appellant
believed her claimed condition was employment related.
The Board finds that the October 24, 2008 Form CA-2a was insufficient to establish the
immediate superior’s actual knowledge of appellant’s claimed lumbar and bilateral leg condition
within 30 days of the injury (i.e., October 12, 2008 date of awareness of condition). The
recurrence claim, which OWCP ultimately accepted, only provided notice of a worsening of the
June 13, 2006 traumatic injury under OWCP File No. xxxxxx157. The Form CA-2a did not
provide notice that appellant had developed an occupational disease due to factors of her federal
employment.

5

The Board further finds that appellant’s March 19, 2015 occupational disease claim was
an improper duplicate claim of her June 13, 2006 traumatic injury claim. Appellant did not
allege any new work factors or exposure. As such, the occupational disease claim should not
have been created and OWCP should not have undertaken development with respect to this
duplicate claim.11
CONCLUSION
The Board finds that appellant’s occupational disease claim was untimely pursuant to
5 U.S.C. § 8122. Furthermore, the Board finds that the claim was an improper duplicate of
appellant’s June 13, 2006 traumatic injury claim under OWCP File No. xxxxxx157.
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2017
Washington, DC

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

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

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

11

See S.W., Docket No. 16-0219 (issued April 5, 2016).

6


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

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

Docket No. 17-0922
Issued: August 16, 2017

Case Submitted on the Record

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

JURISDICTION
On March 22, 2017 appellant, through counsel, filed a timely appeal from a January 30,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he has more than one percent permanent
impairment of his left lower extremity, for which he previously received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

OWCP accepted that on August 1, 2013 appellant, then a 38-year-old letter carrier,
twisted at the waist while carrying a heavy mail satchel and descending steps, causing a
traumatic left hip and thigh sprain and left sacroiliac ligament sprain.3 Appellant stopped work
on August 5, 2013.
Appellant sought treatment from August 5 to 26, 2013 at an urgent care center from
Dr. Walter Venable, an attending family practitioner.4 He returned to part-time modified duty on
August 27, 2013.
On August 27, 2013 Dr. Jeffrey M. Rayborn, an attending physician Board-certified in
family practice and sports medicine, noted a history of injury, with ongoing left sacroiliac joint
pain without radicular symptoms. He diagnosed left sacroiliac joint dysfunction. On
September 3, 2013 Dr. Rayborn prescribed physical therapy. He restricted appellant to limited
duty through September 17, 2013.
In September 18 and October 16, 2013 reports, Dr. Rayborn opined that the diagnosed
inflammation and dysfunction of appellant’s left sacroiliac joint was directly related to the
August 1, 2013 employment injury. On November 18, 2013 he indicated that appellant had
normal strength with left hip flexion. Dr. Rayborn advised that appellant was doing much better,
that he could return to full activities without restriction, and that no longer term issue were
expected. He opined on August 8, 2014 that the sacroiliac joint sprain had “completely
resolved,” with no reported symptomatology or dysfunction. Dr. Rayborn found that appellant
had attained maximum medical improvement. Appellant resumed full-duty work as a letter
carrier.
On September 10, 2014 appellant claimed a schedule award (Form CA-7). In support of
his claim, he submitted a November 5, 2014 impairment rating by Dr. Martin Fritzhand, a Boardcertified urologist. Dr. Fritzhand provided a history of injury and reviewed medical records.
Appellant completed an American Academy of Orthopedic Surgeons (AAOS) lower limb
questionnaire scored at 19. On examination, Dr. Fritzhand found full range of lumbar motion in
all planes, straight leg raising “diminished to 50 degrees bilaterally,” normal strength and
sensation throughout both lower extremities, and internal rotation of the left hip “diminished to
25 to 30 degrees.” He noted that appellant’s left calf was three quarters of an inch smaller in
circumference than the right calf, which he described as “marked atrophy involving the left
lower limb.” Dr. Fritzhand found that appellant had reached maximum medical improvement.
Under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter, A.M.A., Guides) (2009), Dr. Fritzhand referred to Table
3

On August 5, 2013 appellant claimed an occupational disease on Form CA-2, but described an August 1, 2013
traumatic incident wherein he twisted while descending steps and carrying a heavy mail satchel. OWCP therefore
developed the claim as one for traumatic injury, as appellant attributed the claimed left hip injury to a single
traumatic incident. It initially denied the claim by decision dated October 2, 2013, finding the medical evidence of
record insufficient to establish causal relationship. Counsel requested a telephonic hearing, held on April 22, 2014
telephonic hearing before a representative of OWCP’s Branch of Hearings and Review. By decision dated July 8,
2014, an OWCP hearing representative reversed OWCP’s October 2, 2013 decision, and accepted the traumatic
injury claim.
4

August 5, 2013 left hip x-rays showed no osseous abnormality.

2

16-4.5 He assessed a class 1, row 1 Class of Diagnosis (CDX) impairment for a history of soft
tissue injury with consistent loss of motion, with a default grade of C, equaling two percent
permanent impairment. Dr. Fritzhand found a grade modifier for Functional History (GMFH) of
1 for an AAOS lower limb questionnaire score of 19, a grade modifier for findings on Physical
Examination (GMPE) of 1, and a grade modifier for Clinical Studies (GMCS) of zero. Applying
the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (11) + (0-1), resulted in a net adjustment of -1, moving the default grade of C downward one position
to B, also equaling two percent impairment. Dr. Fritzhand therefore concluded that appellant had
two percent permanent impairment of the left lower extremity due to limited motion of the left hip.
On June 26, 2015 an OWCP medical adviser reviewed Dr. Fritzhand’s impairment rating
and the medical record. The medical adviser opined that the medical evidence of record and
Dr. Fritzhand’s clinical findings warranted a Table 16-4, class 1, row 2 impairment for soft tissue
injury with no consistent loss of motion, with the default grade of C equaling 1 percent lower
extremity impairment. He noted that his rating differed from Dr. Fritzhand’s because
Dr. Rayborn’s November 18, 2013 findings indicated normal range of motion. Applying the -1
grade modifier assessed by Dr. Fritzhand to the class 1, row 2 CDX lowered the default grade from
C to B, which also equaled one percent permanent impairment of the left lower extremity.
In an August 26, 2015 letter, OWCP requested that Dr. Fritzhand review OWCP’s medical
adviser’s report and provide rationale supporting any disagreement with the one percent
impairment rating. Dr. Fritzhand responded by September 6, 2015 letter, contending that a class 1,
row 1 CDX under Table 16-4 was appropriate because appellant had a demonstrated loss of
internal rotation on the November 5, 2014 examination. OWCP’s medical adviser reviewed
Dr. Fritzhand’s addendum on September 26, 2015, and advised that he still disagreed with
Dr. Fritzhand’s rating as Dr. Rayborn’s last evaluation of appellant, on November 18, 2013,
indicated that he had normal range of motion. He contrasted this with Dr. Fritzhand’s finding of
loss of motion and opined that findings on motion loss were inconsistent. The medical adviser
opined that appellant had one percent permanent impairment of the left leg.
In an October 27, 2015 letter, OWCP requested that appellant obtain an additional report
from his attending physician addressing the appropriate percentage of permanent impairment of the
left lower extremity. Counsel responded by November 23, 2015 letter that OWCP’s request for
additional medical evidence was “without basis in law or fact,” and that appellant had “no
obligation to have his treating physician provide a calculation.”
By decision dated March 9, 2016, OWCP granted appellant a schedule award for one
percent permanent impairment of the left lower extremity. The period of the award, equal to 2.88
weeks ran from November 5 to 25, 2014.
In a March 16, 2016 letter, appellant, through counsel, requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review, held on
November 15, 2016. At the hearing, counsel contended that OWCP should have accorded the
weight of the medical evidence to Dr. Fritzhand because he examined appellant, whereas
OWCP’s medical adviser did not.
5

A.M.A., Guides 512-15, Table 16-4 is titled “Hip Regional Grid -- Lower Extremity Impairments.”

3

By decision dated January 30, 2017, OWCP’s hearing representative affirmed the
March 9, 2016 schedule award decision, finding that Dr. Fritzhand misapplied the A.M.A.,
Guides, whereas OWCP’s medical adviser utilized the appropriate rating method to determine
one percent permanent impairment of the left lower extremity.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.9
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the CDX condition, which is then adjusted by GMFH, GMPE, and GMCS.10
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS -CDX).11
In some instances, OWCP medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by the medical adviser may constitute the weight of the medical
evidence.12
ANALYSIS
OWCP accepted that appellant sustained a left hip and thigh sprain and a left sacroiliac
ligament sprain on August 1, 2013 while carrying a heavy satchel descending stairs. Dr. Rayborn,
an attending physician Board-certified in family practice and sports medicine, opined on August 8,

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010).
9

Federal (FECA) Procedure Manual, id. at Chapter 2.808.5a (February 2013).

10

A.M.A., Guides 411.

11

Id.

12

Federal (FECA) Procedure Manual supra note 8 at Chapter 2.810.8j; John L. McClanic, 48 ECAB 552 (1997).

4

2014 that the sacroiliac sprain had resolved completely, and that appellant was at maximum
medical improvement.
Appellant claimed a schedule award on September 10, 2014. He provided a November 5,
2014 impairment rating performed by Dr. Fritzhand, a urologist, who assessed two percent
permanent impairment of the left lower extremity due to internal rotation of the left hip limited to
30 degrees. He applied a class 1, row 1 impairment for soft tissue injury with consistent loss of
motion. An OWCP medical adviser reviewed Dr. Fritzhand’s impairment rating on June 26, 2015.
He agreed with the use of Table 16-4 used by Dr. Fritzhand but opined that range of motion loss
was not confirmed by Dr. Rayborn who, on November 18, 2013, indicated that appellant had
normal motion. Thus, he advised that it was more appropriate to use that part of Table 16-4 which
did not allow for consistent motion deficits, for which one percent permanent impairment was
provided. In a September 26, 2015 addendum, the medical adviser reiterated his opinion, noting
that Dr. Fritzhand’s range of motion findings were inconsistent with Dr. Rayborn’s findings.
OWCP requested that appellant submit additional medical evidence, but counsel opted not to
further supplement the medical record. On March 9, 2016 OWCP issued a schedule award for one
percent permanent impairment of the left lower extremity, based on OWCP’s medical adviser’s
review of Dr. Fritzhand’s clinical findings. Following a telephonic oral hearing, and OWCP’s
hearing representative affirmed the March 9, 2016 schedule award determination on January 30,
2017, explaining that Dr. Fritzhand did not utilize the appropriate diagnosis in calculating the
percentage of permanent impairment.
The Board finds that the weight of the medical evidence established that appellant had
one percent permanent impairment of the left leg. Dr. Fritzhand provided a comprehensive
history of injury and treatment, reviewed medical records, and offered an impairment rating. He
opined that appellant had attained maximum medical improvement. Dr. Fritzhand performed a
clinical examination, during which he noted limited internal rotation of the left hip. OWCP’s
medical adviser applied the appropriate tables and grading schemes to Dr. Fritzhand’s clinical
findings, explaining that a soft tissue injury with no consistent loss of motion was the appropriate
diagnosis. He observed that Dr. Fritzhand’s finding of loss of range of motion was inconsistent
with Dr. Rayborn’s findings and thus excluded its consideration.13 The Board finds that OWCP’s
medical adviser properly applied the A.M.A., Guides, to the findings provided in the medical
record in determining that appellant had no more than one percent permanent impairment of the
left leg.14
On appeal, counsel simply contends that OWCP’s January 30, 2017 decision is “contrary
to law and fact.” OWCP appropriately relied on OWCP’s medical adviser’s impairment
calculation, which properly applied the appropriate diagnosis classification to Dr. Fritzhand’s
objective clinical findings.

13

See A.M.A., Guides 496 (inconsistencies and discrepancies between what is observed, what has been
previously reported, and what is otherwise expected should be noted; findings that differ significantly from
previously recorded observations after the probable date of maximum medical improvement should be reported with
comment noting the discrepancy; these findings may be excluded from the impairment calculation).
14

See supra note 12.

5

Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than one percent permanent
impairment of his left lower extremity, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 30, 2017 is affirmed.
Issued: August 16, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-2123
Issued: September 26, 2012

Case Submitted on the Record

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

JURISDICTION
On September 21, 2011 appellant filed a timely appeal of a May 16, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether OWCP properly determined that appellant’s actual earnings fairly
and reasonably represented his wage-earning capacity.
On appeal, appellant contends that OWCP erred in its decision as it did not properly
reduce his compensation.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 16, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 25, 2003 appellant, then a 49-year-old boatswain mate (supervisory able
seaman), filed a traumatic injury claim (Form CA-1) alleging a crushing injury of his left hand
while carrying a load of pipes in the performance of duty on February 24, 2003. He reported the
injury to his supervisor onboard the ship on March 8, 2003 but did not have any work stoppage.
Appellant continued to work until June 11, 2003 where he was seen at the Naval Hospital at
Sigonella, Sicily. At that time, an old fracture of the fifth digit of the left hand was diagnosed.
Appellant continued to work until March 1, 2004 when he was rotated off the ship. He
was placed on sick leave from March 5 through April 5, 2004. OWCP received the signed Form
CA-1 claim on May 3, 2004 and accepted appellant’s claim on June 2, 2004 for left hand small
finger contusion. Appellant stopped work on April 16, 2004 and filed continuous claim CA-7
forms. He was paid compensation benefits for total disability and placed on the periodic rolls
effective October 31, 2004. The additional conditions of bilateral wrist repetitive stress injury or
chronic strain were accepted by OWCP on December 1, 2004.
Dr. Michael Kulick, a Board-certified plastic surgeon, performed left little finger surgery
on June 25, 2004.
Appellant was placed in the nurse intervention program on August 5, 2004. On
October 25, 2004 Dr. Kulick released him to work full time with the following restrictions no
climbing or pulling over 10 pounds.
On November 3, 2004 OWCP initially was referred appellant for vocational rehabilitation
services. Appellant was reassigned to a new rehabilitation counselor on February 3, 2005. By
letter dated March 7, 2005, the employing establishment advised the rehabilitation counselor that
it did not have any light- or restricted-duty assignments as all duties were performed while living
and working onboard vessels which deploy overseas from four to six months.
Due to a nonemployment-related motor vehicle accident in June 2005 and an August 19,
2005 OWCP-authorized left wrist tenosynovectomy and left radiocarpal capsulorrhaphy and
synovectomy due to an earlier work-related injury,3 the rehabilitation counselor process was
interrupted.
Following his clearance to return to work, OWCP referred appellant to Dr. Mohinder S.
Nijjar, a Board-certified orthopedic surgeon, for a second opinion evaluation. Based on
Dr. Nijjar’s December 21, 2005 report, it accepted bilateral ulnar neuritis; bilateral tenosynovitis
of the wrists; crush injury of the left little finger; status post joint replacement arthroplasty of the
proximal interphalangeal joint and mallet finger deformity. Dr. Nijjar precluded appellant from
repetitive use of the hands and repetitive power gripping.
On February 10, 2006 Dr. Kulick performed right elbow surgery.

3

The surgery was approved under case File No. xxxxxx442. This case has been combined with case File No.
xxxxxx802 as the master file.

2

In a September 18, 2008 report, Dr. Kulick stated that he reexamined appellant and found
evidence of cubital tunnel syndrome in the left upper extremity, carpal tunnel syndrome, left
lateral epicondylitis and desmitis of the basal joint of his left thumb. Appellant still had a
problem with a mallet deformity of his left little finger and had decreased motion of the proximal
interphalangeal (PIP) joint following the arthroplasty performed in 2004. Dr. Kulick opined that
appellant had permanent loss of motion of the PIP joint which was related to his employment.
On December 18, 2008 he reiterated his opinion that appellant’s condition was employment
related.
By letter dated December 22, 2008, OWCP referred appellant to Dr. Aubrey A. Swartz, a
Board-certified orthopedic surgeon, for a second opinion examination. In his January 21, 2009
report, Dr. Swartz diagnosed left wrist sprain, left carpal tunnel syndrome, left ulnar collateral
ligament of the left thumb sprain and de Quervain’s tenosynovitis of the left wrist. He opined
that appellant continued to have residuals with respect to the left wrist and the left little finger.
Dr. Swartz found no basis for further medical treatment except for left carpal tunnel release; but,
if appellant developed a recurrence of the giant cell tumor, then treatment would be done on a
nonemployment-related basis. The date of maximum medical improvement was determined to
be January 21, 2009. Dr. Swartz opined that appellant was able to work full time with the
following restrictions no pushing, pulling or lifting over 20 pounds.
By February 4, 2009 appellant was again referred to vocational rehabilitation but, due to
surgical procedures, it was terminated.
On July 17, 2009 Dr. Kulick performed revision arthroplasty, PIP joint and isolated site,
excision of tumor most likely “giant cell tumor.”
October 21, 2009 appellant was again returned to vocational rehabilitation.
On November 18, 2009 the rehabilitation counselor submitted a proposed vocational
rehabilitation plan which identified two positions -- an inventory control clerk or a
shipping/receiving clerk -- for which appellant qualified and which were available in the labor
market. This plan was approved and appellant was provided a period of time to obtain
employment. Appellant also had been working with his union to obtain a job placement. The
rehabilitation counselor learned that appellant had been tentatively offered a position as an
electronics technician with his previous employer. On September 18, 2010 appellant was
shipped out to sea apparently working with the Central Gulf Lines/LMS ship. His salary was
confirmed by the union as $2,331.00 a month.
The rehabilitation counselor verified that appellant had been working on the vessel and
that he would be out to sea for at least 60 days or longer depending upon the weather. Appellant
verified by letter of September 30, 2010 that he was at that time working on a vessel and earning
$2,331.00 a month. He did not know when he would be back in the United States but that the
job assignment was for “three to four month trips, then back to the U.S.A.”
In a May 20, 2010 report, Dr. Kulick reiterated that appellant was fit to return to work
with the following permanent restrictions not able to use forced grip with injured hand (left little
finger) and artificial joint not able to withstand repetitive grip of more than five pounds.

3

By decision dated October 13, 2010, OWCP advised appellant that effective
September 18, 2010 his compensation benefits would be reduced based on his actual wages as an
electronics technician with the Central Gulf Lines of $27,972.00 a year or $537.92 a week.
On November 18, 2010 the rehabilitation counselor confirmed that appellant had been
employed for 60 days.4
On November 29, 2010 OWCP determined that appellant’s employment with the Central
Gulf Lines fairly and reasonably represented his wage-earning capacity as he had demonstrated
the ability to perform the duties of this job for 60 days or more and that it was suitable for his
partially disabled condition. It found that he was capable of earning $537.92 a week and that his
current pay rate for the date-of-injury position was $884.93 resulting in a 61 percent wageearning capacity.
On December 18, 2010 appellant requested a review of the written record by an OWCP
hearing representative. In a December 28, 2010 statement, he noted that he did not obtain a
position as an electronics technician; rather he held a temporary assignment as an able seaman
with the Waterman Steamship Corporation for a total of 63 days. Appellant contended that he
took the position under pressure from the rehabilitation counselor and argued that it was not
suitable for his partially disabled condition. He also submitted a December 22, 2010 letter from
the Seafarers International Union indicating that appellant was an able seaman and had not sailed
as an electronics technician.
By decision dated May 16, 2011, OWCP’s hearing representative found the actual wages
appellant received while working on the vessel as an electronics technician fairly and reasonably
represented his wage-earning capacity and affirmed the November 29, 2010 decision.
LEGAL PRECEDENT
Section 8115(a) of FECA5 provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings if his
actual earnings fairly and reasonably represent his wage-earning capacity.6 Generally, wages
actually earned are the best measure of a wage-earning capacity and, in the absence of showing
that they do not fairly and reasonably represent the injured employee’s wage-earning capacity,
must be accepted as such a measure.7 If the actual earnings do not fairly and reasonably
represent wage-earning capacity or the employee has no actual earnings, his wage-earning
capacity is determined with due regard to the nature of his injury, the degree of physical
4

By decision dated November 29, 2010, OWCP finalized its finding that appellant received an overpayment of
compensation in the amount of $538.80. It further finalized its finding that he was not at fault in the creation of the
overpayment. As appellant did not contest the finding, OWCP determined that it would deduct the amount of
$50.00 from future compensation payments to repay the overpayment.
5

5 U.S.C. §§ 8101-8193, 8115.

6

Loni J. Cleveland, 52 ECAB 171 (2000).

7

Lottie M. Williams, 56 ECAB 302 (2005).

4

impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors or circumstances which may affect his
wage-earning capacity in his disabled condition.8
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position, listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his physical limitations, education, age and prior experience. Once
this selection is made, a determination of wage rate and availability in the open labor market
should be made through contact with the state employment service or other applicable service.
Finally, application of the principles set forth in Albert C. Shadrick9 will result in the percentage
of the employee’s loss of wage-earning capacity. The basic rate of compensation paid under
FECA is 66 2/3 percent of the injured employee’s monthly pay.10
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.11 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.12 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.13
OWCP procedures offer further instruction:
“Determining WEC Based on Actual Earnings. When an employee cannot return
to the date[-]of[-]injury job because of disability due to work-related injury or
disease, but does return to alternative employment with an actual wage loss, the
CE [claims examiner] must determine whether the earnings in the alternative
employment fairly and reasonably represent the employee’s WEC [wage-earning
capacity]. Following is an outline of actions to be taken by the CE when a
partially disabled claimant returns to alternative work:
a. Factors Considered. To determine whether the claimant’s work fairly
and reasonably represents his or her WEC, the CE should consider
whether the kind of appointment and tour of duty are at least equivalent to
8

See N.J., 59 ECAB 171, 175 (2007).

9

5 ECAB 376 (1953).

10

See Karen L. Lonon-Jones, 50 ECAB (1999).

11

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
12

K.R., supra note 11; Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186,
190 (1975).
13

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

5

those of the job held on [the] date of injury. Unless they are, the CE may
not consider the work suitable.
For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at
least 90 days, and reemployment of a term or transitional (USPS) worker
in another term or transitional position is likewise acceptable. However,
the reemployment may not be considered suitable when:
(1) The job is part-time (unless the claimant was a part-time
worker at the time of injury) or sporadic in nature;
(2) The job is seasonal in an area where year-round employment is
available. If an employee obtains seasonal work voluntarily in an
area where year-round work is generally performed, the CE should
carefully determine whether such work is truly representative of
the claimant’s WEC; or
(3) The job is temporary where the claimant’s previous job was
permanent.
The CE should not consider the factors set forth in 5 U.S.C. 8115; they
should be addressed only when reaching a constructed WEC.”14
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation.
OWCP accepted appellant’s claims (under both case File No. xxxxxx802 and case File
No. xxxxxx442) for injuries to his hands. The employing establishment was unable to provide
modified duty for him. Appellant underwent several instances of vocational rehabilitation. Prior
to the completion of the return to work phase of the most recent vocational rehabilitation plan, he
obtained employment on September 28, 2010. OWCP, by its November 29, 2010 decision,
reduced appellant’s compensation benefits finding that his actual wages in the position of
electronics technician fairly and reasonably represented his wage-earning capacity, effective
September 18, 2010. It determined that he actually performed work in this position for more
than 60 days. The Board finds, however, that the record is devoid of any evidence of the type of
position appellant held or whether it was similar in nature to the kind of appointment or tour of
duty he held at his date of injury.
It is OWCP’s burden of proof to establish that appellant’s actual earnings fairly and
reasonably represent his wage-earning capacity. That burden cannot be met without some
verification from the employer of the position held and the nature of the position. The evidence
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).

6

upon which OWCP relied to make its wage-earning capacity decision consists solely of
telephone calls between the rehabilitation counselor and individuals at the union hall or “Mike”
at the Central Gulf Lines. There is no written confirmation of employment or the position held.
In a September 21, 2010 report, the rehabilitation counselor verified, “[Appellant] did
ship out on September 18, 2010 work for Central Gulf Lines/LMS ship manager. I have verified
that he is working at a salary of $2,331[.00] [a] month (contact: Mike – xxx-xxx-xxxx).
[Appellant] is working as an electronic technician, no job description is available, but he will
operate and maintain electronic equipment. He will be out at sea for a two[-]month period.”
In another report dated September 29, 2010, the rehabilitation counselor wrote: “I did not
hear from [appellant’s wife] so I contacted [the union] and spoke to Nick… He told me he
knows that [appellant] did ship out and I could contact Central Gulf Lines directly at [xxx-xxxxxxx] and get more information about what he is doing. I contacted Central Gulf Lines who
owns LMS Shipping and spoke to Mike who told me [appellant] is on the ship, he will be out to
sea for at least two months, perhaps longer depending upon weather and other conditions. He
said he will be maintaining electronic equipment. Other than that, he could not tell me exactly
what he would be doing.”
On November 18, 2010 the rehabilitation counselor verified: “I confirmed that [appellant]
continues to be employed by Central Gulf Lines/LMS Shipping at a salary of $2,331.00 [a]
month. He is still at sea. Continued employment was verified by Diana at Seafarers
International Union. He has been successfully employed for 60 days.”
Appellant, on the other hand, reported by letter to OWCP dated September 30, 2010 that
he was a Seaman Dayman Dispatcher and worked with Waterman Steam Ships Corporation. He
stated that the job assignment was for “3 to 4 month trips.”
The procedural requirements for establishing a wage-earning capacity based on actual
wages provide that OWCP must show that appellant had worked in the position for 60 days and
that the position was not part-time or sporadic, seasonal or temporary (unless the date-of-injury
position was of that nature).15 The record lacks the evidence necessary for the Board to affirm
such a determination. A phone call to the “union hall” or to “Mike” or “Nick” is not sufficient
evidence to verify that the position is permanent, full time and not seasonal. As OWCP simply
did not follow its own procedures, the Board finds that it did not discharge its burden of proof to
justify the reduction of appellant’s compensation based on his actual wages.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation.

15

Supra note 12.

7

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 26, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8