United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clintwood, VA, Employer
__________________________________________

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

Docket No. 15-1385
Issued: October 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 8, 2015 appellant filed a timely appeal from a February 23, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $5,187.62 overpayment of compensation
for the period December 18, 2010 to January 11, 2014; (2) whether the overpayment is subject to
waiver of recovery; and (3) whether OWCP properly withheld $100.00 from appellant’s
continuing compensation payments.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on October 8, 2009 appellant, then a 52-year-old rural carrier,
sustained a lumbar sprain while removing a parcel from his postal vehicle. Appellant stopped
work on October 9, 2009 and did not return. He received compensation commencing on
December 18, 2009.
A grievance settlement resulted in a pay increase retroactive to April 25, 2009. Appellant
contended in an August 3, 2010 letter that OWCP erred by failing to deduct his life insurance
premiums.
OWCP placed appellant’s case on the periodic rolls effective August 29, 2010. Appellant
separated from the employing establishment effective December 18, 2010.2
On September 24, 2011 appellant signed a form electing to continue his postretirement
basic life insurance coverage, with no reduction in benefits, under Federal Employee Group Life
Insurance (FEGLI) as a compensationer. He elected Option A, four multiples of Option B, and
Option C.
In September 20 and November 6, 2012 letters, appellant requested that OWCP correct
his pay rate retroactively to December 18, 2009. He explained that OWCP based his
compensation benefits on a $54,011.00 annual salary, but provided an employing establishment
personnel action form showing a $60,978.00 annual salary effective April 25, 2009.
In an August 6, 2013 letter, the Office of Personnel Management advised OWCP that
appellant’s FEGLI was based on an annual salary of $53,102.00. It instructed OWCP not to
reduce appellant’s postretirement life insurance benefits effective December 19, 2010.
In an October 28, 2013 memorandum, OWCP noted that from December 18, 2009 to
October 19, 2013, appellant was issued $136,194.38 in compensation based on an annual pay
rate of $53,739.00. However, he should have been paid $162,769.63 based on an annual salary
of $60,978.00. OWCP calculated that appellant was owed $26,575.25, and issued a
supplemental payment for this amount on October 28, 2013.
In an April 18, 2014 memorandum, OWCP noted that it had not deducted postretirement
basic life insurance premiums from appellant’s compensation for the period December 18, 2010
to January 11, 2014. It calculated that for this period, it should have deducted $5,187.62 in
postretirement basic life insurance premiums from appellant’s compensation payments.
By notice dated April 18, 2014, OWCP advised appellant of its preliminary determination
that he had received a $5,187.62 overpayment of compensation because postretirement basic life
insurance premiums were not deducted from his compensation payments covering the period
December 18, 2010 to January 11, 2014. It provided a calculation of the overpayment, noting
that he was not at fault in its creation. OWCP requested that appellant provide financial
information within 30 days or indicate if he contested that an overpayment occurred.
2

Appellant elected to receive compensation by direct deposit effective May 28, 2013.

2

Appellant signed an overpayment action request on May 10, 2014, requesting a
telephonic prerecoupment hearing. He contended that the overpayment occurred through no
fault of his own and requested waiver. Appellant noted that he advised OWCP several times in
2010 of the irregularities in his base salary rate and life insurance premium deductions.
Appellant completed and signed an overpayment recovery questionnaire (Form OWCP20) on May 10, 2014. He noted that he lived with his wife and one adult child, and supported
another adult child. Appellant listed monthly household income of $3,424.51, comprised of his
compensation payments and $299.00 a month in his spouse’s social security benefit payments.
He noted assets of $1,341.50 in cash and bank accounts, noting that he had funds in a Thrift
Savings Plan and “a few years of EE Savings Bonds.” Appellant listed monthly expenses
totaling $3,365.00: $1,200.00 for mortgage; $175.00 for property tax; $1,200.00 for food;
$200.00 for clothing; $490.00 for utilities; $1,300.00 in miscellaneous expenses. He provided
financial documentation of his assets, income, and expenses, including $140.00 for cell phone
plans. Appellant also submitted several letters reiterating that he warned OWCP several times
that it had underdeducted life insurance premiums. He also contended that repayment of the
overpaid compensation would cause significant financial hardship.
OWCP conducted a telephonic prerecoupment hearing on December 4, 2014. At the
hearing, appellant explained that he did not have funds to repay the overpaid compensation. He
noted that he had $20,000.00 in a Thrift Savings Plan account. Appellant reiterated that OWCP
failed to heed his letters regarding the under deduction of his life insurance premiums prior to
December 2010. After the hearing, he submitted his December 30, 2014 statement repeating his
arguments at the hearing.
By decision dated February 23, 2015, OWCP finalized that appellant had received an
overpayment of compensation in the amount of $5,187.62 for the period December 18, 2010 to
January 11, 2014 as no postretirement basic life insurance was deducted from his compensation
payments. It found that he was not at fault in the creation of the overpayment, but that the
overpayment was not subject to waiver. OWCP allowed the enumerated expenses except for the
$140.00 in cell phone payments. It noted that in any event, the $3,365.00 in monthly expenses
was below the $3,687.72 in monthly household income, leaving $322.72 in discretionary
income. OWCP also noted that appellant’s retirement account balance of $20,000 exceeded the
household resource threshold of $8,000.00, making the overpayment ineligible for waiver. It
directed recovery by deducting $100.00 every 28 days from appellant’s continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.3 When an overpayment has been made to an individual because of an error of fact or law,

3

5 U.S.C. § 8102(a).

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adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.4
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options.5 The coverage for basic life
insurance is effective unless waived6 and the premiums for basic and optional life coverage are
withheld from the employee’s pay.7 When an under withholding of life insurance premiums
occurs, the entire amount is deemed an overpayment because OWCP must pay the full premium
to OPM upon discovery of the error.8
At separation from the employing establishment, FEGLI insurance will either terminate
or be continued under compensationer status.9 If the compensationer chooses to continue basic
life insurance and optional life insurance coverage, the schedule of deductions made while the
compensationer was an employee will be used to withhold premiums from his or her
compensation payments.10 Thus, while receiving disability compensation in lieu of retirement
benefits, the former employee is responsible for all insurance premiums.11
ANALYSIS -- ISSUE 1
The employing establishment separated appellant effective December 18, 2010. The
record reflects that OPM notified OWCP of appellant’s election of basic life insurance and
postretirement basic life insurance FEGLI options for the period on and after
September 24, 2011. However, OWCP did not implement this election until January 12, 2014.
It calculated the amount of the resulting overpayment to be $5,187.62.
As OWCP did not receive timely notice of his election, it under withheld insurance
premiums in the amount of $5,187.62. The Board finds that OWCP properly determined the fact
and the amount of overpayment. The Board also notes that appellant does not contest the fact or
amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact or law, adjustment or recovery shall be made by decreasing later
4

Id. at § 8129(a).

5

Id. at § 8702(a).

6

Id. at § 8702(b).

7

Id. at § 8707.

8

Id. at § 8707(d). See Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

9

5 C.F.R. § 870.501.

10

Id. at § 872.410, subpart D.

11

V.B., Docket No. 15-157 (issued March 16, 2015); Scherri L. Stanley, 53 ECAB 433 (2002).

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payment to which the individual is entitled.12 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b).
Adjustment or recovery by the United States may not be made when incorrect payment
has been made to an individual who is without fault and when adjustment or recovery would
defeat the purpose of FECA or would be against equity and good conscience.
Thus, a finding that appellant was without fault is insufficient, in and of itself, for OWCP
to waive the overpayment. OWCP must exercise its discretion to determine whether recovery of
the overpayment would defeat the purpose of FECA or would be against equity and good
conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations13 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary such that: (a) the beneficiary from whom OWCP seeks recovery
needs substantially all of his or her current income, including compensation benefits, to meet
current ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed the
resource base of $4,800.00 for an individual.14 An individual is deemed to need substantially all
of his or her current income to meet current ordinary and necessary living expenses if monthly
income does not exceed monthly expenses by more than $50.00. In other words, the amount of
monthly funds available for debt repayment is the difference between current income and
adjusted living expenses (i.e., ordinary and necessary living expenses) plus $50.00.15
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.16 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.17 The individual who received
the overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary.18

12

Id. at § 8129(a).

13

20 C.F.R. § 10.436.

14

Id. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).
15

Id.

16

Id. at § 10.437(b).

17

Federal (FECA) Procedure Manual, see supra note 10, Chapter 6.200.6.b(3) (October 2004). C.P., Docket No.
14-975 (issued September 11, 2014).
18

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

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ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and considered whether he was entitled to waiver of recovery. Waiver is only possible if
recovery would defeat the purpose of FECA or would be against equity and good conscience. In
order to establish that repayment of the overpayment would defeat the purpose of FECA,
appellant must show that he requires substantially all of his income to meet current ordinary and
necessary living expenses and that his assets do not exceed the established limit as determined by
OWCP’s procedures.19
OWCP determined that appellant’s income exceeded his expenses by $322.72 a month.
This exceeded the $50.00 allowance specified in OWCP’s implementing regulations,
demonstrating that appellant did not need substantially all of his income for ordinary and
necessary living expenses.20 As his income exceeded his allowable expenses by more than the
amount specified, he has not established that recovery would defeat the purpose of FECA.
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no argument that he relied
upon the incorrect payments to his detriment or that he would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
On appeal, appellant requests waiver of recovery due to financial hardship, emphasizing
that he was not at fault. As stated, the financial information appellant submitted demonstrates
that the overpayment was not eligible for waiver. Appellant also contends that OWCP created
the overpayment by failing to respond promptly to his repeated advisements of an under
deduction of life insurance premiums. However, the fact that a claimant is without fault in
creating an overpayment does not preclude OWCP from recovering all or part of the
overpayment.21
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide:
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
19

Id. at § 10.436.

20

Id.

21

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

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financial circumstances of the individual and any other relevant factors, so as to
minimize any hardship.22
ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation benefits by $100.00 per month taking
into account the amount of the compensation and the financial circumstances of appellant to
minimize hardship, as well as the factors set forth in section 10.441. It found that this method of
recovery would minimize any resulting hardship on him. The Board finds that OWCP properly
required repayment of the overpayment by deducting $100.00 from appellant’s ongoing
compensation payments every four weeks.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,187.61 for the period December 18, 2010 to
January 11, 2014. The Board also finds that OWCP properly denied waiver of the overpayment.
The Board further finds that OWCP properly required recovery of the overpayment by deduction
$100.00 from appellant’s continuing compensation payments every 28 days,

22

20 C.F.R. § 10.441.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2015 is affirmed.
Issued: October 27, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CAYEY POST
OFFICE, Cayey, PR, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq.
Office of the Solicitor, for the Director

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Docket No. 21-1337
Issued: March 18, 2022

Case Submitted on the Record

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

On September 6, 2021 counsel filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP). The Office of the Clerk of the Appellate Boards assigned
Docket No. 21-1337 to this appeal. 1
The Board has duly considered the matter and recognizes that the current appeal was not
filed by appellant or his authorized representative. Section 501.3(a) of the Board’s Rules of
Procedure provides that a “person adversely affected by a final decision of the Director [of OWCP]
or his or her authorized Representative, may file an appeal of such decision by the Board .”2 The
Board concludes that neither a “person adversely affected” by a final OWCP decision, nor an
“authorized Representative,” has filed an appeal to the Board. As such, there is no valid appeal
before the Board and Docket No. 21-1337 must be dismissed.3 Accordingly,

1

By letter dated October 8, 2021 counsel advised the Board that he did not represent appellant and had inadvertently
filed the current appeal.
2

20 C.F.R. § 501.3(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1337 is dismissed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.Z., Appellant
and
U.S. POSTAL SERVICE, SOUTH SHORE
ANNEX, Staten Island, NY, Employer
__________________________________________

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

Docket No. 13-873
Issued: August 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2013 appellant, through her representative, filed a timely appeal from the
December 18, 2012 decision of the Office of Workers’ Compensation Programs (OWCP), which
found her at fault in the creation of an overpayment of compensation. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review this decision.2
ISSUE
The issue is whether appellant was at fault in creating a $33,161.07 overpayment of
compensation.

1
2

5 U.S.C. § 8101 et seq.

Appellant did not appeal OWCP’s January 16, 2013 decision to terminate continuing medical and wage-loss
benefits. See 20 C.F.R. § 501.3. Thus, the Board will not review it on this appeal.

FACTUAL HISTORY
On August 1, 2009 appellant, a 26-year-old sales and service associate, filed a claim
alleging that picking bags up from the work floor and hanging them caused right shoulder pain.
She had a previous traumatic injury in the performance of duty a year earlier while marking and
moving boxes, which OWCP accepted for cervical radiculitis and internal derangement of the
right shoulder region.3 Following that injury, appellant resumed limited duty on July 25, 2009
but noticed the same symptoms she had felt before.
OWCP accepted appellant’s claim for aggravation of brachial neuritis or radiculitis and
aggravation of internal derangement of the right shoulder. Appellant stopped work on August 1,
2009 and received compensation for temporary total disability on the periodic rolls.
In a decision dated October 13, 2011, OWCP found that appellant forfeited her right to
compensation from September 16, 2009 to September 3, 2010. It determined that she failed to
report on a Form EN-1032 the $500.00 she earned for singing at a birthday party on
May 6, 2010. Appellant knowingly failed to report or underreported her earnings for the
15 months covered by the form and therefore forfeited her right to compensation for the entire
period. “As you knowingly misrepresented your employment and earnings on the Form
[EN]-1032, this compensation must be found to be forfeit.”
Appellant requested an oral hearing before an OWCP hearing representative. On
February 27, 2012 the hearing representative found that she had abandoned her request.
Although appellant received written notification of the scheduled hearing, she failed to appear or
explain, either before or after the hearing, her failure to appear. She exercised no other appeal
right.
On May 11, 2012 OWCP made a preliminary determination that appellant received a
$33,161.07 overpayment from September 16, 2009 to September 3, 2010 as a result of her
forfeiture of compensation. It found that she was at fault in creating this overpayment because
the record supported that she knowingly failed to report or underreported earnings on the Form
EN-1032 she completed on September 3, 2010, as explained in the October 30, 2011 forfeiture
decision. OWCP attached a fiscal memorandum explaining how it calculated the amount of the
overpayment.
At a telephonic hearing held on October 3, 2012, appellant testified that she did not
deliberately attempt to avoid reporting the $500.00 she received from the party; she honestly
forgot that it was something that happened and did not know it was something she had to report.
She did not see it as income because she did not consider it as a job. In fact, appellant did report
income from a small office job she had a month earlier, so it was not that she was trying not to
report earnings; she just did not understand that it was something she was supposed to report.
She saw the small office job as an actual job where she received a pay stub. With the party,
appellant did not associate being paid for a one-time event as the same thing. She also testified
about her finances.
3

OWCP File No. xxxxxx524.

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In a decision dated December 18, 2012, the hearing representative finalized OWCP’s
preliminary determination that appellant received a $33,161.07 overpayment from September 16,
2009 to September 3, 2010 as a result of the forfeiture of compensation. The hearing
representative noted that OWCP issued a forfeiture decision on October 13, 2011 finding that she
knowingly omitted income information on a Form EN-1032. “Therefore, the evidence of file
demonstrates that the claimant did knowingly omit earnings information from the Form
[EN]-1032, thereby forfeiting entitlement to compensation for the period September 16, 2009
through September 3, 2010.” The hearing representative found that appellant was aware that she
was obligated to report income obtained from any source while she was receiving compensation.
Appellant completed the Form EN-1032 and provided information regarding her small office job
in April 2010; therefore “it stands to reason that she should have reported the May 2010 [singing
engagement] income, even if she was n[o]t sure it should be included.” The hearing
representative found appellant at fault in creating the overpayment, thereby precluding
consideration of waiver of recovery. As appellant’s monthly expenses far exceeded her current
monthly income and savings, the hearing representative determined that a repayment schedule
could not be established. The hearing representative found the $33,161.07 overpayment due and
payable in full.
On appeal, appellant contested the finding that she knowingly failed to report income.
She questioned the overpayment from September 16, 2009 to September 3, 2010 because she
failed to report income on only one day, May 6, 2010, and did not receive any income after that
date. Appellant argued that the standard for forfeiture is not the standard for fault. She also
argued that it would be against equity and good conscience to hold her responsible for the
alleged amount, as her expenses exceed her income.
LEGAL PRECEDENT
An employee who knowingly omits or understates any part of his or her earnings forfeits
his or her right to compensation with respect to any period for which the affidavit or report was
required. Compensation forfeited under this section, if already paid, shall be recovered by a
deduction from the compensation payable to the employee or otherwise recovered under section
8129, unless recovery is waived under that section.4
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from OWCP are proper. The recipient must show good faith and exercise a high degree
of care in reporting events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault with respect to creating an
overpayment: (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 to be incorrect (this provision applies only to the overpaid individual).5
4

5 U.S.C. § 8106(b).

5

20 C.F.R. § 10.433(a).

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Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that she is being overpaid.6
ANALYSIS
The fact of overpayment is well established. OWCP found in its October 13, 2011
decision that appellant forfeited her right to compensation from September 16, 2009 to
September 3, 2010. The record establishes that she failed to report all of her earnings during this
period, in particular, the $500.00 she earned on May 6, 2010 for a singing engagement at a
birthday party.
As FECA requires that appellant forfeit her right to compensation for the entire 15-month
period for which the Form EN-1032 was required, the amount of the overpayment is her gross
compensation from September 16, 2009 to September 3, 2010. While the earnings she failed to
report were received on only one day and notwithstanding the fact that she had no further earnings
after that date. Under FECA the statute imposes a penalty and importance is placed upon reporting
all of a claimant’s earnings.
OWCP’s May 11, 2012 preliminary determination provided a fiscal memorandum
explaining how it calculated the amount of the overpayment. Using appellant’s compensation
payment history, OWCP added gross compensation from September 16, 2009 to August 28,
2010 and then calculated how much compensation she was entitled to over the next six days.
This amounted to $33,161.07 in compensation. The Board has reviewed the calculation and
finds it to be correct. The Board will therefore affirm OWCP’s December 18, 2012 decision on
the issues of fact and amount of overpayment.
In its May 11, 2012 preliminary determination, OWCP found appellant at fault in
creating this overpayment because she knowingly failed to report or underreported earnings on
the Form EN-1032 she completed on September 3, 2010, as explained in the October 30, 2011
forfeiture decision. This is the legal standard for forfeiture under section 8106(b) of FECA. It is
not the standard for fault under section 10.433(a) of the regulations. As noted above, the legal
standard for determining whether appellant was at fault in creating an overpayment is whether
she: (1) made an incorrect statement as to a material fact which she knew or should have known
to be incorrect; (2) failed to provide information which she knew or should have known to be
material; or (3) accepted a payment which she knew or should have known to be incorrect.
OWCP did not notify appellant on which of these grounds it found her at fault. It simply
adopted the finding made in its October 30, 2011 forfeiture decision. The fact that appellant
knowingly omitted earnings does not necessarily mean she was at fault in creating an
overpayment of compensation.7 Because OWCP applied the wrong legal standard to find her at
6

Id. at § 10.433(b).

7

K.Z., Docket No. 12-784 (issued August 27, 2012) (finding the claimant not at fault for the overpayment arising
from her forfeiture of compensation).

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fault in creating the overpayment that arose from her forfeiture of compensation, the Board will
set aside OWCP’s December 18, 2012 decision on the issues of fault and recovery.
CONCLUSION
The Board finds that appellant received a $33,161.07 overpayment of compensation from
September 16, 2009 to September 3, 2010. The Board further finds that this case is not in posture
for decision on the issue of fault because OWCP applied the wrong legal standard.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed on the issues of fact and amount of overpayment
but is set aside on the issues of fault and recovery.
Issued: August 23, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Allen Park, MI, Employer
__________________________________________

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

Docket No. 08-2387
Issued: May 19, 2009

Case Submitted on the Record

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

JURISDICTION
On September 2, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated June 10, 2008 denying modification of a decision
denying her claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an occupational injury in the performance of duty.
FACTUAL HISTORY
On June 6, 2007 appellant, then a 51-year-old clerk, filed an occupational disease claim
alleging that she developed asthma at work. She noted that she first became aware of her
condition on January 3, 2003. Appellant further noted that she first realized that her condition
was caused or aggravated by her employment on August 22, 2006. She stopped work on
March 22, 2007 and did not return.

In an undated statement, appellant asserted that she was diagnosed with asthma since
working at the bulk mail center. She indicated that her condition had worsened since
construction began at the facility. Appellant noted that, upon entering the building, she would
have watery eyes, difficulty breathing and coughing. She also noted that she was unable to
return to work without developing increased symptoms after the building had a fire.
In a May 30, 2007 report, Dr. T.N. Kakish, a Board-certified internist, noted that
appellant had been diagnosed with asthma since January 2003 and that her symptoms had
become significantly worse since summer 2006, at which time she became less responsive to her
medication. He indicated that her symptoms included shortness of breath, wheezing, coughing
and a decreased response to an inhaler. Dr. Kakish advised that appellant related her increasing
symptoms to construction at work. He advised that she should be placed in a construction-free
work environment to keep her symptoms under control.
On June 26, 2007 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit additional evidence. In
particular, it requested a factual statement outlining the harmful work factors alleged to have
caused or aggravated appellant’s condition. The Office also requested a doctor’s report with an
opinion on how exposure to the alleged employment factors contributed to the diagnosed
condition. In a July 5, 2007 statement, appellant indicated that she had been exposed to fumes,
dust and dirt. She further indicated that she had been able to keep her condition under control
without increased medication since being away from work.
By decision dated August 20, 2007, the Office denied appellant’s claim for compensation
finding that she did not establish that the claimed medical condition was related to the
established work events.
Appellant requested reconsideration on January 31 and April 2, 2008. She also submitted
an October 22, 2007 report from Dr. Roderick McPhee, a Board-certified allergist and
immunologist, who noted that appellant’s symptoms consisted of shortness of breath, coughing
and a “throat closing” sensation. Dr. McPhee further noted that her symptoms had worsened
while working at the bulk mail center, but had improved since leaving work in March 2007. He
also noted that appellant’s condition had improved since she started taking medication. The
results of his spirometry were “entirely normal.” Dr. McPhee advised that skin testing showed a
sensitivity to dust mites. He suspected that acid reflux played a role in appellant’s condition.
Also on October 22, 2007, Dr. Lawrence Collins Sweet, a Board-certified allergist and
immunologist, noted appellant’s complaint of watery eyes, coughing and a “throat closing”
feeling. He further noted that she had stopped work in March 2007 and had felt better since then.
Dr. Sweet also noted the possibility that appellant’s asthma could be caused by allergies and
noted results of allergy testing. In a November 14, 2007 letter, the employing establishment
notified appellant that her fitness-for-duty examination performed by Dr. Nisha Parulekar, an
internist, determined that she was not fit for duty. Dr. Parulekar’s report was not submitted to
the record.
By decision dated June 10, 2008, the Office denied modification of its August 20, 2007
decision. It found that the evidence of record was devoid of a well-reasoned medical opinion
explaining how the claimed asthma condition and subsequent disability for work since

2

March 2007 was causally related to appellant’s factors of employment, namely exposure to
construction and fire debris.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.3
ANALYSIS
The record reflects that appellant has been diagnosed with asthma. The record also
reflects that construction was ongoing at the employing establishment and that there had also
been a previous fire at the employing establishment. However, appellant has not submitted
sufficient medical evidence to establish that her diagnosed respiratory condition is causally
related to specific employment factors.
Dr. Kakish noted that appellant had been diagnosed with asthma since January 2003. He
indicated that her symptoms consisted of shortness of breath, wheezing, coughing and a
decreased response to her inhaler. Dr. Kakish also indicated that appellant’s symptoms had
1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

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

3

significantly worsened since summer 2006 and that appellant attributed her increasing symptoms
to construction at work. The mere fact that a condition manifests itself during a period of
employment, however, does not raise an inference that there is a causal relationship between the
two. Neither the fact that the condition became apparent during a period of employment, nor the
belief of appellant that the condition was caused by or aggravated by employment conditions is
sufficient to establish causal relation.4 Furthermore, Dr. Kakish did not address appellant’s
employment activities or discuss how such activities caused or contributed to her asthma.5
While he noted that she attributed her increasing symptoms to her employment, Dr. Kakish did
not provide his own specific opinion supporting that particular factors of appellant’s employment
caused or aggravated her diagnosed asthma.
In an October 22, 2007 report, Dr. McPhee indicated that symptoms of appellant’s
asthma included shortness of breath, coughing and a “throat closing” sensation. He also noted
that her symptoms worsened while working at the bulk mail center. To the extent that
Dr. McPhee’s opinion supports causal relationship, it is not sufficient to meet appellant’s burden
of proof. The Board has held that an opinion that a condition is causally related to an
employment injury because the employee was asymptomatic before the injury is insufficient,
with supporting rationale, to establish causal relation.6 As Dr. McPhee did not explain how
exposure to construction and fire debris caused or aggravated the symptoms of her asthma, his
opinion lacks medical rationale. Dr. McPhee also did not explain how appellant’s sensitivity to
dust mites and acid reflux could have been caused or aggravated by factors of appellant’s
employment.
Dr. Sweet’s report noted appellant’s complaint of watery eyes, coughing and “throat
closing” sensation. He indicated the possibility that allergies caused appellant’s asthma.
However, Dr. Sweet referenced only a possibility that allergies caused appellant’s condition but
he did not identify a particular type of allergy nor did he relate any such allergy to any particular
employment factors or exposures.7 Thus, this report is insufficient to establish appellant’s claim.
Additionally, the employing establishment’s letter noting Dr. Parulekar’s determination
that appellant is unfit for duty does not constitute medical evidence as the actual report from
Dr. Parulekar is not of record. The question of whether there is a causal relationship is medical
in nature, and generally, can be established only by medical evidence.8

4

Alberta S. Williamson, 47 ECAB 569 (1996).

5

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
6

Thomas D. Petrylak, 39 ECAB 276 (1987).

7

See Kathy Marshall, 45 ECAB 827 (1994) (the opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant).
8

James Mack, 43 ECAB 321 (1991).

4

Consequently, the medical evidence is not sufficient to establish that appellant’s asthma
is causally related to exposure to construction and fire debris.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 10, 2008 is affirmed.
Issued: May 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
DEPARTMENT OF THE NAVY, ARMY
MATERIEL COMMAND, Picatinny, NJ,
Employer
__________________________________________

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

Docket No. 14-1324
Issued: December 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 19, 2014 appellant, through counsel, filed a timely appeal from the January 30,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective June 14, 2013 as she was no longer totally disabled from work
due to her accepted work injuries after that date.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 26, 2008 appellant, then a 47-year-old technical writer-editor, filed a traumatic
injury claim alleging that on June 25, 2008 she sustained injury when she stepped out of her car
and her right foot went into a ditch causing her to fall. The claim was accepted for an abrasion
or friction burn of the right foot and toes without infection, abrasion or friction burns of both
hands without infection, temporary aggravation of preexisting lumbosacral spondylosis without
myelopathy, cervical spondylosis, cervical radiculopathy, and cervical facet arthropathy.
On December 24, 2008 appellant filed a second traumatic injury claim alleging an injury
on December 22, 2008 when she slipped on a patch of ice and fell. The claim was accepted for
aggravation of cervical spondylosis with myelopathy, brachial neuritis or radiculitis and
arthropathy associated with other conditions.
On August 7, 2009 Dr. Bruce Rosenblum, an attending Board-certified orthopedic
surgeon, performed an authorized micro-anterior cervical discectomy at C5-6 and C6-7. On
September 3, 2009 he performed an authorized exploration of anterior cervical incision with
debridement of the skin, subcutaneous tissue, muscle and fascia due to developing a staph
infection.
On August 25, 2010 appellant filed another traumatic injury claim alleging that on
August 17, 2010 she sustained an injury when a coworker called her name and she turned her
head. The claim was accepted for aggravation of cervical radiculopathy. Appellant received
compensation on the daily and periodic rolls for periods of disability.
On March 12, 2013 OWCP received a February 25, 2013 report from Dr. Rosenblum
which stated that recent electromyogram (EMG) testing showed that appellant had C5-6
radicular dysfunction. Appellant reported that neck pain to the left upper extremity was her
predominant problem.
In an effort to determine appellant’s current work capacity, on March 14, 2013 OWCP
referred appellant and the case record to Dr. Kenneth P. Heist, an osteopath and Board-certified
orthopedic surgeon, for a second opinion examination and opinion on whether she continued to
have residuals of her work-related injuries.
In his April 5, 2013 report, Dr. Heist discussed appellant’s multiple accepted work
injuries and listed the medical records that he reviewed. He noted that appellant had been
previously been released to full duty on July 13, 2010, but also noted a history of a
nonemployment-related motor vehicle accident in October 2010 which resulted in increased
cervical pain. Dr. Heist found that an April 12, 2010 magnetic resonance imaging (MRI) scan
showed an anterior spinal fusion at C5 through C7. He reported findings on physical
examination. Dr. Heist found a normal lordotic curve in the cervical spine and cervical range of
motion included lateral flexion of 0 to 30 degrees, flexion of 0 to 40 degrees, extension of 0 to 30
degrees and rotation of 0 to 60 degrees bilaterally. Spurling test was negative bilaterally. There
was no evidence of cervical radiculopathy, gross muscular weakness, atrophy or compromised
circulation in the cervical spine. Grip strength was 5/5 bilaterally, appellant could extend both
hands and make fists and oppose the fingers of both hands. Tinel’s signs of the median and ulnar

2

nerves were negative bilaterally, and Phalen’s and Finkelstein’s tests were negative bilaterally.
Dr. Heist found no evidence of peripheral neuropathy in her upper extremities.
Dr. Heist stated that appellant was unable to ambulate on her toes and heels or perform a
full squat. Standing examination revealed forward back flexion to 70 degrees, hyperextension to
10 degrees and side bending to 20 degrees bilaterally. Seated individual leg raising was
performed to 70 degrees bilaterally. There was no evidence of lumbar radiculopathy, gross
muscular weakness, atrophy, or compromised circulation in appellant’s lower extremities.
Dr. Heist diagnosed aggravation of cervical spondylosis (preexisting), cervical radiculopathy
(resolved), aggravation of preexisting cervical facet arthropathy, brachial neuritis/radiculitis
(healed), abrasion, friction burn, right foot and toes, bilateral hands (healed) and preexisting
lumbosacral spondylosis without myelopathy. He noted that there was restriction of motion of
the cervical and lumbar spines and stated, “I feel this is a combination of the cervical fusion
(performed for the accepted conditions) and age related degenerative spinal disease.” Dr. Heist
indicated that appellant did have current disability related to the restriction of motion of the
cervical and lumbar spine. He found these limitations due to the cervical surgery and her age.
Dr. Heist stated:
“Degenerative spinal disease is a concurrent nonwork-related disability.
[Appellant] suffered an aggravation of preexisting degenerative changes that
ultimately required a cervical fusion and is therefore permanent. The job
description of a technical writer/editor describes it as a sedentary job that does not
involve lifting. I feel [appellant] is capable of performing her sedentary job eight
hours a day with breaks. She has reached her maximum medical improvement
and no additional treatment or testing is indicated.”2
In a May 13, 2013 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation as she was no longer totally disabled due to her accepted conditions. It
found the report of Dr. Heist to be the weight of the medical evidence. Appellant was provided
30 days to submit evidence and argument regarding the proposed termination.
In a May 28, 2013 report, Dr. Douglas Manganelli, an attending Board-certified
anesthesiologist, diagnosed lumbosacral or thoracic neuritis or radiculitis, unspecified, lumbar
disc displacement/herniation, cervical disc displacement/herniation and cervical radiculitis/root
compression. He explained that appellant had lumbar disc pathology along with lumbar facet
syndrome and recommended physical therapy and epidural steroid injections.
In a June 14, 2013 decision, OWCP terminated appellant’s wage-loss compensation
effective that date. It noted that the weight of the medical evidence rested with the wellrationalized April 5, 2013 report of Dr. Heist. OWCP stated that appellant had not submitted
medical reports containing medical rationale establishing disability due to her accepted work
injuries.

2

In an attached work restrictions form, Dr. Heist indicated that appellant could work eight hours a day with
periodic breaks.

3

In a September 2, 2013 report, Dr. Lizett Marza, an attending Board-certified internist,
stated that appellant’s symptoms from her cervical radiculopathy had not resolved as she was
having numbness in her left arm and constant numbness in three digits on her left hand. She
pointed out that Dr. Rosenblum also found that appellant’s cervical radicular symptoms had not
resolved. Dr. Marza found that appellant could function, under high analgesia with narcotics
every day, but found that she was unable to perform her job because she was taking a
considerably high dose of pain medicine and her cervical spasm made driving dangerous. She
disagreed with Dr. Heist’s opinion and found that appellant was unable to return to her full-time
job as a technical writer-editor because appellant still suffered significant pain and could not
perform her regular job.
A telephonic hearing was held on November 15, 2013.
In a January 30, 2014 decision, an OWCP hearing representative affirmed the June 14,
2013 termination decision, noting the weight of the medical evidence continued to rest with the
April 5, 2013 report of Dr. Heist. He noted that the reports of appellant’s attending physicians
were of limited probative value regarding her work-related residuals.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.3 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.5
ANALYSIS
OWCP accepted that appellant sustained work accidents on June 25 and December 22,
2008 and August 17, 2010 which collectively caused an abrasion or friction burn of the right foot
and toes without infection, abrasion or friction burns of both hands without infection, temporary
aggravation of preexisting lumbosacral spondylosis without myelopathy, cervical spondylosis,
cervical radiculopathy, cervical facet arthropathy, aggravation of cervical spondylosis with
myelopathy, brachial neuritis or radiculitis, arthropathies associated with other conditions, and
aggravation of cervical radiculopathy. A micro-anterior cervical discectomy at C5-6 and C6-7
and a later exploration of the anterior cervical incision with debridement of the skin,
subcutaneous tissue, muscle and fascia due to the development of a staph infection were
authorized by OWCP in 2009.

3

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

4

Charles E. Minniss, 40 ECAB 708, 716 (1989).

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

In a June 14, 2013 decision, OWCP terminated appellant’s wage-loss compensation
effective that date. It based its termination on the April 5, 2013 report of Dr. Heist, OWCP’s
referral physician. OWCP affirmed its termination determination on January 30, 2014.
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective June 14, 2013. OWCP properly found that the weight of the medical
evidence was represented by the April 5, 2013 report of Dr. Heist.
In his April 5, 2013 report, Dr. Heist provided a well-rationalized opinion that appellant
ceased to be totally disabled due to her accepted work injuries. While he noted that not all of her
work-related conditions had resolved, he found that she could return to her regular, sedentary
position of technical writer-editor. Dr. Heist noted reviewing the description of the position and
found the duties well within the restrictions caused by her accepted conditions. Despite residuals
of symptoms from the accepted conditions, he found that appellant could perform the regular
work of her position.
The Board finds Dr. Heist’s opinion to be sufficiently well rationalized to justify the
termination of appellant’s wage-loss compensation effective June 14, 2013. The record contains
medical reports from attending physicians which continued to find appellant totally disabled but
these reports failed to specify what exact duties of her position she could not perform or clearly
explain with medical reasoning why she could not return to work.
In his September 2, 2013 report, Dr. Marza stated that appellant’s symptoms from her
cervical radiculopathy had not resolved because she was having numbness in her left arm and
constant numbness in three digits on her left hand. She pointed out that Dr. Rosenblum also had
found that appellant’s cervical radicular symptoms had not resolved. Dr. Marza discussed
appellant’s cervical surgery and indicated that she disagreed with Dr. Heist’s opinion because
appellant still suffered significant pain and could not perform her regular job. These opinions,
however, fail to sufficiently address how appellant was unable to return to her technical writereditor position due to the accepted conditions. Dr. Marza’s opinion provides no medical
reasoning addressing the causal relationship of appellant’s accepted employment conditions to
her disability and no discussion as to what specific duties of her position she could not perform
due to the accepted conditions. The Board has held that a medical opinion not fortified with
medical rationale is of diminished probative value.6
In his May 28, 2013 report, Dr. Manganelli diagnosed lumbosacral or thoracic neuritis or
radiculitis, unspecified, lumbar disc displacement/herniation, cervical disc displacement/
herniation and cervical radiculitis/root compression but failed to address disability. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.7

6

F.T., Docket No. 09-919 (issued December 7, 2009); Elizabeth H. Kramm, 57 ECAB 117, 124 (2005);
Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Willie M. Miller, 53 ECAB 697 (2002).

5

The Board finds that OWCP properly found the rationalized medical report of Dr. Heist
to be the weight of the evidence in terminating appellant’s wage-loss benefits. The Board notes
that appellant continues to be eligible for medical benefits for the accepted conditions.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective June 14, 2013. The case remains open for medical benefits.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.8
Issued: December 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bad Axe, MI, Employer
__________________________________________

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

Docket No. 15-555
Issued: May 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 12, 2015 appellant filed a timely appeal from a December 11, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established a recurrence of disability on October 29,
2013 causally related to his January 29, 2013 employment injury.
On appeal, appellant contends that the medical evidence establishes that he was
diagnosed with a long-term condition which was accepted by OWCP and that he was
subsequently treated for this same condition while performing the same tasks for the same
employing establishment at the time of his alleged recurrence of disability.

1
2

5 U.S.C. § 8101 et seq.

Appellant has submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first
time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that on January 29, 2013 appellant, then a 46-year-old mailman,
sustained temporary aggravation of right plantar fibromatosis when at work he jumped from a
snowbank to the road and landed on his right foot. He stopped work on February 1, 2013 and
returned to full-duty work on March 18, 2013. On August 8, 2013 OWCP accepted that
appellant sustained a recurrence of disability from May 7 to 28, 2013 due to his January 29, 2013
employment injury.
On October 30, 2013 appellant filed a claim alleging a recurrence of disability on
October 29, 2013. He indicated that he never healed from his accepted employment injury.
Appellant related that he had aches and pain in his foot, ankle, calf, and knee. While working, he
experienced pain with each step. Appellant also experienced tingling, prickling, numbness, and
throbbing. In recent weeks, his pain had become unbearable which caused him to limp and an
inability to work. On the claim form, the employing establishment stated that it did not make
any accommodations or adjustments in appellant’s regular duties due to an injury-related
limitation.
By letter dated November 22, 2013, OWCP informed appellant that the evidence was
insufficient to establish his recurrence claim. Appellant was advised as to the definition of a
recurrence and was allotted 30 days to submit the evidence required to establish his claim.
In an undated statement, appellant related that, since his return to work following his
January 29, 2013 employment injury, he had not fully recovered from this injury. His symptoms
of pain or discomfort worsened each day, culminating in debilitating pain on October 29, 2013.
Appellant noted his physician’s request for authorization for in-shoe orthotics and his telephone
conversations with OWCP regarding this matter. He described his normal work activities as a
letter carrier which required him to be on his feet about 99 percent of the day and 60 to 90
minutes a day carrying the weight of the mail load, and sorting and bundling mail, loading the
bundles, trays, tubs, and parcels into a long-life vehicle. Appellant delivered mail by foot up to
13 miles a day, 6½ to 7 hours a day.
In an October 29, 2013 duty status report (Form CA-17), Dr. Thomas K. Ernst, an
attending Board-certified podiatrist, stated that appellant’s symptoms were consistent with his
employment-related plantar fasciitis. He advised that appellant was not able to perform his
regular work.
In a January 31, 2014 decision, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish a recurrence of disability due to a material change
or worsening of his January 29, 2013 work injury on October 29, 2013.
In an appeal request form postmarked May 14, 2014, appellant requested a review of the
written record by an OWCP hearing representative.
In a November 12, 2013 prescription, Dr. Ernst released appellant to return to work
without restrictions on November 13, 2013.
In a May 6, 2014 letter, Dr. Ernst noted his February 2013 diagnosis of plantar fasciitis
and appellant’s medical treatment. He also noted that appellant eventually became completely
asymptomatic and returned to his regular work duties. Dr. Ernst indicated that he evaluated
2

appellant again on October 29, 2013 regarding a flare-up of his condition. He listed appellant’s
medical treatment.
In a May 30, 2014 decision, OWCP denied appellant’s request for a review of the written
record. It found that his request was untimely because OWCP’s last merit decision was issued
on January 31, 2014 and his request for a review of the written record was postmarked on
May 14, 2014. Since appellant’s request was after 30 days, he was not, as a matter of right,
entitled to a review of the written record. OWCP considered his request for a review of the
written record, and exercising its discretion, determined that the issue in this case could equally
well be addressed by requesting reconsideration from the district office and submitting evidence
not previously considered establishing that he sustained a recurrence of his January 29, 2013
employment injury.
On September 22, 2014 appellant requested reconsideration of the January 31, 2014
decision. In an undated statement, he related, among other things, that he had been under the
care of his physician since the winter of 2013 due to his accepted employment injury. Appellant
further related that he returned to work without restrictions, but never fully healed from his
injury which prompted the need for further medical care in the fall of 2013.
In a November 17, 2013 letter, Dr. Ernst provided a history of the treatment he provided
to appellant commencing on February 5, 2013 following his January 29, 2013 employment
injury. He reported findings on physical examination, diagnosed plantar fasciitis of the right
foot, and listed work restrictions. Dr. Ernst opined that appellant aggravated his old condition by
the degree and amount of walking required by his job as there was no incident of injury or
trauma to the area. He placed him off work to rest the area and addressed his medical treatment.
In a December 11, 2014 decision, OWCP denied modification of the January 31, 2014
decision. It found that Dr. Ernst did not provide a firm and rationalized medical opinion to
establish that appellant’s claimed recurrence of disability on October 29, 2013 was due to a
spontaneous and material worsening of his accepted January 29, 2013 employment-related
condition.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.3
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.4

3

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) (June 2013).

3

An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.5 Where no such rationale is present, the medical evidence is of diminished probative
value.6
ANALYSIS
OWCP accepted that appellant sustained a traumatic temporary aggravation of right
plantar fibromatosis while in the performance of duty on January 29, 2013. Appellant stopped
work on February 1, 2013 and returned to regular duty on March 18, 2013.
Appellant filed a recurrence of disability claim on October 30, 2013, alleging that on
October 29, 2013 he became disabled due to his accepted January 29, 2013 work injury. The
Board finds that he has failed to submit sufficient reasoned medical evidence to establish that his
disability in October 2013 was causally related to his January 2013 employment injury.
Appellant submitted medical reports from his attending physician, Dr. Ernst. In an
October 29, 2013 report, Dr. Ernst found that appellant had symptoms consistent with his
accepted employment-related plantar fasciitis. He also found that appellant was unable to
perform his regular work duties. Dr. Ernst’s May 6, 2014 report noted appellant’s treatment for
a flare-up of his accepted right foot condition. He stated that appellant had eventually become
completely asymptomatic and that appellant had returned to his regular work duties. Although
Dr. Ernst supported that appellant had continuing symptoms and resultant disability, his reports
did not specifically explain how any continuing disability or condition was causally related to the
accepted January 29, 2013 employment injury. The Board has found that a medical opinion not
based and not fortified by medical rationale is of diminished probative value.7
In a November 17, 2013 report, Dr. Ernst opined that appellant was unable to work due to
an aggravation of his employment-related plantar fasciitis. He noted that the aggravation was
caused by the degree and amount of walking required by his job. Dr. Ernst does not relate the
worsening of appellant’s condition and resulting disability on the claimed date to a spontaneous
change in the accepted January 29, 2013 employment injury. Rather, he relates the worsening of
his condition and the cause of disability to a work-related aggravation of his accepted
employment-related injury, a new intervening cause. Thus, Dr. Ernst’s report does not support
appellant’s claim of total disability on October 29, 2013 due to the accepted employment injury.8
Dr. Ernst’s November 12, 2013 prescription returned appellant to work without
restrictions on November 13, 2013. He does not support that appellant had residuals of his
accepted work injury as he returned him to work.
5

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

6

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

7

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

8

B.C., Docket No. 14-690 (August 27, 2014).

4

Accordingly, the Board finds that appellant has not met his burden of proof to establish
recurrence of disability on October 29, 2013 caused or aggravated by the January 29, 2013
employment injury.
On appeal appellant contended that the medical evidence established that he was
diagnosed with a long-term condition which was accepted by OWCP and that he was
subsequently treated for this same condition while performing the same tasks for the same
employing establishment at the time of his alleged recurrence of disability. However, as
discussed above, the medical evidence does not establish that appellant was disabled from work
on October 29, 2013 due to his accepted work injury.
Appellant may submit new evidence to OWCP with a written request for reconsideration
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish a recurrence of disability on
October 29, 2013 causally related to his January 29, 2013 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, GATEWAY
PERFORMANCE CLUSTER, St. Louis, MO,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 13-180
Issued: June 14, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On October 31, 2012 appellant filed a timely application for review of an August 29,
2012 decision by the Office of Workers’ Compensation Programs (OWCP) denying her claim
for a recurrence of disability for the period May 25 through June 8, 2012.
Having reviewed the case record submitted by OWCP, the Board finds that this case is
not in posture for decision. On October 15, 2002 OWCP accepted that appellant sustained a
lumbar strain causally related to her federal employment as a mail handler. Appellant returned to
limited-duty work for the employing establishment. On July 2, 2012 she filed a recurrence of
disability claim alleging a recurrence of the aforementioned employment injury on May 25,
2012, and claimed compensation from that date through June 8, 2012. On August 29, 2012
OWCP denied appellant’s claim as it found that the evidence did not establish a recurrence of
disability because she did not provide medical evidence of disability for the period May 25
through June 8, 2012.
As the Board’s jurisdiction of a case is limited to reviewing that evidence that was before
OWCP at the time of its final decision,1 it is necessary that OWCP review all the evidence
1

20 C.F.R. § 501.2(c)(1).

submitted by a claimant and received by OWCP prior to the issuance of its final decision.2 In its
decision, OWCP mentioned that the medical evidence submitted by appellant on reconsideration
preceded the period of recurrence. In making this determination, it failed to address the reports
submitted by Dr. Xavier T. Tipler, a chiropractor. In support of her claim, her submitted a work
release form signed by Dr. Tipler, indicating that he treated appellant from May 25 through
June 8, 2012, and that she was expected to return to work on June 8, 2012 with restrictions of
avoiding all lifting, pushing and pulling over 30 pounds. In addition, in a duty status report dated
July 11, 2012, Dr. Tipler indicated that appellant injured her low back while performing her job
duties and listed her restrictions. The record also contains extensive treatment notes by
Dr. Tipler dated from May 29 through July 24, 2012. In these notes, Dr. Tipler discussed
appellant’s x-rays. He also noted that vertebral subluxations were found to be present in
appellant’s cervical thoracic, lumbar and pelvic reasons. Dr. Tipler further noted that
chiropractic adjustments were performed and that the mid-term goal of his treatment was to
correct the subluxation patterns that were found on x-ray, correct postural distortions, decrease
muscle spasms, increase muscle tone, lengthen muscle fibers, increase flexibility, reduce
adhesions, reduce scar tissue and to increase joint mobility and range of motion. A chiropractor
is considered a physician to the extent that his reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.3 OWCP never mentioned Dr. Tipler’s reports or discussed whether he was a physician
under FECA.4
The Board finds that this case is not in posture for decision as OWCP did not review all
the relevant evidence before issuing its decision. Following any necessary further development,
OWCP shall issue a de novo decision on appellant’s recurrence of disability claim.

2

See William A. Couch, 41 ECAB 548 (1990).

3

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

4

Id.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 29, 2012 is set aside and the case is remanded for further
development consistent with this order of the Board.
Issued: June 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
CARL VINSON MEDICAL CENTER,
)
Dublin, GA, Employer
)
___________________________________________ )
T.L., Appellant

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

Docket No. 07-64
Issued: March 23, 2007

Case Submitted on the Record

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

JURISDICTION
On October 10, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated October 19, 2005 which denied his claim for a
stress-related condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
developed an emotional condition while in the performance of duty.
FACTUAL HISTORY
On June 19, 2004 appellant, then a 52-year-old utilities system operator, filed an
occupational disease claim generally alleging that he developed stress as a result of being
understaffed and overworked. He indicated that his position as a utilities system operator
required him to work alone and handle multiple ringing telephone lines, alarms, radios and

weather bulletins, which caused stress and aggravated his heart, diabetes and joint conditions.
Appellant became aware of his condition on February 15, 2002 and realized that his condition
was aggravated by his employment on June 17, 2004. He did not stop work.
In a June 17, 2004 report, Dr. Catherine Bomberger, a Board-certified internist, noted
treating appellant since 2001 for severe coronary artery disease, noninsulin-dependent diabetes
and angina worse with exertion and stress. She opined that appellant’s current job was
contributing to his declining health and placed extreme stress on his heart and joints.
Dr. Bomberger recommended a disability retirement.
By letter dated August 5, 2004, the Office asked appellant to submit additional
information, including a detailed description of the employment factors or incidents that he
believed contributed to his claimed illness. It also requested a comprehensive medical report
from his treating physician which included a reasoned explanation as to how the specific work
factors or incidents identified by appellant had contributed to his claimed emotional condition.
Appellant submitted a narrative statement alleging that the utilities section at the
employing establishment had eliminated positions after employees retired or left the agency
which resulted in staffing shortages. He indicated that his position as a utilities system operator
was very physical and demanding and required him to perform multiple tasks, including lifting,
climbing, working overhead, working in extreme temperatures and in confined spaces which
caused him stress. Appellant often had to work alone, work overtime and on weekends with
rotating shifts because of the staff shortages and these circumstances caused him stress and
aggravated his heart disease, diabetes and joint pain. From January 2 to June 6, 2004, he worked
31 shifts alone, 3 shifts of overtime and one 16-hour shift and submitted time and attendance
sheets to support his claim. On August 13, 2004 while on approved sick leave, appellant was
notified by his supervisor that he would have to return to duty on August 16, 2004 and that his
previously approved sick leave would be denied and changed to leave without pay. In an
August 14, 2004 statement, Chris Mimbs, an operator, noted that from January 2 to June 6, 2004
appellant worked alone during his 8-hour shift on 31 separate occasions.
In reports dated December 12, 2001 to October 21, 2003, Dr. Bomberger diagnosed
coronary artery disease and chronic stable angina. He recommended that appellant return to
work in a light-duty position; however, his employer did not offer light duty. Appellant returned
to work full duty which caused additional stress. On April 13, 2004 Dr. Bomberger treated him
for chest tightness, arthritis, hypertension and left knee pain.
In reports dated February 28 to March 5, 2002, Dr. Joe H. Johnson, a specialist in
cardiology, treated appellant for significant coronary artery disease. In an operative report dated
February 28, 2002, he performed a cardiac catheterization which revealed significant threevessel coronary artery disease with osteo left main stenosis. On February 28, 2002 Dr. Johnson
performed a coronary artery bypass surgery times four, vein graft right and a vein graft marginal
and diagnosed coronary artery disease. On August 31, 2004 he noted that appellant progressed
well postoperatively and his wound healed without any problem. Dr. Johnson opined that
appellant’s employment was not a contributing factor to the development of his coronary
blockage. In reports dated June 24 to November 21, 2003, Dr. Maria H. Bartlett, a Boardcertified internist, treated appellant for angina. She diagnosed chronic stable angina

2

hyperlipidemia and borderline hypertension. Dr. Bartlett recommended that appellant return to
work in a sedentary job with limited activity. On November 21, 2003 she indicated that he had
returned to work full time and experienced episodes of chest discomfort while working and when
extremely busy. In a report dated May 21, 2004, Dr. Bartlett treated appellant for chest tightness
which occurred while under stress at work. She diagnosed coronary artery disease with stable
patterns of angina related to increased stress, hyperlipidemia, diabetes and episodes of memory
loss. Dr. Thomas C. Jones, a Board-certified internist, treated appellant on September 16, 2004
for diabetes mellitus and hyperlipidemia. He noted that appellant’s history was significant for
his hypertension, coronary artery disease and a bypass in 2002. Dr. Jones opined that appellant
was in declining health due to family history and outside stress which exacerbated his health
status.
By letter dated February 10, 2005, the Office asked the employing establishment to
address the incidents that appellant alleged contributed to his claimed illness.
The employing establishment submitted a statement from G. Dewayne Jeffers, utility
systems supervisor, who advised that the staffing level for the boiler plant was 24 hours a day, 7
days a week with a one-man shift from midnight to 8:00 a.m. and a two-man shift from 8:00 a.m.
to 4:00 p.m. and from 4:00 p.m. to midnight. Mr. Jeffers indicated that, when one person was on
leave the shift was not covered by overtime, rather, it was left for one person to work the shift
alone. He indicated that the employing establishment has been short staffed requiring one person
to work the shift alone more than usual. Mr. Jeffers concurred with appellant’s allegations in his
CA-2 form, but indicated that these circumstances were the exception and not the rule.
In a decision dated May, 20 2005, the Office denied appellant’s claim on the grounds that
he failed to submit medical evidence establishing that his medical conditions were causally
related to factors of his federal employment. The Office found that appellant established a
compensable employment factor under Cutler in that his position as a utilities system operator
often required him to work alone and assume many duties like answering multiple telephone
lines while alarms, weather bulletins and radios sounded at the same time.
On June 9, 2005 appellant requested a review of the written record. He submitted a
duplicate of the June 17, 2004 report from Dr. Bomberger.
In a decision dated October 19, 2005, the hearing representative affirmed the
May 20, 2005 decision.
LEGAL PRECEDENT
To establish his claim that he sustained a stress related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has a
medical condition; (2) factual evidence identifying employment factors or incidents alleged to
have caused or contributed to his condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to his
diagnosed condition.1 Workers’ compensation law does not apply to each and every injury or
1

Donna Faye Cardwell, 41 ECAB 730 (1990).

3

illness that is somehow related to an employee’s employment. In the case of Lillian Cutler,2 the
Board explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional or stress-related condition arising under the Federal Employees’
Compensation Act3 There are situations where an injury or an illness has some connection with
the employment but nevertheless does not come within the concept or coverage under the Act.4
When an employee experiences emotional stress in carrying out his employment duties and the
medical evidence establishes that the disability resulted from his emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of an in the course of
employment. This is true when the employee’s disability results from his emotional reaction to a
special assignment or other requirement imposed by the employing establishment or by the
nature of his work.5 There are situations where an injury or an illness has some connection with
the employment but nevertheless does not come within the concept or coverage under the Act.
In cases involving emotional or stress related conditions, the Board has held that, when
working conditions are alleged as factors in causing a condition or disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
ANALYSIS
The Office accepted that appellant established a compensable factor of employment
under Cutler pertaining to his regular work duties due to a staff shortage and his duties which
required that he work alone and answer multiple telephone lines while alarms, weather bulletins
and radios sounded at the same time. Mr. Jeffers, a utility systems supervisor, advised that the
staffing level for the boiler plant was 24 hours a day, 7 days a week with a one-person shift from
midnight to 8 a.m. and a two-person shift from 8:00 a.m. to 4:00 p.m. and from 4:00 p.m. to
midnight. Mr. Jeffers indicated that, when one person was on leave the shift was not covered by
overtime, rather, one employee was responsible for working the shift alone. He further indicated
that the employing establishment had been short-staffed requiring one person to work the shift
alone more than usual.
2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

5

Lillian Cutler, supra note 2.

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Id.

4

Appellant’s burden of proof is not discharged by the fact that he has established an
employment factor which may give rise to a compensable disability under the Act. To establish
his occupational disease claim, he must also submit rationalized medical evidence establishing
that his claimed conditions are causally related to the accepted compensable employment factor.8
While it is not disputed that appellant has a cardiac condition, diabetes and a joint condition, the
medical evidence does not explain how or why the accepted employment factor caused or
contributed to the cardiac condition, diabetes and a joint condition or an emotional condition.
Appellant submitted reports from Dr. Bomberger, dated December 12, 2001 to
October 21, 2003, who diagnosed coronary artery disease and chronic stable angina and
recommended that he return to work in a light-duty position. In a report dated April 13, 2004,
Dr. Bomberger treated appellant for chest tightness, arthritis, hypertension and left knee pain.
None of these reports, however, address how appellant’s diagnosed coronary artery disease or
angina was caused or contributed to by the accepted employment factor.
Dr. Johnson also treated appellant for coronary artery disease. On February 28, 2002 he
performed a cardiac catheterization and a coronary artery bypass surgery and diagnosed coronary
artery disease. However, Dr. Johnson did not attribute his condition to working in an
understaffed unit or to being overworked.9 Instead, in a report dated August 31, 2004, he opined
that appellant’s employment was not a contributing factor to the development of his coronary
blockage.
Dr. Bartlett diagnosed chronic stable angina, hyperlipidemia and borderline hypertension.
She recommended that appellant return to work in a sedentary job with limited activity. On
November 21, 2003 Dr. Bartlett indicated that appellant had returned to work full time and
experienced episodes of chest discomfort. On May 21, 2004 she treated him for chest tightness
which occurred while at work “under stress” and diagnosed coronary artery disease with stable
patterns of angina related to increased stress, hyperlipidemia, diabetes and episodes of memory
loss. However, Dr. Bartlett did not provide a rationalized medical opinion addressing how
appellant’s angina or physical conditions were causally related to the accepted compensable
employment factor.10 Dr. Bartlett’s notes fail to reference the accepted employment factors or
explain how such factors caused or contributed to appellant’s claimed condition or disability.
A report from Dr. Jones dated September 16, 2004 noted treating appellant for diabetes
mellitus and hyperlipidemia. He opined that appellant was in declining health due to a family
history and outside stress which has exacerbated his health status. However, Dr. Jones did not
address the fact that appellant’s work unit was understaffed and explain how overwork would
cause or contribute to his diabetes or hyperlipidemia.

8

See William P. George, 43 ECAB 1159, 1167 (1992).

9

Id.

10

Id.; see also Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical
reports not containing rationale on causal relationship are entitled to little probative value).

5

The Board finds that appellant has not submitted rationalized medical evidence
establishing that his claimed conditions are causally related to the accepted compensable
employment factors.11
Appellant’s allegation with regard to denied sick leave in August 2004 relates to
administrative or personnel actions. In Thomas D. McEuen,12 the Board held that an employee’s
emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the Act as such matters pertain to procedures and
requirements of the employer and do not bear a direct relation to the work required of the
employee. The Board noted, however, that coverage under the Act would attach if the factual
circumstances surrounding the administrative or personnel action established error or abuse by
the employing establishment superiors in dealing with the claimant. Absent evidence of such
error or abuse, the resulting emotional condition must be considered self-generated and not
employment generated. In determining whether the employing establishment erred or acted
abusively the Board has examined whether the employing establishment acted reasonably.13
Appellant alleged that on August 13, 2004 while on approved sick leave, he was notified
by his supervisor that he would have to return to duty on August 16, 2004 and that his previously
approved sick leave would be denied and changed to leave without pay. The Board notes that
the handling of leave requests and attendance matters are generally related to the employment,
they are administrative functions of the employer and not duties of the employee.14 The Board
has held that emotional reactions regarding leave are not compensable work factors where
appellant offered no independent evidence that the employing establishment erred or acted
abusively in these matters.15 In this case, appellant has not offered evidence to establish error or
abuse regarding his use of leave. Thus, he has not established administrative error or abuse in
regard to this matter and, therefore, it is not compensable under the Act.16
CONCLUSION
The Board finds that appellant has not established that he sustained a stress-related
condition causally related to factors of his federal employment.

11

See William P. George, supra note 8.

12

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 2.
13

See Richard J. Dube, 42 ECAB 916, 920 (1991).

14

See Judy Kahn, 53 ECAB 321 (2002)

15

Michael Thomas Plante, 44 ECAB 510 (1993).

16

Appellant’s occupational disease claim also appears to be alleging that he developed a separate occupational
disease which caused an aggravation of his heart and diabetic condition and joint pain as a result of being required to
climb ladders, work overhead, lift and work in extreme temperatures while in the performance of duty. However, it
appears from the record that the Office did not issue a final decision on this matter and, therefore, the Board does not
have jurisdiction over the issue. See 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7