United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rapidian, VA, Employer
__________________________________________

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Appearances:
Willis Gay, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1423
Issued: November 7, 2012

Case Submitted on the Record

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

JURISDICTION
On June 20, 2012 appellant, through her representative, filed a timely appeal from the
May 15, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
denied waiver of recovery of an overpayment. 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
ISSUES
The issues are:
(1) whether appellant received a $15,294.79 overpayment in
compensation for which she was without fault; and (2) whether OWCP properly denied waiver
of recovery of the overpayment.
1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant and her representative
to confirm a continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus
the Board has decided the appeal on the record.

FACTUAL HISTORY
On November 25, 2008 appellant, a 58-year-old rural carrier associate, sustained a
traumatic injury in the performance of duty when she reached for a mailbox and felt pain in her
right shoulder. OWCP accepted her claim for rotator cuff tendinitis. Appellant received
compensation for disability.
Appellant’s pay rate on the date of injury was $18.24 an hour. OWCP determined that
her weekly pay rate was $729.60.3 Appellant received compensation based on this pay rate.
Appellant did not work a fixed 40-hour-per-week schedule. She worked 3.29 hours a
day, 5 days a week. Appellant did not work in her position for 11 months prior to the injury, but
the position would have afforded employment for 11 months but for the injury. During the
period of her employment, she earned a total of $7,814.49.
The employing establishment advised, however, that there was no other employee with a
similar appointment. It could not provide the actual earnings of another employee with the same
kind of appointment working in a job with the same or similar duties. Further, the employing
establishment indicated that appellant had no earnings in Federal or non-Government
employment during the year prior to the employment in which she was employed at the time of
her injury.
On March 3, 2011 OWCP made a preliminary determination that appellant received a
$15,294.79 overpayment of compensation from June 20, 2009 to March 12, 2011. Payment
records shows that she received $30,770.27 for this period but should have received $15,475.48.
OWCP determined that appellant’s proper weekly pay rate was $168.23, not $729.60.4
OWCP found that appellant was not at fault in the creation of the overpayment, making
her eligible for waiver of recovery of the overpayment. It asked her to fill out an overpayment
recovery form:
“In order for OWCP to consider the question of waiver or to determine a
reasonable method for collection, you must complete and submit the enclosed
Form OWCP-20. Attach supporting documents to Form OWCP-20, including
copies of income tax returns, bank account statements, bills and cancelled checks,
pay slips and any other records which support the income and expenses listed.
Under 20 C.F.R. § 10.438, failure to submit the requested information within 30
days will result in the denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”

3

$18.24 an hour times 40 hours a week equals $729.60 a week.

4

OWCP divided the total amount earned ($7,814.49) by the total number of days worked (134) to determine
appellant’s average daily wage ($58.32). It then multiplied the average daily wage by 150 to determine average
annual earnings ($8,748.00) and divided that number by 52 weeks to find her weekly pay rate ($168.23).

2

Appellant disagreed that the overpayment occurred. She advised that she was seeking
legal assistance. OWCP did not receive a completed overpayment recovery form or any
supporting financial documents.
In a May 15, 2012 decision, OWCP finalized its preliminary determination. It found that
appellant received a $15,294.79 overpayment of compensation but was not at fault in its creation.
OWCP further found that the circumstances of the case did not warrant waiver of recovery, as no
financial information established a basis for waiver. As appellant was not receiving continuing
compensation payments, OWCP found that she should repay the debt at a rate of $200.00 a
month.
On appeal, appellant argues that she is not prepared to pay $200.00 a month from the
minimum income that she has each month. The amount, she explains, would severely strain her
already limited budget. Appellant stated that she receives no workers’ compensation and has not
since March 2011. She had to collect social security early, at the age of 62, to have any income.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.5
Section 8114(d) of FECA provides four different methods for determining the “average
annual earnings” depending on the character and duration of the employment:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for the particular employment or the average
thereof if the daily wage has fluctuated, by 300 if he was employed on the
basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2-day
week and 260 if employed on the basis of a 5-day week.
“(2) If the employee did not work in employment in which he was employed at
the time of his injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are a sum equal to the
average annual earnings of an employee of the same class working substantially
the whole immediately preceding year in the same or similar employment by the
United States in the same or neighboring place, as determined under paragraph
(1) of this subsection.

5

5 U.S.C. § 8102(a).

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“(3) If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which he was working at the time of the injury having regard
to the previous earnings of the employee in [f]ederal employment and of other
employees of the United States in the same or most similar class working in the
same or most similar employment in the same or neighboring location, other
previous employment of the employee or other relevant factors. However, the
average annual earnings may not be less than 150 times the average daily wage
the employee earned in the employment during the days employed within [one]
year immediately preceding his injury.”6
ANALYSIS -- ISSUE 1
Fact of overpayment is well established. OWCP paid compensation at an inflated pay
rate. It multiplied appellant’s hourly wages by 40 to obtain her weekly pay rate, but she did not
work 40 hours a week. Appellant averaged less than 17 hours a week. Thus, she received
significantly more compensation than she should have. The Board will affirm the OWCP’s
May 15, 2012 decision on the issue of fact of overpayment.
Appellant did not work in the employment in which she was employed at the time of her
injury during substantially the whole year immediately preceding the injury. The position would
have afforded employment for substantially the whole year but for the injury, but the employing
establishment advised that there was no other employee with the same or similar appointment. It
could not provide the actual earnings of another employee with the same kind of appointment
working in a job with the same or similar duties. Moreover, the employing establishment
indicated that appellant had no earnings in Federal or non-Government employment during the
year prior to the employment in which she was employed at the time of her injury.
Under the circumstances, the Board finds that OWCP properly determined average
annual earnings under section 8114(d)(3). OWCP gave due regard to relevant factors and
properly applied the 150 formula to determine average annual earnings and a weekly pay rate of
$168.23.7 At that pay rate, appellant should have received $15,475.48 from June 20, 2009 to
May 12, 2011. She instead received $30,770.27. The Board will therefore affirm OWCP’s
May 15, 2012 decision on the issue of amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which an individual is entitled.8
6

Id. at § 8114(d).

7

See supra note 4.

8

5 U.S.C. § 8129(a).

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.9
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. Failure to submit the requested information within 30 days of
the request shall result in denial of waiver and no further request for waiver shall be considered
until the requested information is furnished.10
ANALYSIS -- ISSUE 2
Appellant was without fault in accepting or creating the overpayment. She was therefore
eligible for consideration of waiver. Appellant was responsible, however, for providing the
financial information necessary to determine whether waiver of recovery of an overpayment
should be granted. As OWCP notified her in the March 3, 2011 preliminary determination,
failure to submit the requested information within 30 days “will result in the denial of waiver”
and no further request for waiver shall be considered until the requested information is furnished.
Because appellant did not complete the overpayment recovery questionnaire and did not
submit financial documentation to establish her income, expenses and assets, the Board finds that
OWCP properly denied waiver of recovery of the overpayment. The Board will therefore affirm
OWCP’s May 15, 2012 decision on the issue of waiver. No further request for waiver shall be
considered until appellant furnishes the requested information.
On appeal, appellant argues that she is not prepared to pay $200.00 a month from the
minimum income that she has each month. The Board’s jurisdiction to review the collection of
an overpayment, however, is limited to cases of adjustment, where OWCP decreases later
payments of compensation to which the individual is entitled.11 Because appellant is no longer
receiving compensation, collection of the overpayment in this case cannot be made by adjusting
later payments but must be recovered by other means. The Board therefore lacks jurisdiction to
review the amount of recovery determined by OWCP to be appropriate.
CONCLUSION
The Board finds that appellant received a $15,294.79 overpayment in compensation. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment, as she has
not yet completed the overpayment recovery question or submitted financial information
necessary to establish the income, expenses and assets listed therein.

9

20 C.F.R. § 10.433(a).

10

Id. at § 10.438.

11

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the May 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.V., Appellant
and
U.S. POSTAL SERVICE, CHURCHVILLE
POST OFFICE, Churchville, NY, Employer
__________________________________________

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

Docket No. 20-0175
Issued: May 22, 2020

Case Submitted on the Record

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

JURISDICTION
On October 29, 2019 appellant filed a timely appeal from an August 23, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted November 30, 2018 employment incident.
FACTUAL HISTORY
On November 30, 2018 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day she sustained sprains to her right wrist, shoulder, and

1

5 U.S.C. § 8101 et seq.

lower back when she tripped over packages while in the performance of duty. She stopped work
on December 1, 2018.
In a November 30, 2018 authorization for examination and/or treatment (Form CA-16), the
employing establishing authorized appellant to seek medical care at an urgent care facility.
In a December 1, 2018 medical report, Andrew K. Polla, a physician assistant, noted that
appellant was treated that day and advised that she should not return to work until cleared by an
orthopedic physician. In a subsequent report dated December 3, 2018, Timothy Nervina, a nurse
practitioner, also noted that she was seen on December 1, 2018 and sustained an injury to her
shoulder when she fell at work. He advised that appellant should not return to work until cleared
by a physician.
In a December 12, 2018 letter, the employing establishment controverted appellant’s claim
asserting that it had witness statements from employees that were present on the date of the alleged
employment incident, but they did not observe or hear her fall as alleged.
A continuation of pay nurse report dated December 20, 2018 indicated that appellant
remained off work due to right wrist and shoulder sprains.
In a development letter dated December 21, 2018, OWCP informed appellant of the
deficiencies in her claim. It advised her of the factual and medical evidence necessary to establish
her claim and provided a factual questionnaire for completion. OWCP afforded appellant 30 days
to submit the necessary evidence.
In a December 4, 2018 witness statement, T.C., appellant’s coworker, stated that appellant
was working all day on November 30, 2018 and did not see or hear her fall that day.
In another witness statement of even date, G.R., appellant’s coworker, noted that his
workstation was adjacent to appellant’s workstation, and although he could hear most of the things
that, transpired in her work area, he did not hear or see her fall on November 30, 2018. He also
noted that he observed her the following day talking on the cellphone while using her injured
shoulder to hold the cellphone to her ear. G.R., asserted that appellant did not appear to be in pain
and her work did not seem to be affected by her alleged injury.
In an undated statement, appellant contended that she injured herself on the morning of
November 30, 2018 while working when the tip of her boot caught alongside one of the mail
packages that were on the floor, causing her to fall. She explained that there was a high volume
of packages that day stacked on the floor around her case and that the individuals that provided
witness statements would not have been able to see her when she fell, as they would have been
working in their own cases at the time of her fall. Appellant further alleged that after she stood up
from her fall she saw no one in her area.
In a December 14, 2018 medical report, Dr. Michael C. Stanton, Board-certified in sports
medicine, noted that appellant presented complaining of pain in the right shoulder, moderate neck
pain, and occasional numbness and tingling down her right upper extremity. Appellant related that
she was injured when she fell directly onto her right shoulder while at work on
November 30, 2018. On physical examination of the right shoulder, Dr. Stanton noted full
2

strength, no tenderness on palpitation, and a positive Neer and Hawkins tests. He also reviewed
appellant’s right shoulder x-ray, which revealed well-preserved joint spaces throughout with no
obvious fracture or dislocation. Dr. Stanton diagnosed cervical radiculopathy and opined that her
current symptoms appeared to be mostly related to her cervical spine and that she might have some
mild impingement in her shoulder, which was improving with conservative treatment.
In a January 7, 2019 medical report, Dr. Matthew Kruppenbacher, Board-certified in
physical medicine, conducted a physical examination and opined that she could return to work as
of that day with restrictions of no repetitive pulling, pushing, overhead reaching, or lifting greater
than 15 pounds.
In a January 16, 2019 work status report (Form CA-3), the employing establishment
advised OWCP that appellant had returned to part-time limited-duty work on January 14, 2019.
By decision dated January 24, 2019, OWCP denied appellant’s claim finding that she had
not established the factual component of her claim It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On July 11, 2019 appellant requested reconsideration.
In support of her request, appellant submitted a May 14, 2019 medical report from
Dr. Kruppenbacher wherein he noted that she had no previous history of symptoms prior to the
claimed November 30, 2018 employment incident when she fell directly onto her right shoulder
after tripping over packages. Dr. Kruppenbacher indicated that she experienced an immediate
onset of symptoms in her right medial upper scapular region, right deltoid, and right posterior arm.
He further noted that appellant’s condition had since improved and she had been working without
restrictions since February 4, 2019. Dr. Kruppenbacher diagnosed cervical radiculopathy,
cervicalgia, and numbness. He responded “yes” regarding whether he believed that the
November 30, 2018 employment incident caused appellant’s injury and that her history of the
injury was consistent with his objective findings.
By decision dated August 23, 2019, OWCP modified its prior decision finding that
appellant had established both the factual and medical components of fact of injury. However,
appellant’s claim remained denied because the medical evidence of record was insufficient to
establish that her diagnosed cervical radiculopathy was causally related to the accepted
November 30, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and that
2

Id.

3
J.P., Docket No. 19-0129 (issued April 26, 2019); F.H., Docket No.18-0869 (issued January 29, 2020); Joe D.
Cameron, 41 ECAB 153 (1989).

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any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 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 specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 30, 2018 employment incident.
In a December 14, 2018 medical report, Dr. Stanton noted that appellant reported
experiencing right shoulder pain after directly falling onto her right shoulder at work on
November 30, 2018. He diagnosed cervical radiculopathy. However, Dr. Stanton did not provide
an opinion on the cause of appellant’s diagnosed condition. Similarly, in his January 7, 2019
medical report, Dr. Kruppenbacher opined that she could return to work with restrictions.
However, he did not provide a diagnosis or offer an opinion regarding the cause of appellant’s
condition. The Board has long held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.9
Thus, Dr. Stanton’s December 14, 2018 report and Dr. Kruppenbacher’s January 7, 2019 report,
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9
See G.L., Docket No. 18-1057 (issued April 14, 2020); J.M., Docket No. 18-0853 (issued March 9, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018).

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lack probative value on the issue of causal relationship and therefore is insufficient to establish
appellant’s claim.
In his May 14, 2019 medical report, Dr. Kruppenbacher noted that appellant injured her
right shoulder after tripping over packages at work on November 30, 2018. He diagnosed cervical
radiculopathy, cervicalgia, and numbness. Dr. Kruppenbacher responded “yes” to whether he
believed that the accepted November 30, 2018 employment incident was the competent medical
cause of appellant’s injury, and that her history of the injury was consistent with his objective
findings. While his medical opinion is generally supportive of causal relationship, he did not offer
medical rationale sufficient to explain how and why he believes that the accepted November 30,
2018 employment incident could have resulted in or contributed to the diagnosed condition.
Moreover, the Board has held that a physician’s opinion on causal relationship which consists of
responding “yes” to a form question, without explanation or rationale, is of diminished probative
value and is insufficient to establish a claim.10 The Board also notes that Dr. Kruppenbacher
indicated that appellant had no previous history of symptoms prior to the November 30, 2018
employment incident, further suggesting that the accepted employment incident caused her
diagnosed conditions because she was not symptomatic until after the fall. The Board has held
that an opinion finding causal relationship because an employee was asymptomatic before the
injury, but symptomatic after it is insufficient, without supporting medical rationale, to establish
causal relationship.11 As Dr. Kruppenbacher did not provide a reasoned explanation of how
tripping and falling caused or contributed to appellant’s injury, his May 14, 2019 report is also of
limited probative value, and therefore is insufficient to meet her burden of proof.12
Finally, the record also contains reports from a physician assistant and a nurse practitioner.
Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists,
and social workers are not considered “physician[s]” as defined under FECA.13 Consequently,
their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
FECA benefits.14
As none of the medical evidence appellant submitted constitutes rationalized medical
evidence sufficient to establish causal relationship between the accepted November 30, 2018

10

See J.R., Docket No. 18-1679 (issued May 6, 2019); M.C., Docket No. 18-0361 (issued August 15, 2018);
Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).
11

See J.F., Docket No. 19-1694 (issued March 18, 2020); M.B., Docket No. 19-0840 (issued October 2, 2019);
C.C., Docket No. 17-1841 (issued December 6, 2018); John F. Glynn, 53 ECAB 562 (2002); Thomas Petrylak, 39
ECAB 276, 281 (1987).
12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. H.K., Docket No. 19-0429 (issued
September 18, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also
S.L., Docket No. 19-0603 (issued January 28, 2020) (nurse practitioners are not considered physicians as defined
under FECA).

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employment incident and her diagnosed conditions, the Board finds that she has not met her burden
of proof.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 30, 2018 employment incident.16
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15

R.G., Docket No. 18-0792 (issued March 11, 2020).

16

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 14-1746
Issued: June 3, 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 August 11, 2014 appellant filed a timely appeal from a June 12, 2014 merit decision
and a July 10, 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
ISSUES
The issues are: (1) whether OWCP properly determined the rate of pay in calculating
appellant’s loss of wage-earning capacity; and (2) whether OWCP properly refused to reopen
appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument before the Board. After exercising its discretion, the Board denied
appellant’s request on December 8, 2014. It found that, as appellant’s appeal involved an evaluation of the factual
evidence and OWCP’s procedures, his arguments could be adequately addressed based on a review of the case
record. Order Denying Request for Oral Argument, Docket No. 14-1746 (issued December 8, 2014).

On appeal, appellant contends that the loss of wage-earning capacity determination was
erroneous. He also contended that the Board’s decision which affirmed OWCP’s pay rate
determination required clarification.
FACTUAL HISTORY
This case has previously been before the Board. On March 15, 1982 appellant, then a 32year-old molder, injured his right hand in the performance of duty when hooking a chain into a
gate. OWCP accepted the claim for fracture of the fifth right metacarpal and authorized nerve
entrapment surgery.
In the first appeal, the Board issued a decision and order on May 15, 2003 affirming
OWCP decisions dated October 29, 2001 and January 28, 2002.3 The Board found that OWCP
properly reduced appellant’s compensation benefits effective August 15, 19994 based on its
determination that the selected position of cashier 2 represented his wage-earning capacity and
that the duties were not of a repetitive nature. The Board also found that appellant failed to meet
his burden of proof to establish a recurrence of disability on or after August 28, 2000 causally
related to his accepted March 15, 1982 employment injury.5
On December 12, 2004 the Board, in the second appeal, affirmed OWCP’s April 12,
2004 decision denying modification of the loss of wage-earning capacity determination,6 but
found further clarification was required as to appellant’s pay rate.
In a decision dated October 24, 2006, the Board in its third decision affirmed an April 5,
2005 OWCP decision regarding appellant’s pay rate.7 The Board also found that OWCP
properly denied his request for merit review and affirmed OWCP’s June 2 and September 15,
2005 nonmerit decisions. On July 30, 2007 the Board denied appellant’s petition for
reconsideration.8 In its decision, the Board also modified footnote 12 in its decision, and granted
the Director’s request for correction.
The Board, in a May 4, 2010 decision, found OWCP had applied an erroneous legal
standard to appellant’s request for modification of his July 16, 1999 loss of wage-earning
capacity determination.9 The Board set aside OWCP’s nonmerit decisions dated March 8,
April 17, and August 6, 2008 and March 11, 2009 and remanded the case to OWCP to adjudicate
the case under the correct legal standard.
3

Docket No. 02-2265 (issued May 15, 2003).

4

OWCP issued its initial decision reducing the rate of appellant’s compensation benefits based on his wageearning capacity as a cashier 2, effective August 15 on July 16, 1999.
5

On January 9, 2002 appellant had filed a claim for a recurrence of total disability beginning January 28, 2000.
On the form, he indicated that he was employed by St. Joachim’s Church at the time of his recurrence.
6

Docket No. 04-1438 (issued December 14, 2004).

7

Docket No. 06-40 (issued October 24, 2006).

8

Docket No. 06-40 (issued October 24, 2006); petition for recon., denied, (issued July 30, 2007).

9

Docket Nos. 09-1046 and 09-1294 (issued May 4, 2010).

2

On July 19, 2011 the Board affirmed an August 2, 2010 OWCP decision which denied
modification of the wage-earning capacity determination.10
By decision dated January 17, 2013, the Board affirmed a July 23, 2012 nonmerit
decision and February 2, 2012 decision denying modification of its loss of wage-earning capacity
determination.11
By Order Remanding Case dated August 12, 2013, the Board set aside decisions dated
June 25 and October 31, 2012 denying modification of a loss of wage-earning capacity
determination.12 The Board found that OWCP had not discharged its responsibility to set forth
findings of fact and a clear statement of reasons explaining the disposition of the case. The facts
and circumstances of the case up to that point are set forth in the Board’s prior decisions and
orders and are incorporated herein by reference.13
The evidence relevant to appellant’s pay rate contained in the record from prior appeals is
set forth below.
On June 22, 1982 OWCP placed appellant on the periodic rolls for temporary total
disability using a weekly pay rate of $398.00.
Appellant completed and signed Forms EN1032 on November 8, 1982, March 5, 1984,
and August 5, 1985. He indicated that he had not worked either within the past 15 months or
since his last employment and/or earnings had been reported to OWCP.
On August 13, 1984 and March 26, 1987 OWCP received information from the
employing establishment providing the current pay rate for appellant’s date-of-injury position of
molder. It noted that he had been a WG-10, Step 3 at the time of his injury.
In a letter dated September 1, 2013, appellant argued that the July 16, 1999 loss of wageearning capacity determination is erroneous. He contended that OWCP needed to set forth the
rationale and authority used in correcting and amending the Shadrick formula in the April 5,
2005 decision. Appellant also argued the evidence used to calculate his pay rate was incorrect
and required correction.
In an October 1, 2013 letter, OWCP informed appellant that the evidence of record was
insufficient to support modification of the July 16, 1999 loss of wage-earning capacity
determination. It found that appellant submitted no evidence supporting his contention that the
date-of-injury pay rate should not have been used in calculating his pay rate.
10

Docket No. 10-2099 (issued July 19, 2011); petition for recon., denied, (issued October 26, 2011).

11

Docket No. 12-1663 (issued January 17, 2013); petition for recon., denied, (issued May 13, 2013).

12

Docket No. 13-259 (issued August 12, 2013).

13

The Board notes that appellant filed an appeal of a May 15, 2003 decision on July 29, 2003 and the Board
docketed the appeal as Docket No. 03-1923 and Docket No. 03-2022. On October 6, 2003 the Board granted his
request to dismiss his appeal in Docket No. 03-1923. See Docket No. 03-1923 (issued October 6, 2003). The Board
also issued an order dismissing Docket No. 03-2022 as a duplicate appeal of Docket No. 03-1923. See Docket No.
03-2022 (issued October 6, 2003).

3

In a letter dated October 2, 2013, appellant requested modification of the July 16, 1999
loss of wage-earning capacity decision. He argued that OWCP incorrectly calculated his weekly
pay rate.
By letter dated September 7, 2013, appellant argued that the vocational rehabilitation
counselor discriminated against appellant as well as violating his civil rights when it selected the
pay rate for men instead of the mean rate. Thus, he argues that this is sufficient to warrant
reversal of the loss of wage-earning capacity determination. Appellant also argued that OWCP
failed to meet its burden of proof when it corrected his pay rate in its April 5, 2005 decision to
$327.52.
Appellant in an October 10, 2013 letter, he claimed that he returned to work for at least
14 years and that his employing establishment has refused to provide him with the date of his
work return.
By letter dated October 12, 2013, appellant argued that March 15, 1981 should be the
effective date of his Consumer Price Index (CPI) increases. He also argued that the April 12,
2004 OWCP decision is incorrectly taking 52 percent of his compensation pay when it was only
56 percent in the July 16, 1999 loss of wage-earning capacity determination. Appellant argued
that OWCP is required to obtain his correct pay rate information from the employing
establishment. He argued that OWCP should have used the pay rate for a WG-10 and not the
weekly pay rate it had used in its determination. Lastly, appellant contended that as OWCP
corrected the pay rate this established error in the original loss of wage-earning capacity
determination.
In a letter dated October 13, 2013, appellant submitted a cost-of-living increase chart
supporting his contention that the 1982 and 1983 CPI increases were not included by OWCP in
calculating his pay rate. He argued that OWCP is continuing to incorrectly calcuate the
percentage of his pay and using an incorrect CPI in its calcuation of his pay rate.
Appellant submitted additional letters reiterating his argument that OWCP had used an
incorrect pay rate and failed to consider the correct CPI increases in its determination.
By letter dated October 30, 2013, appellant stated that he had returned to work, but his
employing establishment had refused to provide him the dates. He argues that, as he had
returned to work, this changes his date-of-injury pay rate and calculation under the Shadrick
formula. He stated that he needs to find the date he returned to work and use that in calculating
his wage-earning capacity.
By letters dated February 5 and March 14 and 25, 2014, again appellant requested
modification of his loss of wage-earning capacity determination as OWCP had incorrectly
amended his record under the wrong statute and erred in its pay rate determination. He claimed
that this errors warranted reversal.
By letter dated April 5, 2014, appellant argued that OWCP erred when it corrected his
pay rate as this was not subject to correction and OWCP used the wrong statute when it corrected
his pay rate using a median pay rate.

4

By decision dated June 12, 2014, OWCP denied modification of the loss of wage-earning
capacity determination. It found that appellant failed to submit any evidence showing the he had
returned to work and was entitled to a recurrent pay rate. OWCP also found that he presented
arguments regarding his pay rate that had been previously considered and rejected by both
OWCP and the Board. It also found that appellant had submitted no evidence warranting
modification of the loss of wage-earning capacity determination as he had not submitted any
evidence showing the original determination was erroneous -- including pay rate, that there had
been a material change in either the extent or nature of his accepted employment injury or that he
had been vocationally rehabilitated, or retrained.
In a June 19, 2014 letter, appellant requested reconsideration. He argued that OWCP
failed to follow the Board’s instructions regarding the pay rate calculation and the evidence
required to show that it was incorrectly calculated under the Shadrick14 formula.
By decision dated July 10, 2014, OWCP denied reconsideration, finding that the
arguments were previously considered by OWCP and the Board and thus did not warrant merit
review.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.15 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.16 OWCP’s procedures provide that if a formal loss
of wage-earning capacity decision has been issued, the rating should be left in place unless the
claimant requests resumption of compensation for total wage loss.17 In this instance the claims
examiner will need to evaluate the request according to the customary criteria for modifying a
formal loss of wage-earning capacity.18
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.19 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.20
14

5 ECAB 376 (1953).

15

D.M., 59 ECAB 59 ECAB 164 (2007); Harley Sims, Jr., 56 ECAB (2005).

16

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.5 (June 2013). See Mary E. Marshall, 56 ECAB 420 (2005).
18

Id. at, Chapter 2.1501.1&3 (June 2013). See Harley Sims, Jr., 56 ECAB 320 (2005).

19

See D.M., supra note 15; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
20

Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

5

ANALYSIS -- ISSUE 1
The issue before the Board is whether OWCP correctly calculated appellant’s pay rate
when it issued its loss of wage-earning capacity. In its July 16, 1999 and amended April 5, 2005
loss of wage-earning capacity, OWCP used the weekly pay rate of $398.00 to calculate his loss
of wage-earning capacity. In its third decision on October 24, 2006, the Board affirmed an
April 5, 2005 OWCP decision regarding appellant’s pay rate based on the wages from the
constructed position of Cashier II. On appeal, appellant argues that he did return to work
between his third and fourth step increases. He contends that his correct loss of wage-earning
capacity is $265.83, not the $247.00 he is currently receiving.
While appellant has provided a new argument regarding the calculation of his pay rate, he
submitted no evidence or argument establishing an incorrect pay rate by OWCP. The record
establishes that he was placed on the periodic rolls for temporary total disability by letter dated
June 22, 1982 using a weekly pay rate of $398.00. The employing establishment informed
OWCP that appellant had been a WG-10, step 3 at the time of his injury on March 15, 1982.
There is nothing in the record reflecting a higher step or that his pay rate was more than the
$398.00 OWCP used in calculating his loss of wage-earning capacity using the Shadrick
formula. While appellant contends that he returned to work, he has not submitted any evidence
supporting this contention. Moreover, his declarations found in the EN1032 forms he completed
November 8, 1982, March 5, 1984 and August 5, 1985 refute this contention. In each of the
forms, appellant denied that he was employed or self-employed. There is no other evidence
showing that appellant was entitled to a recurrent pay rate or other increases for 1983. The
Board finds that he has failed to establish a modification of his loss of wage-earning capacity.
Appellant has the burden of proof to show that a modification of his wage-earning
capacity is warranted but he has not submitted sufficient evidence establishing that OWCP used
an incorrect pay rate. OWCP therefore properly denied modification of the July 16, 1999 wageearning capacity determination.21
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,22
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.23 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
21

T.M., Docket No. 08-975 (issued February 6, 2009); Elbert Hicks, 55 ECAB 151 (2003).

22

Supra note 1. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.
23

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).

6

of the date of that decision.24 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.25
ANALYSIS -- ISSUE 2
Appellant’s June 19, 2014 request for reconsideration did not showed that OWCP
erroneously applied a specific point of law, and did not advance a relevant legal argument not
previously considered. He reiterated his contentions that the pay rate was incorrect and that the
method for explaining the pay rate had not been provided. OWCP considered these arguments
when it denied appellant’s request for modification on June 12, 2014. Appellant has added
nothing new. The Board has held that evidence or argument which repeats or duplicates the
existing case record does not constitute a basis for reopening a case.26 Appellant has presented
no evidence with his request for reconsideration to support his arguments regarding the pay rate
used by OWCP. Thus, he has not advanced a relevant legal argument not previously considered.
The Board finds therefore that appellant has failed to satisfy either of the first two requirements
under section 10.606(b)(2) and that he did not submit relevant and pertinent new evidence not
previously considered by OWCP.
The Board finds that OWCP properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(3) and thus properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not established a modification of the wage-earning
capacity. The Board further finds that it properly denied reconsideration.

24

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

25

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
26

Eugene F. Butler, 36 ECAB 393, 398 (1984); see also A.K., Docket No. 15-451 (issued April 13, 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 10 and June 12, 2014 are affirmed.
Issued: June 3, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Romulus, MI, Employer
__________________________________________

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

Docket No. 09-1124
Issued: November 24, 2009

Case Submitted on the Record

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

JURISDICTION
On March 23, 2009 appellant filed a timely appeal from a nonmerit decision of the Office
of Workers’ Compensation Programs dated March 2, 2009. Because more than one year has
elapsed between the most recent merit decision of the Office dated January 9, 2008 and the filing
of this appeal on March 23, 2009, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This is the third appeal in this case. By decision dated March 12, 2007, the Board found
appellant had not established a compensable factor with respect to his allegations of harassment
and discrimination. However, the Board also found that appellant had established a compensable

factor with respect to the June 3, 2004 altercation.1 Thus, the Board affirmed in part and set
aside in part the July 31, 2006 decision, which denied appellant’s request for modification of a
July 28, 2005 Office decision denying his emotional condition claim. As a compensable factor
had been established with regard to the June 3, 2004 altercation, the Board remanded the case to
the Office for further development of the medical evidence. In the second appeal, the Board on
October 8, 2008 affirmed a January 9, 2008 Office decision.2 The Office in its January 9, 2008
decision denied appellant’s claim for wage-loss disability on and after March 21, 2005. The
findings of law and fact as set forth in the prior opinions are hereby incorporated by reference.3
On November 17, 2008 appellant filed a claim for wage-loss compensation for the period
March 22 to August 22, 2006.
In a letter dated December 11, 2008, appellant requested reconsideration of the denial of
his claim for wage loss on and after March 21, 2005. He contended that he submitted sufficient
medical evidence to support his claim and that the employing establishment terminated his
employment because of his disability. Appellant alleged that he was assaulted while working for
the employing establishment and that as a result was unable to work in a stressful work
environment.
On December 30, 2008 appellant provided a second statement which noted that he had
been assaulted while working at a prior job and that the assault at the employing establishment
caused a recurrence of his post-traumatic stress disorder.
By decision dated March 2, 2009, the Office denied appellant’s request for
reconsideration of the merits on the grounds that he failed to raise a substantive legal question or
present relevant evidence.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.5 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the application for
reconsideration.6
1

Docket No. 06-1983 (issued March 12, 2007). The Office incorrectly noted the author date as March 13, 2007.

2

Docket No. 08-773 (issued October 8, 2008).

3

On November 26, 2004 appellant filed an occupational disease claim alleging that on or about June 3, 2004 he
first realized his depression was employment related. He stopped work on November 24, 2004, returned on
January 9, 2005 and stopped again on February 14, 2005. On March 17, 2005 appellant was terminated from
employment based on his “inability to perform essential functions -- working in a stressful environment.”
4

5 U.S.C. § 8101 et seq.

5

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

6

20 C.F.R. § 10.605.

2

An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.7
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.8 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.9
ANALYSIS
In support of his December 11, 2008 reconsideration request, appellant submitted two
statements, copies of Office regulations and general information on post-traumatic stress
disorder. Appellant’s December 11, 2008 request for reconsideration neither alleged, nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Appellant did not submit any pertinent new and relevant evidence with his request for
reconsideration. The issue to be resolved is a medical one and he did not submit any medical
evidence with his request. Consequently, appellant is not entitled to a review of the merits of his
claim based on the above-noted requirements under section 10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to
further consideration of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(2), and thus the Office properly denied his December 11, 2008 request for
reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

7

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

8

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

9

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2009 is affirmed.
Issued: November 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 16-1140
Issued: April 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 9, 2016 appellant, through counsel, filed a timely appeal from a March 30, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she has a
ratable permanent impairment of the bilateral upper extremities, thereby warranting a schedule
award.
FACTUAL HISTORY
Appellant, a 59-year-old nursing assistant, has an accepted occupational disease claim
(Form CA-2) for bilateral (shoulder) bursitis, which arose on or about April 7, 2010.3 OWCP paid
her wage-loss compensation for temporary total disability for the period May 17 through June 2,
2011, and resumed work in a light-duty capacity beginning June 3, 2011. In November 2014,
appellant’s treating physician released her to resume full duty.4
On April 7, 2015 appellant filed a claim for a schedule award (Form CA-7). Although
her treating physician, Dr. Thesselon Monderson, a Board-certified orthopedic surgeon
specializing in hand surgery, advised on March 16, 2015 that she had reached maximum medical
improvement, he did not provide an upper extremity impairment rating.
On April 9, 2015 OWCP advised both appellant and her counsel of the need to submit an
impairment rating in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides). It afforded her at
least 30 days to submit the requested medical evidence. On May 11, 2015 OWCP contacted
appellant’s treating physician directly regarding the existence and extent of any ongoing
residuals due to her accepted bilateral shoulder bursitis. No response was received within the
time allotted.
By decision dated June 10, 2015, OWCP denied appellant’s claim for a schedule award.
It explained that it had not received the previously requested impairment rating under the
A.M.A., Guides (2009).
Counsel timely requested an oral hearing before an OWCP hearing representative, which
was held on February 8, 2016.
Subsequent to the hearing, OWCP received a September 30, 2015 impairment rating from
Dr. Samy F. Bishai, a Board-certified orthopedic surgeon. Dr. Bishai’s diagnoses included
cervical degenerative disc disease, bilateral shoulder impingement syndrome, bilateral shoulder
internal derangement, and bilateral shoulder joint rotator cuff syndrome.5 He found 24 percent
3

Although the May 23, 2011 acceptance letter does not specifically identify the shoulder region as the site of
appellant’s accepted bilateral bursitis, her April 8, 2011 Form CA-2 identified an injury involving “[bilateral
shoulder].”
4

Appellant subsequently applied for disability retirement, which was approved in December 2015.

5

Dr. Bishai noted that appellant was approved for her shoulder joint injury only, and was not approved for the
neck condition although she insisted the latter was definitely work related as both the bilateral shoulder and neck
conditions occurred at the same time on April 7, 2010.

2

bilateral upper extremity using the range of motion (ROM) impairment ratings based on the
residual problems she was having with her right and left shoulder joints. Dr. Bishai rated
appellant under Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (2009).6 He
explained that ROM was the only accurate method of assessing appellant’s impairment for
schedule award purposes.
In a March 30, 2016 decision, the hearing representative affirmed OWCP’s June 10, 2015
decision denying a schedule award. Although Dr. Bishai found 24 percent permanent bilateral
upper extremity impairment, the hearing representative found the evidence insufficient to
warrant a schedule award because the diagnosed conditions had not been accepted by OWCP,
and appellant’s physician was apparently unaware of the actual accepted employment-related
condition(s).
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.7 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.8 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.

6

With respect to appellant’s right shoulder, Dr. Bishai found 9 percent permanent upper extremity impairment for
loss of flexion (80 degrees), 2 percent for loss of extension (15 degrees), 6 percent for loss of abduction (80
degrees), 1 percent for loss of adduction (20 degrees), 4 percent for loss of internal rotation (20 degrees), and 2
percent for loss of external rotation (45 degrees), for a total 24 percent permanent right upper extremity impairment.
Regarding the left shoulder, he found 9 percent permanent upper extremity impairment for loss of flexion (75
degrees), 2 percent for loss of extension (10 degrees), 6 percent for loss of abduction (75 degrees), 1 percent for loss
of adduction (15 degrees), 4 percent for loss of internal rotation (15 degrees), and 2 percent for loss of external
rotation (40 degrees), which also totaled 24 percent permanent impairment of the left upper extremity.
7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
9

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

5 U.S.C.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved OWCP’s use of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.11
ANALYSIS
The issue is whether appellant has met her burden of proof to establish that she has a
ratable impairment of the bilateral upper extremities. The Board finds that this case is not in
posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment
for schedule award purposes.12 The purpose of the use of uniform standards is to ensure
consistent results and to ensure equal justice under the law to all claimants.13 In T.H., the Board
concluded that OWCP physicians are at odds over the proper methodology for rating upper
extremity impairment, having observed attending physicians, evaluating physicians, second
opinion physicians, impartial medical examiners, and district medical advisers use both DBI and
ROM methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that OWCP
can no longer ensure consistent results and equal justice under the law for all claimants.14
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the March 30, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013);.
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

T.H., Docket No. 14-0943 (issued November 25, 2016).

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

Supra note 12.

4

CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 5, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, INTERNATIONAL
BULK MAIL CENTER, Jersey City, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1517
Issued: November 24, 2014

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 June 24, 2014 appellant, through her attorney, filed a timely appeal from a March 31,
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 appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on November 3, 2012.
On appeal, appellant’s attorney contends that appellant’s early arrival to work on
November 3, 2012 should be considered a reasonable amount of time before work to arrive and
within the performance of duty based on circumstances created by Hurricane Sandy.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 27, 2012 appellant, then a 64-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a broken right kneecap on November 3,
2012 due to stepping on unseen debris on a footpath.2 A supervisor checked a box indicating
that appellant’s injury did not occur in the performance of duty, noting that she alleged that the
incident occurred on a day she had already called out from work in the attendance system. He
noted that her regular work hours were from 2:00 a.m. through 10:30 a.m. The supervisor
further noted that a third party had brought in her Form CA-1 after appellant received a letter of
availability for her absence.
On November 27, 2012 a supervisor controverted appellant’s claim. He stated that, after
she called in 104 hours of sick leave on November 4, 2012, appellant was sent a letter of
availability. Appellant’s husband brought the supervisor a letter on November 15, 2012 stating
that there had been an incident on the property of the employing establishment on
November 3, 2012. The supervisor noted that, before the alleged incident, appellant had called
in for 16 hours of leave without pay from November 2 to 3, 2012, and called in for 104 hours of
sick leave on November 4, 2012 at 10:01 a.m. He stated that the alleged incident actually
occurred on Sunday, November 4, 2012 at 12:50 a.m. In a letter dated November 29, 2012, the
employing establishment further explained its reasons for challenging appellant’s claim. It stated
that she failed to report her injury for 12 days after the alleged incident, failed to describe what
occurred and had not submitted supporting medical documentation.
By letter dated December 4, 2012, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim. It also sent a letter to the employing
establishment requesting information regarding the exact time of her alleged injury, whether she
was on the premises of the employing establishment at the time of the injury, and whether she
was performing duties incidental to her employment at the time of injury.
In a statement dated November 13, 2012, appellant described the circumstances
surrounding her alleged injury. On Saturday, November 3, 2012 at approximately 12:50 a.m.,
while walking toward the facility of the employing establishment, she fell on a footpath
approaching the property. Appellant was using a flashlight, but stepped on debris, which caused
her to fall onto her right knee. She stated that she could not get help because she was too far
away from the facility and could not stand up. Appellant called her husband, who took her to a
nearby emergency room. The physician at the emergency room confirmed that she had broken
her right kneecap. He sent her home with a brace and a referral to an orthopedic physician.
Appellant was seen by an orthopedic physician, who performed surgery on her knee.
On December 6, 2012 appellant responded further to OWCP’s inquiries. Her injury
occurred before the beginning of her shift on November 3, 2012, and that she was on her way
into work at approximately 12:50 a.m. for a shift starting at 2:00 a.m. Appellant described
falling on a footpath to the employing establishment after stepping on debris and landing on her
2

There are two Forms CA-1 of record reporting this traumatic injury. In a handwritten Form CA-1 dated
November 13, 2012, appellant alleged that her injury occurred on November 3, 2012 at 12:50 a.m. In an undated
and typed Form CA-1 that was unsigned by appellant, the time of her injury is listed as 12:50 p.m.

2

right knee. She stated that she was not performing assigned duties at the time of her injury but
was on her way to the facility. Appellant attached a statement from her husband. On the
morning of November 3, 2012 at approximately 1:00 a.m., appellant’s husband received a call
from appellant that she had fallen on a footpath in the Veterans Memorial Park section of the
property of the employing establishment and he took her to an emergency room.
On December 12, 2012 John H. McTigue, a senior manager for the employing
establishment, responded to OWCP’s inquiries. He noted that appellant fell on “the memorial
portion of the sidewalk,” an area controlled by the employing establishment. Appellant claimed
that her injury occurred on November 3, 2012, which was actually November 4, 2012 because
she claimed it occurred at 12:50 a.m. Mr. McTigue stated that there was no reason, to the best of
his knowledge, for appellant to be reporting to the facility an hour and a half before her
scheduled starting time. He advised that, at the time of injury, appellant was not engaged in any
official duties but was in the process of walking to the postal facility from a bus stop. Appellant
had not reported to the building or started her tour of duty at the time of injury.
By decision dated January 15, 2013, OWCP denied appellant’s claim. It noted that the
course of employment for an employee having a fixed time and place of work embraced a
reasonable time interval before official working hours while the employee was on the premises
engaged in actual duties, activities incidental to the job or an accepted practice of employment.
OWCP found that appellant’s injury did not occur within a reasonable time interval before her
official working hours while performing acts incidental to her employment.
On January 29, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
In a statement dated January 29, 2013, appellant contended that she was injured in the
performance of duty. She stated that she walked to work every day, noting that buses in the area
ran until midnight and started again at 3:30 a.m., and that it was a long walk on the property
itself. Appellant noted that it was always less than an hour before her start time when she
entered the facility. She further noted that she had difficulty in obtaining and returning
paperwork related to her claim.
An oral hearing was held on May 13, 2013. Appellant testified that her injury occurred
on her first shift back to work after Hurricane Sandy, which hit on or about October 28, 2012.
She noted that the employing establishment’s facility was extremely large, and that there was a
long walk-in before arriving at a building. Appellant usually arrived a little bit early to go to the
cafeteria and get tea or coffee because she could not do so on a 15-minute break. On the day of
her injury, she stated that two major sections of the plant still did not have electricity in the
aftermath of Hurricane Sandy, and that everyone had to report to the cafeteria to sign in.
Appellant’s husband, who also worked at the facility on a different shift, told her that she should
get there early. Appellant took a flashlight with her and used a footpath leading from a street
through an area called Memorial Park, which was on the property of the employing
establishment. She stepped on a piece of debris and fell down on her right knee about 25 to 30
feet onto the property of the employing establishment. Appellant called her husband, who took
her to the nearest available medical facility. She went to work early because she did not know
what she was going to encounter on the way there or what to expect when she got there.

3

Appellant’s husband testified that the employing establishment was the largest mail facility in
the country, and that on the date of injury there were several areas without electricity. Counsel
contended that appellant went beyond the scope of her employment in the sense that she was
performing her duties to an extraordinary degree, in attempting to arrive at work early in the
aftermath of a major storm and injuring herself on the property of the employing establishment.
By decision dated July 8, 2013, the hearing representative affirmed the January 15, 2013
decision. She found that appellant was on the premises of the employing establishment when she
fell and sustained a right distal patellar fracture. The hearing representative further found that
appellant’s arrival to work more than an hour prior to the start of her scheduled work shift was
not sufficiently work related to bring her injury within the performance of duty, despite her
testimony regarding the unusual circumstances of that day. Appellant testified that she had taken
a bus to work and that she had arrived early due to her bus schedule and to get coffee before her
shift.
On February 3, 2014 appellant, through her attorney, requested reconsideration of the
July 8, 2013 decision. He stated that appellant’s claim should be accepted as occurring within
the performance of duty as she was attempting to arrive early due to severe crisis conditions.
Counsel noted that appellant usually walked to work and that she did so on November 3, 2012.
Appellant contended that the July 8, 2013 decision incorrectly stated that she took a bus to work
and that the reason she reported early was to get coffee. She stated that there was a severe power
outage after Hurricane Sandy and that the plant was temporarily closed. Appellant’s husband
had reported to work two days before November 3, 2012 and advised her that it was chaotic at
work. Her shift on November 3, 2012 began at 2:00 a.m. and she stated that she arrived early so
that she could report to the cafeteria to sign in and to get through the flooding and other issues.
By decision dated March 31, 2014, OWCP denied modification of its July 8, 2013
decision. It found that she was injured over an hour before her shift was scheduled to begin, an
unreasonable amount of time before her scheduled workday.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relationship. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.3 The phrase “while in the
performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” The phrase “course of employment” is recognized as relating to the work
situation and more particularly, relating to elements of time, place and circumstance.4

3

See 5 U.S.C. § 8102(a).

4

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

4

In a workers’ compensation claim, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be engaged in her
employer’s business; (2) at a place where she may reasonably be expected to be in connection
with the employment; and (3) while she was reasonably fulfilling the duties of her employment
or engaged in doing something incidental thereto.5
The Board has accepted the general rule of workers’ compensation law that, as to
employees having fixed hours of work, injuries occurring on the premises of the employing
establishment, while the employee is going to or from work, before or after working hours or at
lunch time, are compensable.6 Given this rule, the Board has noted that the course of
employment for employees having a fixed time and place of work includes a reasonable time
while the employee is on the premises engaged in preparatory or incidental acts. However,
presence at the employing establishment’s premises during work hours or a reasonable period
before or after a duty shift is insufficient, in and of itself, to establish entitlement to benefits for
compensability. The claimant must also establish the concomitant requirement of an injury
arising out of the employment. This encompasses not only the work setting, but also the causal
concept that some factor of the employment caused or contributed to the claimed injury. In order
for an injury to be considered as arising out of the employment, the facts of the case must show
substantial employer benefit is derived or an employment requirement gave rise to the injury.7
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities, unrelated to his or her employment. The
Board has noted that the standard to be used in determining that an employee has deviated from
his or her employment requires a showing that the deviation was aimed at reaching some specific
personal objective.8
The Board has excluded coverage for employees on the employer’s premises when the
claimed injury occurred during a reasonable time before or after work or, in the case of injuries
occurring far outside regular work hours, when the employee was acting in service of the
employer.9 In John F. Castro,10 an employee was injured in an automobile accident at a naval
station five minutes after the end of his shift.11 The Board found that such a short time period
5

Id.

6

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

7

See Eileen R. Gibbons, 52 ECAB 209 (2001). See also Cheryl Bowman, 51 ECAB 519 (2000); Shirlean
Sanders, 50 ECAB 299 (1999); Charles Crawford, 40 ECAB 474 (1989).
8

See Rebecca LeMaster, 50 ECAB 254 (1999).

9

See William W. Knispel, 56 ECAB 639 (2005).

10

Docket No. 03-1653 (issued May 14, 2004).

11

Id.

5

fell within the scope of a reasonable interval before going to or leaving from work. In Catherine
Callen,12 the employee was found to be in the performance of duty under FECA for an injury
sustained on the employer’s premises six hours after the end of her regular shift, because she
remained on the premises to complete a project at the request of her employer.13 In Nona J.
Noel,14 the employee arrived one and one-half hours prior to the start of her workday to avoid
heavy traffic and to eat breakfast at the Noncommissioned Officer’s (NCO) Club where she
sustained an injury. The Board found that the act of having breakfast, coupled with the length of
time appellant arrived at her employer’s premises prior to her official starting time to avoid
heavy traffic, placed her outside the scope of her employment. In T.F.,15 the employee sustained
an injury when she tripped on a loose floor tile 25 minutes before her work shift began at 6:00
a.m. She was on the premises of her employer in the vicinity of her work cubicle. The Board
affirmed the denial of compensability under FECA, noting that finding a good parking place,
drinking coffee, having breakfast and putting her lunch away were personal activities and not
reasonably incidental to the work of her employer. The Board found that her presence at the
premises some 25 minutes prior to the commencement of her work shift did not constitute a
reasonable interval under the circumstances.
ANALYSIS
The Board finds that appellant’s injury was not sustained in the performance of duty.
Although the November 3, 201216 incident occurred on the employing establishment’s
premises, it did not occur during appellant’s regular work shift or during a lunch or recreation
period as a regular incident of her employment. In order for an injury to be considered as arising
out of employment under these circumstances, the facts of the case must show some substantial
employer benefit or requirement which gave rise to the injury.17 It is incumbent upon appellant
to establish that it arose out of her employment.
Appellant has not established that her presence at the employing establishment on
November 4, 2012 at 12:50 a.m. was a reasonable interval before her scheduled work. Her usual
work shift began at 2:00 a.m. Appellant’s presence on the employer’s premises, is not, alone,
12

47 ECAB 192 (1995).

13

The Board found that, although the employee had been cautioned about unauthorized overtime and did not
request it on the date of injury, there was not an express prohibition concerning her overtime work. Rather, the
support staff was routinely requested by attorneys to work overtime and management was generally aware that they
were on the premises after regular duty tour hours. See id.
14

36 ECAB 329 (1984).

15

Docket No. 09-154 (issued July 16, 2009).

16

The Board notes that there is inconsistency in the case record regarding whether appellant’s injury occurred on
November 3 or 4, 2012. Appellant consistently alleged that the injury occurred on November 3, 2012. The
employing establishment noted that as appellant alleged that her injury occurred at 12:50 a.m., her injury actually
occurred on November 4, 2012. As the date of injury of November 3, 2012 is the date accepted by OWCP in its
decisions, the Board will also treat November 3, 2012 as the date of injury.
17

See Dwight D. Henderson, 46 ECAB 441 (1995).

6

sufficient to establish compensability. She arrived to work one hour and ten minutes before the
start of her shift. The Board has held that what constitutes a reasonable interval before a work
shift begins depends not only on the length of time involved but also on the circumstances for the
time interval and nature of the employment activity.18 There is no evidence of record
establishing that the employing establishment expressly or impliedly required appellant’s
presence on the premises prior to her regular work hours. There is no evidence that appellant
sought approval by her supervisor to be on the premises prior to her regular duty hours in order
to sign in or prepare for her daily activities. The only statement of record appellant received
regarding arriving early to work came from her husband, who had returned to work at the
employing establishment two days earlier and found that it was chaotic. While the
circumstances at the employing establishment and surrounding areas in the aftermath of
Hurricane Sandy, such as the partial lack of electricity or signing in at a cafeteria rather than at
her usual location, are relevant to the issue of the reasonableness of appellant’s arriving at work
one hour and ten minutes before the start of her usual work shift; the Board finds that they are
not sufficient, in the absence of any directive from the employing establishment, to establish that
her presence on the premises an hour prior to her work shift was reasonable.19 Appellant was not
in the performance of any actual or incidental duty related to her work as a mail handler at the
time of injury.
Appellant’s arrival at the employing establishment prior to her official starting time does
not automatically place her activities outside the scope of her employment.20 She stated that she
arrived early to work at 12:50 a.m. because she did not know what she was going to encounter on
the way there or what to expect when she got there. Appellant also stated that she arrived early
in order to report to the cafeteria to sign in and so that she could get through the flooding and
other issues. However, unlike Catherine Callen,21 there is no evidence of record that the
employer expressly or impliedly required appellant’s presence on the premises outside of her
regular duty hours. There is no evidence that her supervisor was ever made aware that she would
be present on the premises before her regular duty hours.22 Appellant did not submit sufficient
evidence to establish that the employing establishment condoned or encouraged employees to
come into work early in the aftermath of Hurricane Sandy in order to complete their sign-in
18

See Maryann Battista, 50 ECAB 343 (1999). See also Narbik A. Karamian, supra note 6 at 618; (citing
Clayton Varner, 37 ECAB 248 (1985)).
19

See Howard M. Faverman, 57 ECAB 151 (2005). Cf. Cemeish E. Williams, 57 ECAB 509 (2006) (finding that
where claimant arrived for duty 15 or 30 minutes prior to her scheduled shift and was adjusting her uniform tie and
reaching for her bag when the injury occurred on the escalator on the way to sign in for her afternoon shift, appellant
was on the premises for a reasonable time before her specific working hours in preparation for her shift, thereby
providing the employing establishment some substantial benefit from the activity involved).
20

See James E. Chadden, Sr., 40 ECAB 312, 315 (1988) (stating that claimant’s arrival at the employing
establishment a half hour prior to his official starting time was not so early as to place claimant’s activity outside the
scope of employment).
21

See supra note 12.

22

See supra note 13. See also S.D., Docket No. 10-1391 (issued August 24, 2011) (finding that the employee was
not in the performance of duty when she was injured in the lobby while assisting a coworker to gain entry through
the handicap door before her work shift began. She arrived early in order to secure a desired parking space close to
her employment).

7

procedures in a timely manner or due to obstacles on the way to and from the premises of the
employing establishment. Without evidence of such an express or implied direction from the
employing establishment, the Board finds that her arrival one hour and ten minutes prior to the
start of her regularly-scheduled shift on November 3, 2012 was a matter of personal
convenience, and not a matter from which the employer derived a substantial benefit.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on
November 3, 2012 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2014
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

8