United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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DEPARTMENT OF THE ARMY, CORPS OF
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ENGINEERS, J. STROM THURMOND POWER )
PLANT, Clark Hill, SC, Employer
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__________________________________________ )
B.S., Appellant

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

Docket No. 16-1451
Issued: December 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 6, 2016 appellant filed a timely appeal from March 28 and June 23, 2016 merit
decisions 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 established a recurrence of disability on June 11, 2015
caused by a December 1, 2006 employment injury.
FACTUAL HISTORY
On February 6, 2007 appellant, then a 55-year-old shift operator, filed a traumatic injury
claim (Form CA-1) alleging that, on December 1, 2006, he injured his right knee while rounding
1

5 U.S.C. § 8101 et seq.

a corner of a desk.2 Appellant did not stop work at that time. On April 12, 2007 Dr. Craig T.
Kerins, a Board-certified orthopedic surgeon, performed arthroscopic repairs of right medial and
lateral meniscal tears. OWCP accepted right knee medial and lateral meniscal tears on
May 9, 2007.
Appellant retired in December 2007. After that time he worked sporadically for the
employing establishment as a reemployed annuitant in a monitoring position which, by his
report, did not require standing for long periods. Appellant indicated that he only worked there
once a year for approximately 30 days.
Appellant had a second authorized arthroscopic repair of a degenerative tearing of the
right lateral meniscus on April 20, 2010, done by Dr. Edward M. Crossland, Board-certified in
orthopedic surgery and an associate of Dr. Kerins. In a July 29, 2010 report, Dr. Crosland
advised that appellant was deployable for field duty with the employing establishment.3 OWCP
paid wage-loss compensation for the period April 20 through July 28, 2010.
On June 23, 2015 appellant filed a recurrence claim (Form CA-2a). He indicated that the
recurrence occurred on June 11, 2015 when he stopped work, alleging that right knee pain had
been increasing over the last few months, and that on June 11, 2015 he turned and his knee
almost gave out twice. Appellant indicated that from February 2, 2008 to the present he was a
reemployed annuitant with the Department of Defense as a high voltage electrician, that from
April 1 to May 1, 2014 he had worked as a salesman at an automobile parts store, and that from
May 5, 2014 to May 1, 2015 he had worked for a temporary agency at John Deere Commercial
Products as a maintenance technician performing all repairs and installations.
In an undated disability slip, Dr. Kerins advised that appellant was seen in his office on
June 23, 2015 and could return to work on August 5, 2015.
By letter dated July 21, 2015, OWCP informed appellant of the evidence needed to
establish his recurrence claim. This included a narrative medical report from his physician
describing the objective medical findings that formed the basis of his renewed disability for
work.
On July 24, 2015 appellant filed a claim for compensation (Form CA-7) for the period
June 11 to July 25, 2015.
In a brief report dated August 5, 2015, Dr. Kerins advised that appellant was seen that
day, was scheduled for surgery, and would be out of work for six to eight weeks following the
surgery.

2

The record indicates that appellant initially injured his right knee in April 2006 when he was deployed with the
employing establishment for Hurricane Katrina relief, and that it worsened due to the December 1, 2006
employment injury. The employing establishment did not challenge the claim.
3

Appellant also submitted a disability slip from Dr. Crossland dated May 17, 2010 indicating that appellant could
not work. In a second disability slip dated October 22, 2010, Dr. Kerins advised that appellant could not work
beginning November 6, 2009.

2

In an August 6, 2015 responsive questionnaire, appellant reported that for the past six to
eight months his knee would give out, and once severe pain caused him to fall. He explained
that knee pain and locking steadily increased. Appellant indicated that from May 2014 to
May 2015 his job required walking and use of hands to make repairs.
By decision dated September 1, 2015, OWCP found that the medical evidence of record
failed to establish that the claimed condition was a result of his federal employment and denied
the recurrence claim.
In a report dated June 24, 2015, received by OWCP on September 3, 2015, Dr. Kerins
noted appellant’s complaint of a six-month history of significant recurrent right knee pain,
associated with intermittent locking, popping, and swelling. He described appellant’s past
surgical care. Dr. Kerins provided physical examination findings and recommended a right knee
MRI scan. A July 23, 2015 MRI scan of the right knee demonstrated early osteoarthritic changes
and an oblique tear to the posterior horn and body of the lateral meniscus. On August 5, 2015
Dr. Kerins noted his review of the MRI scan. He reported effusion, collateral compartment pain,
and a very positive lateral McMurray’s sign on examination of the right knee. Dr. Kerins
diagnosed derangement of the posterior horn of the right lateral meniscus and recommended
arthroscopic repair.
On September 21, 2015 appellant requested reconsideration. He advised that he had been
employed as a maintenance technician, working an average of 10 hours a day six days a week,
from May 2014 to April 2015, and that he was still listed with the employing establishment as a
reemployed annuitant but that, due to the problems with his right knee, he could not be deployed.
Appellant stated that he continued to work wearing a knee brace until an MRI scan demonstrated
an actual tear.
In a merit decision dated December 4, 2015, OWCP denied modification. It found the
medical evidence of record insufficient, noting that Dr. Kerins did not address how appellant’s
current knee condition and need for surgery were directly related to the December 1, 2006
employment injury.
On March 17, 2016 appellant again requested reconsideration. He reiterated that his
current condition was caused by the employment injury and submitted a February 18, 2016
operative report in which Dr. Kerins described right knee arthroscopic chondroplasty and lateral
meniscectomy. The postoperative diagnosis was torn lateral meniscus, right knee, and
significant degenerative arthritis. On February 24, 2016 Dr. Kerins referred appellant for
physical therapy.
In a merit decision dated March 28, 2016, OWCP denied modification of its prior
decisions, finding that the medical evidence of record remained insufficient because it failed to
establish causal relationship between appellant’s present disability and the December 1, 2006
employment injury.
Appellant again requested reconsideration on April 18, 2016. He submitted an April 14,
2016 report in which Dr. Kerins described a history that appellant originally injured his right leg
in 2006 while deployed to help with recovery from Hurricane Katrina and that, after conservative

3

measures failed, in 2007 he had arthroscopic repair of medial and lateral meniscal tears.
Dr. Kerins advised that, in April 2010, appellant had recurrent surgery for a recurrent lateral
meniscal tear, and that finally he had a third operative procedure on February 18, 2016 where
Dr. Kerins excised a complex lateral meniscal tear. He noted that appellant was found to have
significant degenerative arthritis at surgery. Dr. Kerins opined that this was primarily a posttraumatic arthritis associated with damage to the right knee that began with the 2006
employment injury. He reported that appellant’s deployment activities included significant
walking, sometimes over uneven terrain, and climbing ladders. Dr. Kerins advised that appellant
could not currently perform these duties due to right knee damage and was permanently
restricted to light duty. He concluded that appellant would be a candidate for total knee
replacement at some time in the future.
In a merit decision dated June 23, 2016, OWCP again denied modification. It reviewed
Dr. Kerins’ April 14, 2016 report and found it insufficient to modify the prior decision because
he failed to provide sufficient medical rationale to support that the December 1, 2006
employment injury caused or aggravated appellant’s current right knee condition.
LEGAL PRECEDENT
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.”4 An individual person who claims a recurrence of disability due to an
accepted employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which he or she claims compensation is
causally related to the accepted injury. This burden of proof requires that an employee furnish
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 supports that conclusion with sound medical reasoning.5 Where no such rationale is present,
medical evidence is of diminished probative value.6
ANALYSIS
On December 1, 2006 OWCP accepted employment-related medial and lateral meniscal
tears of the right knee. On April 12, 2007 Dr. Kerins performed arthroscopic repair of both
meniscal tears, and on April 20, 2010 Dr. Crossland repaired a degenerative tear of the lateral
meniscus.
Appellant filed a recurrence claim on June 23, 2015. He reported that right knee pain had
increased over the past months and that the recurrence of disability occurred on June 11, 2015
when his knee gave out.
4

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

5

S.S., 59 ECAB 315 (2008).

6

See Ronald C. Hand, 49 ECAB 113 (1997).

4

Medical evidence of bridging symptoms must demonstrate that the claimed recurrence is
causally related to the accepted injury.7 In this case, appellant reported that, from February 2,
2008 to the present, he was a reemployed annuitant with the Department of Defense as a high
voltage electrician, that from April 1 to May 1, 2014 he worked as a salesman at an automobile
parts store, and that from May 5, 2014 to May 1, 2015 he worked for a temporary agency at John
Deere Commercial Products as a maintenance technician performing all repairs and installations,
and that this job required walking and use of hands to make repairs, and he worked an average of
10 hours a day for six days a week.
There are no medical reports of record between Dr. Crossland’s July 29, 2010 report
advising that appellant could return to work and the brief June 23, 2015 note in which Dr. Kerins
advised that appellant was seen that day. Dr. Kerins performed a third arthroscopic repair of
appellant’s right lateral meniscus on February 18, 2016. Postoperative diagnoses included
significant degenerative arthritis. Dr. Kerins did not address the cause of appellant’s current
knee condition until April 14, 2016 when he reported a history that appellant originally injured
his right leg in December 2006 while deployed to help with recovery from Hurricane Katrina8
and that, after conservative measures failed, in 2007 he had arthroscopic repair of medial and
lateral meniscal tears. He described appellant’s surgical history, noting that he found significant
degenerative arthritis in 2016 surgery. Dr. Kerins opined that this was primarily post-traumatic
arthritis associated with damage to the right knee that began with the December 1, 2006
employment injury. While he reported that appellant’s deployment activities included significant
walking, sometimes over uneven terrain, and climbing ladders, Dr. Kerins did not indicate
whether this was in regard to his work duties prior to retirement or those that he did for brief
periods each year as a reemployed annuitant. Moreover, he did not reflect an awareness of or
comment on the significance of appellant’s outside employment.
The Board has long held that medical reports must be based on a complete and accurate
factual and medical background, and medical opinions based on an incomplete or inaccurate
history are of little probative value.9 An individual who claims a recurrence of disability due to
an accepted employment-related injury has the burden of establishing by the weight of the
substantial, reliable, and probative evidence that the disability for which he or she claims
compensation is causally related to the accepted injury.10 Appellant did not submit sufficient
evidence to show that the claimed recurrence and disability were causally related to the
December 1, 2006 employment injury.11
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.
7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Supra note 2.

9

Douglas M. McQuaid, 52 ECAB 382 (2001).

10

Supra note 6.

11

Id.

5

CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on June 11, 2015 caused by a December 1, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 23 and March 28, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-1070
Issued: November 15, 2011

Case Submitted on the Record

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

JURISDICTION
On March 24, 2011 appellant filed a timely appeal from the December 6, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which awarded schedule
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 more than a four percent impairment of her right arm
for which she received a schedule award.
FACTUAL HISTORY
In 2007 appellant, then a 36-year-old certified respiratory therapist, injured her right
elbow in the performance of duty by pushing a medication cart. OWCP accepted her claim for
1

5 U.S.C. § 8101 et seq.

right lateral epicondylitis. Appellant underwent a right extensor origin release and filed a claim
for a schedule award.
Dr. John W. Sapp, the attending orthopedic surgeon, evaluated appellant’s impairment
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment. Using Table 15-4, page 399, he found that her lateral epicondylitis and
right extensor surgical release qualified for a five percent default impairment rating of the right
upper extremity, a class 1 or mild impairment. Noting a mild functional loss, essentially normal
physical findings and no clinical studies since her surgery, Dr. Sapp modified the default
impairment rating to find four percent impairment of the right arm.
On December 6, 2010 OWCP issued a schedule award for a four percent impairment of
appellant’s right upper extremity.
LEGAL PRECEDENT
Section 8107 of FECA2 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the A.M.A., Guides.3
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the upper
extremity.4 OWCP accepted appellant’s claim for lateral epicondylitis, for which she underwent
an extensor origins release. Table 15-4, page 399 of the A.M.A., Guides gives a default
impairment rating of five percent for the diagnosis of lateral epicondylitis following surgical
release of extensor origins with residual symptoms. This default rating, classified as mild, can be
modified slightly based on a claimant’s functional history, physical findings and clinical studies.
Dr. Sapp explained that appellant’s functional loss was also mild, which warranted no
modification. Appellant’s physical findings, however, were less than mild. This reduced the
default rating to four percent. There were no clinical studies following surgery. As a result,
appellant’s final impairment rating was four percent of the right upper extremity.
Dr. Sapp provided a thorough evaluation of appellant’s impairment under the sixth
edition of the A.M.A., Guides. The Board finds that appellant has a four percent impairment of
her right upper extremity and will affirm OWCP’s December 6, 2010 decision.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).
4

A.M.A., Guides 387 (6th ed., second printing 2009).

2

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has a four percent impairment of her right upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________

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

Docket No. 21-0253
Issued: March 24, 2022

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 December 10, 2020 appellant filed a timely appeal from a November 16, 2020 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 an overpayment of compensation in the
amount of $5,022.00 for the period May 26, 2019 through February 29, 2020 for which he was
without fault, because of an underwithholding of optional life insurance (OLI) premiums from his
FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2016 appellant, then a 62-year-old underground mine safety and health
inspector, filed a traumatic injury claim (Form CA-1) alleging that on October 13, 2016 he injured
his neck when he slipped and fell onto a mine floor while in the performance of duty. OWCP
accepted the claim for strain of muscle(s) and tendon(s) of the right shoulder rotator cuff (tear) and
later expanded the acceptance of the claim to include aggravation of radiculopathy and spinal
stenosis of the cervical region. It paid appellant wage-loss compensation on the supplemental
rolls, effective November 17, 2016, and then on the periodic rolls effective September 17, 2017.
In a September 27, 2017 letter, OWCP outlined appellant’s entitlement to compensation
benefits. It advised him that it was making deductions for health insurance benefits, basic life
insurance (BLI), and OLI premiums (in the amount of $421.20) from his compensation payments
every 28 days.
On February 25, 2020 the Office of Personnel Management (OPM) informed OWCP that
as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI
coverage. The final base salary on which FEGLI was based was $92,316.00. OPM requested
OWCP to deduct for code X0 basic Option A for 75 percent reduction and Option B times five
with no reduction. It noted that appellant’s PRBLI reduction commenced on October 14, 2017.
OPM forwarded an Option B election form that appellant signed on February 14, 2020 freezing all
of his Option B (additional) life insurance at the value as of age 65, to continue for life.
In a preliminary overpayment determination dated April 9, 2020, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $10,819.00 because OLI
and PRBLI premiums after he reached age 65 had not been properly deducted from his FECA
compensation for the period October 14, 2017 through February 29, 2020. It provided an
overpayment calculation. OWCP further advised appellant of its preliminary determination that
he was not at fault in the creation of the overpayment and requested that he complete an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, it notified him that within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In a memorandum of telephone call (Form CA-110) dated April 30, 2020, appellant
informed OWCP that OPM had advised him that he had paid BLI and OLI premiums up to age
65. However, deductions should have continued to have been made as of 2019 when he turned 65
years old and not in 2017 as indicated in OPM’s February 25, 2020 letter.
In a May 11, 2020 amended overpayment referral, OWCP noted that its compensation
history records showed that appellant had paid OLI premiums up to May 25, 2019 and that
deductions for OLI and PRBLI premiums began on March 1, 2020. It further noted that the
overpayment occurred from May 26, 2019 to February 29, 2020, 10 periodic roll cycles. As
appellant’s premium for OLI after age 65 was $502.20 every 28-day cycle, the total overpayment
was $5,022.00.

2

OWCP, in a corrected preliminary overpayment determination also dated May 11, 2020,
informed appellant that he had received an overpayment of compensation in the amount of
$5,022.00 because OLI premiums had not been properly deducted after he turned 65 years old on
May 12, 2019 from his FECA compensation for the period May 26, 2019 through
February 29, 2020. It provided an overpayment calculation. OWCP again found that appellant
was not at fault in the creation of the overpayment and requested that he complete an overpayment
action request form containing appeal rights and a Form OWCP-20 and submit supporting
documentation including copies of tax returns, bank account statements, bills and cancelled
checks, pay slips, and other records which supported the income and expenses listed. It again
notified him that he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. OWCP advised that, under 20 C.F.R. § 10.438, failure to
submit the requested information within 30 days would result in a denial of waiver of recovery of
the overpayment. However, no financial information was submitted by appellant.
On June 8, 2020 appellant requested a telephonic prerecoupment hearing, which was held
on August 31, 2020. He contested the fact and amount of the overpayment and requested waiver
of recovery of the overpayment. Appellant asserted that he was subject to double jeopardy as
OWCP had vacated the initial preliminary overpayment determination, admitted error, but had
thereafter issued a new preliminary overpayment determination. He also indicated that he had
alerted OWCP that premiums were not being withheld properly from his FECA compensation.
By decision dated November 16, 2020, an OWCP hearing representative finalized the
May 11, 2020 preliminary overpayment determination that appellant had received an overpayment
of compensation in the amount of $5,022.00 for the period May 26, 2019 through February 29,
2020, for which he was without fault, because OWCP had failed to deduct OLI premiums after he
reached age 65 from his compensation payments. He found that issuance of a corrected decision,
reducing the amount of the overpayment, did not constitute double jeopardy. The hearing
representative noted the rates of FEGLI premiums effective January 1, 2016. For option B (per
$1,000 of insurance), the bi-weekly premium for age band 65-69 was .54. Based on his rounded
final salary of $93,000.00 and 5x multiple election, appellant was insured for $465,000.00. The
hearing representative further calculated that twice the bi-weekly rate of .54 was 1.08 and
multiplied by 465 equaled a 28-day premium of $502.20. He denied waiver of recovery of the
overpayment as no financial evidence had been submitted in response to the May 11, 2020
preliminary overpayment determination, as requested. Because OWCP did not have the necessary
financial information to determine an equitable monthly repayment amount, the hearing
representative ordered recovery of the overpayment in full within 30 days. Appellant was directed
to contact OWCP if he wished to enter into a monthly repayment agreement.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options. 2 The coverage for BLI is effective unless
waived,3 and premiums for basic and optional life coverage are withheld from the employee’s
2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).

3

pay.4 Upon retirement or upon separation from the employing establishment or being placed on
the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI
coverage in which case the schedule of deductions made will be used to withhold premiums from
his or her annuity or compensation payments.5 BLI coverage shall be continued without cost to
an employee who retired or began receiving compensation on or before December 31, 1989;6
however, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing n o life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium). 8 When an underwithholding of life insurance premiums occurs, the entire
amount is deemed an overpayment of compensation because OWCP must pay the full premium to
OPM upon discovery of the error.9
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 duty. 10 When
an overpayment has been made to an individual 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 the individual is entitled. 11

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

7

Id. at § 8706(b)(3)(B). See J.H., Docket No. 20-0281 (issued May 18, 2021); B.B., Docket No. 17-1733 (issued
March 26, 2018).
8

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April 15, 2019); James J.
Conway, Docket No. 04-2047 (issued May 20, 2005).
9

5 U.S.C. § 8707(d); see also B.B., supra note 7.

10

Id. at § 8102(a).

11

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of OLI premiums from his FECA compensation.
OPM notified OWCP that on February 14, 2020 appellant had elected to freeze all of his
Option B additional life insurance at the value as of age 65. OWCP found that appellant had paid
OLI premiums up to May 25, 2019 when he reached the age of 65 on May 12, 2019 and that
deductions for these premiums began on March 1, 2020, but that it did not deduct the proper
amounts of OLI premiums from appellant’s wage-loss compensation benefits for the period
May 26, 2019 through February 29, 2020. It calculated the amount of the resulting overpayment
as $5,022.00. The record contains compensation payment records, as well as an overpayment
worksheet explaining the overpayment calculation and how the overpayment occurred. While in
compensationer status, appellant remained responsible for all insurance benefits, including the
premiums for OLI at whatever option he or she had selected. 12 Moreover, as noted, when an
underwithholding of life insurance premiums occurs, the entire amount is deemed an overpayment
of compensation because OWCP must pay the full premium to OPM upon discovery of the error. 13
The Board thus finds that OWCP properly determined the fact and amount of the
overpayment. As OWCP failed to properly deduct OLI premiums for the period May 26, 2019
through February 29, 2020, appellant received an overpayment of $5,022.00 during this period. 14
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 15
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because 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 the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 16 Additionally, recovery of an
12

5 C.F.R. § 870.504(b); S.P., Docket No. 17-1888 (issued July 18, 2018).

13

5 U.S.C. § 8102.

14

See J.H., supra note 7; I.J., supra note 8; D.H., Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No.
19-0451 (issued August 7, 2019).
15

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
16

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) (September 2020).

5

overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17
OWCP’s regulations provide that 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. The information is also used to
determine the repayment schedule, if necessary. 18 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment. 20 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. 21 Appellant, however, has the responsibility to provide the appropriate
financial information and documentation to OWCP.22
In its preliminary overpayment determination dated May 11, 2020, OWCP explained the
importance of providing the completed Form OWCP-20 and financial information, including
copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support income and expenses. It advised appellant that it would deny waiver of recovery if he
failed to furnish the requested financial information within 30 days. Appellant, however, did not
respond. As such, OWCP did not have the necessary financial information to determine if recovery
of the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.23

17

Id. at § 10.437(a)(b).

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

20

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

21

20 C.F.R. § 10.436.

22

Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M., Docket No. 17-1802 (issued
August 20, 2018).
23

J.H., supra note 7; D.H., supra note 14.

6

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied
waiver of recovery of the overpayment. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of life insurance premiums. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

24

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, ROSELAND POST
OFFICE, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0085
Issued: March 16, 2016

Case Submitted on the Record

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

JURISDICTION
On October 10, 20151 appellant filed a timely appeal from an April 21, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant had no more than
33 percent permanent impairment of the right lower extremity and 10 percent permanent
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. 20 C.F.R. § 501.3(e)-(f).
One hundred and eighty days from April 21, 2015, the date of OWCP’s decision, was October 18, 2015. Since
using October 19, 2015, the date the appeal was received by the Clerk of the Board, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is October 10, 2015, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

impairment of the left lower extremity, for which she received schedule awards; and (2) whether
an OWCP hearing representative properly denied appellant’s request for a subpoena.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances of the case
as set forth in the Board’s prior decision and order are incorporated by reference. The relevant
facts of the prior appeal are included below.
OWCP accepted that on December 20, 2002 appellant, then a 45-year-old mail
processing clerk, sustained medial meniscal tears of both knees and traumatic arthropathy of both
lower legs when she knelt on a floor to change a post office box lock. On the date of injury,
emergency room physicians diagnosed patellar tendinitis and degenerative joint disease.3
On January 8, 2009 Dr. Samuel J. Chmell, an attending Board-certified orthopedic
surgeon, diagnosed an aggravation of osteoarthritis of both hips. He obtained an April 22, 2009
magnetic resonance imaging (MRI) scan of both ankles showing mild post-traumatic edema, an
April 23, 2009 MRI scan of both hips that was within normal limits and an April 23, 2009 MRI
scan of both knees showing mild bilateral tricompartmental arthritis with no meniscal tears.4
On August 8, 2011 appellant claimed a schedule award (Form CA-7). In a November 3,
2011 letter, OWCP advised her of the evidence needed to establish her claim, including a report
from her attending physician confirming maximum medical improvement, and providing an
impairment rating according to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).
In response, appellant provided a September 16, 2011 letter from Dr. Chmell, opining
that the December 20, 2002 employment injury caused chronic “effusion, tenderness, crepitus
and diminished range of motion” of both knees. Dr. Chmell noted that imaging studies showed
chondromalacia, traumatic arthritis, and torn medial menisci in both knees. He submitted a
November 25, 2011 impairment rating finding 52 percent impairment of each lower extremity
according to the A.M.A., Guides.
For the right knee, Dr. Chmell found 10 percent impairment according to Table 16-235
due to range of motion limited to 5 to 100 degrees, 10 percent impairment according to Table 16-

3

A January 2, 2003 left knee x-ray showed minimal spur formation and an intact joint space. December 16, 2003
bilateral hip x-rays were negative for arthritis.
4

February 8, 2010 electromyography (EMG) and nerve conduction velocity (NCV) studies showed isolated
findings of right peroneal nerve injury. November 22, 2010 EMG and NCV studies of both lower extremities
showed no evidence of radiculopathy.
5

Table 16-23, page 549 of the sixth edition of the A.M.A., Guides is entitled “Knee Motion Impairments.”

2

66 and Table 16-77 for physical findings including knee tenderness, chronic effusion, crepitus
and a limp, 25 percent impairment according to Table 16-38 for imaging studies showing
osteophytes and cartilage damage, and 7 percent impairment for right ankle motion limited to 0
to 20 degrees according to Table 16-22.9 He added these impairments to equal 52 percent.
Dr. Chmell noted the same percentages of impairment for the left knee for identical findings,
other than knee extension limited to 105 degrees.
On December 20, 2011 OWCP referred the medical record to an OWCP medical adviser
for an impairment rating of the left and right lower extremities according to the sixth edition of
the A.M.A., Guides. It noted that under File No. xxxxxx862, accepted for aggravation of
bilateral hip osteoarthritis and bilateral hip strains, appellant received a schedule award for 10
percent impairment of each lower extremity on February 3, 2009.10
In a January 17, 2012 report, an OWCP medical adviser noted that Dr. Chmell had not
correctly applied the A.M.A., Guides, as he included both restricted motion and a diagnosisbased impairment. He noted that an April 2009 MRI scan of both knees showed no meniscal
tears and mild tricompartmental arthritis. The medical adviser opined that the arthritis was due
to appellant’s morbid obesity, as she weighed 240 pounds and stood 5’3.” He stated that there
was “no basis for any additional lower extremity” impairment beyond the 10 percent awarded.
By decision dated June 27, 2012, OWCP denied appellant’s claim for an increased
schedule award as the medical evidence failed to establish more than 10 percent impairment of
each leg.
On July 22, 2012 appellant requested an oral hearing, held before an OWCP hearing
representative on November 27, 2012. At the hearing, she contended that the medical evidence
substantiated permanent impairment to all extremities. Following the hearing, appellant
provided a December 23, 2012 statement contending that OWCP had not fully considered the
medical evidence. She submitted additional medical evidence.
In June 21, August 9, September 27, and December 6, 2012 reports, Dr. Chmell noted
pain, swelling and diminished reflexes in both lower extremities. He repeated prior diagnoses.
August 6, 2012 EMG and NCV studies showed bilateral L5 radiculopathy and polyneuropathy of
both lower extremities.
6

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment -Lower Extremity Impairments.”
7

Table 16-7, page 517 of the sixth edition of the A.M.A., Guides is entitled “Physical Examination Adjustment -Lower Extremity Impairments.”
8

Table 16-3, pages 509-511 of the sixth edition of the A.M.A., Guides is entitled “Knee Regional Grid -- Lower
Extremity Impairments.”
9

Table 16-22, page 549 of the sixth edition of the A.M.A., Guides is entitled “Ankle Motion Impairments.”

10

Appellant appealed the February 3, 2009 schedule award under File No. xxxxxx862 to the Board. By decision
and order issued May 28, 2010, the Board affirmed the February 3, 2009 schedule award for 10 percent permanent
impairment of each leg due to limited bilateral hip motion. Docket No. 09-2007 (issued September 13, 2010).

3

On February 11, 2013 an OWCP hearing representative affirmed OWCP’s June 27, 2012
decision, finding that appellant had not established more than 10 percent impairment of each leg.
She found that Dr. Chmell misapplied the A.M.A., Guides, whereas the medical adviser had
provided a well-rationalized opinion properly using the A.M.A., Guides. Appellant then
appealed to the Board.
By decision and order issued April 11, 2014,11 the Board set aside OWCP’s February 11,
2013 decision and remanded the case to obtain a more detailed analysis of permanent impairment
to the lower extremities.
On July 14, 2014 OWCP referred appellant to Dr. James P. Elmes, a Board-certified
orthopedic surgeon for a second opinion examination. Dr. Elmes reviewed the medical record
and a statement of accepted facts (SOAF). On examination, he found diminished sensation in
the right anterior thigh, lateral calf, and medial foot, flexion of the right knee limited to 112
degrees based on an average of three trials measured with a goniometer, left knee flexion limited
to 117 degrees. Appellant demonstrated full ankle and foot ranges of motion bilaterally.
Dr. Elmes diagnosed bilateral medial meniscal tears, post-traumatic arthropathy of both knees,
and nonspecific bilateral hip and ankle pain. He found that appellant had reached maximum
medical improvement on November 25, 2011.
Regarding the right knee, Dr. Elmes referred to Table 16-3 to find a class 3 Class of
Diagnosis (CDX) for arthritis, with a one millimeter cartilage interval on July 8, 2014 knee
x-rays. He assigned default grade of C, equaling 30 percent impairment. Dr. Elmes found a
Functional History (GMFH) grade modifier of 2, and Physical Examination (GMPE) grade
modifier of 1 due to limited motion. He explained that no Clinical Studies (GMCS) grade
modifier was applicable as the x-rays were used to establish the CDX. Applying the net
adjustment formula, or (GMFH-CDX) + (GMPE-CDX), or (2-3) + (1-3) resulting in a modifier
of -3, moving the default C to A, equaling 26 percent impairment of the right lower extremity.
Regarding the left knee, Dr. Elmes found no joint space narrowing on July 8, 2014
x-rays. He applied a class 1 CDX for meniscal injury, with a default value of two percent.
Dr. Elmes found a GMFH of 2 for a lower limb score of 35, and a GMPE of 1 for moderate
medial joint tenderness on palpation, he explained that there was no applicable GMCS as there
was no joint space narrowing by x-ray. Applying the net adjustment formula, or (2-1) + (1-1),
Dr. Elmes calculated a net modifier of +1, moving the default grade of C upward to D, equaling
two percent impairment of the left lower extremity.
An OWCP medical adviser reviewed Dr. Elmes’ report on August 4, 2014, and concurred
with his assessment for the right lower extremity. He noted, however, that there was no
impairment under the sixth edition of the A.M.A., Guides for meniscal injury in the absence of a
frank tear or meniscectomy. Therefore, appellant did not have any additional impairment of the
left lower extremity. The medical adviser noted that using the Combined Values Chart on page
604 of the A.M.A., Guides, appellant had a total of 33 percent impairment of the right lower
extremity, and 10 percent impairment of the left lower extremity.
11

Docket No. 13-1902 (issued April 11, 2014).

4

By decision dated August 19, 2014, OWCP granted appellant a schedule award for an
additional 23 percent permanent impairment of the right leg, for a total of 33 percent. It found
that appellant did not establish that she sustained greater than the 10 percent impairment of the
left leg previously awarded.
In a September 9, 2014 letter, appellant requested a hearing and asked that the Branch of
Hearings and Review subpoena Dr. Elmes and the x-ray films on which he relied. She alleged
that OWCP had failed to consider all impairments to her legs in calculating the August 19, 2014
schedule award. Appellant submitted a February 19, 2014 x-ray report noting progression of
moderate tricompartmental osteoarthritis of the right knee with narrowing of the compartments
and patellofemoral joint space, and a grossly normal left hip. At the hearing, held February 12,
2015, she contended that imaging studies of record demonstrated that she had additional
impairments of both lower extremities. Appellant contended that Dr. Chmell should have been
given an additional opportunity to perform an assessment. Following the hearing, she submitted
a March 7, 2015 letter reiterating her contentions.
By decision dated April 21, 2015, an OWCP hearing representative affirmed the
August 19, 2014 schedule award. He found that, although OWCP had not doubled appellant’s
various lower extremity claims, Dr. Elmes had performed a thorough clinical examination and
described the many studies from those claims that were part of the case record under File No.
xxxxxx089. The hearing representative therefore found that Dr. Elmes had sufficient evidence to
perform his impairment rating. He formally denied appellant’s request to subpoena Dr. Elmes
and the x-ray films, finding that the films and testimony were “not considered necessary in
resolving the impairment issue.” The hearing representative noted that Dr. Elmes provided an
extensive discussion of all diagnostic evidence and the weight accorded to various reports and
clinical findings. Therefore, Dr. Elmes’ direct testimony and the x-ray films were not needed to
determine the percentage of permanent impairment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA12 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.13 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides.14
12

5 U.S.C. § 8107.

13

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

5

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).15 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on functional history,
physical examination, and clinical studies.16 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).
In some instances, an OWCP’s medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by OWCP’s medical adviser which gives a percentage based on
reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.17
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral meniscal tears and bilateral traumatic
arthropathy of the lower legs. Appellant claimed a schedule award on August 8, 2011. Under
File No. xxxxxx862, she received a February 3, 2009 schedule award for 10 percent permanent
impairment of each lower extremity due to restricted bilateral hip motion.
In support of her claim, appellant submitted reports from Dr. Chmell, an attending Boardcertified orthopedic surgeon, diagnosing bilateral ankle and foot derangement and osteoarthritis
of both hips and knees. Dr. Chmell provided a November 25, 2011 impairment rating finding 52
percent of each leg due to limited knee and ankle motion, examination findings, and imaging
studies showing cartilage degeneration and arthritis. He referenced specific tables in the sixth
edition of the A.M.A., Guides in calculating the percentage of impairment. However, an OWCP
medical adviser opined on January 17, 2012 that appellant had only 10 percent impairment of
each leg. Pursuant to the first appeal, the Board remanded the case for additional development
regarding the appropriate percentage of permanent impairment.
On remand of the case, OWCP obtained a second opinion from Dr. Elmes, a Boardcertified orthopedic surgeon, who provided a July 14, 2014 impairment rating. Dr. Elmes based
his opinion on a SOAF and the medical record. He performed a thorough clinical examination,
obtaining range of motion measurements after three trials and using a goniometer. Dr. Elmes
found that appellant had 33 percent impairment of the right leg due to class 3 osteoarthritis with
a one millimeter cartilage interval, with a GMFH of 2 and GMPE of 1. Regarding the left knee,
he found no joint space narrowing on July 8, 2014 x-rays. Dr. Elmes calculated two percent
impairment of the left leg due to meniscal injury.
15

A.M.A., Guides (6th ed. 2009), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
16

A.M.A., Guides (6th ed. 2009), pp. 494-531.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.8(j) (September 2010).

6

An OWCP medical adviser reviewed Dr. Elmes’ assessment. He found that appellant
had no additional impairment of the left leg as the A.M.A., Guides did not allow impairments for
meniscal injury in the absence of a tear. The medical adviser concurred, however, with
Dr. Elmes’ evaluation of appellant’s right leg. Based on Dr. Elmes’ opinion as reviewed by the
medical adviser, OWCP issued the August 19, 2014 schedule award for an additional 23 percent
impairment of the right leg.
The Board finds that OWCP properly relied on Dr. Elmes’ clinical findings and
impairment rating regarding the lower extremities, as reviewed by its medical adviser.
Dr. Elmes applied the appropriate portions of the A.M.A., Guides to his clinical findings
regarding the right leg.18 The medical adviser made a minor modification to the left lower
extremity rating, but concurred with all other elements of Dr. Elmes’ rating methodology and
calculations. Therefore, OWCP’s April 21, 2015 decision affirming the August 19, 2014
determination of 33 percent permanent impairment of the right lower extremity and 10 percent
permanent impairment of the left lower extremity was proper in this regard.
On appeal, appellant asserts that OWCP developed her lower extremity schedule award
claims in a piecemeal fashion to lower the percentage of permanent impairment awarded. As
explained above, Dr. Elmes’ opinion was based on a SOAF, and a medical record which
included reports from appellant’s other lower extremity claims.
Appellant may request a schedule award or increased schedule, based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition,
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of FECA provides that the Secretary of Labor, on any matter within his
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.19 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers, or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.20 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.21 Section
10.619(a) of the implementing regulations provides that a claimant may request a subpoena only

18

See supra note 17.

19

5 U.S.C. § 8126(1).

20

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

21

Id.

7

as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.22
The hearing representative retains discretion on whether to issue a subpoena. The function of the
Board on appeal is to determine whether there has been an abuse of discretion.23 Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are clearly contrary to logic and probable deduction from
established facts.24
ANALYSIS -- ISSUE 2
In the present case, appellant requested that the hearing representative subpoena
Dr. Elmes and the July 8, 2014 x-rays he obtained. The hearing representative denied the
request, finding that Dr. Elmes’ testimony and the x-ray films were not necessary to the
adjudication of the case.
As noted above, the hearing representative has discretion with respect to the issuance of
subpoenas. Appellant argued that the x-ray films and testimony were crucial to establishing the
appropriate percentage of permanent impairment, without providing any valid explanation as to
why they were necessary. The hearing representative reasonably determined that the evidence
was not needed as Dr. Elmes provided a thorough and comprehensive report. There was no
evidence presented that subpoenas were necessary with respect to the development of the
relevant evidence in this case. The Board finds no abuse of discretion related to the denial of a
subpoena request.25
CONCLUSION
The Board finds that OWCP properly determined that appellant had no more than 33
percent permanent impairment of the right lower extremity and 10 percent permanent
impairment of the left lower extremity, for which she received schedule awards. The Board
further finds that an OWCP hearing representative properly denied appellant’s request for a
subpoena.

22

20 C.F.R. § 10.619(a)(1).

23

See Gregorio E. Conde, supra note 20.

24

Claudio Vazquez, 52 ECAB 496 (2001).

25

D.O., Docket No. 15-1368 (issued October 22, 2015).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 21, 2015 is affirmed.
Issued: March 16, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

)
)
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)
)
)
)
)
)

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

Docket No. 20-0249
Issued: December 31, 2020

Case Submitted on the Record

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

JURISDICTION
On November 13, 2019 appellant filed a timely appeal from an October 31, 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 an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On June 12, 2019 appellant, then a 49-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she experienced anxiety and panic attacks due to workplace
harassment by her coworkers and management. She explained that in the beginning of 2019 two
1

5 U.S.C. § 8101 et seq.

coworkers began stalking and harassing her. Appellant made complaints to management and the
postal police and indicated that she was subsequently removed from the office on April 1, 2019
for her own safety. She reported that she was forced to return to a hostile work environment where
she felt unsafe and that caused anxiety and panic attacks. Appellant indicated that she first became
aware of her condition and first realized it was caused or aggravated by her federal employment
on February 14, 2019. She did not stop work.
In a June 11, 2019 medical note, Dr. Tu Sang Om, Board-certified in family medicine,
reported that he saw appellant on March 1 and June 11, 2019 due to an anxiety attack secondary
to workplace stress.
In an undated statement, appellant explained that while working in a modified-duty
position in an unsupervised office the environment was hostile and uncomfortable as she was
harassed by coworkers, M.H. and R.H. She indicated that she was harassed, stalked, and
discriminated against, which caused anxiety and panic attacks. Appellant alleged that in
January 2019 M.H., would become angry and enraged while standing in the middle of the office
screaming uncontrollably. She claimed that M.H. would refer to her as “stupid” or “pathetic” and
also say things like “shut up and take your nappy neck back to Jamaica!” Appellant claimed that
M.H. would refer to her as an “ugly demon” because she was not Christian and left bibles on her
desk. She also alleged that M.H. would throw boxes at her and threaten to kill her, causing her to
make several complaints to management.
Appellant further noted that in February 2019 R.H., started violating her personal space by
staring at her angrily for hours and walking so close to her that he would almost touch her. She
later noticed that R.H. would begin to follow her all over the post office and even into the restroom
and would block doors with heavy containers, making it difficult to exit the room. Appellant also
noticed that around this time there would be trash all over her desk and chair. On February 14,
2019 she began to panic when R.H. became hostile and confrontational over office equipment and
feared being in the office alone with him. Appellant subsequently contacted management and the
postal police, and made several written complaints. As a result of the conduct of R.H., she
experienced crying spells, shortness of breath, painful breathing, and dizziness. On March 1, 2019
appellant went to visit her doctor as her symptoms became more frequent. She was diagnosed
with anxiety and panic attacks. On April 1, 2019 management removed appellant from the office
for her safety.
In an undated statement, J.B., an employing establishment manager, explained that an
investigative interview with M.H. was held during which she explained that she had screamed
uncontrollably to get appellant to stop talking about other employees and to turn down her loud
music that used curse words. He believed that M.H.’s conduct walking around the room and
laughing to herself was to get appellant to stop talking to her. J.B. indicated that he was unaware
of any name calling or threats to kill appellant had been verified. However, M.H. was advised by
management that her behavior was unacceptable and that she should contact her supervisor
whenever she had issues on the workroom floor. She was given an administrative action for her
behavior. J.B. noted that he was unaware of and was unable to verify any name calling or threats
by M.H. as alleged by appellant. He further noted that statements concerning R.H. had also not
been verified or confirmed. J.B explained that on April 1, 2019 appellant was removed from the
office to allow management to investigate her concerns regarding M.H. After the investigation
was completed, management instructed appellant to return to her office and placed her on the
2

opposite side of the unit away from M.H. and R.H. She refused to report to her unit and
subsequently filed her Form CA-2.
In a development letter dated June 24, 2019, OWCP advised appellant of the factual and
medical evidence necessary to establish her claim and attached a questionnaire for her completion.
It also requested a narrative medical report from appellant’s treating physician regarding a
diagnosis and opinion on causal relationship. In a separate development letter of even date, OWCP
requested that the employing establishment provide additional information regarding appellant’s
occupational disease claim, including comments from a knowledgeable supervisor regarding the
accuracy of appellant’s statements. It afforded both parties 30 days to respond.
In an undated statement, appellant noted a January 15, 2019 work incident in which she
was listening to music at her desk when M.H. began to scream. She explained that M.H. did not
appear to be in danger or hurt so she called her supervisor for assistance. When the supervisor
arrived, M.H. told him that she was screaming because she “heard dogs barking and babies crying.”
Appellant reported that it was impossible to hear dogs or babies from inside the office and that she
was concerned for M.H.’s mental health.
In a separate undated statement, appellant noted a February 7, 2019 work incident in which
she noted M.H. walking around the office in an aggressive manner and having what appeared to
be a hostile conversation with herself. She alleged that M.H. was arguing with voices on the radio,
that she was not on the telephone, and that the two of them were the only ones in the office. From
her vantage point, it appeared as if M.H. was having a mental breakdown. Appellant reported that
this was not her first outburst and that when she called her supervisor, M.H. told her to “shut up
your nappy neck and go back to Jamaica!”
In a February 18, 2019 statement, appellant described an incident with R.H. in which he
began hiding all of the work supplies and blocking the entrance to the office. She reported that he
also broke into her desk, hid her chair, and called her office from blocked numbers to hang up on
her. Appellant indicated that R.H. also began following her around the office from one operation
to the next and to the restroom with an angry look on his face. She called the postal police after
he became confrontational over office equipment. Appellant asserted that she did not feel
comfortable speaking to J.B. about the situation because she knew he and R.H. were close friends.
In a February 27, 2019 statement, appellant reported that around 4:45 p.m., while working
in the office, she was told by R.H. that she could not use the office set up that the rest of the office
used. She noted that two weeks prior she had to call the postal police after R.H. became
confrontational over the same set up of postal equipment. Appellant alleged that R.H. made the
work environment hostile and that she did not feel comfortable or safe working with him.
In a March 11, 2019 statement, appellant requested a detail to a new location due to the
stress she experienced from the harassment she encountered from R.H. In a separate statement of
even date, she indicated that since she made her original complaint she had noticed her desk and
chair covered with food and trash as if someone had dumped the trash can over them.
In an April 1, 2019 statement, appellant described an incident in which M.H. began
throwing boxes at her. She expressed that she had previously informed management that she did
not feel safe in her work environment and that nothing had been done.

3

In an April 8, 2019 statement, appellant alleged that as she was greeting employees, M.H.
began yelling loudly at her and calling her an “ugly demon,” attracting attention of other employees
in the workroom.
In a May 13, 2019 statement, appellant expressed her concern that she had been the victim
of discrimination from J.B. and G.J., a supervisor. She explained that she was removed from her
modified-duty position and that she was no longer allowed to clock in early or work overtime
although her coworkers were still allowed to do so. Appellant asserted that she was forced to be a
part of the safety team at the front of the office even though she never agreed to do so and was not
provided training. She indicated that not being allowed to work overtime and being forced to work
at the front of the office had caused her to suffer stress, depression, and anxiety.
Appellant submitted a June 6, 2019 acceptance for investigation form from the postal
service Equal Employment Opportunity (EEO) office acknowledging its receipt of her complaints
of discrimination in the workplace. The EEO noted her complaints of hostile and threatening
behavior from her coworkers since January 2019, her April 1, 2019 removal to a different
assignment, as well as her restrictions on working overtime and her denied request to have her job
offer changed.
Paul Schmitt, a licensed clinical social worker, confirmed in a July 1, 2019 note that
appellant had been attending individual counseling regarding anxiety attacks due to workplace
harassment since June 3, 2019.
On July 2, 2019 appellant was seen by James Loesch, a licensed marriage and family
therapist. He requested that she be excused from work.
In a July 7, 2019 response to OWCP’s development questionnaire, appellant explained that
she did not associate with M.H. outside of work and that she did not have sources of stress outside
of her employment. She indicated that she had no prior emotional conditions before her current
conditions and had never been hospitalized for any emotional conditions.
In a July 9, 2019 statement, appellant described her life outside of work as very happy. She
had worked with M.H. and R.H. for two years and claimed to have never been friends with either
of them. Appellant believed that the harassment began as an attempt to get her removed from the
office and that the only reason her complaints were not handled properly was because J.B. had a
close relationship with M.H. and R.H. She believed that J.B.’s statement was another attempt to
protect M.H. and R.H. and mentioned an unwritten rule that if someone harasses or assaults you
in the office with no witnesses, then it did not happen. Appellant explained that because she
worked in an office alone with M.H. and R.H. there were no other witnesses to the events that took
place in their workspace. She stated that she had not recorded anything on her telephone because
she would lose her job and that J.B. refused to review the video footage from the office surveillance
cameras. Appellant also claimed that J.B. put his investigation on hold while he went on a three
week vacation and did not seek comments from witnesses until three months had passed. During
this time, she learned that other members of management were not aware of her complaints.
Appellant subsequently filed an EEO complaint against J.B.
On July 9, 2019 appellant was seen by Mr. Loesch and he requested that she be excused
from work for the day.

4

In an August 2, 2019 development letter, OWCP requested comments from appellant’s
supervisors concerning the accuracy of the additional statements she provided. It afforded the
employing establishment 30 days to respond.
In a July 30, 2019 medical note, Dr. Om advised that appellant would need
accommodations at her workplace in order to attend psychological counseling sessions three times
a week due to panic attacks secondary to work-related stress.
J.B., in an August 14, 2019 statement, reviewed appellant’s claims of harassment in
January and February 2019 by M.H. and R.H, respectively. He explained that M.H. had already
been disciplined about her unacceptable conduct towards appellant. J.B. indicated that appellant’s
statement that M.H. called her an “ugly demon” and placed bibles around her desk was never
confirmed by management. He also noted that the claims reported against R.H. were also never
confirmed by management.
In a September 9, 2019 statement, G.J. explained that appellant was moved because it was
easier to move one employee rather than moving two until an investigation could be completed.
She claimed that appellant did not want to be placed in the front of the office because everyone
could see her and she could not be on her telephone or watch movies like she did in her previous
unit. G.J. also claimed that appellant did not need training for her altered position because her
duties consisted of passing out flyers and sheets of papers.
In an undated statement, J.B. indicated that he would not comment on appellant’s health,
as he is not a doctor, and denied her claim that he would protect any employee from wrongdoing.
He asserted that he has had to inform appellant multiple times that she could not record other
employees in the office. J.B. explained that appellant, M.H. and R.H. all brought complaints
against each other and that each one was taken seriously, but could not be verified.2
By decision dated October 31, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her medical condition arose
during the course of employment and within the scope of compensable work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

2

In a September 18, 2019 medical note, Dr. Fabian Proano, Board-certified in anesthesiology, requested that
appellant be excused from work for 24 to 48 hours due to a lumbar epidural procedure.
3

Id.

5

employment injury.4 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.5
To establish an emotional condition causally related to factors of his or her federal
employment, appellant must submit: (1) factual evidence identifying and supporting employment
factors or incidents alleged to have caused or contributed to his or her condition; (2) rationalized
medical evidence establishing that he or she has an emotional condition or psychiatric disorder;
and (3) rationalized medical opinion evidence establishing that his or her emotional condition is
causally related to the identified compensable employment factors.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage under FECA.8 When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.9 However, disability is not compensable when it results from factors such as an
employee’s fear of reduction-in-force, or frustration from not being permitted to work in a
particular environment or to hold a particular position.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence which establishes that the acts alleged or implicated by the employee did,
in fact, occur.11 Mere perceptions of harassment or discrimination are not compensable under
FECA.12 A claimant must substantiate allegations of harassment or discrimination with probative
4

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

5

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
6
G.R., Docket No. 18-0893 (issued November 21, 2018); George H. Clark, 56 ECAB 162 (2004); Kathleen D.
Walker, 42 ECAB 603 (1991).
7

L.Y., Docket No. 18-1619 (issued April 12, 2019); L.D., 58 ECAB 344 (2007).

8

W.F., Docket No. 17-0640 (issued December 7, 2018); David Apgar, 57 ECAB 137 (2005).

9
Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976). In the case of Lillian
Cutler, the Board explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition under FECA. When an employee experiences emotional stress in carrying out his
or her employment duties, and the medical evidence establishes that the disability resulted from an emotional reaction
to such situation, the disability is generally regarded as due to an injury arising out of and in the course of employment.
This is true when the employee’s disability results from his or her emotional reaction to a special assignment or other
requirement imposed by the employing establishment, or by the nature of the work.9 On the other hand, when an
injury or illness results from an employee’s feelings of job insecurity per se, fear of a reduction-in-force or his or her
frustration from not being permitted to work in a particular environment, unhappiness with doing work, or frustration
in not given the work desired, or to hold a particular position, such injury or illness falls outside FECA’s coverage
because they are found not to have arisen out of employment.
10

Lillian Cutler, id.

11

O.G., Docket No. 18-0350 (issued August 7, 2019); K.W., 59 ECAB 271 (2007).

12
A.E., Docket No. 18-1587 (issued March 13, 2019); M.D., 59 ECAB 211 (2007); Jack Hopkins, Jr., 42 ECAB
818, 827 (1991).

6

and reliable evidence.13 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.14
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim because it
found that she had not established that her conditions arose during the course of employment and
within the scope of compensable work factors. The Board must, thus, initially review whether
these alleged incidents and conditions of employment are covered employment factors under the
terms of FECA.15 The Board notes that appellant’s allegations do not pertain to her regularly or
specially assigned duties under Cutler. Rather, appellant has alleged a hostile work environment,
harassment, discrimination and error, and abuse by her coworkers and supervisors.
Appellant submitted a number of statements detailing her interactions with M.H. She
described multiple incidents beginning in January 2019 in which M.H. would yell and scream
uncontrollably, throw boxes at her, place bibles on her desk, and refer to her using derogatory
terms. For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur.16 While J.B. explained
that management never verified that M.H. threw boxes at appellant, placed bibles on her desk, or
referred to her using derogatory terms, he did acknowledge that M.H. had received disciplinary
action for her unacceptable behavior and screaming at appellant. Verbal altercations and difficult
relationships with coworkers, when sufficiently detailed and supported by the record, may
constitute compensable factors of employment.17 The Board therefore finds that appellant has
provided reliable and probative evidence regarding M.H. screaming uncontrollably at her.18 Thus,
appellant has established a compensable employment factor with respect to these allegations of
harassment by M.H.
The record also contains several statements from appellant, witnesses, and supervisors
which reference management interviews and investigations, EEO investigations, and additional
reports from the postal police. The record also establishes that on April 1, 2019 the employing
establishment’s management removed appellant from her workspace for her own safety. Appellant
has also alleged that there were likely videos of the alleged employment interactions between her
and M.H. and R.H. This suggests that the employing establishment should have additional

13

J.F., 59 ECAB 331 (2008); Robert Breeden, 57 ECAB 622 (2006).

14

T.Y., Docket No. 19-0654 (issued November 5, 2019); G.S., Docket No. 09-0764 (issued December 18, 2009).

15

Supra note 11.

16
Supra note 13. See S.B., Docket No. 18-1113 (issued February 21, 2019); Janet I. Jones, 47 ECAB 345,
347 (1996).
17

J.M., Docket No. 16-0717 (issued January 12, 2017); L.M., Docket No. 13-0267 (issued November 15, 2013).

18

Id.

7

evidence concerning the circumstances of appellant’s claim and the veracity of her claims of
harassment and mismanagement. OWCP’s procedures provide:
“If an employing [establishment] fails to respond to a request for comments on the
claimant’s allegations, the [claims examiner] may usually accept the claimant’s
statements as factual. However, acceptance of the claimant’s statements as factual
is not automatic in the absence of a reply from the [employing establishment],
especially in instances where performance of duty is questionable. The Board has
consistently held that allegations unsupported by probative evidence are not
established.19 The [claims examiner] should consider the totality of the evidence
and evaluate any inconsistencies prior to making a determination.”20
The Board finds that it is unable to make an informed decision in this case as the employing
establishment did not adequately respond to the request for information and comment made by
OWCP in the August 2, 2019 development letter. The only comments from the employing
establishment were G.J.’s September 9, 2019 statement discussing the reason for appellant’s
workstation being moved and J.B.’s undated statements detailing his investigation of appellant’s
claims of harassment. These statements, along with appellant’s additional statements, suggest that
the employing establishment should possess documentation regarding the events in question and
potentially video surveillance of the altercations. Further, appellant alleged that there were no
contemporaneous statements from witnesses because J.B. was absent on a three-week vacation
prior to commencement of an investigation into her allegations and that witnesses were not
questioned for a period of three months. On remand, OWCP should determine whether a timely
and complete investigation occurred.
Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source.21 Since appellant’s allegations and the statements from
J.B. and G.J. indicate that the employing establishment would have in its possession evidence
relevant to appellant’s allegations of a hostile work environment, OWCP should obtain a response
from the employing establishment to the allegations of a hostile work environment and any
additional relevant evidence or argument.22
As the Board finds that appellant has established compensable employment factors with
respect to her allegations of harassment, specifically that M.H. screamed and yelled uncontrollably
at her, OWCP must base its decision on analysis of the medical opinion evidence with regard to
19

James E. Norris, 52 ECAB 93 (1999); Michael Ewanichak, 48 ECAB 364 (1997).

20

See R.A., Docket No. 17-1030 (issued April 16, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Development of Claims, Chapter 2.800.5(d)(1) (June 2011).
21

See R.A., Docket No. 17-1030 (issued April 16, 2018); K.W., Docket No 15-1535 (issued September 23, 2016).

22

Id.; see 20 C.F.R. § 10.117(a), which provides that an employing establishment that has reason to disagree with
any aspect of the claimant’s report shall submit a statement to OWCP that specifically describes the factual allegation
or argument with which it disagrees and provide evidence or argument to support its position. The employing
establishment may include supporting documents such as witness statements, medical reports or records, or any other
relevant information.

8

causal relationship. Further, the case will accordingly be remanded to OWCP for further
development of the evidence regarding appellant’s allegation of harassment. OWCP shall request
that the employing establishment provide a statement on and copies of any additional documents,
video evidence, and any and all investigations regarding appellant’s allegations. Following this
and any such further development as deemed necessary it shall issue a de novo decision regarding
appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 31, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: December 31, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-222
Issued: August 2, 2010

Case Submitted on the Record

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

JURISDICTION
On October 29, 2009 appellant filed a timely appeal of an October 7, 2009 decision of the
Office of Workers’ Compensation Programs 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 to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On July 25, 2009 appellant, then a 54-year-old mail handler, filed an occupational disease
claim alleging shoulder, arm and back pain from pushing and pulling equipment, carrying mail,
reaching into different types of equipment and bending over to sort mail. She first realized that

her employment activities caused or aggravated her claimed condition on July 17, 2009.
Appellant did not stop work.1 The employing establishment controverted the claim.
In an April 22, 2009 report, Dr. Shevin Pollydore, a Board-certified physiatrist,
diagnosed low back pain, numbness and tingling in the upper and left lower extremities, possible
lumbosacral radiculitis, cervicalgia and cervical strain. He recommended physical therapy. On
June 10, 2009 Dr. Pollydore diagnosed lumbar spinal stenosis severe at L3-4 and L4-5, lumbar
disc herniation with central protrusion at L4-5, numbness and tingling in the left upper and lower
extremities, possible lumbosacral radiculitis and left carpal tunnel syndrome. He advised light
duty and listed restrictions.
A July 22, 2009 duty status report with an illegible signature diagnosed bilateral rotator
cuff tear. It noted that appellant could resume work but was unable to perform her regular
duties. Another July 22, 2009 report with an illegible signature contained her left shoulder range
of motion measurements and an impairment rating.
On August 24, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence.
Appellant submitted an undated statement indicating that her daily duties as a mail
handler required loading a moving belt with bundle mail from a pallet that required her to bend
and lift mail onto the belt. She also pushed containers of mail onto the belt. Appellant indicated
that she developed back, arm and leg problems from the repetitive motion of these duties. She
further indicated that lifting and bending at work caused degenerative disc disease. Appellant
first experienced back pain on June 15, 2008 after working as a mail handler for two years. She
noted feeling more pain when working on the loose mail belt where she had to bend, lift and
push mail. Appellant stated that the employing establishment provided a modified assignment
on September 19, 2008. She continued this assignment until February 2, 2009 when her
physician changed her work restrictions. The employing establishment subsequently reduced
appellant’s hours and moved her to another work area.
In a March 2, 2009 report, Dr. Pollydore found low back pain, numbness and tingling in
the left extremities, possible lumbosacral radiculitis, cervicalgia and cervical strain. He indicated
that appellant could work light duty with restrictions. In a March 19, 2009 health care provider
form, Dr. Pollydore stated that, according to appellant, her condition commenced on
November 18, 2008. He noted it was necessary for her to work less than a full schedule due to
scheduled diagnostic testing. In an August 5, 2009 return to work status form report,
Dr. Pollydore reiterated his diagnosis of severe lumbar spinal stenosis at L3-4 and L4-5, lumbar
disc herniation with central protrusion at L4-5, numbness and tingling in the left upper and lower
extremities, possible lumbosacral radiculitis and left carpal tunnel syndrome. He also advised
that appellant could work with restrictions. An August 5, 2009 health care provider form
provided similar information.

1

Appellant also submitted a February 16, 2009 occupational disease claim form and an undated traumatic injury
claim form alleging degenerative disc disease. However, none of these claim forms were completed by the
employing establishment.

2

In a June 16, 2008 treatment note, Dr. James H. Hipkens, a Board-certified internist,
advised that appellant had been ill since June 16, 2008 and was unable to work until
June 18, 2008. He did not provide findings or a diagnosis. In a November 26, 2008 report,
Dr. Herman Lee, an osteopath and Board-certified internist, indicated that appellant’s lumbar
spine x-ray revealed hypertrophic changes and disc space narrowing from L3 through L5
compatible with degenerative disc disease. On December 11, 2008 he diagnosed constipation
and abdominal pain. Dr. Lee advised these conditions were not work related.
In an October 7, 2009 decision, the Office denied appellant’s claim finding that the
medical evidence did not establish that the claimed medical condition related to the established
work-related activities.
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.2
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.3
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.4

2

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

3

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

4

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

3

ANALYSIS
The record supports that appellant’s job as a mail handler required her to carry mail, push
and pull equipment and bend over to sort mail. The Board finds that the medical evidence is
insufficient to establish that these employment duties caused or aggravated her claimed back,
shoulder and arm conditions.
In a March 19, 2009 health care provider form, Dr. Pollydore noted that appellant
reported that her condition began on November 18, 2008. He also noted that she was unable to
work her full schedule. However, Dr. Pollydore did not discuss whether appellant’s duties as a
mail handler caused or aggravated a diagnosed medical condition. Medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.5 Similarly, Dr. Pollydore’s reports dated between
March 2 and August 5, 2009 only diagnosed appellant’s condition and recommended light duty.
These reports did not otherwise address how her employment activities contributed to any of her
diagnosed conditions. Dr. Pollydore did not provide any opinion noting appellant’s employment
and explaining the reasons particular employment factors caused or aggravated a diagnosed
medical condition. Therefore, his reports are of little probative value.
Dr. Lee’s November 26, 2008 report noted that a lumbar spine x-ray revealed
hypertrophic changes, disc space narrowing and degenerative disc disease. He did not address
the issue of causal relationship or explain how appellant’s mail handler duties caused this lumbar
condition. Dr. Lee’s December 11, 2008 report does not support her claim as the physician
diagnosed constipation and abdominal pain and explicitly opined that this was not a work-related
condition. Likewise, Dr. Hipken’s report did not diagnose any condition or address whether
appellant’s employment caused her disability.
The record also contains reports dated July 22, 2009 with illegible signatures. Neither
report listed the names of any physicians nor is there other evidence of record containing a
signature to authenticate the signatures on the July 22, 2009 reports. The Board has held that a
medical report may not be considered as probative medical evidence if there is no indication that
the person completing the report qualifies as a physician as defined in 5 U.S.C. § 8102(2) and
reports lacking proper identification do not constitute probative medical evidence.6
On appeal, appellant asserts that her claim should be accepted as she did not have back
problems until working as a mail handler. However, the underlying issue is medical in nature
and requires rationalized medical evidence from a physician explaining how her job duties
caused or contributed to her claimed back condition. As the record does not contain sufficient
rationalized medical evidence, appellant did not meet her burden of proof.

5

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

6

See R.M., 59 ECAB __ (Docket No. 08-734, issued September 5, 2008) (where the Board supported the
authenticity of the evidence that contained earlier medical reports, signed by the physician and submitted on his
letterhead); see also D.D., 57 ECAB 734 (2006) (medical reports lacking proper identification cannot be considered
as probative evidence in support of a claim).

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an occupational disease in the performance of duty.7
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 7, 2009 is affirmed.
Issued: August 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Appellant submitted new evidence on appeal. However, the Board may only review evidence that was in the
record at the time the Office issued its final decision. 20 C.F.R. § 501.2(c).

5