United States Department of Labor
Employees’ Compensation Appeals Board
_____________________________________________
W.W., Appellant
and
DEPARTMENT OF THE ARMY, LETTERKENNY
ARMY DEPOT, Chambersburg, PA, Employer
_____________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 07-970
Issued: August 15, 2007

Case Submitted on the Record

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

JURISDICTION
On February 26, 2007 appellant filed a timely appeal of a January 30, 2007 merit
decision the Office of Workers’ Compensation Programs, terminating his compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this termination case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
February 18, 2007 on the grounds that he no longer had any residuals or disability causally
related to his October 4, 1999 employment-related injury.
FACTUAL HISTORY
On October 4, 1999 appellant, then a 49-year-old blocker and bracer, sustained injury to
his low back while unloading a truck. A metal strap on the back of his jacket became caught and
he flipped off the back of the truck. Appellant fell five and one-half feet to the ground landing

on his feet. By letter dated October 19, 1999, the Office accepted the claim for lumbar sprain. It
paid appellant appropriate compensation.
On May 2, 2000 Dr. Ashok DeVasenapathy, a neurologist, released appellant to return to
work. Appellant returned to work on May 3, 2000 and stopped work on that day. He has not
returned. The Office paid appropriate compensation as of May 19, 2000.1
In an August 20, 2003 medical report, Dr. Mehrullah Khan, an attending Board-certified
neurologist, opined that appellant was totally disabled for work in the absence of objective
neurological findings to support his complaints of weakness and pain in his lower extremities
and back pain.
By letter dated October 28, 2005, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions, to Dr. Robert F. Draper, a Boardcertified orthopedic surgeon, for a second opinion medical examination. In a November 17,
2005 report, Dr. Draper reviewed the medical records and provided findings on physical
examination. He opined that appellant’s employment-related lumbosacral strain had long since
resolved and his present low back pain syndrome was not related to the accepted employment
injury but due to preexisting degenerative lumbar disc disease and multiple disc protrusions in
the lumbar spine. Dr. Draper opined that appellant’s contusion of the right elbow and forearm
had also resolved. He stated that appellant’s present right upper extremity problems were related
to ulnar nerve entrapment syndrome and surgery that he had prior to the September 22, 1994
employment injury. Dr. Draper found that appellant was capable of performing light-duty work,
8 hours a day, 40 hours per week that did not require him to lift more than 20 pounds. In a
November 13, 2005 work capacity evaluation (Form OWCP-5c), he provided additional
restrictions.
On November 22, 2005 the Office found a conflict in the medical opinion evidence
between Dr. Khan and Dr. Draper regarding whether appellant had any continuing employmentrelated residuals. By letter dated February 15, 2006, the Office referred appellant, together with
a statement of accepted facts, the case record and a list of questions to Dr. Frank G. Nisenfeld, a
Board-certified orthopedic surgeon, for an impartial medical examination.
In a March 9, 2006 report, Dr. Nisenfeld reviewed the history of appellant’s October 4,
1999 employment injury. He reported appellant’s current symptoms and normal findings on
physical examination with regard to muscle strength, sensory, reflex and circulation. On
examination of appellant’s back, Dr. Nisenfeld reported decreased range of motion. He stated
that appellant had poor balance with standing on individual legs and that he was unable to heel or
toe walk. Straight leg raising was nonradicular, but was restricted by back pain. Dr. Nisenfeld
reviewed appellant’s medical records including Dr. Draper’s November 17, 2005 report and an
October 26, 1999 magnetic resonance imaging scan that was negative and showed degenerative
disc diseases at L3-4, L4-5 and L5-S1. He diagnosed lumbosacral strain/sprain that had resolved
and preexisting degenerative disc disease and degenerative joint disease of the lumbosacral
spine. Dr. Nisenfeld opined that appellant’s prognosis was poor for returning to work as he had
not worked in six years. He had no recommendations for further medical treatment. Appellant
1

Effective September 9, 2002 appellant retired from the employing establishment on disability.

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was limited to lifting no more than 25 pounds due to his chronic preexisting degenerative disc
disease. Dr. Nisenfeld concluded that appellant did not continue to have any residuals of his
October 4, 1999 employment injury.
By letter dated March 24, 2006, the Office requested that Dr. Nisenfeld submit an
addendum report addressing whether appellant had any continuing residuals of his September 22,
1994 employment injury.
On May 12, 2006 Dr. Nisenfeld reexamined appellant. In a May 15, 2006 report, he
reviewed a history of the accepted September 22, 1994 employment injury and appellant’s
medical records. Dr. Nisenfeld reported appellant’s range of motion findings on examination of
appellant’s right upper extremity. He opined that appellant had impairment due to the accepted
employment injury. Dr. Nisenfeld determined that he had a five percent impairment of the right
elbow based on the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001).
By letter dated November 21, 2006, the Office issued a notice of proposed termination of
appellant’s compensation with regard to his October 4, 1999 employment injury based on
Dr. Nisenfeld’s medical opinion. The Office provided 30 days in which appellant could respond
to this notice.
In a December 5, 2006 statement, appellant related that he could not work due to
residuals of his work-related injury. He experienced a burning sensation in his legs, arm and
back, pressure on his back and a stabbing sensation in his buttocks. Appellant also experienced
severe pain in his legs and stiffness with increasing difficulty with his balance and a tendency to
drift to the right side when he walked. The pain and pressure on his spine caused him to
experience headaches and pain in his right eye. Appellant stated that he had high blood pressure
that was difficult to control even with medication due to his persistent pain. He also had longstanding reflex sympathetic dystrophy due to his September 22, 1994 employment injury.
In a December 6, 2006 report, Dr. Khan related appellant’s current symptoms related to
his lower extremities and right arm. He reviewed a history of his accepted work-related
employment injuries.
Dr. Khan reported essentially normal findings on neurological
examination. He opined that appellant “probably” either had spinal stenosis or lumbar
radiculopathy which may be the basis for his symptomatology at that time. Dr. Khan further
opined that appellant “may” have some emotional overlay to his difficulties. On December 13,
2006 he performed an electromyogram (EMG) and nerve conduction study of appellant’s lower
extremities. It was an abnormal examination. Dr. Khan stated that it was consistent with
peripheral neuropathy and chronic denervation at L4-5 and L5-S1 on the left side.
By letter dated December 27, 2006, the Office requested that Dr. Nisenfeld review
Dr. Khan’s December 6, 2006 report and diagnostic findings.
The Office received Dr. Khan’s December 20, 2006 treatment note which stated that
appellant’s condition had not improved. He opined that appellant was unable to return to work
from a physical and emotional standpoint.

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In a letter dated January 16, 2007, Dr. Nisenfeld stated that he reviewed the additional
medical evidence, his records and appellant’s case file. He stated that there was no change in his
prior May 15, 2005 opinion. In an accompanying OWCP-5c form, Dr. Nisenfeld stated that
appellant could not use his right upper extremity with force greater than 10 pounds.
By decision dated January 30, 2007, the Office terminated appellant’s compensation
benefits with regard to his October 4, 1999 employment injury, effective February 18, 2006
based on Dr. Nisenfeld’s impartial medical opinion.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.2
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.4
ANALYSIS
The Board finds that a conflict in the medical opinion evidence arose between Dr. Khan,
an attending physician, and Dr. Draper, an Office referral physician, as to whether appellant had
any continuing residuals or disability causally related to his accepted October 4, 1999
employment-related injury. His claim for the October 4, 1999 injury was accepted for a lumbar
sprain. Dr. Khan opined that, although appellant’s subjective complaints related to his lower
extremities and back could not be supported by objective medical findings, he was totally
disabled. Dr. Draper opined that appellant’s October 4, 1999 employment injury had resolved
and he was capable of working eight hours a day with restrictions.
The Office referred appellant to Dr. Nisenfeld, selected as the impartial medical
specialist. In a March 9, 2006 report, Dr. Nisenfeld reviewed the history of appellant’s
October 4, 1999 employment injury. On physical examination, he reported decreased range of
motion of appellant’s back, his poor balance with standing on individual legs and inability to
heel or toe walk and nonradicular straight leg raising that was restricted by back pain.
Dr. Nisenfeld diagnosed lumbosacral strain/sprain that had resolved and preexisting degenerative
disc disease and degenerative joint disease of the lumbosacral spine. He opined that appellant’s
2

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

3

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

4

Gloria J. Godfrey, 52 ECAB 486 (2001).

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prognosis was poor for returning to work as he had not worked in six years. Dr. Nisenfeld
limited appellant to lifting no more than 25 pounds due to his chronic preexisting degenerative
disc disease. He concluded that appellant did not suffer from any residuals of his October 4,
1999 employment injury.
The Board finds that Dr. Nisenfeld’s March 9, 2006 opinion is based on a proper factual
and medical background and is entitled to special weight. He found that appellant no longer had
any residuals or disability causally related to the October 4, 1994 employment-related lumbar
sprain. For this reason, Dr. Nisenfeld’s report constitutes the special weight of the medical
opinion evidence afforded an impartial medical specialist.
Dr. Khan’s December 6, 2006 report found that appellant “probably” either had spinal
stenosis or lumbar radiculopathy which may have been the basis for his lower extremity and
right arm symptoms and he “may” have some emotional overlay to his difficulties. He did not
provide a definite diagnosis of a back or emotional condition. Dr. Khan’s December 13, 2006
EMG and nerve conduction study of appellant’s lower extremities found peripheral neuropathy
and chronic denervation at L4-5 and L5-S1 on the left side. However, he did not address the
causal relationship between appellant’s current conditions and his October 4, 1999 employment
injury and, therefore, his report lacks probative value.5 Similarly, Dr. Khan’s December 20,
2006 treatment note which found that appellant’s condition had not improved and he was
disabled for work from both a physical and emotional standpoint lacks probative value. He did
not address whether appellant’s disability was causally related to his accepted employment
injury.6 Furthermore, Dr. Khan was part of the conflict in medical opinion for which appellant
was referred to Dr. Nisenfeld.7 Therefore, his reports and treatment note are insufficient to
overcome or to create a conflict with the well-rationalized medical opinion of Dr. Nisenfeld.8
The Board finds that the weight of the medical evidence, which is represented by
Dr. Nisenfeld’s March 9, 2006 impartial medical report, establishes that appellant no longer has
any residuals or disability causally related to his October 4, 1999 employment injury.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
February 18, 2007 on the grounds that he no longer had any residuals or disability causally
related to his October 4, 1999 employment-related injury.

5

Mary A. Ceglia, 56 ECAB ___ (Docket No. 04-113, issued July 22, 2004).

6

Id.

7

See Jaja K. Asaramo, 55 ECAB 200 (2004) (submitting a report from a physician who was on one side of a
medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight accorded to the
report of the impartial medical examiner or to create a new conflict).
8

Michael Hughes, 52 ECAB 387 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the January 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL OFFICE, Baltimore, MD, Employer
__________________________________________

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

Docket No. 10-1344
Issued: February 11, 2011

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 April 15, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 12, 2010 decision denying his request for an oral hearing, a
January 15, 2010 decision denying his request for reconsideration and a November 9, 2009 merit
decision denying his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on September 3, 2009; (2) whether the
Office properly denied appellant’s request for reconsideration without a merit review under 5
U.S.C. § 8128(a); and (3) whether the Office properly denied appellant’s request for a hearing
under 5 U.S.C. § 8124(b).

FACTUAL HISTORY
On September 11, 2009 appellant, then a 36-year-old veterans’ service representative,
filed a traumatic injury claim alleging that he sustained a hand, neck and back injury when he fell
out of his chair on September 3, 2009. He stopped working on September 4, 2009 and returned
September 14, 2009.
Four of appellant’s coworkers who were near him when the September 3, 2009 incident
occurred submitted statements. In a September 3, 2009 e-mail, Cresel Moore, a coworker, noted
that she heard a loud noise behind her, turned around and saw him lying unresponsive on the
floor next to his desk. She alerted Monica Blanchard, the supervisor, who instructed her to have
a security guard call 911.
In a September 11, 2009 statement, Erica Underwood, a coworker, recalled that she and
appellant briefly conversed on September 3, 2009 after a team meeting ended around 8:25 a.m.
before returning to their cubicles. Within a few minutes, she heard a loud crashing sound “as if
something had fallen” and was advised by Pamela Washington, a coworker, that appellant hit his
head on his desk and fell to the floor. Ms. Underwood, who was certified in cardiopulmonary
resuscitation (CPR), attended to appellant around 8:32 a.m. Appellant, who was visibly shaken
and crying, told her that he had a history of hypertension, he did not take his blood pressure
medication that morning and his leg was hurting. Ms. Underwood helped him into his chair and
stayed until an employing establishment nurse arrived.
In a September 11, 2009 statement, Ms. Washington noted that appellant stared at her the
morning of September 3, 2009 with a “glazed” look. She later observed him sitting and “leaning
to the right.” Ms. Washington then heard a loud bang “as if a file cabinet had fallen down” and
noticed appellant laying on his right side. She saw Ms. Underwood and Cheryl Wright, a
coworker, standing over and speaking to him until he “came to.” Ms. Washington reported that
one of the two women asked appellant if he had high blood pressure or was on medication, but
did not hear his response. An employing establishment nurse and ambulance personnel arrived
and he was transported to a local hospital.
Gloria Daly, a coworker, recounted her September 11, 2009 statement that she was at her
cubicle when she heard Ms. Wright asking appellant questions. She looked and saw him lying
on the floor on his stomach and crying. Ms. Wright told her that appellant hit his arm on the
cabinet above his cubicle and fell. Ms. Daly observed that he was conscious but did not answer
questions asked by his coworkers.
In a September 4, 2009 hospital discharge form, Dr. Abel Joy, a Board-certified internist,
noted that appellant presented on September 3, 2009. Appellant was diagnosed with syncope,
hypertension, obstructive sleep apnea and gastroesophageal reflux disease. A computed
tomography (CT) scan of the head was normal. Appellant was advised to follow up with his
primary care physician. In a September 8, 2009 note, Dr. Carl Sperling, a Board-certified
internist, stated that appellant was allowed to return to work on September 14, 2009.
Dr. Marcus Allen, a chiropractor, advised appellant in a September 4, 2009 work status
form to refrain from working between September 8 and 14, 2009. He added that appellant could

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resume limited duty between September 14 and 21, 2009 and regular duty thereafter. On
September 16, 2009 Dr. Allen stated that appellant was disabled until October 4, 2009 and stated
that he sustained an “at-work injury.”
In a September 22, 2009 letter, the employing establishment controverted the claim,
contending that appellant’s disability was not incurred in the performance of duty since the vital
signs check performed the morning of the September 3, 2009 incident indicated elevated blood
pressure and he admitted that he did not take his hypertension medicine. It also pointed out that
while he complained of a head, neck and back injury, medical documentation did not indicate
any damage to those members of the body. The employer advised that appellant had a prior
injury as a result of an April 3, 2009 car accident.1
In an undated statement, Ms. Blanchard recalled having a team meeting that ended
around 8:30 a.m. of September 3, 2009. Subsequently, she heard a loud noise “like a file cabinet
had fallen” and Ms. Moore stated that appellant was on the floor. Ms. Blanchard left her office,
saw him passed out on his stomach and yelled for someone to notify the guards to call 911. She
observed Ms. Underwood asking appellant, who started to move a little and cry, whether he was
on medication. Appellant responded that he was, but did not take it that day. An employing
establishment nurse and emergency medical services (EMS) team arrived and asked him
questions as they took his blood pressure. Appellant reiterated that he was on hypertension
medication and did not take his dosage that day. Ms. Blanchard heard EMS personnel remark
that his blood pressure was “very high” and that he needed to be transported to a local hospital.
In a September 28, 2009 statement, appellant elaborated that, on September 3, 2009, as
he was trying to stand up from his desk to go to the bathroom, his pants pocket became caught in
the arm of the chair, causing him to fall forward and hit his head. He remembered having an
extreme headache and seeing his colleagues standing around him. Appellant was nervous and
disoriented and started to cry due to the pain.” When the paramedics arrived, he was asked a
series of health questions, had his blood pressure taken and was transported to the emergency
room.
In an October 7, 2009 letter, the Office informed appellant that the evidence submitted
was insufficient to establish his traumatic injury claim and informed him of the evidence needed
to establish his claim.
Appellant provided chiropractic records from Dr. Allen, including notes for the period
September 15 to October 19, 2009. Dr. Allen stated that appellant sustained an “on-the-job trip
and fall injury,” complained of a head, neck and upper back pain and was previously involved in
a motor vehicle accident. He examined appellant and diagnosed a head contusion, cervical
sprain/strain, thoracic sprain/strain and headache.
In a November 2, 2009 statement, appellant explained that on September 3, 2009 he
simultaneously placed his weight on the right armrest of his chair and twisted his body as he
started to stand up and go to the bathroom, positioning his open pants pocket at the end of the
1

The employing establishment noted that appellant received disability payments from the Department of
Veterans Affairs for a low back and a skin condition related to his prior military service.

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armrest. The pocket hooked onto the armrest and caused him to fall and hit his head on the side
of his desk, knocking him unconscious. Appellant woke up on the floor and noticed someone
helping him back to his chair. He was incapable of speaking to anyone at the time due to the
blow to his head. Appellant asserted that his traumatic injury claim form did not contain these
details because it was filled out by human resources personnel. He attached photographs of his
pants, chair and desk. Appellant challenged coworkers’ accounts that he did not take his
hypertension medication, maintaining that he took his medication and that he never had any
previous adverse reaction when he forgot to take his medication. He disputed that he was
confused or disoriented before the incident, reasoning that he may have given such an impression
when he sat at his desk thinking about the items of the morning meeting and his conversation
with Ms. Underwood. Appellant related that he was diagnosed with hypertension two years prior
and had a history of prior neck, back and leg injuries due to a 2005 slip-and-fall accident and an
April 2009 automobile collision.
In a November 9, 2009 decision, the Office denied the claim on the grounds that the
injury did not occur within the performance of duty. Based on the “consensus” of his coworkers’
statements and Dr. Joy’s September 3, 2009 hypertension and syncope diagnoses, it found that
the fall and any resulting injury was idiopathic in nature, a consequence of a sudden drop in
blood pressure. The Office added that the evidence was in conflict with regards to whether
appellant struck a part of his body on a desk, cabinet or other object before hitting the floor, but
did not reach the issue, citing the lack of medical evidence of trauma secondary to such impact.
Appellant requested reconsideration on November 18, 2009.
In a January 15, 2010 decision, the Office denied appellant’s request for reconsideration,
finding that he did not submit evidence warranting review of the November 9, 2009 decision.
Appellant requested an oral hearing on February 22, 2010.
By decision dated March 12, 2010, the Office denied appellant’s request on the grounds
that he previously requested reconsideration and was not, as a matter of right, entitled to an oral
hearing on the same issue. It noted further considering whether to grant a discretionary hearing
but determined that the issue could equally be addressed by requesting reconsideration before the
Office and submitting new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act and that he filed his claim within the applicable time limitation.4 The employee must

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

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also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5
It is a general rule of workers’ compensation law that an injury occurring on the
industrial premises during working hours is compensable unless it falls within an exception to
the general rule.6 One exception to the general rule applies to falls in the workplace. Where a
personal, nonoccupational pathology causes an employee to collapse and to suffer injury upon
striking the immediate supporting surface and there is no intervention or contribution by any
hazard or special condition of the employment, the injury is not a personal injury while in the
performance of duty as it does not arise out of a risk connected with the employment.7 This is
referred to as an idiopathic fall.8 On the other hand, if the cause of the fall cannot be determined
or the reason it occurred cannot be explained, then it is an unexplained fall that comes within the
general rule that an injury occurring on the industrial premises during working hours is
compensable.9
An injury resulting from an idiopathic fall may still be compensable if some job
circumstance or working condition intervenes in contributing to the incident or injury, such as if
an employee, instead of falling directly to the floor, strikes a part of his body against a wall, a
piece of equipment, furniture, machinery or some similar object. Appellant has the burden of
establishing that he struck an object connected with his employment during the course of the
idiopathic fall.10
ANALYSIS -- ISSUE 1
The Office accepted that appellant fell at the premises of the employing establishment
around 8:30 a.m. on September 3, 2009. It denied his claim on November 9, 2009, relying upon
statements of his coworkers and Dr. Joy’s September 3, 2009 discharge record to establish that
the fall was related to his preexisting hypertension and therefore idiopathic. The Office also
found that there was conflicting evidence as to whether a desk, cabinet or other employmentrelated object contributed to the fall but it did not resolve the matter by making any clear
findings. Instead, it found that, even if appellant had an intervening impact, the medical
evidence was insufficient to show that the impact caused an injury. The Board finds that the
Office’s decision does not contain adequate facts and findings or clear reasoning to allow him to
understand the precise defects of his claim and how to overcome them.11

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Martha G. List, 26 ECAB 200 (1974).

7

John R. Black, 49 ECAB 624, 626 (1998).

8

See Karen K. Levene, 54 ECAB 671 (2003).

9

N.P., 60 ECAB ___ (Docket No. 08-1202, issued May 8, 2009); John R. Black, supra note 7.

10

Robert J. Choate, 39 ECAB 103 (1987); Sharon I. Erdmann, 38 ECAB 589 (1987).

11

See T.K., 61 ECAB ___ (Docket No. 09-1729, issued May 10, 2010).

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To properly apply the idiopathic fall exception to the premises rule, there must be two
elements present: a fall resulting from a personal, nonoccupational pathology and no
contribution from the employment.12 The Board has held that the Office has the burden to
present medical evidence showing the existence of a personal, nonoccupational pathology if it
chooses to make a finding that a given fall is idiopathic in nature.13 In this case, the only medical
evidence to which it referred was Dr. Joy’s September 3, 2009 hospital discharge form.
Although Dr. Joy diagnosed syncope and hypertension, among other things, he offered no
opinion explaining how appellant’s elevated blood pressure or any other personal,
nonoccupational pathology led to his fall in the workplace. The mere fact that an employee has a
preexisting medical condition, without supporting medical rationale, is not sufficient to establish
that a fall is idiopathic.14 If the cause of the fall cannot be determined or the reason it occurred
cannot be explained, then it is an unexplained fall and any resulting injury would be
compensable. In light of this scant evidence, the Office did not make a proper determination that
appellant’s September 3, 2009 fall was due to his hypertension or other nonoccupational
condition. Also, as noted, it did not make a clear finding on whether he struck a piece of
equipment, furniture or some similar object as he fell which would also bring the fall within the
performance of duty.
Consequently, the case will be remanded for the Office to further develop the evidence
and make appropriate fact findings with regards to whether appellant’s fall occurred within the
performance of duty and, if so, the nature and extent of any injury or disability that resulted from
the fall. After such further development as the Office deems necessary, it should issue an
appropriate merit decision.
CONCLUSION
The Board finds that the medical evidence was not sufficient to establish an idiopathic
fall on September 3, 2009 and the case is remanded for further development.15

12

N.P., supra note 9.

13

Jennifer Atkerson, 55 ECAB 317 (2004).

14

Steven S. Saleh, 55 ECAB 169, 173 (2003).

15

In light of the Board’s disposition of the first issue, the second and third issues are moot.

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ORDER
IT IS HEREBY ORDERED THAT the November 9, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: February 11, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elyria, OH, Employer
__________________________________________

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

Docket No. 10-2214
Issued: August 22, 2011

Case Submitted on the Record

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

JURISDICTION
On August 30, 2010 appellant, through counsel, filed a timely appeal from July 8 and
March 18, 2010 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
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 OWCP properly terminated appellant’s authorization for medical
benefits for her right knee anterior cruciate ligament tear effective March 18, 2010.
FACTUAL HISTORY
On September 10, 2007 appellant, then a 43-year-old city carrier, filed a traumatic injury
claim alleging that on August 31, 2007 she injured her left knee when she tripped while going

1

5 U.S.C. § 8101 et seq.

down a short step.2 OWCP accepted the claim for right knee contusion, sprain and abrasion,
which was subsequently expanded to include a right knee anterior cruciate ligament tear. It
authorized arthroscopic surgery, which occurred on March 28, 2008. Appellant stopped work on
January 28, 2008 and returned to work with restrictions on June 30, 2008.3
On December 5, 2008 Dr. Karl V. Metz, a second opinion Board-certified orthopedic
surgeon, diagnosed right knee contusion, sprain, abrasion and anterior cruciate ligament tear,
which were employment related and nonemployment related conditions of right knee
degenerative joint disease and chondromalacia patella. A physical examination of the right knee
revealed 95 degrees flexion with no flexion contracture, no definite effusion, no varus valgus
deformity, no patellar tenderness and no crepitation with very guarded right leg range of motion.
Dr. Metz opined that the accepted conditions of right knee contusion, abrasion and sprain had
healed. He stated that appellant continued to have residuals of the work injury due to right thigh
and calf muscle atrophy and guarded right knee range of motion.
In an April 15, 2009 addendum, Dr. Metz opined that appellant’s nonwork related mild
right knee degenerative arthritis and patella chondromalacia were unaffected by the August 31,
2007 employment injury. He concluded that the record contained no postoperative x-ray or
magnetic resonance imaging (MRI) scan supporting a worsening or aggravation of appellant’s
nonwork conditions of patella chondromalacia and degenerative arthritis.
In a May 6, 2009 report, Dr. William R. Bohl, a Board-certified orthopedic surgeon and
appellant’s attending physician, reviewed Dr. Metz’s March 15, 2009 addendum and concurred
that the conditions of right knee contusion, abrasion and sprain had resolved. However, he
opined that appellant’s residual thigh muscle atrophy had been aggravated by the patella
malalignment and patellofemoral arthritis. Dr. Bohl concluded that she sustained a substantial
aggravation of her preexisting patella chondromalacia due to her employment injury based on the
fact that her conditions became symptomatic. He opined that aggravation of appellant’s
preexisting patella chondromalacia should be included in her accepted conditions.
On July 24, 2009 OWCP determined there was a conflict in the medical opinion evidence
between Drs. Metz and Bohl with respect to the extent of appellant’s work injury and referred
her to Dr. Alan Wilde, a Board-certified orthopedic surgeon, for resolution of this conflict. In an
August 4, 2009 report, Dr. Wilde diagnosed right knee degenerative joint and patella
chondromalcia, which were not work related. Based upon a review of the medical record,
statement of accepted facts and physical examination, he concluded that appellant’s accepted
conditions of right knee contusion, abrasion and sprain had resolved and that the accepted right
knee cruciate ligament had been treated surgically. Dr. Wilde opined that she required no further
medical treatment for her accepted work conditions of right knee abrasion, sprain, contusion and
anterior cruciate ligament tear.

2

OWCP assigned claim File No. xxxxxx541.

3

Claim File No. xxxxxx939 and File No. xxxxxx504 were accepted for a right elbow condition and bilateral
carpal tunnel syndrome. On March 16, 2009 OWCP combined claim File Nos. xxxxxx541, xxxxxx639 and
xxxxxx504 to prevent further confusion.

2

On November 19, 2009 OWCP referred appellant to Dr. Ralph J. Kovach, a Boardcertified orthopedic surgeon, to resolve a conflict in the medical opinion evidence between
Drs. Metz and Wilde regarding whether she continued to suffer residuals from her accepted right
knee employment injuries. In a December 8, 2009 report, Dr. Kovach, based upon a review of
the medical evidence and statement of accepted facts and physical examination, concluded that
appellant’s accepted employment injuries had resolved. He identified the accepted employment
conditions as right knee contusion, abrasion, sprain and anterior cruciate ligament tear.
Dr. Kovach reported that a physical examination of the right knee showed 100 degrees flexion, 0
degrees extension, one centimeter of right thigh atrophy and bilateral knee moderate crepitation
on flexion and extension. A review of a November 12, 2009 MRI scan showed no visible
anterior cruciate ligament tear and no tearing of the menisci. Dr. Kovach stated that appellant’s
anterior cruciate ligament was stable and functioning “in spite of the recent MRI [scan] studies
stating that the anterior cruciate ligament is probably torn.” In support of his conclusion that her
accepted employment conditions had resolved, he noted that the right knee anterior cruciate tear
had been surgically treated and she “has returned to the baseline conditions that existed prior to
her work injury.”
On February 10, 2010 OWCP advised appellant of its intent to terminate her medical
benefits based on Dr. Kovach’s December 8, 2009 report. It instructed her to submit any
evidence or argument to OWCP within 30 days of the date of the notice, if she disagreed with the
proposed termination.
In a February 25, 2010 report, Dr. Bohl opined that appellant continued to suffer from
right patella chondromalacia which had been aggravated by her employment injury. He noted
that she had no symptoms prior to the injury and that “[c]hondromalacia patella is normally
made more symptomatic either by blow to the anterior patella” or knee condition or injury
causing “atrophy of the thigh musculature.”
By decision dated March 18, 2010, OWCP terminated appellant’s compensation and
medical benefits effective that day.
In a March 21, 2010 letter, appellant’s attorney requested a telephonic hearing before
OWCP’s hearing representative, which was held on June 1, 2010.
In a June 21, 2010 report, Dr. Bohl diagnosed right knee post-traumatic arthritis due to
appellant’s accepted employment injury. A physical examination revealed bilateral knee
tenderness over the patellar facets, a negative anterior drawer, 125 degrees motion, a negative
McMurray’s sign and one inch of atrophy in the right thigh.
By decision dated July 8, 2010, OWCP’s hearing representative affirmed the termination
of appellant’s medical benefits.4

4

The Board notes that, following the July 8, 2010 OWCP hearing representative’s decision, OWCP received
additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c);
J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A.
Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued September 23, 2009).

3

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.6 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which would require further medical treatment.7
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.9
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, it must secure a supplemental report from the specialist to correct the defect in his
original report. However, when the impartial specialist is unable to clarify or elaborate on his
original report or if his supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining his rationalized medical opinion on the issue.10
ANALYSIS
OWCP accepted right knee sprain, abrasion, anterior cruciate ligament tear as a result of
the August 31, 2007 employment injury. By decision dated March 18, 2010 it terminated
appellant’s medical benefits effective that day based on Dr. Kovach’s December 8, 2009 report,
which was affirmed by OWCP’s hearing representative on July 8, 2010. The issue to be resolved
is whether OWCP met its burden of proof to terminate appellant’s medical benefits for treatment
of her right knee anterior cruciate ligament tear. The Board finds that OWCP failed to meet its
burden.
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
7

Kathryn E. Demarsh, supra note 6; James F. Weikel, 54 ECAB 660 (2003); B.K., Docket No. 08-2002 (issued
June 16, 2009).
8

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
9

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

10

Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(e)
(September 2010).

4

OWCP initially referred appellant to Dr. Wilde to resolve the conflict in the medical
opinion evidence between Dr. Metz, OWCP’s referral physician, and Dr. Bohl, her attending
physician, on the extent of her work injury. At the time of the referral Dr. Metz opined that
appellant continued to have residuals of her accepted employment injury but her preexisting right
knee patella chondromalacia and degenerative arthritis had not been aggravated by her injury.
Dr. Bohl and Dr. Metz agreed that the accepted conditions of right knee sprain and abrasion had
resolved. In an August 4, 2009 report, Dr. Wilde concluded that appellant required no further
medical treatment for accepted work conditions of right knee sprain, abrasion, anterior cruciate
ligament tear. OWCP then found a new conflict in the medical opinion evidence as to whether
appellant continued to suffer from residuals of her accepted employment injury and referred her
to Dr. Kovach for resolution of the conflict. The Board notes that at the time of the referral to
Dr. Kovach, it identified the conflict as between Drs. Wilde and Metz, the initial impartial
medical examiner and the second opinion specialist, respectively. However, a conflict under
section 8123 cannot exist unless there is a conflict between an attending physician and OWCP’s
physician.11 At the time of OWCP’s referral to Dr. Kovach, there was a conflict in the medical
opinion evidence as to whether appellant continued to have residuals from her accepted
employment injury, but it was between Drs. Metz and Bohl.
As noted above, Board precedent provides that when OWCP obtains an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and
the specialist’s opinion requires clarification or elaboration, it must secure a supplemental report
from the specialist to correct the defect in his original report. Only when the impartial specialist
is unable to clarify or elaborate on his original report or if his supplemental report is also vague,
speculative or lacking in rationale, should OWCP refer the claimant to a second impartial
specialist.12
Rather than obtaining clarification of Dr. Wilde’s opinion, OWCP found a new conflict
in the medical opinion evidence existed between Drs. Wilde and Bohl and referred appellant to
Dr. Kovach to resolve this conflict. It did not explain basis for why it found Dr. Wilde’s report
insufficient to resolve the conflict in the medical opinion evidence or why it did not seek a
supplemental report from him.
The Board finds that OWCP failed to undertake proper development of the medical
evidence. OWCP erred by not requesting that Dr. Wilde provide a supplemental report to clarify
his opinion on whether appellant continued to have residuals from her accepted employment
injury. It offered no basis in the record for finding that clarification from Dr. Wilde was
unnecessary.
Under Board precedent, the exclusion of a medical report obtained from a designated
impartial medical specialist is required under specific circumstances. In Joseph R. Alsing,13 the
11

Delphia Y. Jackson, 55 ECAB 373 (2004).

12

Nancy Keenan, 56 ECAB 687 (2005); Guiseppe Aversa, 55 ECAB 164 (2003); F.D., Docket No. 09-1346
(issued July 19, 2010).
13

39 ECAB 1012 (1988). See also Nancy Keenan, supra note 12; Jeannine E. Swanson, 45 ECAB 325 (1994).

5

Board excluded the medical report from a second impartial medical specialist, which was
obtained prior to any attempt to have the original medical referee clarify his medical opinion.
The Board stated: “Since the report was improperly obtained, it will not be given any weight on
review by the Board and should not be considered by [OWCP].” OWCP procedures also direct
exclusion of a report where a second referee specialist’s report is requested before it has
attempted to clarify the original referee specialist’s report.14 Consequently, the Board finds that
Dr. Kovach’s report should be excluded from consideration as OWCP did not follow its
procedures when it failed to seek clarification from Dr. Wilde.15 For this reason, the Board finds
that OWCP did not meet its burden of proof to terminate appellant’s medical benefits.16
CONCLUSION
The Board finds that OWCP has not met its burden of proof in terminating appellant’s
medical benefits effective March 18, 2010.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Exclusion of Medical Evidence, Chapter 2.810.12(a)(2)
(September 2010) and Part 3 -- Medical, Medical Examinations, Chapter 3.500.6(b) (September 1995).
15

Id.

16

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 8 and March 18, 2010 are reversed.
Issued: August 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Phoenix, AZ,
Employer
__________________________________________

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

Docket No. 09-1718
Issued: March 5, 2010

Case Submitted on the Record

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

JURISDICTION
On June 16, 2009 appellant filed a timely appeal from a March 20, 2009 decision of the
Office of Workers’ Compensation Programs denying her claim for an injury on October 7, 2008.
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
injury while in the performance of duty on October 7, 2008.
FACTUAL HISTORY
On October 9, 2008 appellant, then a 57-year-old disclosure assistant, filed a traumatic
injury claim alleging that on October 7, 2008 she sustained an injury as she walked to her private
vehicle and slipped on water that was on a sidewalk. The emergency room report provided a
history that she was walking out of an office building when she slipped in a puddle of water, fell
backward, striking her head and losing consciousness. The employing establishment indicated

on the back of her claim form that appellant was walking to a parking lot at the end of her tour of
duty when she slipped in a puddle of water that was in the common area outside her building.
In an October 8, 2008 statement, David Votaw, an employee, stated that on October 7,
2008 at about 3:28 p.m. he was exiting the employing establishment building and held open an
exit door for a woman. She walked approximately 10 to 15 feet and then her right foot slid
forward in a puddle of water. Her body fell backward and she used a rolling travel bag to
support herself as she fell. Mr. Votaw stated that she appeared to be conscious as her eyes were
open and she was looking around. Another employing establishment employee called for
emergency assistance and a fire crew arrived and treated her.
Cary Holmes, a federal real estate specialist, advised the Office that the employing
establishment leased the building from a private industry lessor. He stated that the private lessor
owned, operated, maintained and controlled the common grounds outside the building leased by
the employing establishment. The area where appellant fell was a common area with grass, trees
and a sidewalk leading to a parking garage. She fell while walking on the public sidewalk. The
garage was used by both federal employees and private industry employees. The employing
establishment had six to seven reserved spaces for employees who used a government vehicle to
perform investigative work but appellant was not one of these employees. Individuals with
private vehicles, such as appellant, paid parking fees to the building lessor. The employing
establishment had no control over the garage or adjacent sidewalk. Public transportation was
available and it was not necessary for employees to drive to work. Erin Winschell, a federal
contracting officer, advised the Office that the common area where appellant fell was not federal
premises.
By decision dated March 20, 2009, the Office denied appellant’s claim on the grounds
that the evidence did not establish that she sustained an injury on October 7, 2008 while in the
performance of duty.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for the payment of compensation
for disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers compensation laws, namely,
“arising out of and in the course of employment.”3 “In the course of employment” relates to the
elements of time, place and work activity. To arise in the course of employment, an injury must
occur at a time when the employee may reasonably be said to be engaged in her master’s
business, at a place when she may reasonably be expected to be in connection with her
employment and while she was reasonably fulfilling the duties of her employment or engaged in
doing something incidental thereto. As to the phrase “in the course of employment,” the Board
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers compensation law. Bernard D. Blum, 1 ECAB 1 (1947).

2

has accepted the general rule of workers’ compensation law that, as to employees having fixed
hours and places of work, injuries occurring on the premises of the employing establishment,
while the employees are going to and from work, before or after work hours or at lunch time, are
compensable.4 The Board has stated, as a general rule, that off-premises injuries sustained by
employees having fixed hours and places of work, while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment, but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.5
The employing establishment premises may include all the property owned by the
employer.6 However, even though an employer does not have ownership and control of the
place where the injury occurred, the locale may nevertheless be considered part of the premises.7
For example, a parking lot used by employees may be considered a part of the employing
establishment premises when the employer contracted for the exclusive use of the facility or
where specific parking spaces were assigned by the employer.8 Other factors to be considered
include whether the employer monitored the parking facility to prevent unauthorized use,
whether the employer provided parking at no cost to the employee, whether the general public
had access to the parking facility and whether there was alternate parking available to the
employee.9 Mere use of a parking facility, alone, is not sufficient to bring the parking lot within
the premises of the employing establishment.10 The premises doctrine is applied to those cases
where it is affirmatively demonstrated that the employer owned, maintained or controlled the
parking facility, used the facility with the owner’s special permission or provided parking for its
employees.11
ANALYSIS
Appellant alleged that she sustained an injury on October 7, 2008 as she walked to her
private vehicle in a parking garage and slipped on water that was on a sidewalk between the
employing establishment building and the parking garage. The record does not establish that the
incident occurred on the employing establishment premises.
The evidence of record shows that the sidewalk where the October 7, 2008 incident
occurred was not controlled by, or for the exclusive use of, the employing establishment or its
employees. The sidewalk and adjacent parking garage were open to the general public, including
visitors to the employing establishment, visitors to other buildings in the vicinity and employees
4

D.L., 58 ECAB 667 (2007).

5

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

6

See Denise A. Curray, 51 ECAB 158 (1999).

7

Id.

8

D.L., supra note 4.

9

Diane Bensmiller, 48 ECAB 675 (1997).

10

Id.

11

D.L., supra note 4.

3

of private businesses. There is no evidence that the employing establishment maintained the
sidewalk where appellant fell. For these reasons, appellant did not establish that she was injured
on the premises of the employing establishment.
The next question is whether appellant’s claimed injury occurred in the course of her
employment despite the fact that it did not occur on employing establishment premises. The
Board has held that the industrial premises are constructively extended to hazardous conditions
which are proximately located to the premises and may, therefore, be considered as hazards of
the employing establishment. The main consideration in applying the rule is whether the
conditions giving rise to the injury are causally connected to the employment.12 The record in
this case does not support the application of an exception to the off-premises rule. The hazard
encountered by appellant, slipping in water on a public sidewalk leading to a public parking
garage, was a hazard that was faced by all those who used the sidewalk and garage. The
conditions giving rise to the injury, a puddle of water on the sidewalk, are not causally connected
to appellant’s employment. Appellant’s injury is considered to be an ordinary, nonemployment
hazard of the journey itself, shared by all travelers using the sidewalk leading to the parking lot.
As appellant’s injury occurred off the employing establishment premises while she was
walking to her private vehicle at the end of her work shift, and because the record fails to support
the application of an exception to the off-premises rule, the Board finds that the employee’s
injury did not arise out of and in the course of her federal employment. For the reasons stated
above, appellant did not meet her burden of proof to establish that she sustained an injury in the
performance of duty on October 7, 2008.
On appeal, contends that the Office’s decisions are contrary to fact and law. As noted,
however, the evidence does not establish that she was injured on employing establishment
premises or that the circumstances of the incident on October 7, 2007 constituted an exception to
the off-premises rule. The Office properly denied her claim for compensation.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury while in the performance of duty on October 7, 2008.

12

Michael K. Gallagher, 48 ECAB 610 (1997).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 20, 2009 is affirmed.
Issued: March 5, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-297
Issued: June 7, 2007

Case Submitted on the Record

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

JURISDICTION
On November 14, 2006 appellant timely appealed the November 7, 2006 merit decision
of the Office of Workers’ Compensation Programs, which granted a schedule award for
permanent impairment of the lower extremities. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has more than an eight percent bilateral impairment of the
lower extremities.
FACTUAL HISTORY
Appellant, an 83-year-old retired mechanic’s helper, has an accepted claim for low back
strain, spondylosis and degenerative disc disease, which arose on July 12, 1981. At the time of
his 1981 employment injury, he had preexisting degenerative joint disease of both knees. The

Office placed appellant on the periodic compensation rolls and he received appropriate wage-loss
compensation.1
On June 13, 2006 appellant filed a claim for a schedule award. Dr. Michael J. Platto, a
Board-certified physiatrist, provided a June 5, 2006 whole person impairment rating of 12
percent due to the accepted back condition. In a June 14, 2006 supplemental report, he identified
37 percent bilateral lower extremity impairment due to appellant’s preexisting knee condition,
for which he underwent total knee arthroplasty. Dr. Platto also recalculated the whole person
impairment associated with appellant’s back condition and found eight percent impairment of
each lower extremity.
The district medical adviser reviewed the case record. In a report dated September 19,
2006, he found eight percent impairment to each lower extremity. The district medical adviser
also indicated that appellant had reached maximum medical improvement on June 5, 2006.
On November 7, 2006 the Office granted schedule awards for eight percent impairment
of the left and right lower extremities. The award covered 46.08 weeks from June 5, 2006 to
April 23, 2007.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act set forth the number of weeks
of compensation to be paid for the permanent loss of use of specified members, functions and
organs of the body.2 The Act, however, does not specify the manner by which the percentage
loss of a member, function or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. The implementing regulation has adopted the American Medical
Association, Guides to the Evaluation of Permanent Impairment as the appropriate standard for
evaluating schedule losses.3 Effective February 1, 2001, schedule awards are determined in
accordance with the A.M.A., Guides (5th ed. 2001).4
ANALYSIS
Appellant contends that his schedule award should reflect the impairment attributable to
his preexisting degenerative joint disease of both knees. The Board agrees. In determining
entitlement to a schedule award, preexisting impairment to the scheduled member should be
included.5 Any previous impairment to the member under consideration is included in
1

Effective March 1, 1998, appellant elected to receive disability retirement benefits from the Office of Personnel
Management. Accordingly, he was removed from the periodic compensation rolls.
2

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2)
(2000).
3

20 C.F.R. § 10.404 (2006).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5

Carol A. Smart, 57 ECAB __ (Docket No. 05-1873, January 24, 2006); Michael C. Milner, 53 ECAB 446,
450 (2002).

2

calculating the percentage of loss except when the prior impairment is due to a previous workrelated injury, in which case the percentage already paid is subtracted from the total percentage
of impairment.6
Dr. Platto found 37 percent impairment of both knees based on total knee arthroplasty.7
This 37 percent impairment was in addition to the 8 percent impairment for lower extremity
motor and sensory deficits attributable to the 1981 accepted back injury. In his September 19,
2006 report, the district medical adviser stated that the degenerative joint disease in appellant’s
knees is not work related, therefore, the 37 percent lower extremity impairment is not acceptable
and must be eliminated from any possible schedule award. Because appellant’s preexisting knee
condition was improperly excluded in calculating the percentage loss of use of his lower
extremities, the case is remanded to the Office for further development of the record, followed
by a de novo decision regarding appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: June 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (November 1998).
7

The record does not include an operative report regarding the bilateral knee arthroplasty Dr. Platto referenced.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, ADMINISTRATION ON AGING,
Atlanta, GA, Employer
__________________________________________

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Appearances:
Lynda Gilbert, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0095
Issued: October 16, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 16, 2019 appellant, through her representative, filed a timely appeal from a
September 26, 2019 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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $75,741.38 for the period September 1, 1992 through July 20, 2019, for which she was
not at fault, because OWCP did not make proper deductions for life insurance premiums;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $600.00 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On August 13, 1984 appellant, then a 41-year-old program assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 8, 1984 she sustained injury when she fell while
descending a flight of stairs while in the performance of duty. OWCP initially accepted the claim
for neck sprain, right foot sprain, and contusions of the face, neck, and scalp. The acceptance of
the claim was later expanded to include the additional conditions of acute reaction to stress, mood
disorder, syncope and collapse, and other convulsions. Appellant stopped work in March 1986
and did not return. OWCP placed her on the periodic rolls for wage-loss compensation beginning
February 10, 1991.
In a daily adjustment log for general compensation dated January 12, 1999, appellant’s
optional life insurance (OLI) code was listed as class W under OLI code 976 and a premium
deduction of $66.00 was noted. No premium deduction was noted for basic life insurance
coverage.
In a letter dated May 7, 2018, the Office of Personnel Management (OPM) notified OWCP
that appellant was eligible to continue Federal Employees’ Group Life Insurance (FEGLI)
coverage. It requested that OWCP deduct for code W0 Basic with no reduction and Option B
times 5 with no reduction. OPM noted that the commencing date for the postretirement deduction
was August 31, 1992. It noted that appellant had elected to keep Option B past the age of 65.
OPM attached a January 24, 2018 form letter informing appellant that, due to a computer error,
OWCP had deducted OLI premiums for life insurance code W0 past her 65th birthday without
having an OLI Post-65 Reduction Election documented in her case file, and that consequently,
OLI premium deductions had stopped after her last birthday. On February 7, 2018 appellant
completed the form indicating that she wished to continue her current OLI at no reduction.
On June 8, 2019 OPM notified OWCP that appellant was eligible to continue FEGLI
coverage. It requested that OWCP deduct for code X0 basic Option A standard with no reduction
and Option B times five with no reduction. OPM indicated that this was the second request to
have her Option B election reinstated after age 65. It noted that she should also have Option A as
well and that the commencement date for the postretirement deductions was September 1, 1992.
OPM attached a form letter dated January 13, 1993 in which it noted that appellant’s final salary
upon which FEGLI was based was $25,930.00; that basic life insurance withholding of premiums
should have begun on September 1, 1992; that she had elected no postretirement reduction; and
that she had elected to receive both the standard option and the additional option times five. In a
letter dated December 9, 1995, it notified OWCP that appellant was eligible to continue FEGLI
coverage and requested that OWCP deduct for code X basic Option A standard and Option B times
five. OPM further noted that her postretirement election was no reduction and the commencement
date for the postretirement deductions was September 1, 1992.
2

OWCP also received the first page of a FEGLI form entitled Continuation of Life Insurance
Coverage as an annuitant or compensationer, which appellant had signed on August 10, 1992. The
form indicated that she selected no reduction in her basic life insurance coverage postretirement.
The last paragraph of this page referenced Optional Life Insurance Coverage, however, the first
page ended without an election option and no other pages of this form were attached.
In a letter dated August 8, 2019, OWCP notified appellant of her continued entitlement to
compensation benefits effective July 21, 2019. The letter indicated that deductions were being
made for postretirement basic life insurance in the amount of $58.98 and optional life insurance in
the amount of $504.00.
On August 20, 2019 OWCP advised appellant of its preliminary determination that an
overpayment of compensation occurred in the amount of $75,741.38 for the period September 1,
1992 through July 20, 2019 because it had been provided with the incorrect code (W0) for OLI by
OPM instead of the correct code (X0), and it had never deducted the premium for her
postretirement optional life insurance. It found that she was without fault in the creation of the
overpayment because it erred in calculating the benefits, and it was not shown that she had actual
knowledge of the calculation error. OWCP calculated the overpayment amount of $75,741.38 by
adding the overpayment due to the OLI of $57,560.32 to the overpayment for postretirement basic
life insurance error of $18,181.06. It advised appellant of her right to request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing, if she
objected to the decision or requested waiver of the recovery of the overpayment. OWCP further
advised her to complete an overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. It mailed the preliminary determination to appellant’s address
of record and afforded her 30 days to provide the requested information. A copy was also sent to
her representative. No response was received by OWCP.
A manual adjustment form dated August 20, 2019 noted that the wrong OLI code of W0
had been deducted instead of X0. It noted that the OLI cost previously paid was $40,614.20, while
the OLI cost of the correct entitlement was $98,174.52, a difference of $57,560.32.
By decision dated September 26, 2019, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $75,741.38 for the period
September 1, 1992 through July 20, 2019, because improper deductions or no deductions were
taken from her compensation for life insurance for that period. It found that she was without fault
in the creation of the overpayment, but denied waiver of recovery because she had not responded
to the overpayment recovery questionnaire or provided supporting financial documentation.
OWCP directed repayment of the overpayment by deducting $600.00 every 28 days from her
continuing wage-loss compensation benefits.4

4
Overpayment payment instructions were also provided instructing that either a check or money order could be
sent to OWCP. Appellant was advised that interest would begin to accrue as of the date of the final decision, and that
if OWCP did not receive payment, or some indication that appellant intended to make payment within 30 days, her
overpayment would be considered a delinquent debt.

3

LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his or her duty.5
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.6
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the optional life insurance options.7 The
coverage for basic life insurance is effective unless waived8 and the premiums for basic life
insurance and optional life insurance coverage are withheld from the employee’s pay.9
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provides 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. Regulations at 5
C.F.R. § 870.701 (December 5, 1980) provide that an eligible employee had the option of choosing
no 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).10
When an underwithholding of life insurance premiums occurs, the entire amount is deemed
an overpayment because OWCP must pay the full premium to OPM upon discovery of the error.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to establish that appellant
received an overpayment of compensation in the amount of $75,741.38 for the period September 1,
1992 through July 20, 2019.

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8702(a).

8

Id. at § 8702(b).

9

Id. at § 8707.

10

See M.M., Docket No. 19-1872 (issued April 2, 2020); V.H., Docket No. 18-1124 (issued January 16, 2019).

11

5 U.S.C. § 8707(d). See M.M., id.; Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB
334 (1997).

4

The record reflects that OPM notified OWCP on May 7, 2018 and June 8, 2019 that, as a
compensationer, appellant was eligible to continue FEGLI coverage.
Regarding appellant’s basic life insurance election, the record substantiates that on
August 10, 1992 appellant signed an election form electing no reduction, maximum coverage. The
record also reflects that OWCP noted on January 24, 2018 that it had deducted appellant’s life
insurance premiums under code W0, instead of code X0 until appellant’s 65th birthday. Regarding
the overpayment based upon appellant’s basic life insurance election, OWCP found that an
overpayment existed in the amount of $18,181.06 because no premiums had been deducted for
appellant’s basic life insurance coverage since 1992. OWCP did not, however, explain why the
deductions made under code W0 would not have included the required premiums for appellant’s
basic life insurance coverage. The evidence of record is therefore unclear as to whether premiums
had been deducted for appellant’s basic life insurance coverage, which she elected on
August 10, 1992. The Board therefore finds that OWCP has not established the amount of
overpayment based upon failure to deduct premiums for appellant’s basic life insurance coverage.
Regarding the overpayment based upon appellant’s OLI election, the Board finds that the
record does not reflect appellant’s OLI election as of September 1, 1992. The FEGLI form dated
August 12, 1992 is incomplete. After OPM advised OWCP that there was no record of appellant’s
OLI election, appellant signed a document dated January 24, 2018. However, the document
appellant signed on January 24, 2018 does not establish a retroactive election of OLI coverage to
1992 for which appellant can be liable for past premiums.12 Appellant’s OLI election choice from
1992 to 2018 has therefore not been established.13 As the evidence of record does not establish
appellant’s election of OLI coverage, the Board finds therefore that OWCP has not met its of proof
to establish fact of overpayment as of September 1, 1992, based upon failure to deduct OLI
premiums.
Based upon the record as presented to the Board, the Board thus finds that OWCP
improperly determined that appellant received an overpayment of compensation in the amount of
$75,741.38.14
CONCLUSION
The Board finds that OWCP has not met its burden of proof to establish that appellant
received an overpayment of compensation in the amount of $75,741.38 for the period September 1,
1992 through July 20, 2019.

12

See M.M., supra note 10.

13

Supra note 10.

14

In light of the Board’s disposition of issue 1, the second and third issues regarding waiver and recovery of the
overpayment are rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the September 26, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 16, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 22-0115
Issued: March 22, 2022

Case Submitted on the Record

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

On November 1, 2021 appellant through counsel, filed a timely appeal from an
October 4, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 22-0115.
In a letter dated February 18, 2022, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel ’s request f or the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the dismissal of the appeal is
granted. The appeal docketed as No. 22-0115 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN VETERANS
ADMINISTRATION MEDICAL CENTER,
Chicago, IL, Employer
__________________________________________

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

Docket No. 12-1927
Issued: March 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 19, 2012 appellant filed a timely appeal from a May 2, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and an August 1, 2012
nonmerit decision. 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 claim.
ISSUES
The issues are: (1) whether appellant has established an emotional condition in the
performance of duty as alleged; and (2) whether OWCP properly denied appellant’s request for
further merit review of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 14, 2011 appellant, then a 51-year-old former clerk/typist, filed an
occupational disease claim asserting that she sustained an emotional condition as a result of her
responsibilities and having to wait on others to complete their work so that she could do her
work and because she received blame for not having her work done. She indicated that she was
hospitalized in 1985 for a nervous breakdown due to the work responsibilities and pressure
incurred while working. Appellant claimed she was first aware of her condition on March 7,
1979 and realized it was caused or aggravated by her employment on May 12, 1984. Along with
her claim, she submitted her March 26, 2011 statement and notification of action forms dated
May 14, 1984 to March 6, 1985. Also submitted was a May 21, 2010 treatment note from
Dr. Jagannath Devulapally, a Board-certified psychiatrist, who advised that he treated appellant
for chronic mental illness, since March 2008, which rendered her disabled.
In an April 11, 2011 letter, OWCP requested additional factual and medical evidence in
support of her claim. It noted that the evidence was insufficient to establish that appellant
actually experienced the employment factors alleged to have caused injury; there was no
diagnosis of any condition resulting from an employment activity; and a physician’s opinion as
to how employment activities caused, contributed to, or aggravated her medical condition had
not been provided. OWCP asked appellant to describe in detail the employment-related
condition or incidents which she believed contributed to her illness along with medical evidence
from a qualified physician which provided an opinion as to how employment activities caused,
contributed to or aggravated her medical condition.
In response, appellant submitted a June 2, 2011 statement, an April 26, 2011 challenge
letter from the employing establishment; Illinois Department of Mental Health and
Developmental Disabilities treatment notes dated December 10, 1979 to July 31, 1985; employer
treatment records from the 1970s and 1980s; reports from Dr. Devulapally dated June 3 and 17,
2011; Equal Employment Opportunity regulations; and OWCP regulations. In her letter, she
stated that she became more delusional from doing the work of other people and waiting on
others to complete their work. Appellant stated that this occurred almost every day and that she
could not complain to her supervisors and coworkers as she did not want to start any trouble.
By decision dated September 30, 2011, OWCP denied appellant’s claim on the grounds
that she failed to establish that she sustained an injury as defined under FECA. It found that,
while appellant alleged she was given a lot of responsibility, that she would get upset waiting for
people to finish their work so she could do her work, and that she would get blamed for not
having her work done. Appellant had not provided any specific details surrounding her claim
and, without such evidence, there was no factual basis to support her claim.
On March 1, 2012 appellant requested reconsideration. In a February 5, 2012 statement,
she stated that her work exposure contributed to her condition as she had to be hospitalized on
July 16, 1985 because of the pressure of responsibility that was put upon her, which she claimed
was evidence that there was traumatic injury and sickness and decompensation of health.
Appellant also submitted reports from Dr. Ann Sarpy, a Board-certified psychiatrist, dated
January 24 and February 14, 2012.

2

By decision dated May 2, 2012, OWCP denied modification of the prior decision. It
found that the factual evidence failed to establish that appellant suffered an emotional condition
in the performance of duty because her statement was general in nature and she did not describe
any specific incidents and conditions that caused her emotional condition or submit any
corroborating evidence.
On July 14, 2012 appellant requested reconsideration. In a July 16, 2012 statement, she
indicated that, even though she provided an answer to OWCP’s questions, OWCP did not modify
the second OWCP decision. Copies of previously submitted OWCP regulations and the May 2,
2012 OWCP decision were submitted.
By decision dated August 1, 2012, OWCP denied appellant’s reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.4 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.5 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 an emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of the work.6 On the other hand, the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force or his or
her frustration from not being permitted to work in a particular environment or to hold a
particular position.7
2

Leslie C. Moore, 52 ECAB 132 (2000).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 137 (1999).

6
7

Lillian Cutler, supra note 3.
Kim Nguyen, 53 ECAB 127 (2001).

3

In emotional condition claims, when working conditions are alleged as factors in causing
a condition or disability, OWCP, as part of its adjudicatory function, must make findings of fact
regarding which working conditions are deemed compensable factors of employment and are to
be considered by a physician when providing an opinion on causal relationship and which
working conditions are not deemed factors of employment and may not be considered. If a
claimant does implicate a factor of employment, it should then determine whether the evidence
of record substantiates that factor. When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, OWCP must
base its decision on an analysis of the medical evidence.8
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment. Appellant alleged that her emotional condition occurred due to her
responsibilities, having to wait on others to complete their work so that she could do her work,
and that she would get blamed for not having her work done. OWCP denied her claim finding
that she had not established a factual basis for the claim as she had not provided any specific
details surrounding her allegations.
In an April 11, 2011 letter, OWCP requested additional evidence from appellant. It noted
that the evidence was not sufficient to establish that she experienced an employment factor
alleged to have caused injury. OWCP asked appellant to provide a specific description of the
incidents that she believed caused her claimed condition. Although appellant indicated that she
had stress from doing the work of other people and waiting on the work of others and that this
occurred almost every day, she did not submit a detailed description of what happened at work
that caused her claimed stress or provide any corroborating evidence. She did not describe the
work of others or explain who improperly blamed her regarding work matters, and she did not
reference any specific examples that occurred on particular dates at specific locations. Without a
detailed description from appellant regarding the basis of her claim, appellant has not met her
burden of proof to establish the factual component of her claim.
To establish entitlement to benefits, a claimant must establish a factual basis for the claim
by supporting his or her allegations with probative and reliable evidence.9 In this case, appellant
did not provide a detailed factual statement outlining her claim or provide any corroborating
evidence, such as witness statements, to support her claim. Without such evidence appellant
failed to provide a factual basis to support her emotional condition claim.

8

Dennis J. Balogh, 52 ECAB 232 (2001).

9

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

4

For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.10
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,11
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.12 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.13 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the
merits.14
ANALYSIS -- ISSUE 2
On reconsideration, appellant submitted a statement in which she contended that,
although she provided answers to OWCP’s questions, it failed to modify the first decision. The
Board notes that OWCP in its May 2, 2012 merit decision reviewed the factual evidence
appellant submitted and found her statement to be general in nature regarding her claim without
supporting evidence or specific examples. The Board notes that appellant’s general statement
does not show that OWCP erroneously applied or interpreted a specific point of law and it does
not advance a relevant legal argument not previously considered by OWCP. Furthermore,
appellant’s statement, while new, is not relevant as it does not contain any supporting evidence
or specific examples from which appellant can establish a factual basis for her claim.
Appellant also submitted duplicative copies of OWCP regulations and the May 2, 2012
OWCP decision. This evidence is not relevant to the issue of whether appellant established a
factual basis to support her claim. The Board has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.15
10

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Lori A. Facey, 55 ECAB 217 (2004); Margaret S. Krzycki, 43 ECAB 496 (1992).
11

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.606(b)(1)-(2).

13

Id. at § 10.607(a).

14

20 C.F.R. § 10.608(b).

15

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

5

Furthermore, the submission of evidence which repeats or duplicates evidence that is already in
the case record does not constitute a basis for reopening a case for merit review.16
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her request for reconsideration.17
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty. The Board also finds that OWCP properly refused to
reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 1 and May 2, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 29, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

16

See A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Betty A. Butler, 56 ECAB
545 (2005).
17

M.E., id. (when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the
case for a review on the merits).

6