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

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

Docket No. 15-1667
Issued: April 20, 2016

Case Submitted on the Record

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

JURISDICTION
On August 3, 2015 appellant filed a timely appeal from June 2 and July 16, 2015 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Appeals Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant established disability for the period March 22 to
April 3, 2015 due to her accepted conditions.
On appeal, appellant contends that the employing establishment denied her work within
her limitations. She further contends that OWCP ignored her evidence.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence on appeal. The Board however is precluded from
considering evidence which was not before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 12, 2007 appellant, then a 52-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that on November 11, 2006 she was placed in a full-duty
assignment. She contended that the position required her to constantly use her wrists, elbows,
and shoulders and that this caused joint contracture of the fourth and fifth fingers of the right
hand. Appellant also noted that a claim for tendinitis had previously been submitted.3 Although
OWCP initially denied her claim, on May 29, 2009 OWCP accepted her claim for bilateral
lateral epicondylitis, and bilateral enthesopathy of the wrist and carpus.
On September 29, 2010 Dr. Michelle A. Shelton, appellant’s treating Board-certified
family practitioner, listed appellant’s restrictions as no standing, pushing, or pulling, reaching
restricted to ½-hour each a day, walking, twisting, bending/stooping, and climbing, limited to 1
hour a day, lifting limited to 10 pounds for 2 to 4 hours a day, and repetitive movements of
wrists and elbow limited to 4 hours a day. She continued to submit periodic duty status reports,
dated from February 21, 2011 through November 7, 2014, that indicated “continue restrictions.”
Appellant continued to work in a series of modified assignments for the employing
establishment. On August 4, 2013 she accepted a new offer of modified assignment from the
employing establishment as a mail handler. The duties of this position were listed as print
placards for 6 hours; repair damaged letters for 1 hour; and 2 hours of resource “rcm.” This
position involved 0 hours a day of pushing, pulling, kneeling, and standing, reaching above the
shoulder for 0.5 hours a day, walking for 1-hour a day, twisting, bending, stooping, climbing,
repetitive movement of wrists, and elbow intermittently for 4 hours a day, lifting limited to 10
pounds for 2 to 4 hours a day, and sitting 8 hours a day intermittently.
By letter dated March 23, 2015, appellant stated that a dispute arose between her
supervisor and herself with regard to how her leave slips were completed. She contended that
her supervisor failed to approve 8 hours of annual leave for a follow-up medical appointment on
March 25, 2015. Appellant then noted that her supervisor asked her to sign a new modified job
offer and that she refused and asked to speak with her union steward, but that the request was
denied. She stated that after returning to her supervisor’s office, she stated that she would not
sign the modified-job offer as it grossly exceeded her limitations and that it must first be
approved by her doctor. Appellant stated that the supervisor indicated that if she refused the
offered job, he would call postal police. She stated that postal police arrived, escorted her while
she collected her belongings, and then escorted her to the parking lot and told that she had to
leave.
The record contains a copy of the modified assignment (limited duty) offer signed by a
supervisor at the employing establishment on March 14, 2015, appellant signed receipt of this
offer on March 22, 2015. The duties of the modified assignment were listed as print placards for
2 hours, scan placards for 1½ hours, scan placards coming off of trucks for 2 hours, repair
damaged letters for 1 hour. The position would require regular lifting of up to 10 pounds for 2 to
3

The record indicates that appellant had previously filed several claims, for both traumatic injury and
occupational disease, dating back to 2002. A July 16, 2002 claim was accepted and she was paid a two percent
schedule award for permanent impairment of the right arm. Disability benefits were thereafter terminated, but
appellant remained entitled to medical benefits.

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4 hours per day, sitting for 6½ hours per day, intermittent walking for 2 hours a day, and
intermittent standing for 8 hours per day.
By letter dated April 20, 2015, appellant stated that she refused to sign a modified job
offer presented to her by her supervisor on March 22, 2015. She contended that the employing
establishment refused to let her present the job offer to her treating physician for approval, and
that when she refused to sign the job offer she was escorted from the building.
On April 21, 2015 appellant filed a claim for compensation, (Form CA-7), for the period
March 22 through April 2, 2015, for a total of 68.5 hours.
In support of her claim for compensation, appellant submitted an April 15, 2015 work
capacity evaluation (Form CA-17) signed by Dr. Shelton, indicating that appellant was limited in
an 8-hour day to 1 hour of intermittent standing, walking, bending/stooping, and twisting;
0.5 hours of reaching above the shoulder, 4 hours of simple grasping, and was prohibited from
pushing/pulling, fine manipulation, and operating machinery. Dr. Shelton listed the diagnosis as
tendinitis of appellant’s wrists and elbows (pain).
By decision dated June 2, 2015, OWCP denied appellant’s claim for compensation for
the period March 22 to April 3, 2015.
By letter dated May 28, 2015, appellant requested reconsideration and expressed her
concerns with OWCP’s decision. She stated that OWCP could disregard the claim for
compensation she had submitted on April 21, 2015 and instead should consider opening the file
for a thorough examination of all material. Appellant stated that the employing establishment
withdrew her modified job offer and instead offered her a job offer that grossly exceeded her
restrictions, and that it was OWCP’s duty to determine if her refusal of the job was valid. She
contended that OWCP improperly ignored the evidence of record.
In a letter dated April 1, 2015 and received by OWCP on June 5, 2015, Dr. Shelton
indicated that appellant had been on modified work status since 2002 secondary to tendinitis, de
Quervain’s disease, and lateral epicondylitis in both arms. She indicated that appellant had been
examined by multiple orthopedic specialists and had multiple steroid injections for these chronic
conditions. Dr. Shelton opined that all of appellant’s employment-related injuries were
permanent and exacerbated by repetitive motion.
Dr. Shelton alleged that the current offer of modified assignment was in conflict with
appellant’s well-established work restrictions that had been verified by orthopedic specialists.
She noted that, since appellant’s condition was exacerbated by repetitive upper extremity
motions, she had for the last 12 years had a restriction of simple grasping to four hours a day and
a restriction on most other upper extremity activities to two hours per day. It was Dr. Shelton’s
opinion that appellant’s employment activities related to processing duties, such as lifting and
throwing mail trays and packages weighing up to 70 pounds, throwing parcels and packages in a
repetitive manner over an eight-hour shift, and pushing and pulling mail material and equipment
weighing up to and exceeding 1,000 pounds on a daily basis for years, directly caused and
continued to cause flare-ups of appellant’s condition.
Dr. Shelton opined that appellant’s disability affected her ability to perform prolonged
repetitive motions, although she could perform repetitive motions for short, limited periods of
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time during the workday. She noted that prognosis for a complete recovery was poor as it was
caused and exacerbated by her employment. Dr. Shelton noted that appellant’s offer of modified
assignment outlined expectations for duty was not acceptable, and that if appellant performed the
duties to the extent of the modification, she would experience significant pain, swelling,
exacerbation of her conditions, and could possibly lead to more permanent damage. She asked
that restrictions remain as they had been to prevent further bodily harm to appellant. In a
May 27, 2015 note, Dr. Shelton indicated that OWCP’s denial failed to mention the documents
received from appellant, and that the statement in the decision that she stopped working was not
factual as she was actually walked off the job by security at the behest of her supervisor. She
argued that the decision should be reversed, and as much as the original revocation of her
modification was reinstated, appellant should be paid for time she was walked off job site and
was prevented to return to her employment.
By decision dated July 16, 2015, OWCP denied modification of its June 2, 2015 decision.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of his or her claim,
including that the medical condition for which compensation is claimed is causally related to the
employment injury.4 Compensation for wage loss due to disability is available for periods
during which an employee’s work-related medical condition prevents her from earning the wages
earned before the work-related injury.5 The claimant must submit medical evidence showing
that the condition claimed is disabling.6 The evidence submitted must be reliable, probative, and
substantial.7
By OWCP regulation benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents her from earning
the wages earned before the work-related injury. For example, an employee is not entitled to
compensation for any wage-loss claimed on a CA-7 form to the extent that evidence
contemporaneous with the period claimed on a CA-7 form establishes that an employee had
medical work restrictions in place; that light duty within those work restrictions was available;
and that the employee was previously notified in writing that such duty was available.8
The physician’s opinion must be based on the facts of the case and the complete medical
background of the employee, must be one of reasonable medical certainty, and must include
objective findings in support of its conclusions.9 Subjective complaints of pain are not sufficient,
4

20 C.F.R. § 10.115(e); see Tammy L. Medley, 55 ECAB 182, 184 (2003). Causal relationship is a medical
question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris,
48 ECAB 238 (1996).
5

Id. at § 10.500(a).

6

Id. at 10.515(f).

7

Id. at 10.115.

8

Id. at 10.500(a).

9

Id. at § 10.501(a)(2).

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in and of themselves, to support payment of continuing compensation.10 Likewise, medical
limitations based solely on the fear of a possible future injury are also insufficient to support
payment of continuing compensation.11
ANALYSIS
The Board finds that appellant has not established disability for the period March 22 to
April 3, 2015 due to her accepted condition.
The Board notes that OWCP accepted appellant’s claim for bilateral lateral epicondylitis,
and bilateral enthesopathy of the wrist and carpus. Appellant returned to work in a series of
modified work assignments. On March 22, 2015 the employing establishment made a new job
offer of a modified assignment. This modified duty offer was made in writing, as required by
20 C.F.R. § 10.500. The duties of the modified assignment were listed as print placards for
2 hours, scan placards for 1½ hours, scan placards coming off of trucks for 2 hours, repair
damaged letters for 1 hour. This position contained work restrictions, which included lifting up
to 10 pounds 2 to 4 hours a day, sitting for 6½ hours a day, intermittent walking for 2 hours a
day, and intermittent standing for 8 hours a day. Appellant refused the job offer and filed a Form
CA-7 claim for compensation for the period March 22 through April 3, 2015. She alleged that
the offered position was not within her restrictions. OWCP denied appellant’s claim for
compensation for this period.
The Board finds that appellant failed to present rationalized medical opinion evidence
establishing that she was unable to perform the position offered by the employing establishment
on March 22, 2015. Findings on examination and a physician’s opinion, supported by medical
rationale, are needed to show how the injury caused the employee disability for her particular
work.12 In the instant case, appellant has not provided rationalized medical opinion evidence that
established that she was disabled from March 22 to April 3, 2015.
The prior modified job offer of record, dated August 4, 2013, which appears to be the
position appellant performed until March 22, 2015, listed the duties of this position as print
placards for six hours; repair damaged letters for one hour; and two hours of resource “rcm.”
Appellant alleges that the new modified job offer of March 22, 2015 required that she perform
duties which far exceeded her medical restrictions. Neither she nor her physician have however
explained how the new duties, which required printing placards for 2 hours, scanning placards
for 3½ hours and repairing damaged mail for one hour, were in fact substantially different from
her previous modified work duties, and that appellant was medically unable to perform such
duties.
Appellant submitted multiple work capacity evaluations by her treating physician,
Dr. Shelton, indicating that she had certain work restrictions. It does appear that the offered
position exceeded Dr. Shelton’s restrictions for walking and standing. The requirements of the
10

Id.

11

Id.

12

G.P., Docket No. 15-1360 (issued September 25, 2015).

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modified position included standing for eight hours a day and walking for two hours a day. The
previous position held by appellant at the employing establishment limited walking to one hour a
day and prohibited standing. In her April 15, 2015 work capacity evaluation, Dr. Shelton limited
standing and walking to one hour a day. However, the conclusions stated on these work capacity
evaluation forms are not sufficiently detailed or rationalized to support appellant’s restrictions. It
is important to note that appellant’s accepted employment-related conditions pertained to the
upper extremities. The evidence of record does not substantiate that appellant’s walking and
standing restrictions were due to her accepted employment injuries.
Appellant also submitted an April 1, 2015 report by Dr. Shelton, which attempted to
explain why appellant could not perform the March 22, 2015 job offer. However, this report
does not constitute a well-rationalized medical opinion establishing that appellant was unable to
perform the work assignment offered on March 22, 2015. Dr. Shelton’s conclusions appear to be
based in large part on appellant’s recitation of the facts, which appear to not be in conformance
with the established facts of the case. For example, she attributes appellant’s injuries, in part, to
her pushing and pulling mail material and equipment weighing up to and exceeding 1,000
pounds on a daily basis for years. There is no factual evidence in the record supporting this
statement. Also, Dr. Shelton concluded that if appellant performed the duties of the limited-duty
work assignment, she would experience an exacerbation of her condition which would possibly
lead to more permanent damage. However, limitations based solely on the fear of a possible
future injury are insufficient to support payment of continuing compensation.13
In Dr. Shelton’s subsequent May 27, 2015 report, she argued that OWCP had not
considered certain evidence and that the statement by OWCP that appellant stopped working was
not factual as she was actually walked off the job by security at the behest of her supervisor and
prevented from returning to her employment. This letter does not contain any medical
diagnoses, description of a physical examination, or discussion of the medical evidence.
Accordingly, the record does not contain a rationalized medical opinion establishing that
appellant was unable to perform the modified position offered on March 22, 2015 due to the
accepted condition. Therefore, appellant has not established her entitlement to compensation
from March 22 to April 3, 2015.
Appellant also contends that the employing establishment failed to approve eight hours of
annual leave for March 25, 2015 for a medical appointment. There is no supporting evidence
that appellant had a medical appointment on that date or any explanation as to why the
appointment would last 8 hours.14

13

A.G., Docket No. 14-1590 (issued September 9, 2015).

14

An injured employee may be entitled to compensation for lost wages incurred while obtaining authorized
medical services. Gayle L. Jackson, 57 ECAB 546 (2006). This includes the actual time spent obtaining the
medical services and a reasonable time spent traveling to and from the medical provider’s location. As a matter of
practice, OWCP generally limits the amount of compensation to four hours with respect to routine medical
appointments. However, longer periods of time may be allowed when required by the nature of the medical
procedure and/or the need to travel a substantial distance to obtain the medical care. T.B., Docket No. 11-0663
(issued December 15, 2011); Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter
3.900.8 (November 1998).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish disability for the period March 22 to
April 3, 2015 due to her work-related conditions.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 16 and June 2, 2015 are affirmed.
Issued: April 20, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Washington, MD, Employer
__________________________________________

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

Docket No. 09-2043
Issued: April 21, 2010

Case Submitted on the Record

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

JURISDICTION
On August 11, 2009 appellant, through his representative, filed a timely appeal from
March 12 and July 21, 2009 merit decisions of the Office of Workers’ Compensation Programs
denying his traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained an injury on October 16,
2008 in the performance of duty, as alleged.
FACTUAL HISTORY
On November 5, 2008 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 16, 2008 he experienced extreme soreness in his
right arm muscles and tenderness in his right wrist after pulling down his route and loading a
truck at work. The next day at work, he experienced increased pain and sought emergency

medical attention. Appellant was treated with pain medication.
November 17, 2008 and returned to light duty on January 28, 2009.

He stopped working on

In a November 21, 2008 medical report, Dr. Philip B. Bovell noted appellant’s
complaints of neck pain. Appellant reported that in June 2008 he experienced a sudden onset of
pain on the right side of his cervical spine, centered in the C7 area, while sitting in a truck at
work. He sought treatment from his treating physician but continued working. Appellant’s pain
gradually worsened and he experienced tingling and numbness down the right upper extremity
into the fingers and thumb area. X-rays revealed degenerative joint disease. A July 2008
magnetic resonance imaging (MRI) scan further revealed C5 and C6 disc disease. Appellant
stated that his upper extremity discomfort worsened around October 16, 2008 while at work,
when he experienced increased pain, numbness, soreness and tingling resulting in a constant
ache of the right upper extremity muscles. He denied any neck problems except with repeated
use of the neck while sorting mail at work. Dr. Bovell diagnosed cervical radiculopathy and C5
and C6 disc syndrome. Appellant returned to Dr. Bovell on January 9, 2009 for a reevaluation of
his chronic cervical pain. An electromyography (EMG) revealed cervical radiculopathy at the
C6 level and cervical disc disease. Dr. Bovell reported appellant’s complaints of continued
tingling over the right upper extremity into the thumb area.
By letter dated January 29, 2009, the Office notified appellant of the deficiencies in his
claim and requested that he provide additional factual and medical evidence.
In a December 29, 2008 duty status report, Dr. Bovell diagnosed cervical neuritis
radiculopathy and C5 and C6 disc syndrome. He indicated that appellant injured his neck and
extremities at work, which caused the diagnosed conditions. In a December 29, 2008 attending
physician’s report, Dr. Bovell stated that appellant injured himself at work. He diagnosed
cervical neuritis or radiculopathy and cervical disc syndrome. Dr. Bovell indicated by checking
a box “yes” that he believed appellant’s condition was caused by an employment activity. He
returned appellant to light duty on January 12, 2009.
By decision dated March 12, 2009, the Office denied appellant’s claim on the grounds
that he did not submit sufficient medical evidence to establish that he sustained an injury
causally related to the employment incident.
On April 14, 2009 appellant filed a request for a review of the written record by an Office
hearing representative.
Appellant subsequently submitted medical reports dated March 13 through June 12, 2009
from Dr. Bovell, who noted appellant’s continuing complaints of pain, tingling and numbness
over the upper extremity and radiating into the fingers, particularly while at work. In a
March 31, 2009 report, Dr. Bovell diagnosed cervical radiculopathy, C5 and C6 disc syndrome,
which were established by previous diagnostic tests. He stated that appellant had initially given
a poor history of his condition and provided an approximate date of October 16, 2008 as the date
of his initial presentation of pain instead of an exact date. Dr. Bovell opined that appellant’s
symptoms of tingling and numbness arose from an underlying compression problem that was
preexisting in his neck. An MRI scan and EMG confirmed the protrusion and compression of
the nerve in appellant’s neck. Dr. Bovell opined that appellant experienced symptoms due to a

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gradual developing disc problem which occurred while he was at work. However, he stated that
appellant did not immediately seek treatment due to the mild nature of his symptoms. Dr. Bovell
opined that the presentation of appellant’s condition normally occurred in patients who are more
involved with work than taking notice of their own health condition. On June 12, 2009 he
opined that appellant’s condition was definitely a result of the injury he sustained in 2008.
In December 1, 2008 and January 28, 2009 duty status reports, Dr. Bovell diagnosed
cervical neuritis or radiculopathy and C5 and C6 disc disease. He indicated that the diagnosed
conditions were due to a right extremity and upper body work-related injury.
By decision dated July 21, 2009, an Office hearing representative affirmed the March 12,
2009 decision on the grounds that appellant did not submit sufficient medical evidence to
establish that he sustained an injury causally related to the October 16, 2008 employment
incident.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.6 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Office accepted that on October 16, 2008 appellant experienced soreness and
tenderness in his right arm and wrist after pulling down his route and loading his truck. The
issue is whether appellant established that he sustained an injury causally related to this incident.
The Board finds that appellant has not met his burden of proof.
Appellant submitted several reports and forms from Dr. Bovell dated November 21, 2008
through June 12, 2009, who diagnosed cervical radiculopathy and C5 and C6 disc disease. On
November 21, 2008 Dr. Bovell reported appellant’s claims that he first experienced an onset of
cervical pain in June 2008 while sitting in a truck at work. Appellant experienced increased
symptoms on October 16, 2008 while at work. The Board finds that this report is insufficient to
establish appellant’s claim as Dr. Bovell did not provide an opinion as to the cause of appellant’s
cervical condition. Dr. Bovell only stated that appellant experienced a worsening of his cervical
symptoms on October 16, 2008 at work. He did not provide an unequivocal opinion that
appellant’s employment-related duties on that date, including pulling down his route and loading
a truck, actually caused or exacerbated the diagnosed cervical condition. Neither the fact that a
condition became apparent during a period of employment, nor the belief of an employee that a
condition was caused or aggravated by employment conditions, is sufficient to establish causal
relationship.9 As Dr. Bovell did not specifically address the cause of the C5 and C6 disc disease
and cervical radiculopathy, this report is of diminished probative value.10
In a March 31, 2009 report, Dr. Bovell opined that appellant’s symptoms of tingling and
numbness arose from an underlying compression problem, which was preexisting in the neck.
He stated that appellant experienced a gradual development of his disc disease, which occurred
while he was at work, and that he did not seek immediate treatment due to the mild onset of
symptoms. Dr. Bovell noted that this delay in seeking treatment normally occurs in patients who
are more involved with their work than taking notice of their own health conditions. Further, on
June 12, 2009 he stated that appellant’s cervical condition was definitely a result of his 2008
injury. The Board finds these reports are similarly insufficient to establish appellant’s traumatic
injury claim as the doctor did not provide an unequivocal opinion explaining how the
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

See Ruby I. Fish, 46 ECAB 276 (1996).

10

See Robert Broome, 55 ECAB 339 (2004).

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October 16, 2008 employment incident caused or exacerbated appellant’s cervical condition. It
is unclear from the reports whether Dr. Bovell was relating appellant’s underlying compression
problem to his employment or whether the doctor found that appellant’s employment only
aggravated the preexisting condition. Moreover, he appeared to find that appellant’s condition
gradually developed due to his employment over a period of time rather than to his employment
activities on October 16, 2008. Dr. Bovell did not describe appellant’s employment activities on
October 16, 2008 or provide an opinion that these specific activities caused the diagnosed
cervical neck condition.11 As such, the Board finds that these reports are insufficient to establish
appellant’s claim.12
In duty status forms dated December 1, 2008 through January 29, 2009, Dr. Bovell
diagnosed cervical neuritis or radiculopathy and C5 and C6 disc disease. He indicated that the
diagnosed conditions were related to a right extremity and upper body work-related injury.
Dr. Bovell did not provide a rationalized medical opinion explaining the mechanism of
appellant’s work-related injury and how it caused the diagnosed cervical conditions. Therefore,
these reports are of diminished probative value.13
Further, in a December 29, 2008 attending physician’s report, Dr. Bovell indicated with a
check mark that he believed the diagnosed conditions of cervical neuritis or radiculopathy and
cervical disc syndrome were caused by an employment activity. The Board has held that an
opinion on causal relationship, which consists only of a physician checking “yes” to a medical
form report question on whether the claimant’s disability was related to the history is of
diminished probative value. Dr. Bovell did not provide any explanation or rationale for the
conclusion reached. This report is also insufficient to establish causal relationship.14
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury on October 16,
2008 in the performance of duty.

11

If appellant believes his condition was caused or exacerbated by performing his employment duties over a
period longer than a single workday or shift he may file an occupational disease claim (Form CA-2).
12

See Thomas J. Scola, 39 ECAB 1149 (1988).

13

See Victor J. Woodhams, supra note 8.

14

See Lucrecia M. Nielson, 42 ECAB 583, 594 (1991).

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ORDER
IT IS HEREBY ORDERED THAT the July 21 and March 12, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
GEOSPATIAL INTELLIGENCE AGENCY,
Arnold, MO, Employer
__________________________________________

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

Docket No. 07-1312
Issued: October 1, 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 April 17, 2007 appellant filed an appeal of a January 3, 2007 decision of the Office of
Workers’ Compensation Programs denying certain conditions included in his occupational
disease claim and a March 27, 2007 decision denying his request for a hearing. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained a deviated septum
requiring surgery causally related to accepted occupational exposures to airborne allergens;
(2) whether appellant established a period of total disability for work causally related to accepted
workplace exposures; and (3) whether the Office properly denied appellant’s request for a
hearing.

FACTUAL HISTORY
On December 16, 2004 appellant, then a 41-year-old cartographic analyst, filed an
occupational disease (Form CA-2) claiming that workplace exposures to mold, fungi, bacteria
and particulates in the 4-D work area from February 1, 1996 through late 2002 necessitated a
December 26, 2002 septoplasty.1 He also asserted that workplace exposures aggravated his
chronic sinusitis, nasal obstructions and asthma, conditions he developed in childhood.
Appellant was off work from September 13, 2002 to January 11, 2003.2
Appellant submitted environmental test results showing that, from May 29, 2001 to
October 9, 2002, the 4-D area in which he worked had high levels of airborne mold and fungal
spores, bacteria and particulates. The employing establishment confirmed his exposures from
February 1996 through September 2002. Appellant was transferred from the affected area in late
September 2002.
In a September 13, 2002 chart note, Dr. Philip J. Shanahan, an employing establishment
physician specializing in occupational medicine, noted appellant’s occupational exposures to
airborne mold. He related appellant’s symptoms of dyspnea, sneezing and nasal congestion.3
Dr. Shanahan diagnosed multiple allergies, asthma and chronic sinusitis. He restricted appellant
to light duty and recommended his transfer out of area 4-D due to the air quality problems.
On December 26, 2002 Dr. Jeffrey T. Fierstein, an attending Board-certified
otolaryngologist, performed a septoplasty, partial inferior turbinectomy, functional endoscopic
surgery of the anterior-posterior ethmoid sinuses and a maxillary antrostomy. In a January 29,
2003 letter, he noted that appellant presented on December 4, 2002 with “a nasal septal
deviation.4 [Appellant] thought that his nasal obstruction was a workman’s compensation case.”
Dr. Fierstein diagnosed turbinate hypertrophy and a mildly deviated septum, resolved by the
December 26, 2002 surgery.
In a February 10, 2003 letter, Dr. Tibor C. Kopjas, an attending Board-certified internist,
noted treating appellant for asthma beginning on February 2, 2002. He noted reviewing
environmental test reports and that appellant underwent surgery on December 26, 2002.
Dr. Kopjas stated: “[appellant] worked in an area that was high in mold, bacteria and
contaminants. He developed sinus problems that required missing work. The work environment
irritated the sinus to the point [that] the antibiotics did not work. [Dr. Kopjas did] feel [that] the
work environment caused the sinus problems.”

1

The Board notes that appellant did not submit requests for reimbursement for any medical expenses related to
the December 26, 2002 surgery.
2

The Board notes that appellant did not submit a formal claim for wage loss.

3

September 13, 2002 spirometry and a September 16, 2002 chest x-ray were within normal limits.

4

A December 15, 2002 computed tomography scan of appellant’s sinuses showed significantly advanced sinusitis
when compared to January 15, 1998 studies, with prominent nasal turbinates causing near obstruction on the right
and mucoperiostial thickening in the sphenoid sinuses.

2

In a February 12, 2003 letter, Dr. Shanahan stated that appellant’s preexisting tendency
toward allergy and upper respiratory problems was quite likely being aggravated by his exposure
to high fungal counts in area 4-D.
In a December 29, 2004 letter, the Office advised appellant of the additional evidence
needed to establish his claim. The Office emphasized the importance of submitting a
rationalized report from his attending physician explaining how and why the identified
workplace exposures would cause the claimed upper respiratory and sinus conditions.
By decision dated February 2, 2005, the Office denied appellant’s claim on the grounds
that fact of injury was not established. The Office found that the factual evidence was
insufficient to establish the alleged workplace exposures.
In a letter postmarked February 25, 2005, appellant requested an oral hearing.
By decision dated and finalized September 13, 2006, an Office hearing representative
found that the case was not in posture for a decision and remanded it for further development.
The hearing representative found that appellant established that he was exposed to bacteria,
mold, fungi and airborne irritants in the performance of duty as alleged. The hearing
representative further found that the medical evidence was sufficient to require further
development. The hearing representative directed that the Office refer appellant, the medical
record and a statement of accepted facts to an appropriate specialist for a rationalized opinion
regarding the causal relationship between the established workplace exposures and the diagnosed
aggravation of appellant’s sinus and upper respiratory conditions.
On October 10, 2006 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Richard Barnes, an osteopathic physician Board-certified in otolaryngology,
for a second opinion examination. Dr. Barnes submitted a November 9, 2006 report reviewing
the medical record and statement of accepted facts. An examination of appellant’s sinuses and
pharynx revealed no abnormalities. Dr. Barnes diagnosed allergic rhinitis and a history of
chronic sinusitis. He opined that it was possible that appellant’s preexisting respiratory and sinus
conditions were temporarily aggravated by his workplace exposures. Dr. Barnes stated that the
septoplasty was not work related. He explained that a deviated septum was caused by congenital
defect or trauma, not allergies and sinusitis.
In a November 20, 2006 note, an Office medical adviser declined to review Dr. Barnes’
report as appellant was referred on an issue of causation and not for hearing loss.
By decision dated January 3, 2007, the Office accepted appellant’s claim “for a
temporary aggravation of chronic sinusitis and allergic rhinitis, not to exceed
September 30, 2002.”5 The Office denied appellant’s claim for surgery for a deviated septum on
the grounds that causal relationship was not established. The Office found that Dr. Fierstein did
not provide medical rationale explaining how and why the accepted workplace exposures would

5

There is no evidence of record that the Office accepted any period of total disability or paid appellant any wageloss compensation.

3

necessitate surgery for a deviated septum. Also, Dr. Barnes explained that allergies and rhinitis
were not competent to cause a deviated septum.
In a letter postmarked March 1, 2007, appellant requested an oral hearing.
By decision dated March 27, 2007, the Office denied appellant’s request for a hearing on
the grounds that it was not timely filed. The Office found that appellant’s request for a hearing
was postmarked on March 1, 2007, more than 30 days after issuance of the Office’s January 3,
2007 decision. The Office denied appellant’s request for a hearing on the grounds that the issues
involved could be addressed equally well by requesting reconsideration and submitting new
evidence establishing that the septoplasty was causally related to factors of his federal
employment.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act6 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.7 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
6

5 U.S.C. §§ 8101-8193.

7

Joe D. Cameron, 41 ECAB 153

8

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

Solomon Polen, 51 ECAB 341 (2000).

4

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained temporary aggravation of chronic sinusitis
and allergic rhinitis, ceasing not later than September 30, 2002. The Office denied appellant’s
claim for a deviated nasal septum requiring surgery on December 26, 2002 on the grounds that
the medical evidence was insufficient to establish that the accepted exposures caused a deviated
septum.
Appellant submitted reports from Dr. Shanahan, an employing establishment physician
specializing in occupational medicine, and Dr. Kopjas, an attending Board-certified internist.
Both physicians opined that the accepted workplace exposures to airborne mold, bacteria and
particulates aggravated appellant’s preexisting allergies and sinusitis. Neither Dr. Shanahan nor
Dr. Kopjas addressed whether the accepted exposures necessitated septoplasty.
Dr. Fierstein, an attending Board-certified otolaryngologist, diagnosed a deviated nasal
septum and turbinate hypertrophy. He performed a septoplasty, partial inferior turbinectomy and
sinus surgeries on December 26, 2002. Dr. Fierstein noted in a January 29, 2003 letter that
appellant believed that the nasal obstruction was work related. However, he did not opine that
the accepted occupational exposures necessitated the septoplasty and sinus surgeries. Without
medical rationale explaining how and why the accepted workplace exposures caused objective
pathophysiologic changes to appellant’s septum and sinuses necessitating the December 26, 2002
surgery, Dr. Fierstein’s opinion is insufficient to meet appellant’s burden of proof in establishing
causal relationship.10
Dr. Barnes, an osteopathic physician Board-certified in otolaryngology and a second
opinion examiner, stated that appellant’s deviated septum was caused by trauma or congenital
defect. He explained that allergies and sinusitis could not cause a deviated septum. Dr. Barnes’
opinion thus negates the causal relationship appellant asserts.
Therefore, appellant has not established that he sustained a deviated septum in the
performance of duty, as he submitted insufficient rationalized medical evidence to establish the
asserted causal relationship. The Office therefore properly found that the December 26, 2002
surgery was not work related.
LEGAL PRECEDENT -- ISSUE 2
Under the Act, the term “disability” is defined as an inability, due to an employment
injury, to earn the wages the employee was receiving at the time of the injury, i.e., an impairment
resulting in loss of wage-earning capacity.11 For each period of disability claimed, the employee
has the burden of establishing that he or she was disabled for work as a result of the accepted
employment injury.12 Whether a particular injury causes an employee to become disabled for
10

See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
11

See Prince E. Wallace, 52 ECAB 357 (2001).

12

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

5

work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.13 The fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.14 The Board will not require the Office to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed. To do so would essentially allow an employee to self-certify
his disability and entitlement to compensation.15
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained a temporary aggravation of chronic sinusitis
and allergic rhinitis, ceasing on or before September 30, 2002. On appellant’s claim form, he
noted that he was off work from September 16, 2002 to January 11, 2003. Appellant has the
burden of establishing by the weight of the substantial, reliable and probative evidence, a causal
relationship between the accepted workplace exposures and his claimed total disability from
September 16, 2002 to January 11, 2003.16
In support of his claim, appellant submitted a February 10, 2003 letter from Dr. Kopjas
stating that the accepted exposures caused “sinus problems that required missing work.”
However, Dr. Kopjas did not provide any dates of total disability or explain how and why the
accepted exposures would disable appellant for work for any period. His opinion is therefore
insufficient to establish any period of total disability.17
Appellant also submitted a
September 13, 2002 from Dr. Shanahan restricting him to light duty and recommending his
transfer away from the contaminated work area. But Dr. Shanahan did not find appellant totally
disabled for work for any period. Dr. Fierstein did not note any period of total disability.18
Thus, none of appellant’s physicians provided rationalized medical opinion finding his
disabled for work for any portion of the period September 16, 2002 to January 11, 2003 due to
the accepted temporary aggravation of chronic sinusitis and allergic rhinitis. Therefore, the
medical evidence submitted is insufficient to meet appellant’s burden of proof in establishing a
period of total disability.19

13

Gary J. Watling, 52 ECAB 278 (2001).

14

Manuel Garcia, 37 ECAB 767 (1986).

15

Amelia S. Jefferson, 57 ECAB __ (Docket No. 04-568, issued October 26, 2005); Fereidoon Kharabi,
52 ECAB 291 (2001).
16

Alfredo Rodriguez, 47 ECAB 437 (1996).

17

Id.

18

Dr. Barnes, an osteopathic physician Board-certified in otolaryngology and a second opinion physician, did not
opine whether the accepted temporary aggravation of chronic sinusitis and rhinitis caused any period of total
disability for work.
19

Alfredo Rodriguez, supra note 16.

6

LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of the Act provides that “a claimant for compensation not satisfied
with a decision of the Secretary … is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”20
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.21 Office procedures, which require the Office to
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.22
ANALYSIS -- ISSUE 3
The Office denied appellant’s claim by January 3, 2007 decision. Appellant’s letter
requesting an oral hearing was postmarked on March 1, 2007, more than 30 days after the
January 3, 2007 decision. Thus, the Office properly found that appellant’s request for a review
of the written record was not timely filed under section 8124(b)(1) of the Act and that he was not
entitled to an examination of the written record as a matter of right.
The Office then exercised its discretion and determined that appellant’s request for a
review of the written record could equally well be addressed by requesting reconsideration and
submitting additional evidence establishing that the claimed surgery to correct a deviated septum
was causally related to his federal employment. As the only limitation on the Office’s authority
is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from known facts.23 The Board finds that there is no evidence of record that the
Office abused its discretion in denying appellant’s request. Thus, the Board finds that the
Office’s denial of appellant’s request for an oral hearing was proper under the law and facts of
this case.
CONCLUSION
The Board finds that appellant has not established that he sustained a deviated nasal
septum in the performance of duty. The Board further finds that appellant has not established a
period of total disability causally related to the accepted temporary aggravation of allergic
rhinitis and chronic sinusitis. The Board further finds that the Office properly denied appellant’s
request for a hearing.

20

5 U.S.C. § 8124(b)(1).

21

20 C.F.R. §§ 10.616, 10.617.

22

Claudio Vasquez, 52 ECAB 496 (2002).

23

Daniel J. Perea, 42 ECAB 214 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 27 and January 3, 2007 are affirmed.
Issued: October 1, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2169
Issued: August 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 27, 2013 appellant filed a timely appeal from the May 23, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly found that appellant forfeited his right to
compensation from April 19 to June 26, 2004 and September 14, 2005 to December 23, 2007.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on October 25, 2003 appellant, then a 36-year-old computer
engineer, sustained multiple head, back and arm conditions due to a fall at work. He stopped
work on October 26, 2003 and received total disability compensation on the periodic rolls.2
On June 7, 2004 appellant signed a Form CA-7 (Claim for Compensation). In Section 2
of the form, he sought compensation for leave without pay for the period April 19 to
May 29, 2004. The form asked appellant whether he had “worked outside your federal job
during the period(s) claimed in Section 2” and he answered “no” in response to this question. On
June 12, 2004 he signed a Form CA-7 claim for leave without pay for the period May 30 to
June 12, 2004. On July 1, 2004 he signed a Form CA-7 in which he claimed wage loss for leave
without pay for the period June 13 to 26, 2004. In these forms, appellant again indicated “no” in
response to the question regarding whether he had “worked outside your federal job during the
period(s) claimed.”
On December 14, 2006 and December 23, 2007 appellant signed EN1032 forms which
contained language advising him of the employment activities and earnings that he was required
to report for the 15-month period prior to the time he signed each form. On the forms, appellant
answered “no” in response to questions asking him whether he had been self-employed or
worked for any employer during the past 15 months.
The EN1032 forms instructed appellant to report all employment for which he received a
salary, wages, income, sales commissions, piecework or payment of any kind. Appellant was
directed to report all self-employment or involvement in business enterprises, including (but not
limited to) farming, sales work, operating a business, and providing services in exchange for
money, goods or other services. The kinds of services that appellant was required to report
included such activities as carpentry, mechanical work, painting, contracting, child care, keeping
books and records, odd jobs, and managing and overseeing a business of any kind, including a
family business. Such activities had to be reported even if they were part time or intermittent.
The EN1032 forms also instructed appellant to report any work or ownership interest in any
business enterprise, even if the business lost money or if profits or income were reinvested or
paid to other. If appellant performed any duties in a business enterprise for which he was not
paid, he had to show as the rate of pay what it would have cost the employer or organization to
hire someone to perform the work or duties he did, even if the work was for him or a family
member or relative. The forms contained certification clauses which informed him of the
consequences of not accurately reporting his employment activities, such as being subjected to
criminal penalties and losing the right to receive workers’ compensation.
In an October 6, 2011 memorandum, Joel Parisi, a special agent from the employing
establishment’s Office of the Inspector General (OIG), described an investigation that was
conducted between early 2008 and late 2011 regarding appellant’s activities while receiving
disability compensation. Mr. Parisi discussed various CA-7 forms and EN1032 forms completed
by appellant between 2004 and 2007 and concluded that he had work activities and earnings
2

Appellant returned to part-time work on January 12, 2004 but stopped work again on April 19, 2004. After his
work stoppage he received compensation on the periodic rolls.

2

during the periods covered by the forms which were not reported on the forms.3 Mr. Parisi
provided summaries of investigative interviews that various special agents carried out beginning
in early 2008.4 The record does not contain transcripts of any of the interviews, whether signed
or unsigned, and the summaries do not contain verbatim quotes of any of the questions posed by
the interviewers or any significant quotes of the answers provided by the interviewees.
Mr. Parisi stated that on May 8, 2008 and June 25, 2009 investigating agents interviewed George
Kiriakidi, the owner of Prime Building Group. He noted that Mr. Kiriakidi indicated becoming
friends with appellant after being contacted to build a home for him and that appellant visited
him on a regular basis and provided services, including working on his computers for free. In
connection with his business, Mr. Kiriakidi had computerized assisted design (CAD) drawings of
building construction plans made for him and appellant was the primary or only point of contact
for the provision of these services. Invoices to pay for these services were submitted in the name
of appellant’s wife and the invoices directed the checks to be made out to appellant’s wife.
Mr. Parisi noted that Mr. Kiriakidi reported that he did not know for sure whether the CAD
drawings were prepared by appellant or his wife, but he suspected that they were prepared by
appellant.
In the October 6, 2011 memorandum, Mr. Parisi also summarized an October 20, 2010
interview that investigating agents conducted with Paul Dietz, III, an engineer for Prime
Building Group. He indicated that Mr. Dietz stated that he dealt with appellant for more than
two years with respect to the preparation of CAD drawings on behalf of Prime Building Group
prior to appellant’s wife taking over such duties. Mr. Dietz believed that it took appellant’s wife
a year or two to become competent enough to complete drawings on her own without appellant’s
assistance. Mr. Parisi noted that Nicholas Damm, an employee in the finance section of Prime
Building Group, was interviewed on October 6, 2009. He noted that appellant used to bill Prime
Building Group for his wife’s CAD drawings and that appellant asked him about the status of
Prime Building Group’s payments to his wife. The memorandum also contains a summary of a
June 22, 2010 interview of Brian Kuebler, owner of ProAct Environmental, Inc. Mr. Parisi
stated that Mr. Kuebler indicated that appellant repaired his computer and that he picked up his
computer at appellant’s home. Mr. Kuebler paid for this work with a check written out to
appellant’s wife at the request of appellant. Mr. Parisi indicated that on May 3, 2010
investigating agents interviewed Thomas Farr, II, owner of Jacobs Ladder Painting, Inc. He
stated that Mr. Farr indicated that appellant provided computer repair services at his own house
and that appellant asked him to make the check for such services payable to appellant’s wife
because appellant was on disability and could not show any income.
A summary of a May 4, 2010 interview of Gary Lewis, owner of Lucas Construction,
noted that appellant asked Mr. Lewis to make check payments for CAD drawings payable to
3

It was indicated that, between May 3, 2004 and May 2, 2008, appellant and his wife received $78,219.15 from
their work activities and that this figure was derived from tax forms covering this period which were jointly filed by
appellant and his wife.
4

In his memorandum, Mr. Parisi did not identify the agencies to which the investigating agents belonged, but
supporting documents reveal that most of the interviews were conducted by the OIG. Other interviews were
conducted by the U.S. Naval Criminal Investigative Service and other bodies. There is no indication in the record
that the investigation of appellant ever led to any criminal charges being brought against him. Neither appellant nor
his wife were interviewed by the investigating agents.

3

appellant’s wife because appellant was on disability and could not show any income. Mr. Parisi
stated that on several occasions investigating agents interviewed Joseph Gartner of Gartner
Building Group. Mr. Gartner advised that appellant provided several CAD drawings for him at
no charge and that the assistance was so substantial that he was able to let go a draftsman
working for his company. Mr. Parisi indicated that on May 8, 2008 and June 25, 2009
investigating agents interviewed Dr. Robert Topkis, a physician with Warminster Medical
Associates. He stated that Dr. Topkis indicated that appellant was a friend of his who frequently
visited Warminster Medical Associates and sometimes partook in free lunches provided by
pharmaceutical company representatives. Dr. Topkis stated that at times appellant repaired
Warminster Medical Associates computers and his own smart phone free of charge, but that
when appellant was paid for computer repair work the checks were made out to appellant’s wife
per appellant’s request. Mr. Parisi indicated that a total of 16 individuals who were interviewed
acknowledged that they sent checks to appellant or his wife for computer or CAD drawing work,
but he did not identify all of the individuals in his October 6, 2011 memorandum. Mr. Parisi
noted that in February 2008 the employing establishment’s Human Resources Department
conducted video surveillance of appellant’s activities. It was asserted that the video from the
surveillance showed appellant engaging in physical activities inconsistent with his accepted work
injuries, but there was no claim that the video clearly showed appellant engaging in employment.
OWCP submitted documents in support of Mr. Parisi October 6, 2011 memorandum.
The documents include summaries of interviews that investigating agents held with individuals
who had contact with appellant and his wife. Some of these summaries pertain to the specific
interviewees discussed in the October 6, 2011 memorandum. While a number of these
summaries provide greater detail than those provided in the October 6, 2011 memorandum, these
documents do not contain transcripts of any of the interviews, whether signed or unsigned, and
the summaries do not contain quotes of any of the questions posed by the interviewers or any
significant quotes of the answers provided by the interviewees. A number of the interview
summaries had copies of checks attached to them, the majority of which are made out to
appellant’s wife.5 The record also contains numerous invoices produced by appellant’s wife for
payment to herself which contain the business name Builders Home Gallery. A number of the
checks are made out to appellant, but in most cases there is no indication in the record for what
purpose the checks were written. In other cases, the checks were made out to appellant on dates
prior to first date of declared forfeiture, i.e., April 19, 2004, or there was an indication in the
accompanying interview summaries that the checks were intended to reimburse appellant for
computer parts he purchased.6
In a February 29, 2012 decision, OWCP found that appellant forfeited his right to
compensation for the periods April 19 to June 26, 2004 and September 14, 2005 to December 23,
2007 because he did not report employment and earnings on CA-7 forms and EN1032 forms.
OWCP stated that appellant worked in the computer and construction fields and that the CA-7
forms and EN1032 forms advised him of the need to report such employment and earnings.
5

The interviewees generally indicated that the checks made out to appellant’s wife were for building drawing
services she provided them.
6

The record also contains a number of building drawings. Some of these drawings dated between January and
March 2004 appear to contain appellant’s initials.

4

OWCP emphasized the findings of the October 6, 2011 OIG report noting that the report showed
that appellant repaired computers and drew construction plans during the periods of forfeiture.
In a February 29, 2012 letter, OWCP advised appellant of its preliminary finding that he
received a $104,333.03 overpayment of compensation because he forfeited compensation for the
periods April 19 to June 26, 2004 and September 14, 2005 to December 23, 2007.7 It also
preliminarily found that appellant was at fault in creating the overpayment, thereby precluding
waiver of its recovery. OWCP indicated that the CA-7 forms and EN1032 forms completed by
appellant advised him that he needed to report employment activities and earnings.8
Appellant requested a telephone hearing before an OWCP hearing representative with
respect to both OWCP’s February 29, 2012 forfeiture decision and its preliminary overpayment
finding. At the July 24, 2012 hearing, appellant asserted that he did not perform any work while
he received disability compensation. He stated that his wife produced construction plan
drawings in connection with her own business and that, when he helped friends with computer
work as a hobby, he was only paid for computer parts that he bought himself. Appellant denied
that he told anyone that checks should be made out to his wife because he was on disability and
could not show income. He asserted that the premise for OWCP finding an overpayment was
improper because it improperly forfeited his compensation from April 19 to June 26, 2004 and
September 14, 2005 to December 23, 2007.
In a September 6, 2012 letter, counsel submitted signed witness statements showing that
appellant did not work during the periods that he received total disability compensation. In a
September 6, 2012 statement, appellant’s wife asserted that between 2001 and 2005 she became
familiar with the CAD software program for drawing and modifying building plans when she
and appellant made design changes to the plans provided by Mr. Kiriakidi, the builder they
contracted to build their home.9 She indicated that as some point no later than 2004 she began
working with builders to assist them in modifying architectural plans for single family homes.
Appellant’s wife stated that she worked on her own with the builders and that appellant only
provided limited assistance. Because he socialized with many of the builders for which she
performed work, appellant would at times pick up and drop off plans, drop off invoices and pick
up checks. Appellant’s wife stated, “[Appellant] took no active role in the consulting business
which I was operating.”
In a statement signed on August 20, 2012, Mr. Kiriakidi stated that he had known
appellant and his wife for about 10 years. When interviewed by government agents, he advised
7

The record contains payment records and worksheets showing that appellant received $104,333.03 in
compensation from April 19 to June 26, 2004 and September 14, 2005 to December 23, 2007.
8

The record also contains a March 1, 2012 letter in which OWCP indicated that it had made a preliminary
determination that he received a $21,114.19 overpayment of compensation because he was self-employed during the
periods June 27, 2004 to September 13, 2005 and December 24, 2007 to June 8, 2008 and received compensation for
total disability for these same periods. It does not appear that OWCP issued a final overpayment decision in
connection with the March 1, 2012 letter and this matter is not currently before the Board.
9

Appellant’s wife indicated that in the early 2000s appellant assisted a number of builders with modifying
building plans without charge, but that on at least one occasion in the early 2000s he sold a builder some plans.

5

them that he had been told that appellant’s wife performed the work. Mr. Kiriakidi stated that he
told the agents that he had no way of knowing one way or the other who actually performed the
work as he did not see the work being done. He never stated to the agents that appellant wanted
the checks to be made out to his wife because he was on disability. In a statement signed on
August 20, 2012, Mr. Lucas stated that he told the government agents that he had no knowledge
of who made the changes on the house plans and that, because the plans mainly went through
Mr. Kiriakidi, he would have more knowledge of who made the changes. He never told the
agents that appellant wanted the checks made out to his wife because he was on disability.
Mr. Lucas indicated that appellant told him before he sustained his injury that his wife was
learning a program for drawing house plans. In a statement signed September 5, 2012, Mr. Farr
stated that he met appellant through his landlord and became friendly with him. Appellant had
fixed his family computers as well as a computer for his business and that gave appellant for
each job under $500.00, which was consistent with the cost of the parts used. Mr. Farr stated
that appellant always told him that the price to be paid was for the parts he purchased. Appellant
never told him to make a check out to his wife because he was on disability.10
Appellant completed a Form OWCP-20, signed on September 7, 2012, in which he
indicated that he had $5,807.62 in monthly income, $7,548.58 in monthly expenses and
$2,810.00 in assets. He submitted a number of billing statements and other documents which
detailed his monthly expenses.
In a September 28, 2012 decision, an OWCP hearing representative affirmed the
February 29, 2012 decision. He found that appellant forfeited his right to compensation for the
periods April 19 to June 26, 2004 and September 14, 2005 to December 23, 2007. He stated that
the evidence, including the October 6, 2011 OIG memorandum, established that appellant
wrongly failed to report employment and income on the CA-7 and EN1032 forms he completed
for those periods.
In another September 28, 2012 decision, the hearing representative found that appellant
received a $104,333.03 overpayment of compensation for which he was at fault, thereby
precluding waiver of recovery of the overpayment. He found that appellant knew or should have
known that he had to report employment and earnings on the various forms he completed.
In February 19 and March 6, 2013 letters, counsel stated that he was attaching additional
witness statements to establish that appellant did not work during the periods that he received
total disability compensation.
In a supplemental statement signed on December 14, 2012, Mr. Kiriakidi advised that he
became close friends with appellant in 2001 and that appellant often helped him as well as
colleagues, friends and family members with computers. Appellant never asked for anything in
return other than reimbursement for replacement parts. Mr. Kiriakidi stated that, before
10

Appellant submitted other signed statements of individuals with whom he or his wife had contact with respect
to computer or building plan matters. Several of the individuals indicated that they were friends with appellant and
his wife and noted that appellant helped them with their computers for free or for just the cost of replacing parts.
Others indicated that they dealt with appellant’s wife when having building plans draw up and that it was always
represented to them that appellant’s wife actually performed the work.

6

appellant’s injury, one of his partners made him a dozen business cards in an effort to recruit him
for a working relationship, but appellant was never interested in anything other than working for
the employing establishment. Mr. Kiriakidi noted telling the interviewing agents that he did not
know of appellant having or operating any type of business during their lengthy friendship.
Appellant often helped him, if he could, as a friend. Mr. Kiriakidi stated that he never told
agents that appellant received payment for any computer work relating to any of his partners, his
businesses or himself. In a statement signed on December 14, 2012, Mr. Gartner noted that
appellant never charged him for anything and helped him as a friend. He stated that he met
appellant and appellant’s wife 11 years prior through his business partner, Mr. Kiriakidi.
Mr. Gartner received drawings from appellant on a number of occasions in connection with his
partnership with Mr. Kiriakidi, but he had no knowledge of what appellant or appellant’s wife
did for Mr. Kiriakidi and any of his other partners. Mr. Gartner stated that he never told agents
that appellant and Mr. Kiriakidi bartered services and that he had never known appellant “to be
in business for himself or being involved in any kind of joint business venture.” He never told
the agents that he let a draftsman go due to the work performed by appellant, but rather he let a
draftsman go because he was not competent.
In a statement signed on December 15, 2012, Mr. Kuebler stated that in April 2008 a
friend indicated that appellant might be able to help him with a problem he had with his laptop.
Appellant replaced a part on the laptop and told him that the part cost around $200.00.
Mr. Kuebler gave a check in this amount to appellant’s wife and that appellant “asked for
nothing else.”
In a statement signed on December 14, 2012, Mr. Dietz noted that he first met appellant’s
wife around January 2005 in connection with the approval of building plans. He met with
appellant’s wife numerous times to discuss and approve drawing plans and he felt that she was
knowledgeable and did well with the plans. Mr. Dietz stated that he told the special agents that
he had never known appellant to have any type of business. He felt intimidated by the agents
because they often pressed him to answer questions for which he had no answer. In a statement
signed on December 18, 2012, Mr. Damm stated that he began working for Mr. Kiriakidi in 1999
and met appellant and his wife in 2001 when they were looking to purchase a home. He became
friends with appellant and his wife and frequently socialized with them, as did Mr. Kiriakidi.
Mr. Damm indicated that he was aware that appellant’s wife did some work for Mr. Kiriakidi
and some of his partners and that he communicated with appellant’s wife through Mr. Kiriakidi.
He would see appellant’s wife in his office and received e-mails through her e-mail address.
Dr. Damm stated that he never told the special agents that he communicated with appellant about
constructions plans or that appellant worked for Mr. Kiriakidi or anyone else. He had never

7

known appellant to have a computer business and did not believe that appellant “was involved
with what [appellant’s wife] was doing.”11
In a May 23, 2013 decision, OWCP denied modification of its September 28, 2012
forfeiture decision. It found that the evidence of record, including the October 6, 2011 OIG
memorandum, established that appellant wrongly failed to report employment and income on the
CA-7 forms and EN1032 forms he completed for the periods April 19 to June 26, 2004 and
September 14, 2005 to December 23, 2007.
LEGAL PRECEDENT
Section 8106(b) of FECA12 provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
“forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered by a deduction from the compensation payable to
the employee or otherwise recovered under section 8129 of this title, unless
recovery is waived under that section.”13
An employee can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
“knowingly” omitted or understated earnings. It is not enough to merely establish that there
were unreported earnings. OWCP’s procedure manual recognizes that forfeiture is a penalty,14
11

Appellant submitted more than a dozen additional signed statements of individuals with whom he or his wife
had contact with respect to computer or building plan matters. Most of the individuals stated that they were friends
with appellant and indicated that appellant helped them with their computers for no charge or for just the cost of
replacing parts. Several people stated that appellant’s wife drew up building plans for them and that they had no
knowledge that appellant operated any kind of business. Appellant also submitted a document entitled “general
declaration” which was signed by 130 individuals in early 2013. The individuals listed the number of years they
knew appellant and attested to the statement that they had “never known [appellant] to have any kind of business or
ever being involved in one.”
12

5 U.S.C. § 8106(b).

13

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled, and not whether he received compensation for that period for total or partial
loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a totally
disabled employee normally would not have any employment earnings and therefore a statutory provision about
such earnings would be meaningless. Id. at 260.
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

8

and, as a penalty provision, it must be narrowly construed.15 In OWCP’s regulations,
“knowingly” is defined as: “with knowledge, consciously, willfully or intentionally.”16 To meet
this burden, OWCP is required to examine closely appellant’s activities and statements. OWCP
may meet this burden without an admission by an employee if the circumstances of the case
establish that he failed to reveal fully and truthfully the full extent of his employment activities
and earnings.17
Section 10.5(g) of OWCP’s regulations define earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”18
The Board has held that OWCP may not base its application of the forfeiture provision
strictly on conclusions drawn in an investigation; rather, the evidence of record must establish
that the claimant has had unreported earnings from employment which were knowingly not
reported.19 In FECA Bulletin No. 83-7, OWCP noted that an investigative report showing that a
claimant has had unreported earnings from employment must be used in conjunction with other
evidence of record in order to properly find a forfeiture of compensation.20 The Board cited this
bulletin in Claudia J. Thibault,21 in finding that the evidence of record was insufficient to
establish that the employee had earnings within the meaning of FECA. In declaring a forfeiture
of compensation, the only document that OWCP presented in support of its position was a
memorandum in which a special agent from the employing establishment’s OIG memorialized a
telephone interview with a witness who commented on the employee’s activities. The Board
noted that the memorandum was written by the special agent rather than the person interviewed
and found that the evidence was not sufficient to outweigh the claimant’s testimony that she did
not have earnings.

15

See Christine P. Burgess, 43 ECAB 449, 458 (1992).

16

20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268, 271-73 (1992).

17

Terry A. Geer, 51 ECAB 168 (1999).

18

20 C.F.R. § 10.5(g); see Monroe E. Hartzog, 40 ECAB 322, 329 (1988).

19

B.Y., Docket No. 11-1798 (issued July 24, 2012); Louis P. McKenna, Jr., 46 ECAB 328 (1994).

20

FECA Bulletin No. 83-7 (issued March 31, 1984).

21

40 ECAB 836 (1989).

9

In the case of R.W.,22 the Board found that OWCP’s forfeiture determination was based
on memorandum in which a special agent from the employer’s OIG provided summaries of
interviews conducted with appellant and several other witnesses. The memorandum, written by
the special agent, did not delineate the questions asked of the witnesses or contain the actual
answers provided by the witnesses. There was nothing signed by the witnesses attesting to the
accuracy of the information contained in the memorandum. The Board found that the evidence
was not sufficient to outweigh the employee’s testimony that the only actions he took in
connection with his companies were in his role as a passive investor.
ANALYSIS
OWCP determined that appellant forfeited his right to compensation from April 19 to
June 26, 2004 and September 14, 2005 to December 23, 2007 because he knowingly failed to
report earnings and employment activities related to his work in the construction planning and
computer fields on several CA-7 forms and EN1032 forms. The amount of OWCP
compensation found to be forfeited was $104,333.03 and OWCP determined that this resulted in
a $104,333.03 overpayment of compensation for which appellant was at fault in creating, thereby
precluding waiver of recovery of the overpayment.
Before OWCP and on appeal, counsel argued that OWCP did not support its forfeiture
determination because it did not present sufficient evidence to establish appellant’s failure to
report earnings and employment activities. He asserted that the investigative reports of record
only contained unsigned summaries of witness statements and had misrepresented the statements
made by the interviewees. Counsel argued that appellant did not perform any work within the
meaning of FECA and that later affidavits of various individuals clarified the earlier statements
they had made to investigating agents.
The Board has held that OWCP may not base its application of the forfeiture provision
strictly on conclusions drawn in an investigation, but rather the evidence of record must establish
that the claimant has had unreported earnings from employment which were knowingly not
reported.23 The Board finds that OWCP did not present sufficient evidence to establish that
appellant failed to report earnings or employment activities on the CA-7 forms and EN1032
forms he completed such that he should be subjected to the forfeiture provisions of FECA.
In finding that appellant forfeited compensation, OWCP heavily relied on an October 6,
2011 memorandum produced by Mr. Parisi, a special agent the employing establishment’s OIG,
which contained summaries of interviews obtained by investigating agents. The summaries of
some of these interviews suggest some business activity performed by appellant, although the
dates of these alleged activities are not specifically identified. For example, Mr. Kiriakidi, the
owner of Prime Building Group, indicated that he had computerized assisted design drawings of
building construction plans made for him on unspecified dates and that appellant was the main or
only point of contact for the provision of these drawings. Mr. Kiriakidi stated that invoices for
the drawings were made out to appellant’s wife. He indicated that he did not know for sure
22

Docket No. 09-1607 (issued July 26, 2010).

23

See supra note 19.

10

whether the drawings were prepared by appellant or his wife, but he suspected that they were
prepared by appellant.24
The Board finds that OWCP did not present sufficient evidence to support its
determination that appellant failed to report earnings or employment activities during the period
April 19 to June 26, 2004 and September 14, 2005 to December 23, 2007. In the October 6,
2011 memorandum memorializing the interviews conducted mostly by OIG, Mr. Parisi merely
provided summaries of the interviews that special agents held with various individuals who had
contact with appellant. The record does not contain any transcript detailing the questions asked
of the various interviewees or the actual responses made by the interviewees. There are no
individual statements signed by any of the parties questioned. The facts and the circumstances in
the present case are similar to those in Claudia J. Thibault25 and R.W.26 Given the fact that, in
finding periods of forfeiture, great emphasis was placed on interview summaries contained in an
investigative memorandum without the benefit of detailed documentation confirming the
accuracy of the interview summaries contained therein.
In addition, a number of these individuals interviewed by investigating agents produced
signed statements in which they disputed the characterization of their statements as reported in
the October 6, 2011 memorandum and supporting documents. For example, Mr. Kiriakidi
produced statements signed on August 20 and December 14, 2012 in which he noted that he did
not make some of the statements attributed to him by investigating agents. He indicated that he
did not know of appellant having or operating any type of business during their lengthy
friendship, that appellant helped him with various matters as a friend without charge and that he
had no reason to believe that appellant’s wife did not perform all of the building drawing work
for him. In addition, both Mr. Farr and Mr. Lewis submitted signed statements in which they
denied telling investigators that appellant asked them to make checks for services payable to
appellant’s wife because appellant was on disability and could not show any income. Numerous
other individuals submitted signed statements in which they clarified statements they had
previously made to investigating agents. These individuals indicated that they had no reason to
believe that appellant’s wife did not perform the building drawing work, that appellant did
computer work for free or for the cost of parts he purchased and that they had no knowledge that
appellant had a business.27

24

In addition, summaries of interviews provided by Mr. Parisi indicated that Mr. Farr owner of Jacobs Ladder
Painting, Inc., stated that appellant provided computer repair services at his own house and that appellant asked him
to make the check for such services payable to his wife because appellant was on disability and could not show any
income. In another summarized interview, Mr. Lewis, owner of Lucas Construction, indicated that appellant asked
him to make check payments for drawings payable his wife because appellant was on disability and could not show
any income.
25

See supra note 21.

26

See supra note 22.

27

For example, Mr. Dietz, an associate of Mr. Kiriakidi, also provided a signed statement indicating that he told
the investigating agents that he had never known appellant to have any type of business. He stated that he felt
intimidated by the agents because they often pressed him to answer questions for which he had no answer.

11

Other evidence of record does not clearly show that appellant had employment or
earnings during the periods of forfeiture of compensation. While the record contains a number
of the checks that are made out to appellant, in most cases there is no indication in the record for
what purpose the checks were written. In other cases, the checks were made out to appellant on
dates before the first date of declared forfeiture, i.e., April 19, 2004. With respect to other
checks, the interview summaries which accompany the checks indicate that the checks were
intended to reimburse appellant for computer parts he purchased. In the October 6, 2011
investigative memorandum, it was indicated that, between May 3, 2004 and May 2, 2008,
appellant and his wife received $78,219.15 from their work activities and that this figure was
derived from tax forms covering this period which were jointly filed by appellant and his wife.
However, these tax forms are not in the record and it remains unclear how they would show that
appellant had his own income from employment during the forfeiture periods.28
There is no evidence of record showing that appellant had any notable involvement in his
wife’s work. In a September 6, 2012 statement, appellant’s wife stated that at some point no
later than 2004 she began working with builders to assist them in modifying architectural plans
for single family homes. She stated that she worked on her own with these builders and that
appellant had no active role in her business. She advised that appellant had only a minor,
incidental involvement in her work in that, because he socialized with many of the builders for
which she performed work, he would at times pick up and drop off plans, drop off invoices and
pick up checks. The Board notes that this limited involvement would not constitute appellant’s
participation in his wife’s work. This activity by appellant appears to have been sporadic in
nature. It is not the type of activity which would have required the hiring of an individual to
perform it such that appellant would have been required to report this as business activity.29
Because OWCP did not show that appellant had employment or earnings that had to be
reported on the CA-7 and EN1032 forms he completed covering the periods April 19 to June 26,
2004 and September 14, 2005 to December 23, 2007, it did not meet its burden of proof to
establish that he forfeited his right to compensation for these periods.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to find that appellant
forfeited his right to compensation from April 19 to June 26, 2004 and September 14, 2005 to
December 23, 2007.

28

The record contains some building drawings dated between January and March 2004 which appear to bear
appellant’s initials, but these drawings were produced before the first date of declared forfeiture, i.e., April 19, 2004.
29

But see J.S., 59 ECAB 2007 (2007) (where the claimant was required to report his unreimbursed activities -including providing estimates, contracting for jobs, hiring employees, visiting job sites and handling all financial
records -- because they were extensive enough to require the hiring of an employee to perform them).

12

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 26, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

13