United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Chula Vista, CA, Employer
__________________________________________

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

Docket No. 18-1314
Issued: January 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 20, 2018 appellant, through counsel, filed a timely appeal from a May 3, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than six
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On January 26, 2012 appellant, then a 50-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that, on January 18, 2012, he injured his left thumb while
engaging in firearm qualification activities. OWCP assigned the claim File No. xxxxxx781. It
accepted appellant’s claim for left hand sprain/strain and open wound of left hand (except fingers)
without complications. Appellant did not stop work for this injury.
The case record reveals that, under a separate claim, OWCP accepted that appellant
sustained left shoulder impingement syndrome, left shoulder/upper arm contusion, and left
shoulder tenosynovitis. OWCP assigned the claim File No. xxxxxx966. Under that claim, it
granted appellant a schedule award on May 29, 2008 for six percent permanent impairment under
the standards of the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).3 The award ran for 18.72 weeks from March 13 to
July 22, 2008 and was based on a May 15, 2008 assessment of Dr. Arthur S. Harris, a Boardcertified orthopedic surgeon who served as a district medical adviser (DMA) for OWCP.4 OWCP
administratively combined File Nos. xxxxxx781 and File No. xxxxxx966, with case File No.
xxxxxx966 designated as the master file.
On March 23, 2012 Dr. Lindy O’Leary, an attending occupational medicine physician,
indicated that appellant’s left thumb condition was permanent and stationary and she advised that
appellant could perform his regular work.
On December 10, 2012 appellant filed a claim for compensation (Form CA-7) seeking an
increased schedule award due to his accepted employment injuries.
In January 2013 OWCP referred appellant for a second opinion examination to
Dr. William P. Curran, a Board-certified orthopedic surgeon. It requested that Dr. Curran evaluate
the nature and extent of the permanent impairment of appellant’s left upper extremity under the
standards of the sixth edition of the A.M.A., Guides.5
In a January 23, 2013 report, Dr. Curran determined that appellant had zero percent
permanent impairment of his left upper extremity under the sixth edition of the A.M.A., Guides
due to residuals of his left thumb injury. He applied the diagnosis-based impairment (DBI) method

3

A.M.A., Guides (5th ed. 2001).

4

Dr. Harris evaluated the permanent impairment of appellant’s left upper extremity that was related to his accepted
left shoulder conditions.
5

A.M.A., Guides (6th ed. 2009).

2

of rating appellant’s permanent impairment. On August 1, 2013 Dr. Ellen Pichey, a Boardcertified occupational medicine physician serving as a DMA, agreed with Dr. Curran’s assessment.
By decision dated August 8, 2013, OWCP denied appellant’s claim for an increased
schedule award, finding that appellant had not established more than six percent permanent
impairment of his left upper extremity, for which he previously received a schedule award.
On September 26, 2016 appellant filed a claim for compensation (Form CA-7) seeking an
increased schedule award due to his accepted employment injuries.
Appellant submitted a January 6, 2017 report from Dr. Julie Ohayon, a Board-certified
orthopedic surgeon, who found that appellant had one percent permanent impairment of his left
upper extremity under the standards of the sixth edition of the A.M.A., Guides. Dr. Ohayon used
the DBI method of rating permanent impairment.
By decision dated March 27, 2017, OWCP denied appellant’s claim for an increased
schedule award, finding that appellant had not established more than six percent permanent
impairment of his left upper extremity, for which he previously received a schedule award.
On April 10, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. Prior to a hearing being held, OWCP’s
hearing representative issued an August 9, 2017 decision remanding the case to OWCP for further
development, including referral to a DMA for a permanent impairment evaluation which
considered all of appellant’s accepted left upper extremity conditions.
On remand, OWCP referred appellant’s case to Dr. Michael M. Katz, a Board-certified
orthopedic surgeon serving in his capacity as a DMA.
In an August 24, 2017 report, Dr. Katz indicated that he had reviewed the relevant medical
evidence of record, including the examination findings of Dr. Ohayon. He noted that he was
applying the DBI method of evaluating permanent impairment under the sixth edition of the
A.M.A., Guides. Per Table 15-2 (Digit Regional Grid) on page 391, appellant’s diagnosed left
thumb condition (healed minor soft tissue injury) fell under the class 1 default value of four percent
permanent impairment of the left thumb. Dr. Katz determined that appellant had a functional
history grade modifier of 0, physical examination grade modifier of 1, and clinical studies grade
modifier of 0. Application of the net adjustment formula on page 411 required movement two
spaces to the left of the default value on Table 15-2, thus yielding a value of two percent permanent
impairment of the left thumb. Under Table 15-12 on page 421, the two percent permanent
impairment of the left thumb converted to one percent permanent impairment of the left upper
extremity. Dr. Katz indicated that he could not perform a permanent impairment evaluation of
appellant’s permanent impairment under the range of motion (ROM) method because the record
did not currently contain range of motion findings for the left thumb which had been obtained in
accordance with the strictures of the sixth edition of the A.M.A., Guides. He concluded that
appellant had one percent permanent impairment of his left upper extremity under the DBI method
of evaluating permanent impairment. Therefore, appellant did not have more than six percent
permanent impairment of his left upper extremity, as had been granted by schedule award dated
May 29, 2008.

3

By decision dated August 30, 2017, OWCP denied appellant’s claim for an increased
schedule award. It based this determination on the opinion of Dr. Katz, noting that he had found
that appellant did not have more than six percent permanent impairment of the left upper extremity,
as had been granted by schedule award dated May 29, 2008.
On September 8, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
February 16, 2018, counsel expressed his disagreement with OWCP’s August 30, 2017 decision
and noted that appellant’s prior schedule award was for permanent impairment of the left upper
extremity related to his left shoulder conditions, rather than those related to the left thumb.
By decision dated May 3, 2018, OWCP’s hearing representative affirmed OWCP’s
August 30, 2017 decision, noting that appellant had not established more than six percent
permanent impairment of his left upper extremity, for which he previously received a schedule
award.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulation,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
The sixth edition requires identifying the impairment class for the class of diagnosis
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS).10 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).11
Section 15.2e of the sixth edition of the A.M.A., Guides indicates that it is not uncommon
for several diagnosed conditions to be present simultaneously in the upper extremity, and provides
that the evaluator is expected to choose the most significant diagnosis and to rate only that
diagnosis using the DBI rating method.12
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10

A.M.A., Guides 494-531.

11

Id. at 521.

12

See A.M.A., Guides 390, section 15.2e.

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Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)13
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question,
the DMA should independently calculate impairment using the DBI method and
clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,]
Guides, that ROM is not permitted as an alternative rating method for the diagnosis
in question.
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”14
FECA Bulletin No. 17-06 further provides that, if the medical evidence of record is not
sufficient for the DMA to render a rating on ROM where allowed, the DMA should advise as to
13

FECA Bulletin No. 17-06 (May 8, 2017).

14

Id.

5

the medical evidence necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available evidence. Upon receipt
of such a report, and if the impairment evaluation was provided from the claimant’s physician, the
CE should write to the claimant advising of the medical evidence necessary to complete the
impairment assessment and provide 30 days for submission. Any evidence received in response
should then be routed back to the DMA for a final determination. Should no evidence be received
within 30 days of the date of the CE’s letter, the CE should proceed with a referral for a second
opinion medical evaluation to obtain the medical evidence necessary to complete the rating. After
receipt of the second opinion physician’s evaluation, the CE should route that report to the DMA
for a final determination.15
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board has previously found that OWCP had inconsistently applied Chapter 15 of the
sixth edition of the A.M.A., Guides when granting schedule awards for upper extremity claims.
No consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.16
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.17 In T.H., the Board concluded that OWCP physicians were
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and DMAs use both DBI and ROM methodologies interchangeably without a
consistent basis. Furthermore, the Board observed that physicians interchangeably cited to
language in the first printing or the second printing when justifying use of either ROM or DBI
methodology. The Board therefore found that OWCP should develop a consistent method for
calculating permanent impairment for upper extremities, which could be applied uniformly.
As noted above, FECA Bulletin No. 17-06 provides that, if the rating physician provided
an assessment using the DBI rating method, the DMA should independently calculate impairment
using both the ROM and DBI methods and identify the higher rating for the claims examiner.18
In August 2017, Dr. Katz, the DMA, indicated that he had reviewed the reports of
Dr. Ohayon, the attending physician, and determined that appellant had one percent permanent
impairment of his left upper extremity due to his left thumb condition, as calculated under the DBI
rating method. Since he provided a rating using the DBI rating method, Dr. Katz was required to
independently calculate appellant’s permanent impairment using both the DBI and ROM methods
and identify the higher rating for the claims examiner.19 He indicated that the record did not
15

Id.

16

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

17

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

18

See supra note 16.

19

See supra note 13.

6

contain adequate range of motion findings to conduct a permanent impairment rating under the
ROM method. As noted above, FECA Bulletin No. 17-06 provides detailed instructions for
obtaining sufficient evidence to conduct a complete permanent impairment evaluation, including
referral for a second opinion evaluation in some cases. However, such instructions were not
carried out in the present case. Therefore, this case requires further development of the medical
evidence in accordance with FECA Bulletin No. 17-06.20
This case will therefore be remanded for application of FECA Bulletin No. 17-06, to
include consideration of all of appellant’s accepted conditions relating to the left upper extremity,
i.e., all of the accepted conditions of the left thumb and left shoulder/upper arm. After such further
development of the medical evidence as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: January 11, 2019
Washington, DC

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

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

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

20

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Havelock, NC, Employer
)
___________________________________________ )
S.M., Appellant

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

Docket No. 16-0591
Issued: September 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2016 appellant filed a timely appeal of a December 4, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to an October 14, 2015 employment incident.
FACTUAL HISTORY
On October 15, 2015 appellant, then a 51-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 14, 2015 he sustained injuries to his head, neck,
shoulder, right knee, shin, and ankle and low back when he fell down steps in the performance of
1

5 U.S.C. § 8101 et seq.

duty. He stopped work on October 14, 2015. An employing establishment representative
checked a box marked “yes” in response to whether the facts about the injury were consistent
with the statements of the witnesses.
Appellant also submitted an authorization for examination and/or treatment (Form CA16), dated October 19, 2015 and signed by a supervisor. He was authorized to visit Carteret
General Hospital.
In an October 26, 2015 letter, OWCP advised appellant that his claim initially appeared
to be a minor injury that resulted in minimal or no lost time from work and his claim was
administratively handled to allow a limited amount of medical payments. However, appellant’s
claim was now being reopened because he had not returned to work. OWCP informed him of
the type of evidence needed to support his claim and requested that he submit such evidence
within 30 days.
In October 14, 2015 reports, Dr. Arthur Henderson, Board-certified in emergency
medicine, saw appellant for head and knee injuries and recommended follow up with his primary
care physician.
OWCP received an October 19, 2015 disability certificate from Dr. John Rickabaugh, a
Board-certified family practitioner, who placed appellant off work after he saw his orthopedist.
In an October 23, 2015 report, Dr. Jeffery K. Moore, an orthopedist specializing in sports
medicine, noted that appellant had fallen down a flight of stairs during work and had residual
problems of the right knee and right shoulder. He advised that the right knee was hyperflexed
and externally rotated when he landed at the bottom of the stairs. Dr. Moore noted that appellant
had signs of a possible anterior cruciate ligament tear and possible medial meniscus tear. He
opined that the medial collateral ligament strain was mild. Dr. Moore recommended magnetic
resonance imaging (MRI) scan testing as the best method to diagnose the specific intra-articular
injuries. He also explained that appellant’s right shoulder became significantly painful about two
days after the fall. Dr. Moore diagnosed sprain of the right shoulder and knee. He provided a
work restriction excuse placing him off work pending his MRI scan follow-up appointment.
In a November 5, 2015 report, Dr. Moore related that appellant described multiple
injuries following a fall down stairs, to include: a sprain down to the right knee; low back neck
and shoulder pain; and contusions to the left thigh, knee, shin, and ankle. He diagnosed internal
derangement of the knee and a shoulder sprain. Dr. Moore checked a box marked “yes” in
response to whether he believed the condition was caused or aggravated by the workplace
incident. He advised that he recommended a right knee MRI scan and a shoulder injection.
Dr. Moore indicated no work until the MRI scan was completed.
In a November 12, 2015 report, Dr. Heather Seymour, a Board-certified diagnostic
radiologist, noted that appellant fell and injured his knee on October 14, 2015 and sustained
anterior and medial knee pain. She advised that x-rays were obtained of the right knee and they
revealed findings which included: minimal knee joint effusion, no Baker’s cyst, and
unremarkable patellar cartilage. Dr. Seymour diagnosed: moderate grade II sprain anterior
fibers medial collateral ligament with adjacent soft tissue edema and minimal subjacent bone

2

contusion, possible free edge tear apex of the body of the lateral meniscus, bone contusions
posterior lateral femoral condyle and posterior lateral tibial plateau, and small suspected
ganglion cyst adjacent to the fibular head at the junction of the biceps femoris and fibular
collateral ligament.
In a November 16, 2015 report, Dr. Moore advised that appellant was seen for a recheck
of the right knee pain. She examined appellant and found that he reported limited motion and
myalgia, shoulder pain, and knee pain. Dr. Moore diagnosed acute meniscal tear, lateral and
radial. She recommended an arthroscopic procedure to debride or repair the meniscus tear as
well as any other procedures as indicated at the time of surgery.
By decision dated December 4, 2015, OWCP denied appellant’s claim as he had not
established an injury causally related to the October 14, 2015 incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA,2 and that an injury was sustained in the performance
of duty.3 These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.4
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.5 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
In this case, appellant alleged that on October 14, 2015 he sustained multiple injuries in
the performance of duty. There is no dispute that the claimed event occurred as alleged, i.e., that
appellant fell down steps occurred at work as alleged.
However, the Board further finds that the medical evidence of record is insufficiently
rationalized to establish the second component of fact of injury, that the employment incident
caused an injury. The medical evidence contains no reasoned explanation of how the specific
employment incident on October 14, 2015 caused or aggravated an injury.9
Appellant submitted several medical reports. They included an October 23, 2015 report
from Dr. Moore, who noted that appellant’s history of injury was comprised of a fall down a
flight of stairs during work and that he had residual problems of the right knee and right
shoulder. He advised that the right knee was hyperflexed and externally rotated when he landed
at the bottom of the stairs. Dr. Moore noted that appellant had signs of a possible anterior
cruciate ligament tear and possible medial meniscus tear. He opined that he thought the medial
collateral ligament strain was mild and recommended a right knee MRI scan. Dr. Moore also
explained that appellant’s right shoulder became significantly painful about two days after the
fall and diagnosed sprain of the right shoulder and knee. The Board notes that while he
described appellant’s activities he did not offer any opinion on causal relationship. 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 medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10 Thus, Dr. Moore’s October 23, 2015 report is of diminished probative value.
In a November 5, 2015 report, Dr. Moore related that appellant described multiple
injuries following a fall down stairs, to include: a sprain down to the right knee; low back neck
and shoulder pain; contusions to the left thigh, knee, shin, and ankle. He diagnosed internal
derangement of the knee and a shoulder sprain. Dr. Moore checked a box marked “yes” in
response to whether he believed the condition was caused or aggravated by the employment
activity. However, he did not explain how he arrived at this conclusion. The checking of a box

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
10

A.D., 58 ECAB 149 (2006); J.M., 58 ECAB 478 (2007); L.D., 58 ECAB 344 (2007); G.G., 58 ECAB
389 (2007); D.E., 58 ECAB 448 (2007).

4

marked “yes” in a form report, without additional explanation or rationale, is insufficient to
establish causal relationship.11
In a November 16, 2015 report, Dr. Moore recommended an arthroscopic procedure to
debride or repair the meniscus tear as well as any other procedures as indicated at the time of
surgery. However, he did not offer any opinion on causal relationship.12
OWCP received a November 12, 2015 diagnostic report from Dr. Seymour who
diagnosed: moderate grade II sprain anterior fibers medial collateral ligament with adjacent soft
tissue edema and minimal subjacent bone contusion, possible free edge tear apex of the body of
the lateral meniscus, bone contusions posterior lateral femoral condyle and posterior lateral tibial
plateau, and small suspected ganglion cyst adjacent to the fibular head at the junction of the
biceps femoris and fibular collateral ligament. However, this report is insufficient to establish
the claim as the report does not address how the employment incident caused or contributed to a
diagnosed medical condition.13
Because the medical reports submitted by appellant do not address how the October 14,
2015 incident at work caused or aggravated the medical condition, these reports are of limited
probative value14 and are insufficient to establish that the October 14, 2015, employment
incident caused or aggravated a specific injury.
The Board notes that the employing establishment issued an authorization for medical
treatment (Form CA-16) on October 19, 2015. Where an employing establishment properly
executes a Form CA-1, which authorizes medical treatment as a result an employee’s claim for
an employment-related injury, the Form CA-16 creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of
the action taken on the claim.15 The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.16 In this
case, it is unclear whether OWCP paid for the cost of appellant’s examinations. On return of the
case record, OWCP should further address the issue.17
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.

11

Calvin E. King, 51 ECAB 394 (2000).

12

See supra note 10.

13

K.W., Docket No. 16-0838 (issued July 25, 2016).

14

See T.V., Docket No. 16-0656 (issued July 27, 2016).

15

A.B., Docket No. 15-1002 (issued August 14, 2015); Tracey P. Spillane, 54 ECAB 608 (2003).

16

20 C.F.R. § 10.300(c).

17

Supra note 14.

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury causally related to an October 14, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SALISBURY VETERANS ADMINISTRATION
MEDICAL CENTER, Salisbury, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0919
Issued: September 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 25, 2015 appellant filed a timely appeal from a February 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on September 24, 2014 while in the performance of duty.
FACTUAL HISTORY
On December 23, 2014 appellant, a 60-year-old housekeeping aid, filed a traumatic
injury claim (Form CA-1) alleging that he fractured his right foot due to a slip and fall on
1

5 U.S.C. § 8101 et seq.

September 24, 2014 while performing his employment duties. On the claim form, the employing
establishment controverted the claim.
In a December 29, 2014 letter, OWCP notified appellant of the deficiencies of his claim
and requested a detailed description as to how the alleged injury occurred. It afforded him 30
days to submit additional evidence and respond to its inquiries.
Appellant submitted a narrative statement dated January 5, 2014 which reported that on
September 24, 2014 at 10:00 a.m. he informed his supervisor that he needed to go to the
emergency room at the Veterans Administration (VA) Hospital. The VA Hospital let him use
sick leave to elevate his right foot and provided medication. That weekend appellant went to the
emergency room in Salisbury where they took x-rays, provided medication, and prescribed a
boot. On Monday, he went to his primary care physician, Dr. Murphy, who took x-rays,
provided antibiotics, and sent him home. Appellant returned to work. Dr. Murphy told him that
his x-rays showed “broken toes I had broke[n] in 2009.” Appellant decided to seek medical
attention when he saw blood in his sock that day.
In a September 25, 2014 report Renae Matthews, a physician assistant, indicated that
appellant was seen at the V.A. Medical Center for right foot pain. Ms. Matthews stated that he
had fractured his right foot on July 12, 2014. She released him to sedentary work only.
On November 10, 2014 Dr. Alberto Orosco, a podiatric surgeon, diagnosed right foot
ulceration. Dr. Orosco stated that appellant’s symptoms appeared on October 17, 2014.
In a December 29, 2014 letter, the employing establishment controverted appellant’s
claim. On December 30, 2014 the employing establishment indicated that appellant had been in
a car accident several weeks ago. In an e-mail message dated October 27, 2014, Laura Hodge
stated that another supervisor in appellant’s service, Bruce Hayes, informed her that appellant
had “wrecked his car a couple weeks ago ... flipped it.”
By decision dated February 10, 2015, OWCP denied appellant’s claim finding that his
injury on September 24, 2014 did not arise in “the performance of work-related duties.”2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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
2

By decision dated April 29, 2015, OWCP denied appellant’s request for an oral hearing or a review of the
written record as untimely. The Board and OWCP may not simultaneously exercise jurisdiction over the same issue
in the same case. Because OWCP must review its decision in order to exercise its discretion on whether to grant an
untimely request for a hearing, it may not issue a decision granting or denying a request for a hearing regarding the
issue on appeal before the Board. It lacked authority to issue its April 29, 2015 decision, as the case was at that time
before the Board on an appeal of the same decision on which the hearing was requested. Accordingly, OWCP’s
April 29, 2015 decision is rendered null and void. See 20 C.F.R. § 501.2(c)(3); Arlonia B. Taylor, 44 ECAB 591,
597 (1993).
3

5 U.S.C. § 8101 et seq.

2

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
An employee has the burden of establishing the occurrence of an injury at the time, place,
and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence. An injury does not have to be confirmed by an eyewitness in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with surrounding facts and circumstances and his subsequent
course of action.7 An employee has not met his burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statement in determining whether a prima facie case has been established. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.8
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

See Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
8

See D.B., 58 ECAB 529 (2007); Robert A. Gregory, 40 ECAB 478 (1989); Thelma S. Buffington, 34 ECAB
104 (1982).
9

See J.Z., 58 ECAB 529 (2007).

3

ANALYSIS
OWCP denied appellant’s claim on the basis that his injury on September 24, 2014 did
not arise in the performance of duty. The Board affirms the denial and further finds that the
factual evidence does not establish that appellant slipped and fell on September 24, 2014. As
noted above, the first element of fact of injury requires that appellant submit evidence
establishing that an incident occurred at the time, place, and in the manner alleged.10
On his claim form, appellant alleged that he fractured his right foot due to a slip and fall
on September 24, 2014. In his January 5, 2014 narrative statement, appellant indicated that he
went to the emergency room at the VA Hospital at 10:00 a.m. on September 24, 2014. In
accordance with long precedent, the Board finds that there are such inconsistencies in the
evidence to cast doubt upon the validity of appellant’s claim.11
There are unresolved discrepancies regarding the time, place, and manner in which the
alleged employment incident occurred. Appellant alleged that he fractured his right foot due to a
slip and fall on September 24, 2014, but he failed to identify the location of his fall or describe
the manner of his fall.12 In his January 5, 2014 narrative statement, appellant indicated that his
primary care physician, Dr. Murphy, told him that his x-rays showed “broken toes I had broke[n]
in 2009.” In her September 25, 2014 report, Ms. Matthews stated that appellant had fractured his
right foot on July 12, 2014. On November 10, 2014 Dr. Orosco diagnosed right foot ulceration
and stated that appellant’s symptoms appeared on October 17, 2014. These accounts are
contradictory in nature.13 Appellant’s own statements and the statements from Ms. Matthews
and Dr. Orosco are inconsistent with the surrounding facts and circumstances.14 Appellant has
not reconciled these contradictions in the record. He did not provide a detailed account of the
incident, as required in a traumatic injury claim.15 Appellant’s allegations were vague and did
not relate with specificity the circumstances, or the exact and immediate consequences, of the
injury.16 He did not file his traumatic injury claim until December 23, 2014 more than 30 days
after the alleged September 24, 2014 incident, which constitutes late notification of injury. He

10

See supra note 6.

11

Bennie W. Butler, 13 ECAB 156 (1961).

12

S.H., Docket No. 14-1814 (issued March 12, 2015) (where appellant alleged pulmonary injury from exposure
to bleach but did not identify her specific location at time of alleged exposure. The Board affirmed OWCP denial of
incident).
13

L.A., 58 ECAB 630 (2007) (where appellant submitted medical reports which did not agree on the date of
injury or diagnosis, the Board affirmed OWCP denial of claim because the incident had not been established).
14

Cf. S.A., Docket No. 10-1786 (issued May 4, 2011) (where the Board found that appellant established that the
incident occurred as alleged, as there were no inconsistent statements from appellant or other evidence refuting the
occurrence of the alleged incident).
15

See V.H., Docket No. 12-1621 (issued December 21, 2012).

16

Id.

4

submitted no witness statements in support of his claim.17 Appellant has not offered any
explanation for these factual deficiencies. As noted above, such defects in the factual evidence
are sufficient to cast doubt on whether the employment incident occurred as alleged.18
Accordingly, the Board finds that appellant has not met his burden of proof to establish that he
experienced an employment-related incident at the time, place, and in the manner alleged.
As appellant has failed to establish the first component of fact of injury, it is not
necessary to discuss whether he submitted medical evidence sufficient to establish that a medical
condition existed and whether the condition was causally related to his federal employment.19
Thus, the Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on September 24, 2014, as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury on September 24, 2014 while in the performance of duty.

17

Michael Hall, Docket No. 98-0153 (issued September 2, 1999) (where appellant submitted no corroborating
evidence or statement, where the employing establishment controverted the claim, where the medical evidence
failed to describe an incident as alleged by appellant. The Board found appellant had failed to establish an incident
occurred).
18

See S.M., Docket No. 12-946 (issued on January 29, 2013) (where the employee alleged that she fell down
stairs at work, the Board found that the factual evidence was not sufficient to establish that the employment incident
occurred as alleged on the basis that she provided late notification of injury, did not seek immediate medical
attention, and provided no witness statements).
19

Given that appellant did not establish an employment incident, further consideration of the medical evidence is
unnecessary. See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006); Dennis M. Mascarenas, 49 ECAB 215,
218 (1997).

5

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: September 2, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, WESTBURY PLACE
STATION, Houston, TX, Employer
__________________________________________

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Appearances:
Stephen V. Hunt, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1255
Issued: October 4, 2007

Case Submitted on the Record

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

JURISDICTION
On April 2, 2007 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated October 18, 2006 and March 14, 2007, which denied his claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty causally related to factors of his federal
employment.
FACTUAL HISTORY
On June 30, 2006 appellant, then a 39-year-old city letter carrier, filed a Form CA-2,
occupational disease claim, alleging that he sustained an emotional condition as a reaction to an
employment injury. He stopped work on December 27, 2004. By letters dated July 26, 2006, the

Office informed appellant of the evidence needed to support his claim and asked that the
employing establishment respond.
In an August 7, 2006 statement, appellant alleged that, because of an accepted back
injury, he was unable to move about, play with his young children or participate in social
functions. Due to his physical limitations, he was placed in conflict with employing
establishment managers over what duties he could perform. Appellant was continuously rushed
to accomplish tasks and duties by management which was frustrating. He stopped work in
December 2004 and his emotional symptoms had worsened since that time, such that he was
crying, unable to sleep, had constant stomach pains, was sweating and jittery, could not
concentrate and suffered from a loss of memory. Appellant concluded that his emotional
condition was caused by two sources: the frustrating conditions that he was exposed to in
employment since the September 8, 2004 employment injury and as a direct result of that injury.
He also submitted a June 18, 2005 statement, signed by three coworkers, describing his job
duties from September to December 2004.
1

In a July 15, 2006 report, Glenn J. Bricken, Psy.D., a clinical psychologist, noted the
history of injury and appellant’s complaints. He performed psychological testing and diagnosed
low back syndrome, chronic pain disorder associated with both psychological factors and a
general medical condition, reactive anxiety, reactive depression, chronic pain disorder associated
with a lumbar injury, and problems related to pain and occupational, recreational and social
decline in functioning. Dr. Bricken advised that these conditions were caused by the
September 8, 2004 employment injury and that appellant was totally disabled due to the severity
of his chronic pain. He recommended psychotherapy, biofeedback and a chronic pain program.
By decision dated October 18, 2006, the Office denied the claim, finding that appellant
failed to establish a compensable factor of employment.
On November 13, 2006 appellant requested a review of the written record. In a
March 14, 2007 decision, an Office hearing representative affirmed the October 18, 2006
decision, finding that appellant failed to establish that he was the subject of harassment or was
forced to work outside his medical restrictions. The hearing representative found, however, that
appellant had submitted prima facie evidence supporting that his back injury caused his anxiety
and depression and advised appellant to pursue his emotional condition claim under the case file
for his accepted back condition.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
1

Under Office file number 162082914, the Office accepted that on September 8, 2004 appellant sustained
employment-related lumbar and lumbosacral sprain/strain and herniated lumbar discs. Appellant filed an appeal
with the Board of Office decisions under that file number which was docketed by the Board as file number 07-1254.
A separate decision will be issued regarding that claim. The instant case was adjudicated by the Office under file
number 162113110.

2

incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.2 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.3 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.6
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.7 When an employee experiences
emotional stress in carrying out his or her employment duties, and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.8 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.9
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Mere perceptions of harassment or discrimination are not compensable under the
Act. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.10

2

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

3

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

4

Id.

5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

7

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

8

Lillian Cutler, supra note 5.

9

Roger Williams, 52 ECAB 468 (2001).

10

James E. Norris, 52 ECAB 93 (2000).

3

ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty. Appellant generally alleged that he
was forced to overwork by employing establishment management. While overwork may be a
compensable factor of employment it must be established on a factual basis to be a compensable
employment factor.11 Appellant submitted insufficient evidence in support of his allegation. He
did not establish this as a compensable factor of employment. Appellant also asserted that he
was assigned work duties outside his physical restrictions. Being required to work beyond
physical limitations, if substantiated, can constitute a compensable factor of employment.12
Appellant submitted a statement describing work duties that was also signed by three coworkers.
There is, however, no medical evidence describing his physical restrictions at the time he
stopped work. There is no factual support in the record to substantiate this allegation, and
appellant did not establish a compensable factor of employment in this regard.
In evaluating claims for workers’ compensation under the Act, the term “harassment” is
synonymous, as generally defined, with a persistent disturbance, torment or persecution, i.e.,
mistreatment by co-employees or workers.13 Appellant submitted no evidence in support of his
claim that he was harassed by employing establishment management regarding his job duties.
Mere perceptions of harassment or discrimination are not compensable under the Act.14
Appellant has not submitted sufficient evidence to establish that he was harassed or
discriminated against by his employing establishment managers.15 Appellant has not established
that he sustained an emotional condition in the performance of duty as alleged.16
Appellant, however, also alleged that his emotional condition was caused by his accepted
back injury.17 In this regard, the Board notes that the Office advised appellant that his claimed
emotional condition should be developed as a consequence of his accepted back condition.
CONCLUSION
The Board finds that the Office properly denied appellant’s separate claim that he
sustained an emotional condition. The Board however finds that, upon the return of the record,
this case, Office file number 162113110, should be doubled with that of file number 162082914,

11

Sherry L. McFall, 51 ECAB 436 (2000).

12

Ronald Martinez, 49 ECAB 326 (1998).

13

Ronald K. Jablanski, 56 ECAB ___ (Docket No. 05-482, issued July 13, 2005).

14

Charles E. McAndrews, 55 ECAB 711 (2004).

15

See James E. Norris, supra note 10.

16

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).
17

Supra note 1.

4

and the Office should further develop the case to determine if appellant’s claimed emotional
condition is a consequence of his accepted back condition.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2007 be affirmed.
Issued: October 4, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashua, NH, Employer
__________________________________________

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

Docket No. 13-1181
Issued: September 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 17, 2013 appellant filed a timely appeal from a March 27, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) concerning an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $23,080.25 for the period May 24 through December 15, 2012; and (2) whether
appellant was at fault in the creation of the overpayment.
FACTUAL HISTORY
On January 8, 2012 appellant, then a 57-year-old mail handler, filed an occupational
disease claim alleging that she injured her right shoulder at work. OWCP accepted her claim for
partial thickness tear of the right supraspinatus and partial thickness tear of the right
1

5 U.S.C. § 8101 et seq.

infraspinatus. Appellant stopped work on December 22, 2011, returned to full-time limited duty
on February 23, 2012 and stopped work again on May 24, 2012 when she underwent authorized
right shoulder surgery. She received appropriate compensation benefits.
In a July 19, 2012 notice of separation, the employing establishment indicated that
appellant retired due to disability effective May 21, 2012. On July 29, 2012 appellant filed a
claim for compensation, Form CA-7, for the period July 14 to 27, 2012. The employing
establishment indicated that appellant was in a leave without pay status during the claimed
period. It also advised that appellant elected disability retirement and took a terminal leave
payment for 52.3 hours plus 8 hours of holiday pay. In July 27 and 30, 2012 supplemental rolls
payment records, covering the periods June 30 to July 28, 2012 and July 29 to August 25, 2012,
OWCP indicated that it would place appellant on the periodic compensation rolls as she had not
returned to work.
In an October 12, 2012 CA-1032 form, appellant noted that she last worked for the
employing establishment on May 21, 2012. Regarding whether she received any other federal
benefits or payments, she circled “yes” and “no” regarding whether she had received a disability
retirement check. Next to this, she noted an “automatic deposit of one check sent but was going
to take back out of my account due to workers’ comp.”
On October 30, 2012 OWCP notified appellant that she was placed on the periodic rolls
effective July 14, 2012.2 Regarding retirement benefits, appellant was notified that she must
report to OWCP any retirement income she receives from any federal agency. She was advised
that this was because a person who receives compensation benefits under FECA is not permitted
to receive benefits under the Civil Service Retirement System (CSRS) or the Federal Employees
Retirement System (FERS).
In a November 1, 2012 telephone memorandum, OWCP noted leaving a message for
appellant to advise her that she could not collect disability retirement and compensation for wage
loss at the same time and that the employing establishment “could not make her sign up for
disability.” In a November 16, 2012 telephone memorandum, OWCP noted that appellant called
to remind OWCP to send her a benefit election letter.
In a letter dated November 20, 2012, OWCP advised appellant that her weekly
compensation rate was $802.15 and her gross monthly compensation was $3,475.98. It noted
that she was receiving or may be entitled to receive benefits provided by the Office of Personnel
Management (OPM) under CSRS or FERS. OWCP indicated that Social Security Act (SSA)
benefits had restrictions which included that FECA benefits would be reduced by SSA benefits
paid on the basis of age and attributable to her federal service.3 It asked that appellant elect
which benefits she desired.

2

OWCP payment records indicate that appellant received wage-loss compensation on the supplemental rolls from
May 24 through July 28, 2012 and that she received wage-loss compensation on the periodic rolls from July 29
through December 15, 2012.
3

A wage-earning capacity Form 816 was attached, which indicated that appellant’s pay rate when her disability
began was $1,069.53 and it was also her current weekly pay rate for her job and step when injured. OWCP
calculated her four-week compensation amount to be $3,2098.59.

2

On November 29, 2012 appellant completed an election form in which she elected to
receive CSRS or FERS benefits, effective November 20, 2012, in preference to any benefits to
which she was entitled under FECA.
In a December 21, 2012 compensation termination sheet, OWCP noted that from
November 20 to December 15, 2012, appellant received $2,895.68 in compensation. It indicated
that this amount was an overpayment as appellant had elected OPM benefits.
On February 6, 2013 OWCP notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $23,080.25 for the period May 24
through December 15, 2012. It explained that their records indicated that she had retired and
began collecting OPM benefits effective May 21, 2012, but also collected workers’
compensation benefits through OWCP from May 24 through December 15, 2012. OWCP
informed appellant that it appeared that she was at fault in the creation of the overpayment,
because she accepted a payment that she knew or reasonably should have known was incorrect.
In an attached memorandum to file, it indicated that appellant received compensation in the
amount of $23,080.25 for the period May 24 through December 15, 2012. OWCP indicated that
this was the amount paid and the amount of the overpayment. It informed appellant that she had
30 days to request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing on the issues of fault and a possible waiver.
On February 9, 2013 appellant requested a telephone conference on the issues of fault
and possible waiver of the overpayment. She explained that she wished to contest the
overpayment as she disagreed that an overpayment occurred. In a letter dated February 10, 2013,
appellant responded to the proposed notice of overpayment in the amount of $23,080.25. She
denied that she had retired collecting OPM benefits since May 21, 2012. Appellant explained
that she opted for OWCP benefits in lieu of OPM payments when she had her injury. She
advised that OPM provided her with a direct deposit payment of $3,586.60 into her account for
the period May 22 through July 30, 2012; however, it was made in error. Appellant explained
that she promptly notified OPM of the mistake and she was informed that the payment would be
retracted from her account.4 She indicated that the funds were still in her account waiting to be
retracted. Appellant advised that every time she contacted OPM, she spoke to someone different
and she was advised that it was in the process of being retracted. She also confirmed that this
payment was the only payment she had ever received from OPM. Appellant indicated that in
December OWCP submitted paperwork to OPM, indicating that she was going to start collecting
from OPM in lieu of OWCP. She explained that she had not knowingly misled OWCP in any
way and had followed instructions that she was given by both agencies. Appellant indicated that
she was caught in the middle of paperwork that was being processed. She provided a copy of the
check.
In letters dated February 14, 2013, addressed to appellant and OPM, OWCP noted that
appellant had elected to receive benefits provided by CSRS effective November 20, 2012. It
requested that she forward a check in the amount of $2,895.68 as reimbursement for
compensation paid from November 20 through December 15, 2012.

4

Appellant explained that she was initially advised to provide a cashier’s check and then told to redeposit the
check.

3

In a February 14, 2013 telephone memorandum, OWCP noted that appellant was
contacted regarding her election, which was effective November 20, 2012. It indicated that she
was advised that “she still got paid from us through December 15, 2012 and I notified OPM that
they needed to reimburse us $2,895.68.” Appellant was advised that the overpayment finding of
$23,080.25 “was an error.” OWCP noted that she was advised that she would receive another
letter regarding the amount that she was overpaid.
On February 15, 2013 OWCP received appellant’s overpayment questionnaire.
Appellant submitted supporting financial information reflecting monthly expenses of $3,651.00
and total monthly income of $5,387.00.
In a March 27, 2013 telephone memorandum, OWCP noted contacting an OPM
representative who “confirmed claimant has been receiving retirement benefits since
May 22, 2012.”
By decision dated March 27, 2013, OWCP finalized its determination that appellant
received an overpayment of compensation in the amount of $23,080.25 for the period May 24
through December 15, 2012, based on her receipt of compensation for disability after her return
to work. It further found that she was at fault in the creation of the overpayment, as she accepted
a payment which she knew or reasonably should have known was incorrect.5
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.6 Section 8129(a) of FECA provides, in pertinent part, that when “an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.”7
Section 8116(d)(2) of FECA8 provides for limitations on the right to receive
compensation benefits. This section of FECA provides that, while an employee is receiving
compensation, he may not receive salary, pay or remuneration of any type from the United
States, except for services actually performed or for certain payments related to service in the
armed forces, including benefits administered by the Department of Veterans Affairs unless such
benefits are payable for the same injury or the same death being compensated for under FECA.9
The implementing regulations provide that a beneficiary may not receive wage-loss

5

OWCP noted that it confirmed with OPM, in a memorandum of telephone call on that same date, that appellant
received benefits since May 22, 2012.
6

5 U.S.C. § 8102.

7

Id. at § 8129(a).

8

Id. at § 8116(d)(2).

9

Id. at § 8116(a).

4

compensation concurrently with a federal retirement or survivor annuity.10 The beneficiary must
elect the benefit that he or she wishes to receive.11
ANALYSIS -- ISSUE 1
OWCP found that appellant had received an overpayment in the amount of $23,080.25
for the period May 24 through December 15, 2012 because she received wage-loss compensation
from OWCP and OPM benefits for the same period. It advised her that she retired and began
collecting benefits effective May 21, 2012 and collected benefits through OWCP from May 24
through December 15, 2012. OWCP indicated that appellant was at fault because she accepted a
payment which she know or reasonably should have known was incorrect.
The Board finds that there is insufficient evidence to support that appellant received a
$23,080.25 overpayment of compensation from May 24 through December 15, 2012. Although
appellant retired from the employing establishment due to disability effective May 21, 2012,
there is no evidence in the record that she elected to receive OPM or other federal benefits at that
time. The record indicates that appellant did not elect to receive OPM benefits until
November 20, 2012. While appellant acknowledges receiving an OPM direct deposit payment
of $3,586.60 covering May 22 through July 30, 2012, she characterizes this as an error and
indicated that she was working with OPM to return this payment. The record also contains a
March 27, 2013 telephone memorandum in which OWCP noted contacting an OPM
representative and confirming that appellant had received retirement benefits since
May 22, 2012. However, there is no other evidence from OPM documenting receipt of payments
beyond the one payment acknowledged by appellant. Furthermore, OWCP, in a February 14,
2013 telephone memorandum, characterized the $23,080.25 overpayment finding as “an error.”
As appellant did not elect disability retirement benefits until November 20, 2012, OWCP
has not met its burden of proof to waive an overpayment in the amount of $23,080.25 for the
period May 24 through December 15, 2012.12 OWCP has not otherwise provided sufficient
documentation to show the extent of appellant’s receipt of disability retirement benefits while
she was also in receipt of wage-loss compensation. This does not mean that appellant did not
receive any overpayment of compensation, only that the period of and the amount of the
overpayment found by OWCP are not established by the evidence in the record.13
10

20 C.F.R. § 10.421(a).

11

Id.

12

See Kenneth E. Neidiger, Docket No. 92-1692 (issued November 4, 1993) (OWCP found the claimant had
elected OPM benefits effective February 1 to June 3, 1990, causing an overpayment, but the Board reversed where
the evidence did not establish that appellant selected OPM benefits during that period).
13

As noted, infra, the record indicates that, from November 20 to December 15, 2012, appellant received
$2,895.68 in net compensation after she elected retirement benefits. Also as noted, infra, the employing
establishment indicated that it made a “terminal leave payment for 52.3 hours plus eight hours of holiday pay” to
appellant. However, the employer did not submit any further evidence documenting this payment or confirming that
it covered a period for which appellant also received wage-loss compensation. OWCP regulations provide that an
employee may not received compensation for total disability concurrent with severance or separation pay and FECA
provides that an employee may not receive wage-loss compensation until the use of the annual and sick leave ends.
20 C.F.R. § 10.421(c); 5 U.S.C. § 8118(c).

5

The Board finds that OWCP has not established that appellant received retirement
benefits for the same period she received wage-loss compensation from OWCP. For these
reasons, the evidence of record is not sufficient to establish that appellant received an
overpayment of compensation in the amount of $23,080.25.14
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $23,080.25 for the period May 24 through
December 15, 2012.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 17, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

14

Given the Board’s finding that OWCP did not establish the existence of an overpayment, it is not necessary to
consider the second issue of the present case.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-0403
Issued: April 20, 2018

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 14, 2016 appellant, through counsel, filed a timely appeal from an
August 25, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his recurrence of disability on August 21, 2014 due to his accepted March 11, 2014
employment injury. The Board docketed the appeal as No. 17-0403.
On March 11, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging that, on
that same date, he sustained injury to his back and head when he drove a forklift into a metal
column. He was working a full-time permanent light-duty assignment as a result of that injury
on March 11, 2014. OWCP accepted the claim for contusion of face, scalp, and neck, except
eye, sprain of back lumbar region, and sprain of back thoracic region. On October 27, 2014
appellant filed a recurrence claim (Form CA-2a) alleging a return/increase of disability
beginning on August 21, 2014.

1

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

The Board notes that appellant had a prior work-related injury on February 25, 1987
under OWCP File No. xxxxxx098, which occurred when he fell from a chair. The prior claim
was accepted by OWCP for cervical and lumbar strains and herniated nucleus pulposus (HNP) at
L4-5, L5-Sl, with related surgery in mid-1993.
By decision dated January 25, 2016, OWCP denied appellant’s recurrence claim (Form
CA-2a), finding that the medical evidence of record failed to establish a recurrence of disability
commencing August 21, 2014 due to a material change/worsening of his accepted work-related
condition.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision. OWCP’s procedures provide that cases should be combined when correct
adjudication of the issues depends on frequent cross-referencing between files. In the instant
case, OWCP has recommended that appellant consider filing a recurrence claim in OWCP File
No. xxxxxx098. As the record before the Board does not contain the evidence from the prior
claim, the Board is unable to properly adjudicate the issue of appellant’s recurrence claim. The
Board finds that the case is not is posture for a decision as the record before the Board is
incomplete and would not permit an informed adjudication of the case by the Board. The case
must be remanded to OWCP to combine the files2 and for further reconstruction and proper
assemblage of the case record, to be followed by any necessary further development and a
de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the August 25, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this order of the Board.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

Issued: April 20, 2018
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
San Diego, CA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1551
Issued: October 28, 2014

Case Submitted on the Record

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

JURISDICTION
On July 1, 2014 appellant, through counsel, filed a timely appeal from the June 12, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s hearing loss claim on the
grounds that it was untimely filed.
FACTUAL HISTORY
On March 28, 2014 appellant, then a 68-year-old former contract surveillance
representative, filed an occupational disease claim (Form CA-2) alleging that he sustained a
1

5 U.S.C. §§ 8101-8193.

bilateral hearing loss due to exposure to hazardous noise at work. He noted that he first became
aware of his claimed hearing loss and its relationship to his federal employment on
January 1, 1990. Appellant stated that he related the hearing loss to occupational noise exposure
because it “couldn’t be anything else.” He delayed filing his claim for more than 30 days after
January 1, 1990 because it only recently came to his attention that he could file a claim.2
In an April 1, 2014 letter, OWCP requested that appellant submit a detailed history of his
occupational noise exposure, describe any nonoccupational exposure to hazardous noise and
submit medical reports and audiograms from any treatment for hearing loss. It advised him that
he must also submit evidence to establish that his claim was filed within three years of the date
he first related his condition to his employment. OWCP afforded appellant 30 days to submit the
requested evidence.
In response, appellant stated that he was exposed to hazardous noise during his federal
employment from 1965 to 1967 and 1972 to 1999 when he worked in various positions as a
shipfitter and shipbuilding specialist. In all of these positions, he was exposed to hazardous
noise from heavy machines and pneumatic tools, including those used for hammering, grinding,
gouging, chipping and sandblasting. Appellant indicated that he was provided with safety
devices while he worked in these positions. He stated that he was last exposed to noise in his
federal employment when he stopped work as a shipbuilding specialist in December 1999.3
Appellant indicated that he had federal employment as a contract surveillance representative
from February 2000 until his retirement on October 31, 2008, but that he had no exposure to
hazardous noise in this position.
Appellant submitted employing establishment audiograms performed as part of a hearing
conservation program which showed ratable monaural hearing loss in his right ear.4 An
October 29, 1996 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles
per second revealed decibel losses of 5, 10, 35 and 60 decibels on the right. A September 30,
1999 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed decibel losses of 5, 15, 40 and 65 decibels on the right.5 The audiograms from the
hearing conservation program showed a progression in appellant’s right-sided hearing loss from
a nonratable loss to a ratable loss as a December 21, 1981 audiogram had shown a nonratable
loss in the right ear.6

2

On May 13, 2014 appellant filed a claim for a schedule award due to his claimed hearing loss. The record
contains documents showing that he had retired from federal employment effective October 31, 2008.
3

The record contains documents from the employing establishment confirming that he was exposed to hazardous
noise in the workplace.
4

Under FECA, hearing loss impairments are determined by the average of the hearing levels at 500, 1,000, 2,000
and 3,000 cycles per second. If the average is less than 25 decibels, the hearing impairment is not ratable. See
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) at 250-51.
5

All of the audiograms submitted by appellant showed a nonratable hearing loss in his left ear.

6

The December 21, 1981 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed decibel losses of 15, 15, 25 and 25 decibels on the right.

2

In a June 12, 2014 decision, OWCP denied appellant’s claim finding that it was not
timely filed under the three-year time limitation at section 8122 of FECA. It found that he did
not file his claim until March 28, 2014, more than three years after his last exposure to hazardous
noise in October 2008. OWCP further found that the evidence did not establish that the
employing establishment had actual notice of the hearing loss within 30 days of the date of
injury.
LEGAL PRECEDENT
Under section 8122 of FECA,7 as amended in 1974, a claimant has three years to file a
claim for compensation.8 In a case of occupational disease, the Board has held that the time for
filing a claim begins to run when the employee first becomes aware or reasonably should have
been aware, of a possible relationship between his or her condition and his or her employment.
When an employee becomes aware or reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of his or her federal employment, such
awareness is competent to start the limitation period even though he or she does not know the
nature of the impairment or whether the ultimate result of such affect would be temporary or
permanent.9 Where the employee continues in the same employment after such awareness, the
time limitation begins to run on the date of his or her last exposure to the implicated factors.10
For latent disability cases, section 8122(b) of FECA provides that the time limitation does not
begin to run until the claimant is aware of the causal relationship between his or her employment
and the compensable disability or should have been aware of this relationship by exercising
reasonable diligence.11
Even if the claim is not filed within the three-year period, it may be regarded as timely
under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of his or her
alleged employment-related injury within 30 days such that the immediate superior was put
reasonably on notice of an on-the-job injury or death.12 In interpreting section 8122(a)(1) of
FECA, OWCP procedure provides that, if the employing establishment provides regular physical
examinations which might have detected signs of illness, such as hearing tests, it should be asked
whether the results of such tests were positive for illness and whether the employee was notified
of the results.13 The Board has held that a program of periodic audiometric examinations
conducted by an employing establishment in conjunction with an employee testing program for
hazardous noise exposure is sufficient to constructively establish actual knowledge of a hearing
7

5 U.S.C. § 8122.

8

Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b).

9

Duet Brinson, supra note 8.

10

Larry E. Young, 52 ECAB 264 (2001).

11

5 U.S.C. § 8122(b); Bennie L. McDonald, 49 ECAB 509, 514 (1998).

12

Id. at § 8122(a)(1).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); L.C., 57 ECAB
740 (2006); Ralph L. Dill, 57 ECAB 248 (2005).

3

loss, such as to put the immediate supervisor on notice of an on-the-job-injury.14 A hearing loss
identified on such a test would constitute actual knowledge on the part of the employing
establishment of a possible work injury.15
ANALYSIS
Appellant clearly indicated that he was aware of a relationship between his claimed
hearing loss and his federal employment as of January 1, 1990. Under section 8122(b), the time
limitation begins to run when he became aware of causal relationship, or, if he continued to be
exposed to noise after awareness, the date he was no longer exposed to noise. Appellant was last
exposed to hazardous noise from his federal employment on December 31, 1999.16 Therefore,
the three-year time limitation began to run no later than December 31, 1999. As appellant did
not file his occupational disease claim until March 28, 2014, the Board finds that it was not filed
within the three-year time period under section 8122(b).
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate supervisor had actual knowledge of the injury within 30 days of his last exposure
to hazardous noise in federal employment, i.e., within 30 days of his last exposure no later than
December 31, 1999.17 The Board finds that the employing establishment conducted a program
of audiometric testing for which appellant submitted a series of audiograms obtained prior to his
retirement. These audiograms obtained as part of a hearing conservation program, are sufficient
to establish actual knowledge of the claimed hearing loss within 30 days of his last noise
exposure which occurred no later than December 31, 1999. Of note, an October 29, 1996
audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed decibel losses of 5, 10, 35 and 60 decibels on the right. In addition, a September 30,
1999 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed decibel losses of 5, 15, 40 and 65 decibels on the right. This ratable hearing loss18
constitutes actual knowledge by the employing establishment of a possible work-related hearing
loss within 30 days of his last noise exposure which occurred no later than December 31, 1999.19
Therefore, appellant’s hearing loss claim is considered timely.
The case must be remanded for OWCP to address the merits of the claim. After carrying
out this development, OWCP shall issue an appropriate decision.

14

L.B., Docket No. 12-1548 (issued January 10, 2013); James W. Beavers, 57 ECAB 254 (2005).

15

See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.801.3; G.C., Docket
No. 12-1783 (issued January 29, 2013); Ralph L. Dill, supra note 13.
16

Appellant indicated that he was not exposed to hazardous noise in his federal employment after the date in
December 1999 that he stopped working as shipbuilding specialist. The precise date that appellant stopped working
as a shipbuilding specialist in December 1999 remains unclear from the record.
17

See supra note 12.

18

See A.M.A., Guides 250-51.

19

See supra notes 14 and 15.

4

CONCLUSION
The Board finds that appellant’s claim for hearing loss was timely filed. The case is
remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2014 is set aside and the case remanded to OWCP for
further development in accordance with this decision of the Board.
Issued: October 28, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5