United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 07-387
Issued: June 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 24, 2006 appellant filed a timely appeal from the nonmerit decision of the
Office of Workers’ Compensation Programs dated October 16, 2006 finding that he had
abandoned his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the issue of hearing abandonment.
ISSUE
The issue is whether the Office properly determined that appellant abandoned his hearing
request. On appeal, appellant contends that he did not abandon the hearing because he was at
home waiting for the Office to call him on the date of his telephonic hearing.
FACTUAL HISTORY
On June 11, 1999 the Office accepted appellant’s claim for lateral epicondylitis of the
right elbow arising out of his federal duties as an insulator worker on August 15, 1996,

File No. 140343029.1 On December 14, 2001 the Office issued a schedule award for a 10
percent impairment to his right arm. On April 8, 2002 appellant left his federal employment on a
disability retirement because he was unable to perform the full duties of his position.
On March 29, 2006 appellant telephoned the Office and asked to be referred to the
vocational rehabilitation program. On March 30, 2006 the Office requested that he provide
evidence of why he could no longer perform the light-duty assignment he had at the time of his
disability retirement. Appellant did not respond within the 30 days allotted by the Office.
By decision dated May 4, 2006, the Office denied appellant’s request for referral to the
vocational rehabilitation program on the grounds that he had not established a claim for
recurrence of his accepted injury which was a necessary prerequisite. The Office informed him
that he had not demonstrated a worsening of his condition that prevented him from performing
the light-duty job he had in 2002.2
On May 6, 2006 appellant requested a telephonic oral hearing to review the May 4, 2006
decision. On June 5, 2006 the Office informed appellant that his case was in posture for an oral
hearing which would occur within six to eight months. It stated that at least 30 days advance
notice would be given advising him of the date, time and location of the hearing. By letter dated
August 25, 2006, the Office informed appellant that his telephonic hearing would be held on
October 3, 2006 at 11:00 a.m., Eastern Time. It instructed him to call the provided toll free
number a few minutes before the hearing time and enter the pass code to gain access to the
conference call.
On October 3, 2006 the date of the hearing, appellant did not call the toll free number to
join the telephonic hearing. On October 12, 2006 the Office received a letter from appellant
dated October 7, 2006 regarding the hearing. Appellant stated that he had not received a call on
the date of the hearing despite the fact that he “waited for it as you instructed in your letter.” He
stated that since that time he had been calling the number provided in the letter, but that no one
answered. Appellant inquired whether a hearing would be held at another time.
By decision dated October 16, 2006, the Office found that appellant had abandoned his
request for a hearing. The Office stated that he had received written notification of the hearing
30 days in advance of the hearing and had failed to appear. The Office stated that “there was no
indication in the file that [appellant] contacted the Office either prior or subsequent to the
scheduled hearing to explain [his] failure to appear.”
LEGAL PRECEDENT
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
1

The Office’s May 4, 2006 decision indicates that appellant’s claim was accepted for bilateral lateral
epicondylitis; however, this appears to be an error. The record did not include a copy of his original traumatic
injury claim form.
2

Appellant is not appealing the May 4, 2006 Office decision.

2

which a hearing is sought.3 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.4 The Office has the burden of
proving that it mailed to appellant and his representative a notice of a scheduled hearing.5
The authority governing abandonment of hearings rests with the Office’s procedure
manual,6 which provides as follows:
“A hearing can be considered abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office].”7
ANALYSIS
The record establishes that on August 25, 2006, in response to appellant’s request for an
oral hearing, the Office mailed an appropriate notice of the scheduled October 3, 2006 telephonic
hearing. The Board notes that the notice was sent more than 30 days prior to the hearing and that
there is no contention that he did not receive it. The issue is thus, whether the Office properly
found that appellant had abandoned the hearing.
The record establishes that appellant failed to telephone the hearing representative as
instructed on October 3, 2006 and that he did not request a postponement prior to that date.
However, it does contain evidence that he contacted the Office within 10 days of the scheduled
hearing to explain his failure to participate. In a letter dated October 7, 2006 and received by the
Office October 12, 2006, appellant stated that he had waited for a telephone call from the Office
“as instructed” on the date of the hearing. He explained that he called the Office several times
the following day to find out why he had not been called, but received no answer. Appellant
asked whether another hearing would be held. In the Office’s decision finding that he had
abandoned his hearing, it did not acknowledge appellant’s letter.
3

20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b). Office procedure also provides that notice of a hearing should be mailed to the claimant
and the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(a)
(January 1999).
5

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

6

See Claudia J. Whitten, 52 ECAB 483 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.6(e) (January 1999).

3

The Board notes initially that appellant’s letter was received within 10 days of the
scheduled hearing. His October 7, 2006 letter which indicates that he failed to participate in the
hearing because he misunderstood the instructions on how to join the conference call hearing,
qualifies as notification to the Office of his failure to appear. Because it was received within 10
days of the scheduled hearing, the Board finds that appellant provided adequate notification of
his failure to participate.
As the circumstances of this case do not meet the criteria for abandonment as provided in
Chapter 2.1601.6(e) of the Office’s procedure manual, the Board finds that appellant did not
abandon his request for an oral hearing.
CONCLUSION
The Board finds that the Office did not properly determine that appellant abandoned his
hearing request.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 16, 2006 is reversed. The case is remanded to reschedule
appellant’s oral hearing.
Issued: June 4, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WILKES-BARRE VA MEDICAL CENTER,
Wilkes-Barre, PA, Employer
__________________________________________

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Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1049
Issued: June 28, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 14, 2020 appellant filed a timely appeal from an April 2, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

1

Counsel submitted an authorization of representation dated March 1, 2021 and a brief dated March 31, 2021 in
support of appellant’s appeal. 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.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted June 17, 2019 employment incident.
FACTUAL HISTORY
On July 17, 2019 appellant, then a 61-year-old medical supply technician, filed a traumatic
injury claim (Form CA-1) alleging that on June 17, 2019 she sustained a left tibia fracture when
she slipped on a wet spot while walking and hit a garbage can with her left knee while in the
performance of duty. She stopped work on July 10, 2019.
In a June 17, 2019 emergency department report, Dr. Mohammad Ashraf, a physician
specializing in emergency room medicine, noted that appellant was seen that day for complaints
of left knee pain. Appellant stated that she hit her left knee against a trash can after she lost her
balance after walking on a small area that was wet. Physical examination revealed slight
discomfort on palpation of left knee suprapatellar area, no edema, erythema, or ecchymosis, no
abrasion and laceration, and normal hip, knee, and ankle range of motion. Dr. Ashraf diagnosed a
minor left knee contusion and applied an ace wrap to the left knee. Discharge instructions from
the employing establishment’s hospital dated June 17, 2019 noted that appellant had been treated
by Dr. Ashraf and had been given instructions and information regarding the diagnosed contusion.
OWCP also received an unsigned June 19, 2019 progress note from a nurse practitioner
who related that appellant was seen for evaluation of left knee pain. The nurse practitioner noted
appellant’s history of left knee arthroscopy in March 2018 and noted that appellant had woken
with a swollen and hot left knee on Monday. Appellant had denied any new injury.
In a progress note dated June 25, 2019, Dr. Sreehari Cherukuki, a Board-certified internist,
noted tenderness and swelling of the left knee. He noted that appellant developed left knee pain
approximately a week ago and had undergone total knee replacement last year. Dr. Cherukuki
diagnosed left knee bursitis. He, in a disability note dated June 25, 2019, recommended appellant
be provided with light-duty work for two weeks with walking limited to no more than four hours
per day.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, by decision dated September 3, 2020, OWCP denied appellant’s request for an oral hearing
before an OWCP hearing representative. However, appellant had filed the current appeal to the Board on April 14,
2020, prior to the issuance of the September 3, 2020 decision. The Board notes that, as OWCP issued its September 3,
2020 decision during the pendency of this appeal that decision is null and void as the Board and OWCP may not
simultaneously have jurisdiction over the same issue. See L.F., Docket No. 19-1275 (issued October 29, 2020);
Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993) (Alternate Member, Groom concurring
in part and dissenting in part); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

2

In a disability note dated July 11, 2019, Dr. James Mattucci, a Board-certified orthopedic
surgeon, requested appellant be excused from work until July 31, 2019, noting a diagnosis of left
lower leg fracture. He, in a July 24, 2019 employing establishment work capacity evaluation form,
found appellant temporarily totally disabled. Dr. Mattucci diagnosed left tibia fracture with an
injury date of June 17, 2019.
OWCP advised appellant in a July 25, 2019 development letter of the deficiencies of her
claim, requested additional factual and medical evidence, and provided a questionnaire for her
completion. It afforded her 30 days to respond.
In response, appellant submitted a disability note dated July 10, 2019 from Dr. Mattucci
wherein he diagnosed tibia fracture and opined that appellant remained disabled until
July 31, 2019.
In a July 31, 2019 disability note, Dr. Mattucci advised that appellant had an appointment
that day and requested she be excused from work until August 28, 2019.
Dr. Mattucci, in a July 31, 2019 note, reported that appellant had been doing well following
her left total knee arthroplasty until June 17, 2019 when she slipped at work and struck her left
knee against a garbage can. He noted that he aspirated appellant’s left knee for fluid and sent it to
a laboratory for testing; no infection was found. Appellant complained of left tibia pain over the
proximal tibia extending down toward the shaft. A review of a bone scan revealed some left knee
uptake especially around the proximal tibia and medial femoral condyle extending down the tibia
mid shaft, which could go along with a bone contusion.
On August 23, 2019 OWCP received an undated attending physician’s report (Form
CA-20) from Dr. Mattucci noting an injury date of July 10, 2019. In describing the injury history,
he noted that it occurred when appellant slipped at work and struck her knee against a garbage can.
Dr. Mattucci further noted that appellant underwent a total left knee replacement on
March 27, 2018. A review of a bone scan revealed uptake around the medial femoral condyle.
Dr. Mattucci opined that appellant was disabled from work beginning on July 10, 2019 and that it
was undetermined when she could return to work. In an August 28, 2019 disability note, he placed
appellant off-work until October 9, 2019.
By decision dated September 10, 2019, OWCP denied her claim, finding that the medical
evidence of record was insufficient to establish that the diagnosed medical conditions were
causally related to the accepted June 10, 2019 employment incident.
On October 30, 2019 appellant requested reconsideration.
In a form report dated August 26, 2019, Dr. Mattucci placed appellant off work beginning
July 10, 2019 with an indeterminate return date.
In a September 4, 2019 report, Dr. James E. Murphy, a Board-certified orthopedic surgeon,
diagnosed left knee pain and total knee arthroplasty instability. He noted the history of the June 17,
2019 employment incident and appellant’s complaints of left knee pain, swelling, and giving out.
Physical examination findings included left knee moderate effusion, severe mid flexion, mild
extension, and moderate flexion instability, antalgic gait, and pain with patellofemoral
3

compartment palpation. A review of diagnostic testing showed old tibia fracture and in place total
knee arthroplasty without evidence of loosening or fracture. Dr. Murphy reported discussing that
appellant did not have any problem prior to the slip incident and suspected she became unstable
afterwards.
Dr. Mattucci, in an October 9, 2019 work certificate, noted that appellant was under his
care and disabled from working at that time.
In October 16, 2019 progress notes, Dr. Murphy diagnosed chronic left knee pain.
Appellant complained of severe left knee pain for approximately one year. Physical examination
findings of the left knee included no effusion, moderate mid-flexion instability, antalgic gait, and
medial and lateral compartment pain on palpation. Dr. Murphy reviewed diagnostic imaging
showing well-fixed prosthesis. He recommended total knee arthroplasty as appellant had failed
conservative management.
Dr. Mattucci, in an October 24, 2019 form report, diagnosed left knee pain after injury. He
found appellant totally disabled from work beginning July 10, 2019 and indeterminate date of
return to work.
In an October 27, 2019 form report, Dr. Murphy diagnosed chronic left knee pain. He
noted that appellant was scheduled for surgery and that she was totally disabled from work for the
period September 4, 2019 through February 4, 2020.
A November 4, 2019 hospital report noted a total left knee revision arthroplasty modular
tibial component procedure was performed that day by Dr. Murphy.
On November 22, 2019 appellant was seen by Sabrina A. Alles, a physician assistant, for
left knee pain of unspecified chronicity. Ms. Alles indicated that appellant was to remain off work
until cleared by orthopedics in a November 22, 2019 return to work/school form.
On January 3, 2020 appellant requested reconsideration.
By decision dated April 2, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally

4

Supra note 2.

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

related to the employment injury.6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
OWCP’s procedures provide that, if a condition reported is a minor one, such as a burn,
laceration, insect sting, or animal bite, which can be identified on visual inspection by a lay person,
a case may be accepted without a medical report and no development of the case need be
undertaken, if the injury was witnessed or reported promptly, and no dispute exists as to the
occurrence of an injury; and no time was lost from work due to disability. This section of OWCP’s
procedures further states that in cases of serious injury (motor vehicle accidents, stabbings,
shootings, etc.) if the employing establishment does not dispute the facts of the case, and there are
no questionable circumstances, the case may be accepted for a minor condition, such as laceration,
without a medical report, while simultaneously developing the case for other more serious
conditions. This is true even if there is lost time due to such a serious injury.11

6

C.C., Docket No. 20-0950 (issued October 29, 2020); L.C., Docket No. 19-1301 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1990).
7
P.A., Docket No. 18-0559 (issued January 28, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

See T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011).

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ANALYSIS
The Board finds that appellant has met her burden of proof to establish an employmentrelated left knee contusion.
On June 17, 2019 appellant was treated in the emergency room after she slipped on a wet
spot while walking and struck her left knee on a trash can that day. She was evaluated by
Dr. Ashraf who diagnosed minor left knee contusion. Dr. Ashraf noted that appellant hit her left
knee against a trash can after losing her balance that day. OWCP accepted that the June 17, 2019
employment incident occurred as alleged. The Board finds that Dr. Ashraf’s history of the
accepted June 17, 2019 employment incident was consistent with appellant’s account. The
diagnosis of minor left knee contusion was consistent with appellant’s physical examination and
the mechanism of injury. The Board, thus, finds that this evidence is sufficient to establish that
appellant sustained a left knee contusion causally related to the accepted June 17, 2019
employment incident.12 Upon return of the case record, OWCP shall make payment and/or
reimbursement of medical expenses with regard to the accepted left knee contusion.13
The Board further finds, however, that appellant has not established additional conditions
as causally related to the accepted employment injury.
The record also contains reports and disability notes from Dr. Cherukuki who diagnosed
left knee bursitis and Dr. Mattucci who diagnosed left tibia fracture. While both physicians noted
the June 17, 2019 injury history, neither physician provided an opinion as to whether the diagnosed
condition was causally related to the June 17 2019 employment incident. As noted above, the
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship.14
The Board, thus, finds that their reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted progress notes, disability notes, and a surgical report from
Dr. Murphy. In October 16 and 27, 2019 notes, Dr. Murphy diagnosed chronic left knee pain. The
Board has held that pain is a symptom and not a compensable medical diagnosis.15 In the
November 4, 2019 hospital surgical report, Dr. Murphy diagnosed left total knee arthroplasty mid

12

See T.U., Docket No. 19-1636 (issued October 29, 2020).

13

See R.F., Docket No. 20-1181 (issued February 11, 2021) (the Board accepted right eyebrow laceration as
causally related to the accepted employment incident); B.C., Docket No. 20-0498 (issued August 27, 2020) (the Board
accepted lumbar contusion as causally related to the accepted employment incident); S.H., Docket No. 20-0113 (issued
June 24, 2020) (the Board accepted a right ankle contusion as causally related to the accepted employment incident);
M.A., Docket No. 13-1630 (issued June 18, 2014).
14

Id.

15
See C.C., Docket No. 19-1071 (issued August 26, 2020); S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y.,
Docket No. 20-0112 (issued June 25, 2020).

6

flexion. However, he provided no opinion on causal relationship.16 For the above reasons, the
reports and disability notes from Dr. Murphy are insufficient to meet appellant’s burden of proof.
The remaining medical evidence pertaining to appellant’s additional conditions consists of
progress notes and disability from a physician assistant. The Board has held that certain healthcare
providers such as physician assistants are not considered physicians as defined under FECA.17
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.18
On appeal counsel asserts that appellant’s claim should be accepted for left knee contusion
and other possible left knee conditions. As discussed above, the Board found that the evidence of
record was sufficient to warrant acceptance of a left knee contusion, but insufficient to establish
any additional conditions as causally related to the accepted June 17, 2019 employment injury.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
contusion as causally related to the accepted June 17, 2019 employment injury. The Board further
finds, however, that appellant has not established that her was additional conditions were causally
related to the accepted employment injury.

16
See B.H., Docket No. 20-0777 (issued October 21, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).

Section 8101(2) of FECA provides that the term physician “includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners by State law.” 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See also Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.805.3a(1) (January 2013); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); R.K., Docket No. 20-0049 (issued April 10, 2020)
(physician assistant).
17

18

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the April 2, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: June 28, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
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and
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DEPARTMENT OF THE INTERIOR, NEW
)
RIVER GEORGE NATIONAL RIVER,
)
Glen Jean, WV, Employer
)
___________________________________________ )
M.C., Appellant

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

Docket No. 09-506
Issued: December 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 12, 2008 appellant filed a timely appeal from an October 28, 2008
nonmerit decision of the Office of Workers’ Compensation Programs which denied his request
for reconsideration and an August 29, 2008 decision which denied his claim for an emotional
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the appeal.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
refused to reopen appellant’s case for further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 21, 2006 appellant, then a 43-year-old park ranger, filed an occupational
disease claim alleging that he was exposed to a hostile work environment. He first realized his

disease or illness was caused or aggravated by his employment on October 23, 2006. Appellant
stopped work on October 22, 2006.
In a November 9, 2006 disability certificate, Teresa S. Paine, PhD, a counselor, advised
that appellant was under her care and would be unable to work until January 8, 2007. She
indicated that appellant had major depression and anxiety disorder that prevented him from
working. Appellant also submitted copies of nurses’ reports.
In a statement received on February 1, 2007, appellant alleged that on October 19, 2006
he discovered that a global positioning system (GPS) unit was placed on his government vehicle.
He contacted the West Virginia State Police on October 22, 2006 and, the next day, a state
trooper determined that the employing establishment was tracking his movements as part of an
internal investigation. On that date, appellant contacted Jennifer Noll, his supervisor, to inquire
as to why his movements were being tracked. He informed her that he was concerned that his
movements were being tracked to cause him harm. However, Ms. Noll did not appear to be
concerned about the matter. Appellant noted that Duncan Holler, a second-line supervisor, and
his supervisors, provided no information about the tracking device. He alleged that, since
October 26, 2006, he had not heard from any of his managers and that he became sick since the
discovery of the GPS unit. Appellant contended that the placement of the GPS unit on his work
vehicle jeopardized his career, was illegal and was retaliatory for a grievance he had participated
in and an unfair labor practice complaint in which he provided statements. He contended that
management was trying to fire him. Appellant described several incidents pertaining to medical
work excuses dated October 23 to November 9, 2006. He was subjected to repeated demands for
medical documentation when he requested sick leave. When appellant called in sick on
October 25, 2006, Ms. Noll told him to “be careful.” He cited as harassment, several instances
related to a missing vehicle key in August 2006 and management’s requests that he surrender his
government-issued laptop computer.
Appellant also submitted statements regarding medical leave and treatment, that the
employing establishment delayed the filing of his claim until February 5, 2007; a memorandum
pertaining to internal investigations; a position description; photographs of his vehicle with the
GPS unit; and an October 22, 2006 statement from the police officer who responded to
appellant’s call concerning the GPS device. In a November 17, 2006 letter to Mr. Holler, he
addressed the confiscation of his government-issued laptop computer and his patrol vehicle.
In a November 17, 2006 memorandum, Gary Hartley, chief ranger, noted that on
November 15, 2006 appellant was informed by special agent Chris Schrader that he was the
subject of an internal investigation related to the misuse of government equipment. Appellant
was advised that, if he refused to cooperate, he would be subject to discipline. On January 4,
2007 Mr. Hartley advised appellant that he needed to obtain additional medical documentation
from his physician regarding his current work status. In a January 19 2007 letter, he advised
appellant that his law enforcement commission was being temporarily suspended based on
medical documentation provided by his treating physician. Appellant was directed to surrender
his law enforcement credentials and defensive equipment. He was advised that the suspension
was temporary and he would be reinstated when his physician certified his readiness to resume
law enforcement duties.

2

By letter dated March 9, 2007, the Office advised appellant and the employing
establishment that additional evidence was needed.
Appellant provided statements dated March 5 to May 19, 2007 in which he reiterated his
contentions that the GPS device constituted harassment and created a hostile work environment.
He alleged that, because he made statements on behalf of a coworker, Jeron Jones, an African
American who filed a discrimination claim, he became the target of the internal investigation. In
seeking medical care as a result of his discovery of the GPS device, appellant was harassed by
the employing establishment with repeated requests for medical documentation and threatened
with being placed in an absent-without-leave status if the medical record was insufficient. He
contended that he did not receive assistance in filing his workers’ compensation claim and that
the employing establishment delayed his claim. The Office received documentation concerning
an Equal Employment Opportunity (EEO) complaint appellant filed on March 6, 2007 for
discrimination.
Appellant provided witness statements from several rangers who alleged that the
employing establishment practiced harassment, discrimination, intimidation and reprisal on a
daily basis. In a March 9, 2007 statement, his wife described her experiences at the employing
establishment and noted two instances of intimidation and favoritism by Mr. Holler. In a
March 12, 2007 statement, Peggy Brown discussed grievances she and other rangers filed and
the actions of management towards them after filing the grievances. In a March 7, 2007
statement, David Finch asserted that he was harassed and retaliated against by Mr. Holler and
Mr. Hartley. In a March 1, 2007 statement, Audie Critchley described his experiences in
attempting to obtain a hardship transfer. In a March 12, 2007 statement, Bryan Hunter alleged
that he was subjected to retaliation and a hostile work environment for filing a grievance. In a
May 1, 2006 statement, Jennifer Anderson described her experiences working with Mr. Holler.
The Office also received a statement from Mr. Jones, a visitor use assistant, who noted his
experience at the employing establishment. In December 12, 2006 and March 2, 2007
statements, Rob Turan noted that he supervised appellant from August 2000 until February 2006
and never had complaints about him and always gave him excellent evaluations. He questioned
why the employing establishment would track appellant. Mr. Turan asserted that Mr. Holler was
critical and demeaning toward appellant.
In correspondence dated December 5, 2006 to February 21, 2007, Richard Fitch, a union
representative, advised that he currently represented four rangers, including appellant, regarding
a number of grievances, unfair labor practice complaints, workers’ compensation claims and an
EEO complaint. He contended that the rangers were subjected to repeated acts of retaliation and
issues of concern in their work conditions. Mr. Fitch stated that the employing establishment
subjected appellant to an internal investigation and had his patrol vehicle, government-issued
laptop, weapon and credentials were confiscated.
In an April 2, 2007 memorandum, Ms. Noll, appellant’s supervisor, confirmed that there
was an ongoing internal investigation related to appellant. Concerning the GPS device, she
noted that appellant worked with the entire supervisory and management staff on October 19
through 21, 2006 and did not mention the device. Ms. Noll questioned why he contacted the
State Police rather than anyone at the employing establishment. She denied that he informed her
that he was “shaken up” or that he was concerned about his safety due to his movements being

3

tracked. Ms. Noll declined to respond to appellant’s questions about the device as he was under
an internal investigation. Regarding appellant’s allegations since October 26, 2006, she
explained that the assistant chief ranger and the special agent conducting the investigation
informed her they would contact appellant. Ms. Noll noted that, when appellant called in sick,
she assumed it was due to a head cold and upper respiratory infection as he had been very sick
on October 21, 2006. Appellant did not inform her that he was ill due to finding the GPS device.
Ms. Noll advised that appellant informed her on November 8, 2006 that his absence from work
was due to concerns about the GPS device. She refuted appellant’s allegations of harassment
and contended that he was given the same opportunities as every other ranger. Ms. Noll
explained that appellant was given special assignments, but they were made based on his
knowledge of the park and not in an attempt to fire him. She was not aware that appellant was
ever disciplined. Ms. Noll stated that appellant had less required of him than other rangers in the
division, worked little overtime and did not take calls after work. She explained that appellant’s
only assignments in the past year were fire fighting, which he had requested. Ms. Noll denied
any conflicts with appellant or his coworkers. Regarding appellant’s leave requests, she stated
that she had forgotten that she had signed appellant’s annual leave slip for the period
November 1 through 4, 2006. Ms. Noll contacted appellant on October 26, 2006, but
subsequently discovered that his leave was preapproved. She confirmed that all leave requested
by appellant was authorized. However, there were performance issues related to the use of
government vehicles and property, which were being addressed by the special agent.
In a letter dated April 4, 2007, Deborah Darden, the deputy superintendent, confirmed
that appellant became the focus of an internal investigation when his supervisor was unable to
contact him by radio or cell phone on repeated occasions over several months. Appellant was
nonresponsive or vague when questioned by his supervisor. Ms. Darden advised that a special
agent was assigned to the case and installed a GPS tracking devise on appellant’s government
vehicle. Because it was an internal affairs investigation, appellant’s supervisor was not
permitted to acknowledge any information about the GPS device. Ms. Darden indicated that
when appellant inquired about the device he was directed to the special agent conducting the
investigation. She noted that appellant did not exhibit any signs of stress prior to discovering
that he was under investigation.
By decision dated August 3, 2007, the Office found that appellant failed to establish an
emotional condition arising in the performance of duty. It found that appellant had not
established any compensable factors of employment.
Appellant requested a hearing, which was held on June 16, 2008 and reiterated the factors
that he believed contributed to his condition. In March 2007, he finally became aware of the
internal investigation and stated that the removal of his law enforcement commission and the
delay in reinstating it was deliberate harassment and intimidation by the employing
establishment. In an October 11, 2007 report, Dr. Lawrence P. Saladino, a fitness-for-duty
physician, advised that appellant did not meet employing establishment medical standards due to
anxiety and depression that he had experienced since 2005. The Office received documents from
the employing establishment noting that appellant was the subject of an internal investigation
and that his law enforcement commission was suspended.

4

In a July 24, 2008 letter, Ms. Darden reiterated her comments and provided a copy of
Ms. Noll’s previously submitted statement. She stated that appellant was informed by his first
and second-line supervisors, and later by a Federal Bureau of Investigation agent, to contact the
special agent assigned to his investigation regarding the GPS device. However, appellant did not
contact the agent. Ms. Darden noted that the investigation was stalled by appellant’s extensive
use of leave. In an undated response received by the Office on August 4, 2008, appellant
repeated his allegations.
By decision dated August 29, 2008, the Office hearing representative affirmed the
August 3, 2007 decision.
On September 13, 2008 appellant requested reconsideration. On September 15, 2008 he
noted that he worked for the employing establishment for 15 years. Appellant alleged that he
was subjected to “extreme reprisal, retaliation, harassment and illegal actions” after he
participated in an EEO complaint and a union grievance. The Office received healthcare records
and documents about post-traumatic stress disorder, which Dr. Paine diagnosed in a July 7, 2008
report and attributed to reprisals by appellant’s supervisors. Appellant submitted e-mail
correspondence dated January 28, 2005 to May 12, 2006 related to the satisfactory performance
of his job duties. He included weekly activity reports for various rangers dated September 26 to
October 2 and March 20 to 26.1
In an October 28, 2008 decision, the Office denied appellant’s request for reconsideration
on the grounds that the evidence presented was repetitious and insufficient to warrant further
review of the merits.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Federal Employees’ Compensation Act.2 On the
other hand, the disability is not covered where it results from such factors as an employee’s fear
of a reduction-in-force or his frustration from not being permitted to work in a particular
environment or to hold a particular position.3
An employee has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
1

The year was not specified.

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an emotional condition as a result of actions of his
supervisors. The Board must initially review whether the alleged incidents and conditions of
employment are compensable employment factors under the terms of the Act.
Appellant contended that management engaged in an improper internal investigation by
placing a GPS tracking device on his vehicle, refusing to answer his questions regarding the
device, moving the keys to his government-issued vehicle and removing his government
computer, laptop and law enforcement certification. The Board notes that these allegations relate
to administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties that do not generally fall within the coverage of the Act.8 Although the handling of
disciplinary actions and internal investigations9 are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.10 The Board has held,
however, that an administrative or personnel matter will be considered an employment factor
where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether management erred or acted abusively, the Board has examined whether it
acted reasonably.11

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Id.

8

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
9

Jimmy B. Copeland, 43 ECAB 339, 345 (1991).

10

Id.

11

See Richard J. Dube, 42 ECAB 916, 920 (1991).

6

Appellant has not submitted sufficient evidence to show that his managers acted
unreasonably in the internal investigation. Although he submitted numerous documents
including witness statements from his wife, his former supervisor, a union representative and
coworkers, the evidence does not establish unreasonable action at the employing establishment
specific to his assertions about the internal investigation. Appellant’s supervisor, Ms. Noll,
stated that appellant became the subject of an internal investigation related to the use of his
government vehicle and government property after his supervisor was unable to contact him on
repeated occasions. The witness statements did not provide any information pertaining to
appellant’s specific allegations, but generally referred to the coworkers’ own experiences while
at the employing establishment. Appellant has not shown that management’s actions in
connection with its investigation were unreasonable. In a November 17, 2006 memorandum,
Mr. Harley, the chief ranger, confirmed that there was an internal investigation related to the
misuse of government equipment. On April 4, 2007 Ms. Darden, the deputy superintendent,
confirmed the internal investigation and noted that the special agent assigned to the case was the
only person authorized to discuss the matter with appellant. On July 24, 2008 Ms. Darden noted
that, when appellant presented questions about the investigation, he was referred to the special
agent investigating the matter. However, appellant did not contact the special agent.
Ms. Darden also indicated that the investigation had not concluded. The evidence does not
establish that the employing establishment erred in these circumstances. Appellant presented no
corroborating evidence to support that the employing establishment acted unreasonably in these
matters. The employing establishment provided a reasonable explanation for its actions.
Appellant has not established a compensable employment factor under the Act with respect to
the investigation or placement of a GPS unit on his work truck.
Appellant also alleged that the employing establishment made repeated requests for
documentation pertaining to his medical leave. However, the evidence does not support that
management acted unreasonably. The processing of leave requests is an administrative matter.12
Appellant has not submitted evidence to establish error or abuse towards him in this matter.
Although he contends that he was contacted on various occasions by employing establishment
personnel and subjected to repeated requests for medical documentation pertaining to his leave,
he has not shown error or abuse. Ms. Noll alleged that she had contacted appellant at his home
on October 26, 2006 because she had forgotten that she had signed his leave requests for the
period from November 1 through 4, 2006. She also indicated that all leave requested by
appellant was authorized. To the extent that appellant is alleging that the employing
establishment improperly obtained his medical information, the Board notes that there is nothing
in the record to support this allegation. Thus, he did not establish a compensable factor of
employment in this regard.
Appellant alleged that he was harassed by his supervisors as they were on a “witch hunt”
to get him. However, for harassment or discrimination to give rise to a compensable disability
under the Act, there must be evidence that harassment or discrimination did in fact occur. Mere

12

See, e.g., Linda J. Edwards-Delgado, 55 ECAB 401 (2004). See David C. Lindsey, Jr., 56 ECAB 263 (2005)
(generally, actions of the employing establishment in matters involving the use of leave are not considered
compensable factors of employment as they are administrative functions of the employer and not duties of the
employee).

7

perceptions of harassment or discrimination are not compensable under the Act.13 In the present
case, appellant has not submitted sufficient evidence to establish that he was harassed or
discriminated against by his supervisors or coworkers with regard to his claimed incidents.14 He
alleged that he was harassed when the GPS device was placed on his government-issued vehicle,
his managers refused to answer questions regarding the vehicle, moved his government-issued
keys, removed his law enforcement certification and took considerable time to reinstate it, and
retaliated against him for participating in an EEO complaint and filing a grievance. Although
appellant filed grievances and an EEO complaint, this alone does not establish that the
employing establishment harassed him. The Board notes that grievances and EEO complaints,
by themselves, do not establish that workplace harassment or unfair treatment occurred.15 The
record does not reflect that any of the grievances or EEO complaints resulted in an adverse
finding against the employing establishment that would support appellant’s assertions. These
documents are not sufficient to establish a compensable employment factor under the Act with
respect to the claimed harassment. As noted, the statements of his coworkers generally described
their perceptions of actions by certain managers towards them. They did not describe any
specific actions alleged by appellant as being harassment or retaliation that contributed to his
condition.16 Mr. Finch indicated that he represented four individuals, including appellant, with
regard to unfair labor practices, workers’ compensation complaints and an EEO complaint. He
noted that the details pertaining to the GPS devise were related to an internal investigation.
While appellant’s law enforcement commission was suspended, his statement does not establish
that any action taken by management was improper under the circumstance. Additionally, the
employing establishment confirmed that appellant’s law enforcement commission was
suspended as a result of his healthcare provider’s report that he was unable to work. Appellant
was advised that his law enforcement commission would be reinstated when his physician found
he was fit for duty. He has not shown that the employing establishment engaged in disparate
treatment or harassment. Appellant did not establish a compensable employment factor.
Similarly, regarding appellant’s allegations that the employing establishment retaliated
against him by moving his car keys, the Board notes that, to the extent that he is alleging
harassment, he has not shown how the movement of his keys would be harassment. There is
insufficient evidence to show that such a matter rises to the level of a compensable employment
factor under the circumstances presented. The employing establishment confirmed that the GPS
device was placed on appellant’s vehicle in relation to an internal investigation involving the
misuse of government property. Perceptions and feelings alone are not compensable.17 There is
no evidence substantiating retaliation.

13

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

14

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
15

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

16

See William P. George, 43 ECAB 1159, 1167 (1992).

17

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

8

Appellant has not established a compensable employment factor under the Act. He has
not met his burden of proof to establish that he sustained an emotional condition in the
performance of duty.18
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,19 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence which:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”20
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.21
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim for an emotional condition and requested
reconsideration on September 13, 2008. The underlying issue on reconsideration was whether
appellant established any compensable factors of employment. However, he did not submit any
relevant or pertinent new evidence on this issue.
In his September 15, 2008 statement, appellant reiterated his allegations. The Board
notes that these arguments are not new and were previously considered by the Office. The
submission of evidence which repeats or duplicates evidence that is already in the case record
does not constitute a basis for reopening a case for merit review.22 Appellant also submitted
reports and documents pertaining to post-traumatic stress disorder, which included a July 7, 2008
18

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
19

5 U.S.C. § 8128(a).

20

20 C.F.R. § 10.606(b).

21

Id. at § 10.608(b).

22

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald, 50
ECAB 185 (1998).

9

report from Dr. Paine. However, Dr. Paine merely reiterated allegations by appellant already
considered by the Office. The medical evidence submitted by appellant is not relevant to the
factual issue of whether he established a compensable employment factor.23
Appellant submitted correspondence from January 28, 2005 to May 12, 2006 related to
the satisfactory performance of his job duties and weekly activity reports from the employing
establishment for various rangers dated September 26 to October 2 and March 20 to 26.
However, this evidence is not relevant to his claim as it does not address any particular findings
relevant to his allegations of error or harassment.
Appellant did not provide any relevant and pertinent new evidence to establish that he
sustained an emotional condition in the performance of duty. Consequently, the evidence
submitted on reconsideration does not satisfy the third criterion for reopening a claim for merit
review. Appellant has not shown that the Office erroneously applied or interpreted a specific
point of law or advanced a relevant new argument not previously submitted. The Office properly
denied his request for reconsideration.
On appeal, appellant alleged that the January 19, 2007 report of Mr. Hartley supported
his claim for an emotional condition. As noted, Mr. Hartley advised appellant that his law
enforcement commission was being suspended based on the report of his healthcare provider.
Appellant failed to establish that this administrative action constituted a compensable
employment factor.
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition arising in the performance of duty. The Office properly refused to reopen his case for
further review of the merits under 5 U.S.C. § 8128(a).

23

When a claimant has not established any compensable employment factors, it is not necessary to consider the
medical evidence of record. See supra note 18.

10

ORDER
IT IS HEREBY ORDERED THAT the October 28 and August 29, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-422
Issued: May 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 December 6, 2006 appellant filed a timely appeal1 from decisions of the Office of
Workers’ Compensation Programs dated May 1 and September 15, 2006, denying his claim of
traumatic injury on March 6, 2006. 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 established that he sustained an injury in the performance
of duty on March 6, 2006 as alleged.
FACTUAL HISTORY
On March 16, 2006 appellant, then a 52-year-old sheet metal mechanic, filed a traumatic
injury claim, Form CA-1, alleging that he strained his lower back when lifting a moisture
1

Along with his appeal, appellant submitted new factual and medical evidence. The Board is unable to review
new evidence, as it was not a part of the record when the Office made its final decision. 20 C.F.R. § 501.2(c).

separator from a pallet on March 9, 2006. The employing establishment controverted his claim.
Supervisor Willie Harrington stated that appellant informed him on March 6, 2006 that he may
have pulled a muscle but then disregarded an instruction to go to the employing establishment’s
clinic immediately. Mr. Harrington noted that appellant did not report to the clinic until
March 9, 2006.
By letter dated March 30, 2006, the Office requested additional factual and medical
information about appellant’s claim. Appellant responded with medical records from the
employing establishment’s clinic, the ambulance service, the emergency room and Physician
Assistant Lisa Ng. On the undated intake form from the employing establishment’s clinic it is
indicated that on March 6, 2006 appellant was lifting a 400-pound object with another employee
when he began having lower back pain. Appellant reported that the pain, which was initially
mild, steadily worsened, despite the use of over-the-counter pain medication and heating pads.
The clinic physician, a Dr. Taylor, diagnosed acute lower back pain, and sent appellant to the
emergency room in an ambulance.
The March 9, 2006 report from the ambulance records included appellant’s statement
that, on Monday, March 6, 2006, he was lifting a heavy item at work when the weight shifted
and he tried to compensate to catch it. Appellant stated that the pain, which felt like a sharp
object was sticking him in the lower right back, increased to the point that standing and walking
hurt him.
At the emergency room, appellant underwent a magnetic resonance imaging (MRI) scan
to determine the cause of the pain in his lower back. Dr. Nancy Ho-Laumann, a Board-certified
diagnostic radiologist, diagnosed mild diffuse disc bulging without significant central canal
stenosis or neural foraminal encroachment at levels L2-3, L3-4 and L4-5. At L5-S1 she
diagnosed posterior endplate spurs and mild disc bulging in the left paracentral and neural
foraminal area that caused mild left neural foraminal narrowing. Dr. Ho-Laumann found that
there was no acute injury. The emergency room registration record indicated that the injury was
employment related and that it occurred at work. On the emergency physician record, a
Dr. Jeffries noted that appellant’s injury arose in the context of lifting a heavy object at work on
March 6, 2006. He reviewed the MRI scan report, noted no evidence of compression and made a
clinical diagnosis of acute myofascial strain of the lumbar region.
In a March 15, 2006 report, Ms. Ng, a physician’s assistant, noted that appellant was
experiencing constant sharp pain in his back, right side and right leg that was aggravated by
movement. She reported that the medication appellant received at the emergency room was not
very helpful and made him “spacey.” On examination, Ms. Ng noted tenderness over the
paralumbar area and a range of motion at the waist limited by pain. She stated that he would be
referred to an orthopedic surgeon.
By decision dated May 1, 2006, the Office denied appellant’s claim on the grounds that
he had not established that he was injured in the performance of duty as alleged. It found that
appellant’s allegation that he was injured on March 9, 2006 while lifting a moisture separator
was not borne out by the medical evidence, which stated that appellant had been lifting a heavy
item on March 6, 2006.

2

On May 19, 2006 appellant requested a review of the written record. In an attached
letter, he stated that he was providing several documents for consideration, including a letter and
documentation from the physician at the employing establishment, a letter from his supervisor, a
letter from a witness to the injury, documentation from the hospital and documentation from his
personal physician. However, the record contained only copies of medical records already in the
file.
By decision dated September 15, 2006, the Office hearing representative modified the
denial of appellant’s claim finding that appellant had submitted evidence sufficient to establish
that an employment incident occurred on March 6, 2006 at the time, place and in the manner
alleged.2 However, she affirmed the Office’s decision as modified finding that appellant had not
submitted medical evidence to establish that he was injured in the performance of duty. The
Office hearing representative noted that all of the medical and factual evidence was consistent as
to appellant’s actions on March 6, 2006, when he was lifting a 400-pound moisture separator,
and March 9, 2006, when he was taken to the emergency room. The medical evidence, however,
did not establish that appellant sustained a medical condition as a result of the accepted
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
employment incident that is alleged to have occurred. The second component is whether the
incident caused a personal injury and, generally, this can be established only by medical
evidence.5
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a

2

The hearing representative noted that the CA-1 form originally completed by appellant indicated that he was
injured on March 6, 2006, but that the date of injury appeared as March 9, 2006 on the electronic version that was
created subsequently.
3

5 U.S.C. §§ 8101-8193.

4

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Ellen L. Noble, 55 ECAB 530 (2004).

3

physician.6 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant,7 and must be one of reasonable medical certainty,8 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Office has accepted that on March 6, 2006 appellant was lifting a 400-pound
moisture separator with a coworker. The issue to be determined is whether appellant has
established that he sustained an injury as a result of the accepted incident. The Board finds that
appellant has not submitted sufficient medical evidence to meet this burden of proof.
The evidence establishes that appellant reported to the employing establishment’s clinic
on March 9, 2006 with complaints of low back pain. The clinic’s physician, Dr. Taylor,
diagnosed acute lower back pain. However, he did not provide a definite diagnosis as to the
cause of appellant’s back pain. Dr. Taylor did not provide a rationalized statement explaining
how the employment incident caused or contributed to appellant’s low back condition.
After being transported to the emergency room on March 9, 2006, appellant underwent
an MRI scan of his lumbar spine. Dr. Ho-Laumann, a Board-certified diagnostic radiologist,
diagnosed mild diffuse disc bulging at L2-3, L3-4 and L4-5 and posterior endplate spurs and
mild disc bulging in the left paracentral and neural foraminal area of L5-S1 that caused mild left
neural foraminal narrowing.
She stated that there was no acute injury visible.
Dr. Ho-Laumann’s diagnostic report is devoid of an explanation of how appellant’s low back
symptoms were caused or aggravated by lifting the moisture separator at work. Without an
opinion on causal relation, her report is insufficient to establish appellant’s claim of injury.
The emergency room physician, Dr. Jeffries, indicated that appellant’s injury was
employment related and that it occurred when he was lifting a heavy object at work. Dr. Jeffries
noted that the MRI scan report prepared by Dr. Ho-Laumann indicated disc bulging but no
compression. He diagnosed acute myofascial strain of the lumbar spine. Though he stated that
the diagnosed injury was caused by the employment incident of lifting a heavy object, he did not
provide any explanation for this medical opinion. The Board has held that medical opinions
without adequate rationale are of limited probative value.10 Dr. Jeffries’ opinion is thus
insufficient to establish that appellant was injured in the performance of his federal duties.

6

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Judy C. Rogers, 54 ECAB 693 (2003).

10

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on
a given medical question if it is unsupported by medical rationale).

4

Appellant also submitted a report by Ms. Ng, a physician’s assistant. This report is of no
probative value as the Board has found a physician’s assistant is not a physician as defined under
the Act and therefore is not competent to provide medical evidence.11
The Board finds that appellant has not provided sufficient evidence to meet his burden of
proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on March 6, 2006 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 15 and May 1, 2006 are affirmed.
Issued: May 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

11

5 U.S.C. § 8101(2); see Ricky S. Storms, 52 ECAB 349 (2001).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland Heights, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0148
Issued: June 7, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 10, 2020 appellant, through counsel, filed a timely appeal from an
October 21, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 21, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedures provides: The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $35,131.35 for which he was without fault, for the
period January 1, 2017 through August 15, 2020, because he concurrently received FECA wageloss compensation and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset; (2) whether it properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$236.58 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On October 24, 2011 appellant then a 60-year-old window clerk, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right knee when he lost his balance as
he was stepping off of a rubber floor mat while in the performance of duty.4 His retirement plan
was listed as Federal Employees Retirement System (FERS). OWCP accepted his claim for right
knee sprain and subsequently expanded it to include right knee medial meniscus tear and anterior
cruciate ligament (ACL) tear of the right knee. OWCP paid him wage-loss compensation on the
supplemental rolls beginning December 7, 2011 and on the periodic rolls, effective May 6, 2012.5
Appellant returned to a limited-duty position on November 14, 2015. From November 16, 2015,
appellant was paid on the supplemental rolls and pursuant to a wage-earning capacity
determination, effective June 11, 2016.
By decision dated July 1, 2016, OWCP reduced appellant’s compensation, effective
November 14, 2015, based on his capacity to earn wages as a sales and service associate.
On August 30, 2016 OWCP received a FERS/SSA dual benefits calculation form wherein
SSA advised that offset was not applicable because appellant was receiving disability benefits.
On March 23, 2020 OWCP sent a FERS/SSA dual benefits calculation form to SSA.6
On July 22, 2020 OWCP received a completed FERS/SSA dual benefits calculation form
from SSA wherein SSA advised that, effective January 2017, appellant reached retirement age and
became eligible for SSA age-related retirement benefits. SSA calculated appellant’s SSA agerelated retirement benefit rates with FERS offset and without a FERS offset from January 1, 2017
through December 1, 2019. Beginning January and April 2017, the SSA rate with FERS was
4

Appellant has a previous claim for a back injury that occurred on September 24, 2008, which OWCP accepted for
closed dislocation of the lumbar vertebra, under OWCP File No. xxxxxx222. On February 6, 2010 he filed a claim
for head and back injuries after a fall that day. That claim was accepted for post-traumatic headache, lumbar sprain,
and coccyx fracture. On August 29, 2011 appellant filed a claim for bilateral hand pain that was accepted for bilateral
hand osteoarthritis, under OWCP File No. xxxxxx710. These claims have been administratively combined with the
current claim, with OWCP File No. xxxxxx222 designated as the master.
5

On February 3, 2012 the employing establishment advised appellant that the Office of Personnel Management
(OPM) approved his disability retirement application. The effective date of retirement was January 13, 2012. On a
March 7, 2012 Form CA-1105 appellant elected to receive FECA benefits.
6

In a letter dated March 24, 2020, the employing establishment indicated that, due to appellant’s current restrictions
listed on the duty status report (Form CA-17), there was no work available for him to perform.

2

$1,545.90 and without FERS was $780.60. Beginning December 2017, the SSA rate with FERS
was $1,576.80 and without FERS was $796.20. Beginning January 2018, the SSA rate with FERS
was $1,593.90 and without FERS was $796.20. Beginning December 2018, the SSA rate with
FERS was $1,638.50 and without FERS was $818.40. Beginning January 2019, the SSA rate with
FERS was $1,652.90 and without FERS was $831.40. Beginning December 2019, the SSA rate
with FERS was $1,679.30 and without FERS was $831.40.
On September 2, 2020 OWCP prepared a FERS offset calculation worksheet wherein it
noted the calculation of appellant’s SSA offset overpayment from January 1, 2017 through
August 15, 2020 and computed a total overpayment amount of $35,131.35. This form indicated
that, beginning January 1 through March 31, 2017, appellant received an overpayment in the
amount of $2,270.67. Beginning April 1 through November 30, 2017, he received an overpayment
in the amount of $6,156.04. Beginning December 1 through 31, 2017, appellant received an
overpayment in the amount of $797.76. Beginning January 1 through November 30, 2018, he
received an overpayment in the amount of $8,783.47. Beginning December 1 through 31, 2018,
appellant received an overpayment in the amount of $838.12. Beginning January 1 through
November 30, 2019, he received an overpayment in the amount of $9,045.53. Beginning
December 1, 2019 through August 15, 2020, appellant received an overpayment in the amount of
$7,239.76
In a preliminary overpayment determination dated September 3, 2020, OWCP informed
appellant that he received an overpayment of compensation in the amount of $35,131.35 because
he received SSA age-related retirement benefits from January 1, 2017 through August 15, 2020
that were partially based on credits earned while working in the Federal Government and this
constituted a prohibited dual benefit. It determined that he was without fault in the creation of the
overpayment. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable payment method, and advised him that
he could request waiver of recovery of the overpayment. It further requested that he provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills and canceled checks, pay slips, and any other records that support income and
expenses. Additionally, OWCP further notified appellant that, within 30 days of the date of the
letter, he could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing.
On September 29, 2020 appellant submitted an overpayment action request form, indicting
his disagreement with the amount of the overpayment and requested a waiver because he was
found to be without fault in the creation of the overpayment. In an attached statement of even
date, he noted his disagreement with the overpayment and indicated that he had been working
subject to a loss of wage-earning capacity determination and wondered if the SSA overpayment
formula was based on full-time income.
By decision dated October 21, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $35,131.35 for the period January 1, 2017 through August 15, 2020
because it failed to offset his compensation payments by the portion of his SSA age-related
retirement benefits that were attributable to his federal service. OWCP further found that he was
without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment
because the evidence of record failed to establish that recovery of an overpayment would defeat
3

the purpose of FECA or be against equity and good conscience. It required recovery of the
overpayment by deducting $236.58 from appellant’s continuing compensation payments every 28
days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.7 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.8
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.9 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
age-related retirement benefits earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $35,131.35 for which he was without fault, for the period
January 1, 2017 through August 15, 2020 because he concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits without an appropriate offset.
As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and
SSA retirement benefits attributable to federal service for the same period.11 The record supports
that appellant received FECA wage-loss compensation beginning December 7, 2011 and effective
June 11, 2016 pursuant to a wage-earning capacity determination. Appellant received SSA agerelated retirement benefits beginning January 2017. The information provided by SSA established
that appellant had received SSA age-related retirement benefits that were attributable to his federal
service commencing January 1, 2017. Thus, the record establishes that he received an
overpayment of FECA wage-loss compensation.12

7

5 U.S.C. § 8102(a).

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

10

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

11

20 C.F.R. § 10.421(d); supra note 6; L.D., Docket No. 19-0606 (issued November 21, 2019); A.C., Docket No.
18-1550 (issued February 21, 2019); S.M., supra note 9.
12

Id.

4

To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to appellant’s specific SSA age-related retirement benefits
that were attributable to federal service. SSA provided its rate with FERS and without FERS for
specific periods January 1, 2017 through August 15, 2020. OWCP provided its calculations for
each relevant period based on SSA’s worksheet and determined that appellant received an
overpayment in the amount of $35,131.35. The Board has reviewed OWCP’s calculations and
finds that it properly determined that appellant received prohibited dual benefits totaling
$35,131.35 for the period January 1, 2017 through August 15, 2020.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.13
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.15 However, appellant had the responsibility to provide financial information to
OWCP,16 but failed to do so.
In its preliminary determination, dated September 3, 2020, OWCP requested that appellant
provide a completed Form OWCP-20 and supporting financial documentation, including copies of
income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other
records to support income and expenses. It advised him that it would deny waiver of recovery if
he failed to furnish the requested financial information within 30 days. Appellant did not provide
the requested Form OWCP-20 or submit any financial information necessary for OWCP to

13

5 U.S.C. § 8129.

14

20 C.F.R. § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

15

Id. at § 10.436.

16

Id. at § 10.438; S.P., Docket No. 19-1318 (issued July 31, 2020).

5

determine if recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience.
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine his eligibility for waiver, OWCP properly denied waiver of
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.17
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$236.58 from appellant’s continuing compensation payments every 28 days.
OWCP provided appellant a Form OWCP-20 with its September 3, 2020 preliminary
determination. It afforded him the opportunity to provide appropriate financial information and
documentation to OWCP. Appellant did not complete the Form OWCP-20 or provide the
necessary financial information to support his income and expenses prior to the final October 21,
2020 overpayment decision. The overpaid individual is responsible for providing information
about income, expenses, and assets as specified by OWCP.18 When an individual fails to provide
requested financial information, OWCP should follow minimum collection guidelines designed to
collect the debt promptly and in full.19 As appellant did not submit supporting financial
documentation to OWCP as requested, the Board finds that there is no evidence of record to
establish that OWCP erred in directing recovery of the $35,131.35 overpayment at the rate of
$236.58 every 28 days from appellant’s continuing compensation payments.20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $35,131.35 for which he was without fault, for the period
17
Id. at § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056,
1062 (1988).
18

Id. at § 10.438(a).

19

See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Liquidation, Responsibility for the Collection and Settlement of Debts, Chapter
6.300.2 (September 2020). Id. at § 10.436; Chapter 6.400.4a(2).
20
See J.A., id.; E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).

6

January 1, 2017 through August 15, 2020, because he concurrently received FECA wage-loss
compensation benefits and SSA age-related retirement benefits without an appropriate offset. The
Board further finds that OWCP properly denied waiver of recovery of the overpayment and
properly required recovery of the overpayment by deducting $236.58 from his continuing
compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7