United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF THE ARMY, FORT
BENNING, Fort Benning, GA, Employer
__________________________________________

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Appearances:
Robert S. Poydasheff, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0368
Issued: June 20, 2018

Case Submitted on the Record

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

JURISDICTION
On December 7, 2016 appellant, through counsel, filed a timely appeal from an August 5,
2016 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
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.

FACTUAL HISTORY
On January 6, 2015 appellant, then a 34-year-old IT specialist, filed an occupational
disease claim (Form CA-2) alleging an emotional condition as a result of a stressful and hostile
work environment. She alleged that her supervisors embarrassed her in front of coworkers and
indicated that the incidents occurred between June 19, 2011 and May 1, 2013. Appellant first
became aware of her condition on June 19, 2011 and first attributed it to her federal employment
on May 1, 2013. She stopped work on November 26, 2014.
In a November 25, 2014 statement, B.O., appellant’s former supervisor, noted that he
departed for a new position on October 5, 2014. Before departing, appellant’s work attendance
was interrupted by an increasing, but not yet unacceptable level of doctor’s appointments and
sick leave. She reported that her ability to concentrate on work tasks and analysis was impacted
by the need to address more frequent health issues. B.O. indicated that he allowed adjustments
to her work hours and allowed unscheduled annual and sick leave. Appellant reported
experiencing an emotional shutdown. He noted that additional accommodations were provided
to relocate her desk to another area of the office so as not to have her back to others. The
employing establishment submitted a job description for an IT specialist.
Appellant was treated by Dr. Bhushit Dixit, a Board-certified psychiatrist, on December 1
and 19, 2014, for major depression, anxiety, post-traumatic stress, and possible bipolar illness.
She indicated that appellant was unable to function at work.
In a January 5, 2015 supplemental statement to the CA-2, appellant indicated that during
the time of her employment with the agency she began to experience anxiety immediately. She
indicated that her position as an IT Customer Support Representative was for the entire
Command Group, IT personnel that were in the field, and the backup IT support for the
Command Group. Appellant asserted that the time sensitive nature of all requests was related to
her stress and anxiety. She indicated that her workload consisted of acting as one of the
Educational Technology Services COR’s, IT Customer Support, she was responsible for
coordinating and hosting the quarterly G-6 meetings held for technicians, and she was the
primary hand-receipt holder for the ETS equipment which encompassed over 3000 pieces of IT
equipment. Appellant asserted that the workload had become too much for one person. She
noted that management assigned a couple of soldiers to assist her, but with their appointments
and constant days out she felt like she was pulled thin.
On January 13, 2015 OWCP asked appellant to submit additional evidence, including a
detailed description of the work incidents that contributed to her claimed illness. It requested
that the employing establishment comment on the accuracy of all statements.
In response to OWCP’s letter, appellant alleged that during a trip to Tampa, Florida, to
attend a conference, she was sexually assaulted by director, D.T. She provided a travel itinerary
which indicated that she arrived in Tampa on August 21, 2011 and departed on August 26, 2011.
Appellant submitted additional evidence, including a January 21, 2015 statement,
indicating that B.O. would frequently take out his anger and frustration on her and yell at her in

2

front of people. She described incidents involving a new coworker, B.P., who was hired to assist
in the telephone control section. Appellant was responsible for setting up her computer and
accounts. On February 4, 2014 she indicated that she became overwhelmed when assisting B.P.,
who experienced difficulty logging on to her e-mail account. Appellant asserted that she
immediately put in a work order to correct the problem. She alleged that B.O. and her coworker,
D.B., tried to assist, but they began to get agitated and “began to feed off one another’s
discontent and began to get confrontational about the problem.” Appellant reported throwing up
her hands and yelling to the director, D.T., to assist in resolving B.P.’s computer problems. She
indicated that she felt like her back was against the wall with everyone surrounding her.
Appellant reported shutting down mentally and informing D.T. that she had to leave work
because she could not contain herself. She indicated that D.T. agreed and she was on leave for
three days to regroup.
Appellant provided an August 5, 2014 e-mail to her superiors in which she described a
work incident on the previous day that caused stress. She related that C.S., a Department of
Transportation (DOT) employee and coworker, came to her office around 3:00 p.m. indicating
that temporary DOT personnel could not obtain visitor accounts. Appellant reported taking her
to B.O.’s office to rectify the matter, but C.S. talked over those present, including W.G., acting
deputy director. The matter continued the next morning when C.S. again talked over appellant as
appellant tried to explain the procedure for visitor accounts. Appellant related that C.S.
interrupted her and in an elevated voice stated “What I am trying to tell you.”
Appellant described another stressful work incident that occurred on November 18, 2014
when she informed D.T., the Director, that she would use sick leave the following day because
her son was ill. She indicated that she left that day to take him fever medications and his
condition was not improving. Appellant alleged that D.T. tried to give her a “guilt trip” over
using a sick day because he suggested her husband stay with her son.
On February 6, 2015 OWCP asked the employing establishment to comment on the
statements provided by appellant.
Appellant submitted an undated witness statement from B.R.P., a coworker, who noticed
that during the prior six months appellant had difficulty in her work environment. B.R.P.
indicated that her superiors consistently overloaded her with work that should have been divided
among other employees. Another witness statement from C.J., a coworker, indicated that
appellant’s workload was stressful and she provided support for many units outside of customer
support. C.J. noted that appellant was a hard worker and always completed the mission.
Appellant also provided additional evidence from Dr. Dixit.
The employing establishment submitted a February 24, 2015 statement from B.O., who
indicated that the agency operated at a high tempo and while there were times of raised stress
levels for all, it was not “intense.” B.O. noted that appellant acknowledged that she brought
increased stress on herself by wanting everything to be perfect. He noted that management
accommodated appellant to make her more at ease in her work environment. Examples included
changing her work location, providing additional assistance from other employees when
possible, reducing her workload, adjusting her work hours to ensure she worked 40-hour work

3

weeks, and accommodating medical appointments. B.O. indicated that, while the agency needed
more staffing, it was successful in obtaining assistance for the office in a couple of areas. He
indicated that even though additional individuals were not added to appellant’s area of
responsibility, some of her support functions and tasks were shared with others to reduce her
workload. B.O. advised that appellant was an exceptional performer of the assigned tasks and
objectives that were consistently relayed to her through ongoing informal and formal meetings
and counseling.
B.O. turned over supervision of his employees to D.T. and W.G., and discussed with
them appellant’s ongoing issues and how she could be assisted, knowing she was also being
medically treated. He addressed the incident in which B.P. had computer problems and indicated
that the discussions among the technicians were to seek a resolution. There was no intent to infer
that anyone’s skills, capabilities, or integrity was being questioned. B.O. believed appellant’s
feelings were self-induced. He asserted that appellant’s reaction to the incident, jumping up and
hollering to D.T. and having a closed door meeting with D.T., was out of hand. D.T.’s decision
to allow appellant to depart the employing establishment early on that day was not relayed to
him. He noted that appellant had an increasing tendency to escalate issues. B.O. indicated that
everyone tried to accommodate appellant due to her having numerous financial, personal, and
health issues. He further noted that it was his responsibility to assign, monitor, and track tasks,
provide assistance where possible/feasible, and to hold employees accountable for their work,
and the timeliness of that work product. Appellant, like all other employees, was held to that
standard, but as with other employees she was encouraged to seek guidance or adjustment in
suspense dates when needed. B.O. informed his employees that, although they had a lot on their
plate, they could not accomplish everything at one time, but had to prioritize based on the
mission at hand and to remain flexible to assist or be assisted by others when needed. He
advised that he never intended to give appellant the impression that she should be scared or walk
on egg shells around him. B.O. asserted that no one was mistreated or retaliated against because
they complained about a perceived injustice or disagreed with a supervisor. He reported
accommodating and listening to employee issues or disagreements.
The employing establishment submitted a February 25, 2015 statement from W.G., who
addressed the August 5, 2014 incident between appellant and C.S. and indicated that the
discussion was not contentious or one sided. W.G. noted that C.S. expressed her opinions and
concerns and listened, but she did not believe the conversation was hostile. On August 6, 2014
C.S. indicated that she had attempted to discuss a work-related issue with appellant. She stated
that the misunderstanding would not affect further interactions. W.G. reported discussing with
appellant that differences of opinions or approach to situations were not necessarily personal
attacks or indications that your performance was less than expected. He noted that appellant’s
performance was always at a very acceptable level.
Appellant submitted a March 20, 2015 sworn statement prepared for a separate
workplace investigation. She reported that in 2011 she was assaulted during a conference in
Tampa, FL, when she was sharing a room with A.C., an administrator, and D.T. Appellant
indicated that D.T. fostered inappropriate touching and would give long intimate hugs and
massages. She indicated that she never told D.T. that his conduct was unwelcome. Appellant
reported that A.C. coached her on several occasions to respond to questioning during the

4

investigation so as not to hurt D.T. She submitted a follow-up statement dated April 6, 2015 and
reported that A.C. informed her that they could lose their jobs if the investigators learned that she
stayed with D.T. during the Tampa trip. Appellant indicated that during this time she was
pregnant, very stressed, and scared from the coaching and coercing of A.C. and D.T. and
remained silent about her allegations against D.T.
In a sworn statement dated April 8, 2015, M.F., a coworker, noted being coached and
coerced by A.C. on how to respond to investigators questions during two work investigations.
A.C. allegedly asked M.F. to cover for her and D.T. regarding accommodations for a staff trip to
Florida in which she shared a room with D.T. and appellant.
By decision dated June 16, 2015, OWCP denied appellant’s claim for an emotional
condition as the evidence submitted failed to establish that the events occurred as alleged.
On March 25, 2016 appellant, through counsel, requested reconsideration. She submitted
a September 4, 2015 Equal Employment Opportunity (EEO) settlement agreement regarding her
complaint against the employing establishment. The agreement noted that the agency did not
admit that it or any agency official or employee violated any federal law, state law, or regulation.
The agency agreed to pay the complainant $25,000.00 as compensatory damages including
attorney’s fees, and directed D.T. to not contact appellant so long as they were assigned to
different directorates. Appellant agreed to withdraw the formal EEO complaint with prejudice
and not institute any further legal or administrative appeals concerning the issues in the EEO
complaint.
Appellant submitted a Department of Veterans Affairs notice which provided a disability
rating of 80 percent due to post-traumatic stress disorder with history of depression. She also
submitted a certificate of release or discharge from active military duty, earnings and leave
statements dated October 15 and 29, 2015, and notifications of personnel action (SF-50) for
leave without pay and return to work. Also submitted were November 22, 2014 to March 30,
2015 treatment notes from Dr. Dixit.
By decision dated August 5, 2016, OWCP denied modification of the decision dated
June 16, 2015, finding that appellant had not established any compensable work factors.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.3

3

George H. Clark, 56 ECAB 162 (2004).

5

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,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.7 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.8 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.9 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.10
Physical contact arising in the course of employment, if substantiated by the evidence of
record, may support an award of compensation if the medical evidence establishes that a
condition was thereby caused or aggravated.11
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied appellant’s emotional condition claim
because she did not establish any compensable employment factors. The Board must, thus,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA.
Appellant has attributed her emotional condition to performing her regular or specially
assigned duties of her position. She alleged that she began to experience anxiety immediately
and to feel overwhelmed when she initially began working in the unit in 2011. Appellant
4

28 ECAB 125 (1976).

5

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

6

Supra note 4.

7

J.F., 59 ECAB 331 (2008).

8

M.D., 59 ECAB 211 (2007).

9

Roger Williams, 52 ECAB 468 (2001).

10

See supra note 4.

11

Alton L. White, 42 ECAB 666 (1991).

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generally alleged that she was overworked and understaffed. In a January 5, 2015 statement, she
noted the scope of her job responsibilities and asserted that the time sensitive nature of her work
was considerably related to her stress and anxiety. Appellant indicated that she was responsible
for coordinating and hosting the quarterly G-6 meetings held for technicians, and she was the
primary hand-receipt holder for the ETS equipment which encompassed over 3,000 pieces of IT
equipment. She alleged that the workload had become too much for one person. Appellant
noted that management assigned a couple of soldiers to assist her, but with their appointments
and constant days out she felt like she was pulled thin. However, she provided insufficient
corroborating evidence to establish that she was overworked or of specific duties or requirements
at particular times to which she attributed her condition.
In support of her claim appellant submitted a statement from B.R.P., a coworker, who
noticed over the past six months that she was having difficulty in her work environment. B.R.P.
noted that appellant was consistently overloaded with work that should have been divided among
others. A statement from C.J., another coworker, noted appellant’s workload was stressful and
she provided support for many units outside of customer support. These general statements from
colleagues attesting that appellant worked hard and provided support for many units are
insufficient to establish that she was overworked. There were no specific dates or times provided
where appellant was understaffed and the employing establishment has denied such allegations.12
The employing establishment submitted a February 24, 2015 statement from B.O., who
disputed that appellant was overworked or understaffed. Although he indicated that his agency
generally needed more staffing, it was successful in obtaining some assistance. B.O. indicated
that some of appellant’s support functions and tasks were shared with others to reduce her
workload. Thus, to the extent that appellant alleged overwork,13 this is not established by the
evidence. Furthermore, she did not otherwise attribute her emotional condition to performing a
specific regular or specially assigned duty in her job. Therefore, appellant has not established a
compensable factor under Cutler.14
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,15 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative
or personnel action established error or abuse by the employing establishment superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
12

See Y.J., Docket No 15-1137 (issued October 4, 2016) (appellant did not provide the requisite detail regarding
specific dates and the duties she performed, which allegedly overwhelmed her, to establish that her assigned work
caused her stress).
13

The Board has held that overwork, as substantiated by sufficient factual information to support the claimant’s
account of events, may be a compensable factor of employment. Bobbie D. Daly, 53 ECAB 691 (2002).
14

Supra note 4.

15

See 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

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condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.16
Appellant alleged that on November 18, 2014 she informed D.T. by e-mail that she
would use sick leave the following day to care for a sick child. She alleged that D.T. was trying
to give her a “guilt trip” when he suggested that her husband could stay with her son. The Board
notes that the handling of leave requests and attendance matters are generally related to the
employment, they are administrative functions of the employer and not duties of the employee.17
The Board finds that the employing establishment acted reasonably in this administrative matter.
There is no evidence that D.T. denied appellant’s leave request or acted unreasonably. The
Board recognizes that a supervisor or manager must be allowed to perform his or her duties and
that, in performing such duties, employees will at times dislike actions taken.18 Appellant has
presented no corroborating evidence to support that the employing establishment acted
unreasonably in this administrative matter.
Appellant further attributed her condition to harassment and a hostile work environment.
To the extent that incidents alleged as constituting harassment or a hostile environment by a
manager are established as occurring and arising from appellant’s performance of her regular
duties, these could constitute employment factors.19 However, for harassment to give rise to a
compensable disability under FECA, there must be evidence that harassment did in fact occur.
Mere perceptions of harassment are not compensable under FECA.20
Appellant alleged that during a trip to Tampa, Florida, to attend a conference she was
sexually assaulted by Director, D.T. She provided a travel itinerary which indicated that she
arrived in Tampa on August 21, 2011 and departed on August 26, 2011. However, appellant did
not submit any evidence that corroborates her allegation that her director sexually assaulted her.
She has produced no statement from a witness who can substantiate her charges. Appellant
submitted a statement from M.F., a coworker, who reported being asked by A.C. to cover for her
and D.T. during a staff trip to Florida in which she shared rooms with D.T. and appellant.
However, M.F. did not indicate that appellant was sexually assaulted during this trip. Appellant
also submitted a September 4, 2015 EEO settlement agreement asserting that this supported her
allegation that she was assaulted by D.T. The Board notes that grievances and EEO complaints,
by themselves, do not establish that workplace harassment or unfair treatment occurred.21 The
settlement agreement noted that the employing establishment did not admit any wrongdoing by it
16

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

17

See Judy Kahn, 53 ECAB 321 (2002).

18

See Michael A. Deas, 53 ECAB 208 (2001).

19

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

20

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). 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).
21

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

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or any employee. Although it agreed to pay the complainant $25,000.00 as compensatory
damages and directed D.T. to not contact appellant, there is no corroboration of a sexual assault
or admission of other error by the employing establishment regarding that trip. Appellant did not
provide sufficient evidence to substantiate this assertion.
Appellant also alleged that B.O. harassed and screamed at her in front of other
employees. The Board has also recognized the compensability of verbal abuse and threats in
certain circumstances. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under FECA.22
Appellant described an incident when appellant was responsible for setting up B.P.’s
computer on February 4, 2014. She indicated that when B.P. had difficulty logging on to her
e-mail account B.O. and another coworker, D.B., began to get agitated and “began to feed off
one another’s discontent and began to get confrontational about the problem.” Appellant
reported that she had to leave work because of this confrontation. The evidence fails to support
appellant’s claim for harassment or verbal abuse. B.O. denied that he harassed appellant or acted
inappropriately. Rather, he noted that appellant was provided assistive accommodations in her
work environment. B.O. addressed the incident with B.P. and noted brainstorming with the
technicians for different causes and possible fixes to the problem. He further indicated that no
one intended to infer that anyone’s skills, capabilities, or personal integrity was being
questioned. The factual evidence fails to support appellant’s claim that she was harassed or
verbally abused in this matter.
Appellant also alleged that on August 5, 2014 while attempting to assist C.S. obtain
visitor accounts for temporary personnel, C.S. interrupted her and spoke to her in an elevated
voice stating “What I am trying to tell you.” The Board finds that the evidence does not support
any specific incidents of verbal abuse or threats. Appellant provided no corroborating evidence
to establish any specific incidents.23 With regard to her allegation that C.S. spoke to her in an
elevated voice she failed to provide any evidence to substantiate this assertion and the employing
establishment denied this allegation. On February 25, 2015 W.G., indicated that appellant and
C.S. had a discussion which was not contentious or one sided. C.S. expressed her opinions and
concerns, but she did not believe the conversation was a hostile interaction. W.G. noted that
there were differences of opinions and approaches to situations which were not personal attacks
or indications that her performance was substandard. The Board finds that the evidence does not
support any specific incidents of verbal abuse or threats.24
Appellant also made general allegations of harassment and verbal abuse. The Board
notes that general allegations of harassment are not sufficient25 and in this case appellant has not
22
An administrative or personnel matter will be considered to be an employment factor where the evidence
discloses error or abuse on the part of the employing establishment. Charles D. Edwards, 55 ECAB 258 (2004).
23

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

24

See Joe M. Hagewood, 56 ECAB 479 (2005).

25

See Paul Trotman-Hall, 45 ECAB 229 (1993).

9

submitted sufficient evidence to establish disparate treatment by the employer.26 Likewise,
appellant’s general allegations about being screamed at are not specific as to the time or place of
any claimed verbal abuse.27 These general allegations do not rise to the level of a compensable
factor of employment.
Appellant submitted a VA notice that indicated her overall disability rating of 80 percent
due to post-traumatic stress disorder with history of depression. However, this document is
insufficient to establish entitlement to benefits under FECA for an emotional condition as the
Board has held that entitlement to benefits under another act does not establish entitlement to
benefits under FECA.28 The Board has noted that there are different standards for medical proof
on the question of disability for FECA and VA.29
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.30
On appeal appellant reiterated her allegations, asserting that she has established her
emotional condition claim. As explained above, she has not established her claim for an
emotional condition as she has not established any compensable employment factors.
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 her burden of proof to establish an emotional
condition in the performance of duty.

26
See Joel Parker, Sr., supra note 20 (finding that a claimant must substantiate allegations of harassment or
discrimination with probative and reliable evidence).
27

See supra note 24 (without a detailed description of the specific statements made, a compensable employment
factor was not established; the mere fact a supervisor or employee may raise his voice during the course of a
conversation does not warrant a finding of verbal abuse).
28

Freddie Mosley, 54 ECAB 255 (2002).

29

Daniel Deparini, 44 ECAB 657 (1993).

30
As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the August 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Washington, DC, Employer
__________________________________________

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

Docket No. 18-1604
Issued: February 25, 2019

Case Submitted on the Record

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

JURISDICTION
On August 20, 2018 appellant filed a timely appeal from a June 22, 2018 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an employmentrelated injury while in the performance of duty on April 3, 2018, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 22, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On May 2, 2018 appellant, then a 52-year-old component audit liaison, filed a traumatic
injury claim (Form CA-1) alleging that, on April 3, 2018, she sustained a concussion and a bruised
elbow and back when she was hit by a car when crossing the street at 12:15 p.m. The employing
establishment controverted the claim alleging that she was at lunch when the injury occurred.
Appellant’s regular duty hours were from 7:00 a.m. until 4:30 p.m. On April 3, 2018 appellant
was treated in the emergency department and diagnosed with left elbow contusion, left ear acute
serous otitis media, and concussion.
OWCP, on May 18, 2018, requested that the employing establishment address whether
appellant was on premises that it owned, operated, or controlled at the time of the incident and, if
so, to provide a diagram showing the boundary of its premises and the location of the alleged
incident. It further requested information regarding whether appellant was performing work duties
or activities reasonably incidental to her employment at the time of the incident.
In a May 18, 2018 development letter, OWCP informed appellant that the evidence was
currently insufficient to show that she was injured while performing her employment duties. It
requested that she address whether she was on the premises of the employing establishment when
the incident occurred and whether she was performing her assigned duties. OWCP further
requested, if the incident had occurred off-premises, that appellant identify the location of the
incident and its relationship to her workplace and work activities. It afforded her 30 days for
submission of the requested evidence.
Appellant, in a June 7, 2018 response, related that she worked at 13th and F Streets, N.W.,
Washington, DC and her injury occurred a block from her office on the corner of 13th and G Streets.
She had left her office to get lunch and was not on the premises of the employing establishment
when a vehicle struck her while she was in a crosswalk. Appellant noted that her work location
did not have food available in her office area and that her work schedule included a lunch break.
In a statement dated June 8, 2018, S.H., the employing establishment supervisor, related
that appellant was not on the premises of the employing establishment or on property that it owned,
controlled, or operated at the time of the April 3, 2018 incident. She related that the injury occurred
while appellant was at lunch and not performing any work duties. S.H. advised that employees
could use a kitchen area in the office suites, but that food and drink was not for sale. She further
indicated that food vendors had locations within appellant’s duty station of National Place, 1331
Pennsylvania Avenue, NW. She noted that the building had an entrance on F Street between 13th
and 14th Streets.
On June 14, 2018 the employing establishment controverted the claim, contending that
appellant was not injured in the performance of duty.
By decision dated June 22, 2018, OWCP denied appellant’s traumatic injury claim. It
found that she was not in the performance of duty at the time of the alleged April 3, 2018 incident
as she was at lunch and not on the premises of the employing establishment.

2

LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase “sustained
while in the performance of duty” in FECA is regarded as the equivalent of the commonly found
requisite in workers’ compensation law of arising out of and in the course of employment.4
In order to be covered under FECA, an injury must occur at a time when the employee may
reasonably be stated to be engaged in his or her master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something incidental
thereto.5
The Board has recognized a general principle, called the premises doctrine, that offpremises injuries sustained by employees having fixed hours and places of work while going to or
coming from work or during a lunch period are not compensable as they do not arise out of and in
the course of employment.6 Rather, such injuries are merely the ordinary, nonemployment hazards
of the journey itself, which are shared by all travelers, subject to certain exceptions.7
Exceptions to the premises doctrine have been made to protect activities that are so closely
related to the employment itself as to be incidental thereto,8 or which are in the nature of necessary
personal comfort or ministration.9 The Board has also found that the course of employment should
extend to any injury that occurred at a point where the employee was within the range of dangers
associated with the employment.10 This exception has two components. The first is the presence
of a special hazard at the particular off-premises point. The second is the close association of the
access route with the premises, so far as going and coming is concerned.11 The main consideration
in applying this rule is whether the conditions giving rise to the injury are causally connected to
the employment.12

3

5 U.S.C. § 8102(a).

4

See M.S., Docket No. 18-0465 (issued August 1, 2018).

5

A.C., Docket No. 17-1927 (issued April 12, 2018).

6

K.M., Docket No. 17-1263 (issued December 19, 2018).

7

Id.

8

See M.T., Docket No. 17-1695 (issued May 15, 2018).

9

See J.L., Docket No. 14-368 (issued August 22, 2014).

10

Id.

11

See B.H., Docket No. 14-0829 (issued July 8, 2015).

12

Id.

3

ANALYSIS
The Board finds that appellant has not established an employment-related injury while in
the performance of duty on April 3, 2018, as alleged.
Appellant was struck by a car in a crosswalk a block from her workstation at 12:15 p.m.
She was at lunch at the time of the incident and not on the employing establishment’s premises.
The employing establishment confirmed that it did not own, operate, or control the area where the
accident occurred.
As noted above, off-premises injuries during a lunch break are generally not
compensable.13 The Board finds that the exceptions to this rule are not applicable in this case.
Appellant was not on a special errand when she left her building to obtain lunch and was not
exposed to a special hazard that became a hazard of employment. She further was not on an
emergency call.14 Instead, her off-premises excursion was personal in nature.15
In J.K.,16 a claimant was in a motor vehicle accident at lunch on his way to a park to take
a walk to clear his head. The Board found that leaving his duty station at lunch to go for a walk to
clear his head was a personal activity that occurred at a time and place when he was not engaged
in employment activities. It determined that the claimant had experienced a nonemploymentrelated hazard shared by the general public. Likewise, in S.O.,17 a claimant fell at lunch on a public
sidewalk trying to cross a street. The Board found that she was not in the performance of duty as
she was at lunch and on property that was not owned, operated, or maintained by the employing
establishment, but instead open to the general public. Similarly, in this case, appellant’s claimed
injury occurred away from her place of employment at a time when she was engaged in an activity
unrelated to her employment, and resulted from a nonemployment-related hazard shared by the
general public. While having lunch may be considered incidental to one’s employment under the
personal comfort doctrine, the premises rule explicitly excludes off-premises lunches from the
course of employment.18 Consequently, appellant was not in the performance of duty on April 3,
2018 when she was struck by an automobile in a crosswalk.19
On appeal, appellant argues that her work schedule included a break for lunch and that food
was available within the building, but not in her office suite. She asserts that employees
customarily left the building for lunch and that she believed she needed to get outside for a break

13

See D.S., Docket No. 16-1252 (issued December 1, 2016); J.E., Docket No. 59 ECAB 119 (2007).

14

S.O., Docket No. 18-0773 (issued September 11, 2018).

15

Supra note 6.

16

J.K., Docket No. 15-0198 (issued March 10, 2015).

17

Supra note 14.

18

Id.

19

Id.

4

during her workday.20 However, as explained above, the Board finds that appellant was not injured
in the performance of duty, 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 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 an employmentrelated injury while in the performance of duty on April 3, 2018, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 25, 2019
Washington, DC

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

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

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

20
On December 6, 2018, the Director of OWCP filed a memorandum in justification of OWCP’s decision,
requesting that the Board affirm the June 22, 2018 decision as appellant was not in the performance of duty at the time
of the April 3, 2018 incident.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
DEPARTMENT ACTIVITY-ALASKA,
Fort Wainwright, AK, Employer
__________________________________________

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

Docket No. 20-0186
Issued: September 14, 2020

Case Submitted on the Record

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

JURISDICTION
On October 31, 2019 appellant filed a timely appeal from a September 26, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation 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 OWCP properly found that appellant received an overpayment
of compensation in the amount of $15,243.90, for which she was not at fault, as she concurrently
received Social Security Administration (SSA) age-related retirement benefits while receiving
FECA wage-loss compensation benefits for the period February 1, 2017 through March 30, 2019,
without appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; (3) whether OWCP properly required recovery of the overpayment by deducting

1

5 U.S.C. § 8101 et seq.

$425.00 every 28 days from appellant’s continuing compensation payments; and (4) whether
OWCP properly found that appellant abandoned her request for a prerecoupment hearing.
FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 19, 1993 appellant, then a 42-year-old computer programmer analyst, filed an
occupational disease claim (Form CA-2), alleging job stress due to factors of her federal
employment, including harassment and retaliation by her supervisor. She noted that she first
became aware of her condition and its relationship to her federal employment in February 1992.
Appellant stopped work on March 19, 1993 and resigned from the employing establishment in
May 1993. OWCP accepted her claim for recurrent major depression and chronic post-traumatic
stress disorder (PTSD). By letter dated November 6, 2000, it notified appellant that she would be
paid wage-loss compensation benefits on the periodic rolls.
On February 18, 2019 appellant completed a Form EN1032 indicating that she received
monthly SSA retirement benefits as part of an annuity for federal service.
On March 26, 2019 OWCP received from SSA a March 22, 2019 Federal Employees
Retirement System (FERS)/(SSA) dual benefits calculation form which indicated that appellant
had been in receipt of SSA age-related retirement benefits since February 1, 2017. The form
showed SSA benefit rates with and without a FERS offset. Beginning February 1, 2017,
appellant’s SSA rate with FERS was $864.90 and without FERS was $287.60; beginning
December 1, 2017, appellant’s SSA rate with FERS was $882.00 and without FERS was $293.30;
beginning December 1, 2018, appellant’s SSA rate with FERS was $906.50 and without FERS
was $301.50.
OWCP completed a FERS offset calculation form on April 17, 2019 and found a total
overpayment of compensation in the amount of $15,243.90. It indicated that for the period
February 1 through November 30, 2017 appellant received an overpayment of compensation in
the amount of $5,766.63, for the period December 1, 2017 through November 30, 2018 in the
amount of $7,083.87, and for the period December 1, 2018 through March 30, 2019 in the amount
of $2,393.40, totaling $15,243.90.
On April 23, 2019 OWCP advised appellant of its preliminary determination that she had
received an overpayment of compensation in the amount of $15,243.90 because she received
wage-loss compensation from OWCP concurrently with SSA age-related retirement benefits
without an appropriate offset. It included a FERS offset calculation sheet setting forth the basis of
the overpayment. OWCP found that appellant was without fault in the creation of the overpayment
and provided an overpayment action request form and an overpayment recovery questionnaire
(Form OWCP-20). It informed her that, within 30 days of the date of the letter, she could request

2

Docket No. 98-0268 (issued January 28, 2000).

2

a telephonic conference, a final decision based on the written evidence, or a prerecoupment
hearing.
Appellant, on May 3, 2019, requested a prerecoupment telephonic hearing before an
OWCP hearing representative. She contended that she had no knowledge of the overpayment and
was without fault in its creation. Attached to appellant’s request was a completed Form OWCP20 where she listed a total monthly income of $4,631.00, including FECA compensation benefits
of $3,100.00, SSA benefits of $771.00, and Supplemental Security Income payment of $760.00.
Her monthly expenses included $1,563.50 for rent or mortgage, $880.00 for food, $100.00 for
clothing, $880.00 for utilities, and $700.00 in miscellaneous expenses, totaling $4,123.50. No
supporting financial documentation accompanied her completed Form OWCP-20.
In a July 25, 2019 letter, OWCP advised appellant that a telephonic prerecoupment hearing
was scheduled for September 10, 2019 at 12:15 p.m. Eastern Standard Time (EST). The hearing
notice included a toll-free number and pass code to enable access to the telephonic hearing. The
hearing notice was mailed to appellant’s last known address. Appellant did not appear for the
prerecoupment hearing.
By decision dated September 26, 2019, an OWCP hearing representative found that
appellant had abandoned her oral prerecoupment hearing scheduled for September 10, 2019. The
hearing representative found that there was no indication of record that appellant contacted the
Branch of Hearings and Review either prior to or subsequent to the scheduled hearing to explain
her failure to appear. OWCP’s hearing representative further finalized the preliminary
determination that appellant had received an overpayment of compensation in the amount of
$15,243.90 for the period February 1, 2017 through March 30, 2019, for which she was not at
fault, as she had received FECA wage-loss compensation benefits without an appropriate offset
for SSA age-related retirement benefits attributable to FERS. OWCP’s hearing representative
denied waiver of recovery of the overpayment, finding that her monthly income exceeded her
monthly expenses by approximately $500.00. The hearing representative required recovery of the
overpayment by deducting $425.00 every 28 days from appellant’s continuing compensation
payments until the debt was paid in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) 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 his
or her federal employment.3 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.4 When an overpayment has been made to an

3

Supra note 1 at § 8102(a).

4

Id. at § 8116.

3

individual because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which the individual is entitled.5
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related retirement benefits that are attributable to
federal service of the employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit 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.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $15,243.90, as she received SSA age-related retirement benefits
while concurrently receiving FECA wage-loss compensation benefits for the period February 1,
2017 through March 30, 2019, without appropriate offset.
In its September 26, 2019 decision, an OWCP hearing representative found that an
overpayment of compensation was created for the period February 1, 2017 through
March 30, 2019. The overpayment was based on the evidence received from SSA with respect to
age-related retirement benefits paid to appellant. A claimant cannot receive both FECA
compensation for wage loss and SSA age-related retirement benefits attributable to federal service
for the same period.8 The information provided by SSA indicated that appellant received SSA
age-related retirement benefits that were attributable to federal service during the period
February 1, 2017 through March 30, 2019. OWCP therefore properly determined fact of
overpayment.
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 a FERS offset
calculation form provided by SSA with respect to the specific amount of SSA age-related
retirement benefits that were attributable to federal service. The SSA provided their rate with and
without FERS for the period February 1, 2017 through March 30, 2019. OWCP provided its
calculations for the relevant period based on a FERS offset calculation worksheet and in its
April 23, 2019 preliminary overpayment determination. No contrary evidence was received.

5

Id. at § 8129(a).

6

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
7

FECA Bulletin No. 97-09 (February 3, 1997).

8
Supra note 1 at § 8116(d)(2); see C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787
(issued October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).

4

The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period February 1, 2017 through March 30, 2019 and finds that an overpayment of compensation
in the amount of $15,243.90 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA states: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”9
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.10 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.11 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.12 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.13
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.14
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
9

Supra note 1 at 8129(b).

10
Supra note 6 at § 10.436(a), (b). For an individual with no eligible dependents the asset base is $6,200.00. The
base increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
11
Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
12

Id. at Chapter 6.400.4(a)(2) (September 2018).

13

Id. at Chapter 6.400.4(b)(3).

14

Supra note 6 at § 10.437(a), (b).

5

determine the repayment schedule, if necessary.15 Failure to submit the requested information
within 30 days of the request shall result in denial of waiver.16
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 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.17
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses. As her monthly income of $4,631.00 exceeds her
monthly ordinary and necessary expenses of $4,123.50 by more than $50.00, she has not shown
that she needs substantially all of her current income to meet current ordinary and necessary living
expenses.18 Because she has not met the first prong of the two-prong test of whether recovery of
the overpayment would defeat the purpose of FECA, it is unnecessary for OWCP to consider the
second prong of the test.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.19
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, she has failed to establish that OWCP
acted improperly by denying waiver of recovery of the $15,243.90 overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, 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 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

15

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16

20 C.F.R. § 10.438; see D.M., Docket No. 19-1369 (issued June 30, 2020).

17

Supra note 6 at § 10.436.

18

Supra note 14.

19

Supra note 6 at § 10.437.

6

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.20
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$425.00 every 28 days from appellant’s continuing compensation payments.
OWCP found that appellant had total monthly income of $4,631.00 and monthly expenses
of $4,123.50. It found that her monthly income exceeded her expenses by approximately $500.00,
which could be applied for debt repayment each month. The hearing representative gave due
regard to the relevant factors noted above and did not abuse its discretion in setting the rate of
recovery.21 The Board thus finds that it properly required recovery of the overpayment by
deducting $425.00 from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 4
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative.22 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.23
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances.24 With respect to abandonment of hearing requests,
Chapter 2.1601(g) of OWCP’s procedures25 and section 10.622(f) of its regulations26 provide in
relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a 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.27

20

Id. at § 10.441(a); see C.M., supra note 8.

21

L.M., Docket No. 19-1197 (issued January 8, 2020); T.G., Docket No. 17-1989 (issued June 6, 2018).

22

Supra note 1 at § 8124(b).

23

Supra note 6 at § 10.617(b).

24

C.Y., Docket No. 18-0263 (issued September 14, 2018); Claudia J. Whitten, 52 ECAB 483 (2001).

25

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
26

Supra note 6 at § 10.622(f).

27

Id.

7

ANALYSIS -- ISSUE 4
The Board finds that OWCP properly determined that appellant abandoned her request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s May 3, 2019 request for a
telephonic prerecoupment hearing. In a July 25, 2019 letter, OWCP provided appellant 30 days
written notice of the hearing, which was scheduled for September 10, 2019 at 12:15 p.m. EST. It
mailed the July 25, 2019 notice of hearing to appellant’s last known address, and it was not
returned as undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary course
of business is presumed to have been received by the intended recipient.28 The presumption is
commonly referred to as the “mailbox rule.”29 It arises when the record reflects that the notice
was properly addressed and duly mailed.30 The current record is devoid of evidence to rebut the
presumption that appellant received OWCP’s July 25, 2019 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address.31 Appellant
did not call-in as instructed for the September 10, 2019 scheduled telephonic hearing and there is
no indication that she requested postponement of the telephonic hearing.32 Moreover, she did not
submit a written request within the 10 days after the date set for the telephonic hearing and request
that another telephonic hearing be scheduled. Under the circumstances, OWCP’s hearing
representative properly found that appellant abandoned her telephonic hearing request.33
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $15,243.90, for which she was not at fault, as she concurrently
received SSA age-related retirement benefits while receiving FECA wage-loss compensation
benefits for the period February 1, 2017 through March 30, 2019, without proper offset. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment and properly
required recovery of the overpayment by deducting $425.00 every 28 days from appellant’s
continuing compensation payments. The Board further finds that OWCP properly determined that
appellant abandoned her request for a telephonic prerecoupment hearing before an OWCP hearing
representative.

28

C.Y., supra note 24; Kenneth E. Harris, 54 ECAB 502 (2003).

29

Id.

30

Id.

31

Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

32

20 C.F.R. § 10.622(c).

33

C.Y., supra note 24; M.V., Docket No. 17-1795 (issued March 1, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the September 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, China Lake, CA,
Employer
__________________________________________

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

Docket No. 15-306
Issued: April 15, 2015

Case Submitted on the Record

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

JURISDICTION
On November 24, 2014 appellant, through her attorney, filed a timely appeal from an
August 29, 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 appellant has met her burden of proof to establish that she sustained
plantar fasciitis, posterior tibial tendon dysfunction, and reflex sympathetic dystrophy (RSD) of
the lower extremities causally related to an August 26, 2010 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 16, 2010 appellant, then a 56-year-old resources assistant, filed a traumatic
injury claim alleging that on August 26, 2010 she injured her left knee, ankle, and foot when she
twisted her left knee and ankle as she fell onto pavement.2 OWCP accepted the claim for an old
bucket handle tear of the medial meniscus and left ankle sprain.
On May 13, 2011 Dr. Todd A. Anderson, a Board-certified orthopedic surgeon,
performed a partial medial and lateral menisectomy of the left knee and a limited chondroplasty
of the medial femoral condyle and patellofemoral joint. OWCP paid appellant compensation
from May 13 until June 13, 2011, when she returned to her usual employment.
In a report dated July 12, 2011, Dr. Scot L. Roberg, a podiatrist, evaluated appellant for
pain in her left foot. He discussed her history of a fall at work on August 26, 2010 resulting in
injuries to her left leg and body and surgery on her knee. Dr. Roberg also noted that appellant
had a “history of [RSD] to her upper body and upper leg secondary to carpal tunnel, cubital
tunnel and [a] knee arthroscopy in 1990, 1991, [and] 1998.” He diagnosed posterior tibial
tendon dysfunction and tendinitis, left ankle sprain, left plantar fasciitis, and a left midfoot sprain
or arthritis. Dr. Roberg found that appellant’s symptoms were likely caused by twisting when
she “injured the posterior tibial tendon while spraining the ankle….” He further attributed her
plantar fascial symptoms to an antalgic gait and a low foot arch. Dr. Roberg recommended
orthotics.
Dr. Roberg provided progress reports from July 26, 2011 through March 16, 2012
describing his treatment of appellant for plantar fasciitis, posterior tibial tendon dysfunction, left
ankle sprain, and a possible midfoot sprain or arthritis.
Magnetic resonance imaging (MRI) scan studies of the left ankle performed October 15,
2011 and May 5, 2012 showed subcutaneous soft tissue swelling. The May 5, 2012 MRI scan
study also showed either a ganglion cyst or tenosynovitis at the anterior tibial tendon, and a
ganglion cyst in the navicular bone.
In a progress report dated June 15, 2012, Dr. Roberg diagnosed possible venous stasis
disease, and noted that such a condition would not be covered under workers’ compensation. In
an October 5, 2012 progress report, he evaluated appellant for swelling of both legs and pain in
the right foot. Dr. Roberg diagnosed left plantar fasciitis, left posterior tibial tendon dysfunction
and tendinitis, possible Lisfranc joint arthritis on the left, and compensation myositis of the right
foot. He recommended steroids and noted that appellant had stage III kidney disease. On
November 19, 2012 Dr. Roberg evaluated her for increased right foot pain. In a progress report
dated December 14, 2012, he requested a bone scan. A bone scan performed March 5, 2013,
revealed findings “consistent with active [RSD] of both the right and left ankles.”

2

Appellant related that she began to fall on pavement outside of the employing establishment’s building. In a
statement received November 22, 2010, she related that she was on the property of the employment establishment
outside the door of her building.

2

On June 18, 2013 Dr. Roberg related that in his July 12, 2011 examination of appellant
he found “multiple diagnoses which accounted for her pain that had been untreated. These
included posterior tendinitis, plantar fasciitis, along with lateral ankle sprain, which was
unresolved.” He indicated that her plantar fasciitis improved with treatment but that the
“reduction in this pain elicited previously undiscovered mid-foot arthritis.” Dr. Roberg noted
that a bone scan showed bilateral RSD of the ankles. He opined that appellant’s ankle injury
likely precipitated her RSD. Dr. Roberg determined that the diagnoses of left ankle sprain, left
plantar fasciitis, and RSD of the lower extremities “should be included in [appellant’s] approved
diagnoses as a direct or indirect result of her injury on August 26, 2010.”
On August 12, 2013 OWCP advised appellant that she should provide a written request
for claim expansion if she believed that she sustained additional conditions due to her work
injury. It further requested that she submit a reasoned medical report from her attending
physician explaining the relationship between these conditions and her accepted work injury.
In a letter dated December 12, 2013, OWCP noted that it appeared that appellant was
claiming plantar fasciitis, RSD, and posterior tibial tendon dysfunction as a consequential injury
and also alleging a recurrence of disability.3 It advised her that the medical evidence from
Dr. Roberg was insufficient to meet her burden of proof and requested that she submit a reasoned
report addressing causation.
On January 31, 2014 OWCP informed Dr. Roberg that it had accepted only an old bucket
handle left medial meniscus tear and left ankle sprain due to appellant’s August 26, 2010 work
injury. It noted that appellant had sustained a left ankle sprain in 2009 and a right knee
contusion, left ankle strain, a chest contusion, and left wrist sprain in 2004 under other OWCP
file numbers. OWCP requested that Dr. Roberg submit a report based on a complete medical
history explaining the relationship between any diagnosed conditions and the August 26, 2010
employment incident.
On February 14, 2014 appellant’s attorney requested claim expansion. He submitted a
November 7, 2013 report from Dr. Roberg in support of his request. Dr. Roberg related that
appellant continued to have left foot pain and pain on the inside of her ankle. He diagnosed
posterior tibial tendon dysfunction and likely RSD.
By decision dated February 24, 2014, OWCP denied appellant’s request to expand her
claim to include RSD, plantar fasciitis, and posterior tibial tendon dysfunction. It found that the
medical evidence was insufficient to establish that she sustained additional conditions as a result
of her accepted August 26, 2010 work injury.
In a statement dated February 14, 2014, received by OWCP on February 26, 2014,
appellant related that she periodically experienced pain and swelling of the left ankle and foot.
She asserted that she did not sprain her ankle on August 26, 2010 but instead sustained posterior
tibial dysfunction, plantar fasciitis, and RSD.

3

By decision dated December 12, 2013, OWCP denied appellant’s schedule award claim after finding that she
had not reached maximum medical improvement.

3

On February 28, 2014 appellant, through counsel, requested a telephone hearing before
an OWCP hearing representative. At the telephone hearing, held on July 21, 2014, she related
that she continued to experience RSD bilaterally. Appellant indicated that she had a prior history
of RSD in the upper extremities but not the feet.4 The hearing representative asked that she
submit a comprehensive report addressing whether her RSD was related to her accepted work
injury.
By decision dated August 29, 2014, an OWCP hearing representative affirmed the
February 24, 2014 decision.5 He determined that Dr. Roberg’s opinion was speculative and
unrationalized and thus insufficient to meet appellant’s burden of proof.
On appeal appellant’s counsel contends that the word “likely” is not speculative.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 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 FECA; that the claim was filed within the applicable time
limitation of FECA; that an injury was sustained while in the performance of duty as alleged; and
that any disability and/or specific condition, for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the claimant,9 must be
one of reasonable medical certainty10 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.11

4

In a report dated March 1, 2002, Dr. Al Katouzian, a Board-certified anesthesiologist, related that appellant had
a history of complex regional pain syndrome, (CRPS) Type I, of the bilateral upper and lower extremities. He
diagnosed CRPS, Type 1, or RSD, of the upper and lower extremities.
5

The hearing representative indicated that he was affirming a March 5, 2013 decision; however, it is apparent
from the context that this is a typographical error.
6

Supra note 1.

7

Calvin E. King, 51 ECAB 394 (2000); Caroline Thomas, 51 ECAB 451 (2000).

8

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

9

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

10

Supra note 8.

11

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

4

ANALYSIS
OWCP accepted that on August 26, 2010 appellant sustained a left ankle sprain and a
bucket handle tear of the left medial meniscus. It paid her compensation from May 13 until
June 13, 2011, when she returned to work without restrictions.
On February 14, 2014 appellant’s counsel requested that her claim be expanded to
include additional conditions of the left foot and ankle based on the reports of Dr. Roberg. The
Board finds, however, that the medical evidence is insufficient to support that she sustained
additional medical conditions as a result of her accepted August 26, 2010 employment injury.
On July 12, 2011 Dr. Roberg discussed appellant’s history of injuring her left leg and
side of body on August 26, 2010 and her prior history of RSD of the upper extremity and upper
leg due to prior surgeries in 1990, 1991, and 1998. He diagnosed posterior tibial tendon
dysfunction and tendinitis, left ankle sprain, left plantar fasciitis, and a left midfoot sprain or
arthritis. Dr. Roberg opined that appellant’s current condition likely resulted from a twisting
injury to the posterior tibial tendon when she sprained her ankle. He further attributed the
plantar fasciitis to a gait change and low foot arch.
Dr. Roberg’s opinion that appellant
sustained posterior tendinitis and dysfunction “likely” due to twisting her ankle is couched in
speculative terms and thus of diminished probative value.12 Further, he did not provide any
rationale for his causation finding. A mere conclusion without the necessary rationale explaining
how and why the physician believes that a claimant’s accepted exposure could result in a
diagnosed condition is not sufficient to meet a claimant’s burden of proof.13 Dr. Roberg also
attributed the diagnosed left plantar fasciitis to a gait change after her ankle sprain and a low foot
arch. He did not, however, provide any rationale for his opinion that she sustained left plantar
fasciitis as a consequence of her work injury and thus it is of little probative value.14
In progress reports dated July 26, 2011 to March 16, 2012, Dr. Roberg treated appellant
for plantar fasciitis, posterior tibial tendon dysfunction, left ankle sprain, and a possible midfoot
sprain or arthritis. On June 15, 2012 Dr. Roberg diagnosed possible venous stasis disease, and
noted that such a condition would not be covered under workers’ compensation. In a progress
report dated October 5, 2012 he noted that appellant had bilateral pain and swelling of the legs
and right foot pain. Dr. Roberg diagnosed left plantar fasciitis, left posterior tibial tendon
dysfunction and tendinitis, possible Lisfranc joint arthritis on the left, and compensation myositis
of the right foot. He also noted that appellant had stage III kidney disease. On November 19,
2012 Dr. Roberg evaluated her for increased right foot pain. In his progress reports, however, he
did not address causation. Medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship.15

12

Id.

13

See Beverly A. Spencer, 55 ECAB 501 (2004).

14

See V.G., Docket No. 13-1462 (issued November 26, 2013); C.S., Docket No. 12-1573 (issued April 2, 2013).

15

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

5

In a report dated June 8, 2013, Dr. Roberg advised that he had found additional diagnoses
causing appellant’s symptoms of pain at the time of his June 12, 2011 evaluation, including
plantar fasciitis, unresolved ankle sprain, and posterior tendinitis. He noted that a bone scan
showed RSD of the ankles bilaterally. Dr. Roberg opined that appellant’s ankle sprain was
“likely” the precipitating cause of her RSD and determined that she sustained a left ankle sprain,
left plantar fasciitis, and RSD of the lower extremities as a result of her August 26, 2010 work
injury. His finding that her ankle sprain “likely” caused RSD is speculative in nature and thus
insufficient to meet her burden of proof.16 Further, Dr. Roberg did not provide rationale in
support of his causation finding to explain how the sprain could have precipitated the diagnosed
conditions. Where appellant claims that a condition not accepted or approved by OWCP was
due to her employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury through the submission of rationalized medical
evidence.17 Such rationale is particularly necessary given that Dr. Roberg found a preexisting
history of RSD in the upper leg in his June 12, 2011 report and as appellant has evidence of RSD
bilaterally rather than only on the injured side.
In a progress report dated November 7, 2013, Dr. Roberg listed findings on examination
and diagnosed dysfunction of the posterior tibial tendon and likely RSD. He did not, however,
address causation and thus his report is of little probative value on the issue of causal
relationship.18
On appeal appellant’s counsel argues that “likely” is not speculative. The Board has
held, however, that while the opinion of a physician supporting causal relationship need not be
one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion
must be expressed in terms of a reasonable degree of medical certainty.19 Dr. Roberg’s finding
that appellant’s ankle sprain “likely” caused her RSD and other left foot and ankle conditions is
equivocal in nature and thus of diminished probative value20 especially in light of the lack of any
medical rationale for such a conclusory statement.
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.

16

See Ricky E. Storms, 52 ECAB 349 (2001).

17

See Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

18

See A.D., 58 ECAB 149 (2006).

19

See G.J., Docket No. 14-907 (issued November 10, 2014); Caroline Thomas, supra note 7.

20

B.S., Docket No. 15-2 (issued February 27, 2015); Cecilia M. Corley, 56 ECAB 662 (finding that medical
opinions which are speculative or equivocal are of diminished probative value).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof that she sustained plantar
fasciitis, posterior tibial tendon dysfunction, and RSD of the lower extremities causally related to
an August 26, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2015
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0499
Issued: June 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 21, 2016 appellant filed a timely appeal from a November 2, 2015 merit
decision and a December 17, 2015 nonmerit 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.2
ISSUES
The issues are: (1) whether appellant met her burden in establishing permanent
impairment for schedule award purposes due to the accepted left ankle sprain; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the, merits pursuant to
5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its December 17, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 26, 2014 appellant, then a 56-year-old mail carrier, sustained a traumatic
injury in the performance of duty when, as part of her job, she walked on a swollen and painful
foot. She indicated that she had a prior condition and that she was required to work beyond her
work restrictions. OWCP accepted the claim of left ankle sprain. Appellant stopped work that
day and returned to work on March 3, 2014 in a limited-duty position.
Initial medical reports assessed left foot sprain and indicated that appellant had a history
of foot tendinitis and tendinosis. A February 26, 2014 left foot x-ray revealed no acute osseous
abnormality and mild mid-foot degenerative changes.
On June 19, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated June 23, 2015, OWCP advised of the type of evidence needed to establish
entitlement to a schedule award. It particularly requested that appellant provide a physician’s
opinion addressing permanent impairment pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).
By decision dated August 20, 2015, OWCP denied appellant’s request for a schedule
award because no medical evidence or rating examination report was received.
Appellant requested reconsideration on September 3, 2015. In support of the request, she
submitted an August 12, 2015 report from Dr. Timothy Borman, a Board-certified osteopath
specializing in orthopedic surgery, who advised that she complained of left ankle pain.
Dr. Borman noted that appellant had an onset of left ankle pain in 2013 with no particular injury.
He indicated that on February 26, 2014 appellant’s supervisor required her to walk 45 minutes at
a time despite the fact that her work restrictions for an earlier accepted right foot condition
limited her walking to 15 minutes. Dr. Borman detailed appellant’s treatment history and noted
that she had preexisting degenerative arthritis in the mid foot and forefoot. Examination of the
left foot revealed no loss of strength, no ankyloses, no sensory changes, swelling of the lateral
aspect of the left mid foot, and reduced range of motion. Dr. Borman opined that appellant’s
only measurable impairment was limited range of motion and attributed this to her preexisting
degenerative conditions of the left foot and ankle.
On October 14, 2015 OWCP forwarded a copy of the medical record and a statement of
accepted facts to an OWCP medical adviser for an opinion as to appellant’s entitlement to a
schedule award. In an October 20, 2015 report, the medical adviser opined that she did not have
left foot impairment in accordance with the sixth edition of the A.M.A., Guides. He noted that
there were no significant objective abnormal findings of muscle or tendon injury at the date of
maximum medical improvement; therefore, using Table 16-2 page 501 of the A.M.A., Guides,
Foot and Ankle Regional Grid, appellant did not have a ratable impairment.
By decision dated November 2, 2015, OWCP denied modification of its prior decision as
medical evidence was insufficient to establish left foot impairment related to the accepted
condition.
Appellant requested reconsideration on December 6, 2015. No evidence or argument
accompanied her request.
2

By decision dated December 17, 2015, OWCP denied appellant’s request for
reconsideration without a merit review.
On appeal, appellant argued that she followed the proper procedure and that she mailed
an impairment rating to OWCP on December 5, 2015.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified sixth edition of the
A.M.A., Guides.5
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.7
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet her burden of proof to establish impairment
of her left lower extremity for schedule award purposes. OWCP accepted the claim for left ankle
sprain. Appellant claimed a schedule award and submitted an impairment rating from
Dr. Borman.
In his August 12, 2015 report, Dr. Borman, detailed appellant’s treatment history and
noted that she had preexisting degenerative arthritis in the mid foot and forefoot. Examination of
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
6

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

7

Supra note 5 at Chapter 2.808.6(f) (February 2013).

3

the left foot revealed no loss of strength, no ankyloses, no sensory changes, swelling of the
lateral aspect of the left mid foot, and reduced range of motion. Dr. Borman opined that
appellant’s only measurable impairment was limited range of motion and attributed this to her
preexisting degenerative conditions of the left foot and ankle. As this report indicated that her
impairment was not due to the accepted left ankle sprain, it is not sufficient to establish that she
was entitled to a schedule award.8
Consistent with its procedures,9 OWCP properly referred the matter to an OWCP medical
adviser for an opinion regarding appellant’s permanent impairment in accordance with the sixth
edition of the A.M.A., Guides. In an October 20, 2015 report, the medical adviser opined that
she did not have left foot impairment in accordance with the sixth edition of the A.M.A., Guides.
He noted that there were no significant objective abnormal findings of muscle or tendon injury at
the date of maximum medical improvement. The medical adviser opined that appellant did not
have a ratable impairment under Table 16-2, page 501, the sixth edition of the A.M.A., Guides.
The Board finds that appellant failed to submit medical evidence establishing left lower
extremity impairment warranting a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA, the
evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied
or interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.10 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received within one year of the
date of that decision.11 When a claimant fails to meet one of the above standards, OWCP will
deny the application for reconsideration without reopening the case for review on the merits.12
ANALYSIS -- ISSUE 2
In a November 2, 2015 decision, OWCP failed to modify its prior decision finding that
appellant did not establish permanent impairment related to the accepted left foot sprain.

8

See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).
9

Id.

10

20 C.F.R. § 10.606(b)(3).

11

Id. at § 10.607(a).

12

Id. at § 10.608(b).

4

Appellant submitted a timely request for reconsideration on December 6, 2015, which was
denied without a merit review.
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. The underlying issue in this case is whether appellant established
that the accepted left ankle sprain resulted in permanent impairment of the left foot. This is a
medical issue. Appellant failed to submit any relevant and pertinent new evidence in support of
her reconsideration request.
Furthermore, appellant neither showed that OWCP erroneously applied or interpreted a
specific point of law nor advanced a relevant legal argument not previously considered by
OWCP. Because she failed to meet one of the standards enumerated under section 8128(a) of
FECA, she was not entitled to further merit review of her claim.
CONCLUSION
The Board finds that OWCP properly found that appellant failed to meet her burden of
proof in establishing permanent impairment due to the accepted sprained left ankle and that
OWCP properly refused to reopen appellant’s case for further review of the merits pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 17 and November 2, 2015 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 28, 2016
Washington, DC

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

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

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

5