United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 11-432
Issued: September 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from an August 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim and an October 22, 2010 nonmerit decision denying his request for reconsideration.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a left knee injury in the performance of duty on February 22, 2010; and (2) whether
OWCP properly denied his request for further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 23, 2010 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 22, 2010 he sustained a left knee injury when he
1

5 U.S.C. § 8101 et seq.

was walking on his route. His knee became progressively sore such that he could not walk by
the end of the day. Appellant notified his supervisor on June 23, 2010. The employing
establishment controverted the claim because it was not filed within 30 days of the date of injury.
By letter dated June 29, 2010, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In a February 23, 2010 report, Nancy Murphy, a nurse practitioner (NP), noted that
appellant complained of left knee pain and recommended that he perform sit down tasks at work.
By decision dated August 9, 2010, OWCP denied appellant’s claim on the grounds that
the evidence was insufficient to establish that he sustained an injury.
On August 20, 2010 appellant requested reconsideration of OWCP’s decision. He stated
that he did not file a Form CA-1 earlier because his supervisor at the time was inexperienced and
did not inform him of his right to fill one out. Appellant informed his supervisor of his injury on
February 23, 2010 and sought treatment that same date. A week later, appellant had shoulder
surgery which placed him on leave for two and a half months.
In a February 23, 2010 report, Nurse Murphy noted appellant’s complaint of left knee
pain on February 22, 2010 while delivering mail, which was aggravated by walking. She
diagnosed left knee pain without instability and found no acute injury with the etiology
unknown.
In a March 17, 2010 report, Dr. Timothy S. Mologne, Board-certified in orthopedic
surgery, stated that appellant complained of left knee pain starting half way through his route on
February 22, 2010. Appellant’s symptoms improved when he did not walk but returned when he
walked his route on March 1, 2010. Dr. Mologne noted that appellant had been on light duty for
a recent shoulder surgery and had not experienced any knee pain. He also noted that years ago
appellant had suffered an injury which required placement of rods in his tibia and femur.
Dr. Mologne had no records for that injury. Following a physical examination and review of xray, he reported a history of a traumatic left knee pain one month earlier but that appellant’s
examination was normal and without any pathologic diagnosis.
By letter dated September 14, 2010, Dean Krueger, a postal service customer service
manager, reported that appellant sustained an injury to his left knee on February 22, 2010 which
he reported to his supervisor on February 23, 2010, who then issued him an occupational disease
form (CA-2). Appellant sought medical attention on February 23, 2010 and continued to work
until March 1, 2010. He was absent from work from March 2 to May 13, 2010 for a nonworkrelated shoulder surgery. On June 23, 2010 Mr. Krueger informed appellant that he should file a
Form CA-1 for his alleged traumatic injury. He further stated that appellant’s injury on
February 22, 2010 was consistent with his comments and did not warrant further investigation or
consideration for controversion.

2

By decision dated October 22, 2010, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and
relevant evidence establishing fact of injury.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 The rationalized opinion of a physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.7

2

The Board notes that appellant submitted additional evidence after OWCP rendered its October 22, 2010
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

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The term physician is defined under section 8101(2) and nurses are not physicians under
FECA; therefore, their opinions do not constitute probative medical evidence.8
ANALYSIS -- ISSUE 1
OWCP accepted that the February 22, 2010 incident occurred as alleged. The issue is
whether appellant submitted sufficient medical evidence to establish that the employment
incident caused a left knee injury. The Board finds that he did not submit sufficient medical
evidence to support that he sustained an injury causally related to the February 22, 2010
employment incident.9 The medical evidence is deficient on two grounds: first, it fails to
provide a firm diagnosis; and second, there is no narrative opinion on causal relationship
between a diagnosed condition and the employment incident.
In a February 23, 2010 report, Nurse Murphy noted that appellant complained of left knee
pain and recommended he perform sit down tasks when at work. This medical evidence is
insufficient to establish a left knee condition causally related to the February 22, 2010
employment incident. Registered nurses, licensed practical nurses and physicians’ assistants,
they are not physicians as defined under FECA, their opinions are of no probative value.10 The
report is of no probative medical value.
On appeal appellant contends that his delay in filing his claim was a result of being
incorrectly told to file a Form CA-2. This point is moot because OWCP accepted that the
February 22, 2010 incident occurred as alleged. The Board must decide whether the accepted
employment incident caused a clinical left knee condition. Appellant’s honest belief that work
caused his medical problem is not in question, but that belief, however sincerely held, does not
constitute the medical evidence necessary to establish causal relationship. In the instant case, the
record is without rationalized medical evidence establishing that his knee condition is causally
related to the February 22, 2010 employment incident. Appellant has failed to establish his
burden of proof.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.11 Appellant may submit additional evidence,
together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

8

5 U.S.C. § 8101(2). See Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996);
Barbara J. Williams, 40 ECAB 649 (1988).

9

See Robert Broome, 55 ECAB 339 (2004).

10

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.
11

20 C.F.R. § 501.2(c)(1).

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LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that 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.12 Section 10.608(b) of OWCP regulations
provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.13
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
In his August 20, 2010 narrative statement, appellant reported that he informed his
supervisor of his injury on February 23, 2010 and sought treatment that same date. By letter
dated September 14, 2010, Mr. Krueger, a postal service customer service manager, reported that
appellant sought medical attention on February 23, 2010, that appellant’s statements were
consistent and did not warrant further investigation or consideration for controversion from the
employing establishment. In a February 23, 2010 medical report, Nurse Murphy diagnosed
appellant with left knee pain. In a March 17, 2010 medical report, Dr. Mologne stated that
appellant complained of left knee pain which began on February 22, 2010. He reported that
appellant had a history of a traumatic left knee pain in February 2010 and that his examination
was normal and without any pathologic diagnosis.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his August 20, 2010 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Appellant’s argument was that his injury was employment related and he
delayed filing his claim because he was told to file the wrong form. The underlying issue in this
case is not a question of paperwork. Rather, the question is whether appellant’s injury was
causally related to the accepted February 22, 2010 employment incident. That is a medical issue
which must be addressed by relevant medical evidence.14
While the letter from Mr. Krueger and medical report from Nurse Murphy is new
evidence and has some connection to appellant’s employment, it is not relevant to the issue for
which OWCP denied appellant’s claim as it does not include a physician’s rationalized opinion
on the issue of whether there is a causal relationship between appellant’s alleged injury and the
February 22, 2010 incident. While Dr. Mologne’s March 17, 2010 medical report is new
12

D.K., 59 ECAB 141 (2007).

13

K.H., 59 ECAB 495 (2008).

14

See Bobbie F. Cowart, 55 ECAB 746 (2004).

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evidence from a qualified physician, the report does not provide a firm medical diagnosis. As
this report does not address the issue on which OWCP’s decision was based, namely, medical
evidence that establishes a diagnosis causally related to the February 22, 2010 employment
incident, it is not relevant. A claimant may be entitled to a merit review by submitting new and
relevant evidence, but appellant did not submit any relevant medical evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a left knee injury on February 22, 2010 in the performance of duty. OWCP properly
denied his request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated October 22 and August 9, 2010 are affirmed.
Issued: September 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lawrenceville, GA, Employer
__________________________________________

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

Docket No. 19-1813
Issued: April 14, 2020

Case Submitted on the Record

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

JURISDICTION
On August 28, 2019 appellant, through counsel, filed a timely appeal from a May 23, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability during
the period June 26 through August 31, 2018, causally related to her accepted July 7, 2016
employment injury.
FACTUAL HISTORY
On July 7, 2016 appellant, then a 61-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained a thumb injury when the contents of a package
shifted and jammed her thumb while in the performance of duty. On the reverse side of the claim
form, the employing establishment indicated that she did not stop work.
On September 14, 2016 OWCP accepted appellant’s claim for sprain of the interphalangeal
joint of the right thumb. On November 1, 2016 appellant underwent authorized carpometacarpal
arthroplasty with tendon transfer and reconstruction of the first metacarpocarpal (MCP) joint of
the right hand, which was performed by Dr. Neil J. Negrin, an attending Board-certified orthopedic
surgeon.3
Appellant returned to full-time modified-duty work on January 23, 2017.
OWCP subsequently received additional medical evidence from Dr. Negrin. In a May 15,
2018 letter, a May 21, 2018 follow-up visit note, and a May 21, 2018 duty status report (Form
CA-17), Dr. Negrin indicated that when appellant returned to work following a two-to-three-week
vacation, her work activities caused recurrent discomfort. He advised that she had reached
maximum medical improvement (MMI). Additionally, Dr. Negrin noted that appellant had
permanent restrictions which included no lifting, pushing, or pulling more than five pounds, and
no repetitive work. He discharged her from his care.
In July 2018 appellant filed wage-loss compensation claims (Form CA-7) seeking
compensation for leave without pay (LWOP) from June 26 through July 6 and July 9
through 20, 2018. No medical evidence accompanied her claims.
On July 19, 2018 the employing establishment offered appellant a full-time modified rural
carrier position based on the work restrictions set forth by Dr. Negrin. The duties of the position
involved bin verification, issuing scanners weighing less than five pounds, scanning labels for
inbound/outbound dispatch, and printing assigned mail transport equipment placards. The
physical requirements of the mostly sedentary position included sitting and standing as needed,
using handheld scanners weighing less than five pounds, and no lifting, pulling, or pushing more
than five pounds, and no simple grasping and fine manipulation. Appellant did not perform the
offered job.

3

The Board notes that, it appears Dr. Negrin inadvertently indicated in his November 1, 2016 operative report, that
he performed arthroplasty surgery on the first MCP joint on appellant’s left hand rather than her right hand as the
remainder of his reports only referenced her right thumb conditions.

2

OWCP, in an August 3, 2018 development letter, requested that appellant submit medical
evidence to establish that she was unable to perform the offered light-/limited-duty assignment
during the periods June 26 through July 6, 2018 and July 9 through 20, 2018. It afforded her 30
days to submit the necessary evidence. No additional evidence was received.
In an August 6, 2018 letter, the employing establishment informed OWCP that appellant
had rejected its July 19, 2018 job offer asserting that medical documentation placed her off work
permanently and that she did not have transportation to the duty location. It countered that the
position was well within her restrictions and less than 50 miles from her duty station. The
employing establishment contended that appellant returned to her physician to change her
restrictions to avoid performing the duties of the offered position. It requested that OWCP
determine the suitability of the offered employment position.
The employing establishment submitted an August 1, 2018 attending physician’s report
(Form CA-20) from Dr. Negrin who diagnosed a fractured right thumb and opined that the
diagnosed condition was directly caused by the accepted July 7, 2016 employment incident.
Dr. Negrin noted that appellant was totally disabled from work from October 20, 2016 through
April 10, 2017. He further noted that she was partially disabled from work commencing April 10,
2017 and that she could return to light-duty work on that same date with permanent restrictions of
no lifting more than five pounds, pushing or pulling, and no grasping or use of a handheld scanner.
In August and September 2018, appellant filed several additional Form CA-7 claims for
compensation for LWOP from July 23 through August 3, August 6 through 17, and August 20
through 31, 2018. Again, she did not submit any medical evidence along with her claims.
In an undated letter and note, appellant advised OWCP that she was unable to perform the
offered position given swelling in her hands, pain shooting up her arm, and inflammation caused
by her work injury. She noted that she had filed for retirement.
By decision dated October 5, 2018, OWCP denied appellant’s claims for compensation for
the periods June 26 through July 6 and July 9 through 20, 2018. It noted that she had not responded
to its August 3, 2018 development letter.
On October 22, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP, in development letters dated November 9, 2018, requested that appellant submit
medical evidence to establish that she was unable to perform the offered light-/limited- duty
assignment during the periods August 6 through 17 and August 20 through 31, 2018. It afforded
her 30 days to submit the necessary evidence. No additional evidence was submitted.
OWCP thereafter received an additional follow-up visit note dated December 3, 2018 from
Dr. Negrin where he reported that appellant had apparently retired or used sick leave as she was
unable to perform duties that exceeded her restrictions. He discussed findings on physical
examination and noted that she should continue her restrictions of lifting, pushing, and pulling no
more than five pounds.

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By decision dated December 12, 2018, OWCP denied appellant’s claims for LWOP
compensation for the periods August 6 through 17 and August 20 through 31, 2018. It noted that
she had not responded to its November 9, 2018 development letters.
On December 21, 2018 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative, which was held on March 19, 2019.
By decision dated May 23, 2019, an OWCP hearing representative affirmed the October 5
and December 18, 2018 decisions.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.4 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.5
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.6 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.7
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.8 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.9

4

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
5

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

6
Id. at § 10.5(f); see e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB
397 (1999).
7

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

8

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

9
C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish intermittent
disability during the period June 26 through August 31, 2018, causally related to her accepted
July 7, 2016 employment injury.
In support of her claims for compensation, appellant submitted reports from Dr. Negrin
who determined that she reached MMI and provided permanent work restrictions. However, he
did not provide an opinion on whether appellant was disabled from work during the claimed period
due to her accepted employment condition. Accordingly, Dr. Negrin’s reports are of no probative
value and are insufficient to establish appellant’s claim for compensation. 10
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury.11 Because appellant has not submitted rationalized medical opinion evidence
to establish employment-related intermittent total disability during the period June 26 through
August 31, 2018 as a result of her accepted right thumb condition, the Board finds that she has not
met her burden of proof to establish her claim for disability compensation.
On appeal counsel contends that OWCP’s May 23, 2019 decision is contrary to fact and
law. He has not, however, provided any evidence to support his argument. As explained above,
appellant has not submitted rationalized medical evidence to establish causal relationship between
her claimed disability and the accepted July 7, 2016 employment injury. As such, she has not met
her burden of proof.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish intermittent
disability during the period June 26 through August 31, 2018, causally related to her accepted
July 7, 2016 employment injury.

10

See M.J., Docket No. 19-1287 (issued January 13, 2020); M.M., Docket No. 18-0817 (issued May 17, 2019);
M.C., Docket No. 16-1238 (issued January 26, 2017).
11

Supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 14, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1047
Issued: December 29, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION

On April 10, 2015 appellant, through his representative, filed a timely appeal of a
January 28, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1
The claim was docketed as No. 15-1047.
On November 8, 2011 appellant, then a 53-year-old welder, filed an occupational disease
claim (Form CA-2) alleging that he developed left shoulder tendinopathy, impingement
syndrome, and partial rotator cuff tear. OWCP accepted his claim for left shoulder rotator cuff
tear on January 6, 2012.
Appellant underwent left shoulder arthroscopic repair on
March 7, 2012. OWCP entered appellant on the periodic rolls on April 10, 2012.
On October 16, 2012 and September 10, 2013 appellant completed EN1032 forms and
indicated that he had not worked within the past 15 months at the employing establishment. He
further indicated that he had not been self-employed or involved in any business enterprise
during the previous 15-month period covered by the forms. Appellant indicated that he had not
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 510.2(c) and 501.3.

performed any volunteer work for which any form of monetary or in-kind compensation was
received.
In a memorandum of digital versatile disc (DVD) review dated February 25, 2014,
OWCP indicated that it had received three DVDs as well as an investigative report from the
employing establishment’s criminal investigation service. These records included two DVDs of
a video interview with appellant by two investigators which lasted for almost two hours. There
was also a DVD of 986 records from appellant’s OWCP file.2
On April 10, 2014 OWCP made a preliminary determination that appellant had received
an overpayment of compensation in the amount of $64,519.57 for the period February 10, 2012
through August 21, 2013 as he had forfeited his right to compensation benefits for this period.
Counsel requested a prerecoupment hearing before OWCP’s Branch of Hearings and Review and
a copy of all the investigative reports.
By decision dated January 28, 2015, OWCP hearing representative affirmed the findings
of forfeiture and overpayment in the amount of $64,519.57 for the period February 10, 2012
through September 10, 2013 as appellant knowingly failed to report employment earnings and
activities on his EN1032 forms. She stated that she had reviewed the November 15, 2013 DVD
interview of appellant and found that during this interview appellant admitted to volunteering
during the period covered by his EN1032 forms.
The Board has duly considered the matter and finds that the case is not in posture for
decision. Upon review of the case record submitted by OWCP, the Board finds that the record is
incomplete because the DVDs containing appellant’s interview with investigators are not in the
record. OWCP hearing representative relied on these DVDs in reaching the decision that
appellant had an overpayment of compensation because he had forfeited his right to
compensation. The Board finds that the case is not in posture for a decision as the record before
the Board is incomplete and would not permit an informed adjudication. The case must be
remanded to OWCP to furnish the DVD’s containing appellant’s interview and for further
reconstruction and assemblage deemed necessary, to be followed by an appropriate de novo
decision.

2

By decision dated March 13, 2014, OWCP found that appellant had forfeited his compensation benefits for the
period February 10, 2012 through September 21, 2013 on the basis that he “knowingly” failed to report employment
or earnings from Caring Place Adult Family Home LLC (Caring Place). It stated that this decision was based on
business documents and paperwork for Caring Place which listed appellant as a certified caregiver and staff
member. OWCP further stated that appellant stated on camera during an interview of November 15, 2013 that he
was the owner of the residential property for Caring Place and the he performed tasks including cleaning, preparing
meals, and repairs for six hours a day seven days a week. In a separate letter dated April 10, 2014, it stated that the
decision dated March 10, 2014 was issued prematurely and was set aside.

2

IT IS HEREBY ORDERED THAT the January 28, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: December 29, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
THREAT REDUCTION AGENCY,
KIRKLAND AIR FORCE BASE, NM, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-886
Issued: February 19, 2009

Case Submitted on the Record

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

JURISDICTION
On February 5, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 31, 2007 merit decision concerning her entitlement to
schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 15 percent permanent impairment of her right arm and a 23 percent permanent impairment of
her left arm, for which she received schedule awards.
FACTUAL HISTORY
In mid 1999 the Office accepted that appellant, then a 41-year-old administrative support
assistant, sustained bilateral carpal tunnel syndrome due to the repetitive duties of her job. On
January 4, 2000 appellant underwent left carpal tunnel release surgery which was authorized by

the Office.1 Her claim was later upgraded to include bilateral-lateral epicondylitis, bilateral
brachial plexus lesions, reflex sympathetic dystrophy, cervicalgia and disturbance of skin
sensation.2
Appellant claimed entitlement to schedule award compensation due to her accepted
injuries. In a December 18, 2001 decision, the Office granted appellant a schedule award for a
10 percent permanent impairment of her right arm and a 10 percent permanent impairment of her
left arm. The award ran for 62.4 weeks from June 7, 2001 to August 17, 2002.
In August 2006 appellant filed a claim alleging that she was entitled to additional
schedule award compensation. In order to seek clarification regarding this matter, the Office
referred appellant to Dr. Barrie Ross, a Board-certified physical medicine and rehabilitation
physician, for an opinion on this matter. On December 11, 2006 Dr. Ross detailed appellant’s
factual and medical history and stated that she complained of posterior headaches, pain in her
forearms and elbows and numbness in both wrists and all fingers of both hands. She reported the
findings of range of motion, motor strength and pain elicitation testing. Dr. Ross indicated that
in appellant’s right shoulder appellant had 160 degrees of flexion, 50 degrees of extension, 110
degrees of abduction, 40 degrees of adduction, 90 degrees of external rotation and 70 degrees of
external rotation which warranted a five percent impairment rating. In the left shoulder, she had
160 degrees of flexion, 50 degrees of extension, 120 degrees of abduction, 50 degrees of
adduction, 80 degrees of external rotation and 60 degrees of external rotation which warranted a
six percent impairment rating. Dr. Ross indicated that combining a 10 percent impairment rating
for a left distal clavicle resection with the 6 percent impairment rating for limited motion yielded
15 percent impairment for the left shoulder. She determined that appellant had a Grade 3
sensory loss of 26 percent for the right digits 1, 2 and 3 which multiplied by the 36 percent
maximum sensory loss for this sensory pattern yielded a 9 percent rating. Appellant had a Grade
4 motor loss of 10 percent in the right median nerve which multiplied by the 10 percent
maximum motor loss for the median nerve yielded a 1 percent rating. Dr. Ross combined these
values to equal 10 percent on the right. She determined that appellant had a Grade 3 sensory loss
of 26 percent for the left digits 1, 3 and 4 which multiplied by the 30 percent maximum sensory
loss for this sensory pattern yielded an 8 percent rating. Appellant had a Grade 4 motor loss of
10 percent in the left median nerve which multiplied by the 10 percent maximum motor loss for
the median nerve yielded a 1 percent rating. Dr. Ross combined these values to equal nine
percent on the left. She then combined the 10 and 5 percent ratings for the right arm to yield a
total permanent impairment of 15 percent in the right arm. Combining the 15 and 9 percent
ratings yielded a total permanent impairment of 15 percent in the left arm.
On December 26, 2006 Dr. Ronald Blum, a Board-certified orthopedic surgeon who
served as an Office medical adviser, stated that he had reviewed the findings of Dr. Ross.
He determined that, under the standards of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001), appellant had a 15 percent permanent
impairment of her right arm and a 23 percent permanent impairment of her left arm. Dr. Blum

1

Appellant also underwent a left distal clavicle resection.

2

It was also accepted that appellant sustained “other affections” of his right shoulder, not otherwise classified.

2

detailed Dr. Ross’ impairment calculations and indicated that he agreed with her method of
calculating appellant’s permanent impairment.
In a January 11, 2007 decision, the Office granted appellant additional schedule award
compensation for a 5 percent permanent impairment of her right arm and a 13 percent permanent
impairment of her left arm. The award ran for 56.16 weeks from January 21, 2007 to
February 18, 2008. It was designed to compensate appellant for her total impairment which was
comprised of a 15 percent permanent impairment of her right arm and a 23 percent permanent
impairment of her left arm.
On February 23, 2007 Dr. Thomas Whalen, an attending Board-certified internist,
asserted that Dr. Ross and Dr. Blum failed to consider the effect of the accepted conditions of
bilateral brachial plexus lesions or cervicalgia on appellant’s sensory loss ratings. Regarding the
calculation of her permanent impairment, he stated:
“RIGHT UPPER EXTREMITY: [Appellant] has a 60 percent impairment of the
upper extremity as a result of a sensory impairment due to brachial plexus injury
plus an 11 percent impairment of the upper extremity due to brachial plexus
motor impairment plus a 3 percent impairment of the upper extremity for median
nerve injury plus an 8 percent impairment due to right shoulder decreased range
of motion. Utilizing the ‘Combined Values Chart’ on page 604, 60 percent plus
11 percent plus 3 percent plus 8 percent is equivalent to 68 percent impairment of
the upper extremity. Utilizing Table 16-3 on page 439 ‘Conversion of
Impairment of the Upper Extremity to Impairment of the Whole Person,’ I find
that 68 percent upper extremity impairment corresponds to a 41 percent
impairment of the whole person.
“LEFT UPPER EXTREMITY: [Appellant] has a 60 percent impairment of the
upper extremity due to sensory impairment from her brachial plexus lesion plus
an 18 percent impairment of the left upper extremity due to motor weakness as a
result of her brachial plexus injury plus 10 percent impairment of the left upper
extremity due to her distal claviculectomy plus 6 percent impairment of the left
upper extremity as a result of her decreased shoulder range of motion. Utilizing
the ‘Combined Value Chart’ on page 604, 60 percent upper extremity impairment
plus 18 percent upper extremity impairment plus 10 percent upper extremity
impairment plus 6 percent upper extremity impairment corresponds to a 72
percent impairment of the upper extremity. Utilizing Table 16-3 on page 439 a 72
percent impairment of the left upper extremity is equivalent to a 43 percent
impairment of the whole person.
“As noted on prior impairment rating, [appellant] has developed sexual
dysfunction to which I had assigned a six percent impairment of the whole person.
“Utilizing ‘Combined Values Chart’ on page 604, 41 percent impairment of the
whole person for her right upper extremity, right brachial plexus injury plus 43
percent impairment of the whole person for her left upper extremity, left brachial

3

plexus injury plus 6 percent impairment for her sexual dysfunction is equivalent
to a 68 percent impairment of the whole person.”
Appellant requested a telephonic hearing before an Office hearing representative. At the
October 10, 2007 hearing, Gordon Reiselt, appellant’s attorney, argued that the February 23,
2007 report of Dr. Whalen showed that appellant had a much greater impairment than calculated
by Dr. Ross and Dr. Blum.
In a December 31, 2007 decision, the Office hearing representative affirmed the Office’s
January 11, 2007 decision finding that appellant did not meet her burden of proof to establish
that she has more than a 15 percent permanent impairment of her right arm and a 23 percent
permanent impairment of her left arm.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5 A schedule
award is not payable under section 8107 of the Act for an impairment of the whole person.6
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome, bilaterallateral epicondylitis, bilateral brachial plexus lesions, reflex sympathetic dystrophy, cervicalgia,
disturbance of skin sensation and other affections of her right shoulder, not otherwise classified.
Appellant received schedule awards for a 15 percent permanent impairment of her right arm and
a 23 percent permanent impairment of her left arm. In a December 31, 2007 decision, the Office
determined that appellant did not meet her burden of proof to establish that she has more than a
15 percent permanent impairment of her right arm and a 23 percent permanent impairment of her
left arm. It found that the impairment calculations of Dr. Ross, an attending Board-certified
physical medicine and rehabilitation physician, and Dr. Blum, a Board-certified orthopedic
surgeon who served as an Office medical adviser, showed that appellant was not entitled to a
higher rating.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

4

The Board finds that the impairment ratings of Dr. Ross and Dr. Blum do not show that
appellant has more than a 15 percent permanent impairment of her right arm or a 23 percent
permanent impairment of her left arm. Both Dr. Ross and Dr. Blum properly indicated that in
her right shoulder appellant had a one percent impairment due to 160 degrees of flexion, a three
percent impairment due to 110 degrees of abduction and a one percent impairment due to 70
degrees of external rotation which added up to a five percent impairment rating. In the left
shoulder, they correctly noted that she had a one percent impairment due to 160 degrees of
flexion, a three percent impairment due to 120 degrees of abduction and a two percent
impairment due to 60 degrees of external rotation which added up to a six percent impairment
rating.7 Dr. Ross and Dr. Blum correctly calculated appellant’s sensory and motor losses. They
determined that she had a Grade 3 sensory loss of 26 percent for the right digits 1, 2 and 3 which
multiplied by the 36 percent maximum sensory loss for this sensory pattern yielded a 9 percent
rating. Appellant had a Grade 4 motor loss of 10 percent in the right median nerve which
multiplied by the 10 percent maximum motor loss for the median nerve yielded a 1 percent
rating. Dr. Ross and Dr. Blum determined that appellant had a Grade 3 sensory loss of 26
percent for the left digits 1, 3 and 4 which multiplied by the 30 percent maximum sensory loss
for this sensory pattern yielded an 8 percent rating. Appellant had a Grade 4 motor loss of 10
percent in the left median nerve which multiplied by the 10 percent maximum motor loss for the
median nerve yielded a 1 percent rating.8 Dr. Ross and Dr. Blum properly combined these
sensory and motor losses using the Combined Values Chart.9
The record contains a February 23, 2007 report in which Dr. Whalen, an attending Boardcertified internist, determined that appellant’s permanent impairment was much greater than 15
percent in the right arm and a 23 percent in the left. Dr. Whalen’s higher rating was mostly due
to his assessment of appellant’s sensory and motor loss due to her brachial plexus injury. He
also included an impairment rating for sexual dysfunction. The Board finds that the opinion of
Dr. Whelan is of limited probative value in that Dr. Whelan failed to provide an explanation of
how his assessment of permanent impairment was derived in accordance with the standards
adopted by the Office and approved by the Board as appropriate for evaluating schedule losses.10
Dr. Whelan did not make reference to specific standards of the A.M.A., Guides to explain his

7

See A.M.A., Guides 476-79, Figures 16-40, 16-43 and 16-46. Dr. Ross and Dr. Blum indicated that combining a
10 percent impairment rating for a left distal clavicle resection with the 6 percent impairment rating for limited
motion yielded 15 percent impairment for the left shoulder. Under Table 17-2 of the A.M.A., Guides, it is
impermissible to combine such a diagnosis-based impairment rating with a range of motion rating. See A.M.A.,
Guides 526, Table 17-2.
8

See A.M.A., Guides 482, 484 and 492, Tables 16-10, 16-11 and 16-15.

9

See A.M.A., Guides 604, Combined Values Chart. As noted above, Dr. Ross and Dr. Blum improperly included a
diagnosis-based rating in their calculations. However, in no case did they make errors in their calculations which
showed that appellant was entitled to greater schedule award compensation.
10

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment). Dr. Whalen asserted that Dr. Ross
and Dr. Blum did not consider the conditions of brachial plexus lesion or cervicalgia. However, in their reports,
they acknowledged that these were accepted conditions.

5

impairment ratings. Moreover, it has not been accepted that appellant has an employment-rated
sexual dysfunction.11
For these reasons, appellant has not shown that she has more than a 15 percent permanent
impairment of her right arm or a 23 percent permanent impairment of her left arm.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a 15 percent permanent impairment of her right arm and a 23 percent permanent
impairment of her left arm, for which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 31, 2007 decision is affirmed.
Issued: February 19, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

Dr. Whalen also made reference to whole person impairments but the Act does not allow for whole person
impairments. See supra note 6 and accompanying text.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-106
Issued: March 12, 2007

Case Submitted on the Record

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

JURISDICTION
On October 17, 2006 appellant filed a timely appeal from the decisions of the Office of
Workers’ Compensation Programs dated February 16 and September 22, 2006 denying her claim
for benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury to her right index finger causally related to factors of her federal employment.
FACTUAL HISTORY
On November 21, 2005 appellant, then a 55-year-old visitor registration clerk, filed an
occupational disease claim alleging injury to her right index finger as a result of typing with two
fingers, writing and stapling in her federal employment. The employing establishment
controverted the claim. In support of her claim, she submitted a November 18, 2005 discharge
instruction sheet from the University of Pennsylvania Hospital. Appellant was instructed to wear

a right second finger splint at work. She was also seen on November 4, 2005 for a physical
therapy appointment and she submitted prescriptions from that date. In a November 25, 2005
note, appellant was instructed to do no pushing, pulling, lifting or tugging with her right hand
greater than three pounds.
In a December 21, 2005 report, Dr. Armando A. Mendez, a Board-certified orthopedic
surgeon, examined appellant. He noted that she worked as a clerk for the employing
establishment. Appellant related that, for the prior two months, she experienced some swelling
and pain over the dorsum of the hand, especially involving the metacarpophaleangeal area of the
right index finger. Dr. Mendez also noted that appellant had a mass on the finger. He noted that
appellant had recently been transferred from a job that required repetitive use of the right hand
and especially the right index finger by punching a keyboard. Dr. Mendez examined appellant
and noted that she had an area of swelling over the dorsum of the metacarpophalangeal joint on
the radial side consistent with possibly a small cyst, given the normal appearing x-ray.
On December 21, 2005 Dr. Robert B. Carrigan, a Board-certified orthopedic surgeon,
indicated that appellant had a mildly painful mass on the right finger. He noted appellant’s
employment with the employing establishment and that her complaint over the prior two months
of some swelling and pain over the dorsal aspect of her right metacarpophalangeal joint of the
index finger. Dr. Carrigan told appellant that, if the mass was bothering her, he would
recommend excision.
By letter dated January 11, 2006, the Office requested that appellant submit further
evidence. In response, appellant submitted physical therapy notes, a statement from Dr. David
Allan, a Board-certified internist, who noted that appellant had right index finger tenosynovitis
and illegible notes from her visit to the emergency room on November 25, 2005. Appellant also
submitted an x-ray report of December 12, 2005 that was interpreted as showing no evidence of
fracture or dislocation. Appellant stated that in October she noticed the lump on the knuckle of
her right index finger, with pain, and that she could not bend the finger. She was transferred on
December 7, 2005 to a new facility where she was not doing repetitive motions with her hand
and her finger had improved.
In a decision dated February 16, 2006, the Office denied appellant’s claim finding that
the medical evidence did not establish that her right index finger condition was causally related
to the established employment factors.
On February 28, 2006 appellant requested an oral hearing which was held on
July 11, 2006. In a decision dated September 22, 2006, the Office hearing representative
affirmed the February 16, 2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States” within the meaning of the Act, that the claim was
1

5 U.S.C. § 8101 et seq.

2

timely filed within the applicable time limitation period of the Act, that an injury was sustained
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.2 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.3
To establish that the injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
ANALYSIS
Appellant has the burden of establishing the essential elements of her claim.5 Appellant
has not provided evidence that her right index finger condition was caused or contributed to by
the employment duties she identified. None of the medical reports provide a rationalized
medical report relating appellant’s finger condition to her federal employment. Both Dr. Mendez
and Dr. Carrigan noted that appellant told them that she worked for the employing establishment.
However, neither physician addressed the causation of the swelling and pain in appellant’s right
index finger. Dr. Allan diagnosed appellant’s condition as right index finger tenosynovitis, but
he did not address the cause of this condition. The illegible emergency room notes do not
constitute probative medical evidence as the author cannot be readily identified as a physician.6
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
her belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.7 The medical evidence of record is not sufficient to
establish appellant’s claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury to her right index finger causally related to the duties of her federal
employment.
2

Joe D. Cameron, 41 ECAB 150 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Solomen Polen, 51 ECAB 441 (2000); see also Michael E. Smith, 50 ECAB 313 (1999).

5

Id.

6

See Merton J. Sills, 39 ECAB 572 (1988).

7

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 22 and February 16, 2006 are affirmed.
Issued: March 12, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________

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

Docket No. 08-169
Issued: December 16, 2008

Case Submitted on the Record

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation
Programs’
hearing
representative’s
overpayment
decision
dated
September 27, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $10,665.32 for the period February 17 through June 9, 2006 due to the receipt of dual
benefits from the Office and the Department of Veterans Affairs; and (2) whether the Office
properly found that appellant was at fault in the creation of the overpayment; thus precluding
waiver of recovery.

FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a February 15, 2008
decision, the Board found that the Office met its burden of proof to terminate appellant’s
compensation effective June 10, 2006 and that appellant did not establish that his refusal of
suitable work was justified. Appellant’s claim was accepted for lumbar strain, spondylolisthesis
and displacement of lumbar intervertebral disc without myelopathy. The Office also authorized
surgery for herniated nucleus pulposus at L5-S1 and spondylolisthesis on April 15, 2004. It also
accepted his claim for disorder of the bladder and neurogenic bladder. The facts and history
contained in the prior appeal are incorporated by reference.
Appellant completed a Form CA-7 for wage-loss compensation disability for the period
from April 14, 2004. He indicated that he was receiving benefits from the Department of
Veterans Affairs (VA) for a broken femur, short leg case and back pain in the amount of $618.00
per month.
The record reflects that appellant began receiving compensation for wage loss on
April 15, 2004 and was placed on the periodic rolls effective May 16, 2004. Appellant returned
to limited-duty work on September 29, 2004. On November 15, 2004 he filed a Form CA-7
advising that he was receiving $851.00 per month from the VA. Appellant filed subsequent
claims for disability for wage loss on April 11 and May 13, 2005. He was placed on the periodic
rolls effective April 18, 2005.
In a letter dated July 11, 2005, the Office requested that VA provide information
regarding the disability benefits that appellant was receiving for his military service.
By letter dated September 13, 2005, the Office informed appellant’s attorney that the VA
had not responded to a request for information about his service-connected disability. It advised
appellant’s representative that he should try to obtain the requested information. Appellant
provided an October 3, 2005 response indicating that he was receiving benefits from the VA for
service-connected leg and back conditions since 1987 and that his payments were increased in
May 2005 for service-connected disability and inability to work.
In a January 9, 2006 response, the VA indicated that appellant was receiving disability
benefits for a neurogenic bladder, condition of the skeletal system and impairment of the femur
in the amount of $2,830.00 per month effective December 1, 2005. The VA indicated that no
increase had been made in appellant’s monthly benefits as a result of the on-the-job injury.
By letters dated February 6, 2006, the Office informed appellant that prior to his workrelated disability he was receiving a service-connected disability award from the VA for
disability due to neurogenic bladder, sprain lumbar, displaced lumbar intervertebral disc,
acquired spondylolisthesis and other disorders of the bladder. It informed appellant that an
election between benefits was required between the entire amount under the Federal Employees’
Compensation Act and the entire amount of the VA award. The Office explained that the
election was between the amounts of the entitlement to compensation under the Act plus the
1

Docket No. 07-983 (issued February 15, 2008).

2

percentage of disability received prior to the work-related disability or for the total amount of
entitlement to the increased VA award. Appellant was entitled to receive $2,761.33 every four
weeks. He was also advised that he continued to be entitled to medical benefits for the effects of
his work-related injury.
Appellant elected to receive VA benefits effective February 16, 2006. He retired from
the employing establishment on March 10, 2006.
In an April 24, 2006 memorandum of telephone call, appellant contacted the Office to
stop his workers’ compensation because he was getting retirement benefits.
By letter dated February 9, 2007, the Office issued a preliminary finding that an
overpayment of $10,665.32 was created for the period February 17 through June 9, 2006 because
appellant received dual benefits from the VA and the Office at the same time. It found that he
was at fault in creating the overpayment because he knew or should have known that he was
accepting compensation to which he was not entitled. The Office advised that, if appellant
disagreed with the fact or amount of overpayment, he could submit supporting evidence or
arguments and request a prerecoupment hearing within 30 days. It provided an overpayment
calculation worksheet which showed the rate that appellant was paid for the period February 17
to June 9, 2006 based on a weekly pay rate of $849.64. Appellant received compensation of
$182.07 for February 17 to 18, 2006, $2,548.92 for February 19 to March 18, 2006, $2,638.00
for March 19 to April 15, 2006, $2,638.00 for April 16 to May 13, 2006 and $2,543.79 for
May 14 to June 9, 2006. This resulted in a total overpayment of $10,665.32.
On March 14, 2007 appellant requested a prerecoupment hearing, which was held on
July 11, 2007. He contested the fact of overpayment and that he was without fault. Appellant
contended that he did not know that he could not receive both VA benefits and workers’
compensation benefits. He alleged that he reported on his CA-7 form that his benefits had
increased. Appellant informed the Office on the telephone that he had elected to receive his VA
benefits. He included financial information which revealed that his monthly income was
$5,590.00 and his expenses were $4,953.00.
In an August 8, 2007 letter, Sharon Faust, an injury compensation specialist, stated that
appellant was originally notified in March 2005 that there might be an overpayment because he
was in receipt of dual benefits from the VA and the Office. She alleged that appellant was
copied with the request concerning dual benefits in March 2005. Ms. Faust noted that appellant
was not charged for the dual monies until he selected a choice of benefits.
By decision dated September 27, 2007, the Office hearing representative finalized the
preliminary determination, finding appellant at fault in creating the $10,665.32 overpayment of
compensation.2

2

The Office hearing representative determined that the overpayment should be recovered by requiring appellant
to pay $300.00 per month until the entire overpayment of $10,665.32 plus interest should be recovered. She noted
that appellant had excess monthly income of $637.00 per month.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Act defines the limitations on the right to receive compensation
benefits. This section of the Act provides in pertinent part as follows:
“(a) While an employee is receiving compensation under this subchapter, ... he
may not receive salary, pay or remuneration of any type from the United States
except -(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air Force;
(3) other benefits administered by the [VA] unless such benefits are
payable for the same injury or the same death....”3
Section 8116(b) provides that in such cases an employee shall elect which benefits he
shall receive.4 The Act prevents payment of dual benefits in cases where the Office has found
that the injury was sustained in civilian federal employment and the VA has held that the same
injury was caused by military service.5
The Office’s procedure manual discusses when payments of benefits under the Act and
under statutes administered by the VA constitute forbidden dual payments of compensation,
noting that the prohibition against receiving such payments includes an increase in a veterans’
service-connected disability award, where the increase is brought about by an injury sustained
while in civilian employment.6
ANALYSIS -- ISSUE 1
The evidence reflects that appellant’s claim was accepted for lumbar strain,
spondylolisthesis and displacement of lumbar intervertebral disc without myelopathy. The
Office also authorized surgery for herniated nucleus pulposus at L5-S1 and spondylolisthesis on
April 15, 2004. It also accepted the claim for disorder of the bladder and neurogenic bladder.
The record also reflects that appellant received benefits from the VA for a broken femur, short
leg case, back pain and neurogenic bladder. His VA benefits increased in 2005 after appellant
sustained the accepted employment injury. After appellant elected VA benefits effective,
February 16, 2006, he continued to receive payment from the VA and disability compensation
from the Office from February 17 to June 9, 2006. The Board notes that the conditions accepted
by the VA were also accepted by the Office. Because appellant concurrently received
3

5 U.S.C. § 8116(a).

4

5 U.S.C. § 8116(b).

5

Richard A. Cerasale, 56 ECAB 461, 464 (2005); Sinclair L. Taylor, 52 ECAB 227, 230 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.8(b)(1), (2)
(December 1997).

4

compensation for total disability and VA benefits during this period for the same injury, the
Board finds that he erroneously received dual benefits.
The Office worksheets showed the amount appellant received for the relevant period. He
received compensation payments of $182.07 for February 17 to 18, $2,548.92 from February 19
to March 18, $2,638.00 from March 19 to April 15, $2,638.00 from April 16 to May 13 and
$2,543.79 from May 14 to June 9, 2006, a total overpayment of $10,550.78. As appellant
elected to receive VA benefits on February 16, 2006 but continued to receive benefits from the
Office, an overpayment in this amount was created. The Board notes that the overpayment
equates to $10,550.78 instead of the $10,665.32 calculated by the Office.7 The Board will
affirm, as modified, the fact and the amount of the overpayment in this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act8 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.9 The Office may not waive the overpayment of compensation
unless appellant was without fault.10 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.11
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or
she knew or should have known to be material; or (3) accepted a payment which
he or she knew or should have known was incorrect.”12
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulation provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the

7

It appears to be a minor addition error with a difference of $114.54 in appellant’s favor.

8

5 U.S.C. § 8129(b).

9

Michael H. Wacks, 45 ECAB 791, 795 (1994).

10

Norman F. Bligh, 41 ECAB 230 (1989).

11

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

12

20 C.F.R. § 10.433(a).

5

complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”13
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. Thus, the issue is whether, at the time of acceptance of the compensation
payment, appellant knew or should have known that it was incorrect.
Appellant alleged that he was not at fault because he did not know that he could not
receive both VA benefits and workers’ compensation benefits. However, the Board finds that
appellant reported the increase in benefits to the Office by completing a Form CA-7 on several
occasions, including April and November 2004. Appellant also elected to receive VA benefits
effective February 6, 2006, after being advised by the Office that he must make an election
between his VA benefits and workers’ compensation benefits because he was not entitled to
receive dual benefits. The Board also notes that appellant demonstrated his awareness that he
was not entitled to receive dual benefits by contacting the Office on April 24, 2006 to advise that
he had retired on March 10, 2006 and wanted to stop his workers’ compensation benefits. The
evidence establishes that appellant reasonably should have known that he was accepting
payments beginning February 17, 2006 that were incorrect.
Consequently, the Board finds that appellant is at fault in the creation of the overpayment
under the third criterion noted above. To the extent that appellant is arguing that he notified the
Office and he should not be considered at fault, the fact that the Office may have been negligent
in issuing the continuing compensation checks does not mitigate this finding.14 As the evidence
establishes that he is at fault in the creation of the overpayment in compensation that occurred in
this case, the Board finds that he is not entitled to waiver of recovery of the overpayment.15 As
appellant is no longer receiving monetary compensation from the Office, the Board does not
have jurisdiction over recovery of the overpayment.16
CONCLUSION
The Board finds that appellant received an overpayment in compensation in the amount
of $10,550.78 during the period February 17 through June 9, 2006 due to the concurrent receipt
of VA benefits. The Board further finds that appellant was at fault in the creation of the
overpayment and, therefore, is ineligible for waiver of the overpayment.

13

Id. at § 10.433(b).

14

See 20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

15

Sinclair L. Taylor, 52 ECAB 227 (2001).

16

See D.R., 59 ECAB ___ (Docket No. 07-823, issued November 1, 2007) (with respect to the recovery of an
overpayment, the Board’s jurisdiction is limited to those cases where the Office seeks recovery from continuing
compensation benefits under the Act).

6

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: December 16, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. BORDER PATROL ACADEMY,
IMPERIAL BEACH STATION, San Diego, CA,
Employer
__________________________________________

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

Docket No. 11-586
Issued: October 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 10, 2011 appellant filed a timely appeal from a December 7, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule
award claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than eight percent total impairment of the left
upper extremity, for which he received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a June 2, 2011 decision, the Board
remanded the case to OWCP for further development regarding appellant’s pay rate for
compensation purposes.2 The findings and facts of the Board’s prior decision is incorporated
herein. The relevant facts are set forth.
On March 12, 2008 appellant, then a 35-year-old border patrol trainee injured his left
elbow during a training exercise. He stopped work and received continuation of pay. OWCP
accepted a closed fracture of the left radius head and left elbow closed dislocation. Appellant
underwent a left radial head replacement and repair of the left elbow lateral collateral ligaments
on March 25, 2008. He was released to modified duty with restrictions on April 9, 2008. On
September 11, 2008 appellant was terminated from his federal position as he was unable to
perform border patrol agent duties.
OWCP paid wage-loss compensation beginning
September 11, 2008. On September 15, 2009 appellant began private employment as an aircraft
mechanic/plane interior technician working eight hours a day, five days a week.
On January 16, 2010 appellant requested a schedule award. In a January 26, 2009 report,
Dr. Daniel B. Cullan, II, a Board-certified orthopedic surgeon, found appellant permanent and
stationary with restrictions of limited use of the left upper extremity and no lifting greater than
10 pounds. Under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), Dr. Cullan opined that
appellant had eight percent impairment of the left upper extremity based on range of motion
limitations and radial head implant/arthroplasty.
In an April 26, 2010 report, an OWCP medical adviser opined that appellant reached
maximum medical improvement on January 26, 2009. Utilizing Dr. Cullen’s findings, the
medical adviser opined that appellant had eight percent left upper extremity impairment based on
the sixth edition of the A.M.A., Guides. Under Table 15-4, page 400, the medical adviser stated
a class 1 radial head arthroplasty equaled eight percent impairment. Under Table 16-9, page 410,
she assigned a grade modifier one for clinical studies. Under Table 15-8, page 408, a grade
modifier one was assigned for physical examination. Under Table 15-7, page 406, a grade
modifier one was assigned for functional history. Utilizing the net adjustment formula, the
medical adviser found a modification factor of zero. Thus, she opined that appellant had eight
percent left upper extremity impairment. The medical adviser noted that the sixth edition of the
A.M.A., Guides excludes a diagnosed-based estimate and range of motion percentage in
calculating appellant’s impairment, upon which Dr. Cullen had based his determination.
On April 28, 2010 appellant filed another claim for schedule award compensation.
By decision dated May 12, 2010, OWCP awarded appellant eight percent impairment of
the left upper extremity. The period of the award ran from May 9 to October 30, 2010 for 24.96
weeks.

2

Docket No. 10-1855 (issued June 2, 2011).

2

In a May 24, 2010 letter, appellant, through his attorney, requested a telephonic hearing
before an OWCP hearing representative, which was held September 28, 2010. Appellant
testified why he believed he was entitled to an increased schedule award. No additional medical
evidence was received into the record.
By decision dated December 7, 2010, an OWCP hearing representative affirmed the
May 12, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.5 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
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 of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.10

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

6

Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

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

9

Id. at 521.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

ANALYSIS
OWCP accepted that appellant sustained a closed fracture of the left radius head and left
elbow closed dislocation and authorized left radial head replacement and repair of the left elbow
lateral collateral ligaments. He subsequently claimed a schedule award and submitted a
January 26, 2009 report from Dr. Cullan who opined that appellant had eight percent impairment
of the left upper extremity based on the fifth edition of the A.M.A., Guides. It is well established
that, when the examining physician does not provide an estimate of impairment conforming to
the proper edition of the A.M.A., Guides, OWCP may rely on the impairment rating provided by
a medical adviser.11
The sixth edition of the A.M.A., Guides provides that upper extremity impairments be
classified by diagnosis and then adjusted by grade modifiers according to the above-noted
formula. The medical adviser used Dr. Cullan’s findings and opined that appellant had eight
percent permanent impairment of the left upper extremity under the sixth edition of the A.M.A.,
Guides. The medical adviser determined that appellant was class 1 under Table 15-4, page 400
for radial head arthroplasty, which equaled eight percent impairment. She properly applied the
grade modifiers of one for clinical studies12; one for physical examination13 and one for
functional history.14 She applied the applicable formula to determine that appellant had a net
adjustment of zero.15 The medical adviser properly found that, as the default value was eight
percent and, as there was zero net adjustment, appellant had eight percent left arm impairment.
The medical adviser also properly noted that while appellant had loss of range of motion
findings, an impairment due to loss of range of motion stands alone and is not combined with a
diagnosis-based impairment.16 The Board notes that diagnosis-based impairments are the
method of choice for calculating upper extremity impairments and an impairment rating based on
range of motion findings is only used when no other diagnosis-based sections of Chapter 15 are
applicable for impairment rating of a condition.17
The medical evidence of record does not establish greater impairment in accordance with
the sixth edition of the A.M.A., Guides. Appellant has not established more than the eight
percent left upper extremity impairment previously awarded. He asserts on appeal that the
schedule award is contrary to “fact and law.” As noted, the report of Dr. Cullan was found
insufficient to establish any greater impairment as he did not evaluate appellant in accordance

11

See J.Q., 59 ECAB 366 (2008).

12

A.M.A., Guides 410, Table 15-9.

13

Id. at 408, Table 15-8.

14

Id. at 406, Table 15-7.

15

GMFH - CDX (1-1=0). GMPE-CDX (1-1=0). GMCS-CDX (1-1=0). Adding zero plus zero plus zero yielded
a net adjustment of zero.
16

A.M.A., Guides 461.

17

Id.

4

with the sixth edition of the A.M.A., Guides. There is no medical evidence of record supporting
greater impairment.
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.
CONCLUSION
The Board finds that appellant has no more than eight percent total permanent
impairment of the left upper extremity, which was previously awarded.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
PRISONS INDUSTRIES, Washington, DC,
Employer
__________________________________________

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

Docket No. 18-0773
Issued: September 11, 2018

Case Submitted on the Record

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

JURISDICTION
On February 28, 2018 appellant, through counsel, filed a timely appeal from a January 19,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish right shoulder, right
hand, and right knee injuries in the performance of duty on April 25, 2017.
FACTUAL HISTORY
On May 19, 2017 appellant, then a 45-year-old contract specialist, filed a traumatic injury
claim (Form CA-1) alleging that on April 25, 2017 she injured her right shoulder, right hand, and
right knee when she fell at lunch trying to cross a street. The employing establishment
controverted the claim, contending that she was “at lunch and off premises when she fell on the
public sidewalk.” The incident occurred at 12:05 p.m. and appellant’s regular work hours were
from 6:30 a.m. until 3:00 p.m.
By letter dated May 24, 2017, OWCP requested that the employing establishment address
whether appellant was on the premises that it owned, operated, or controlled at the time of her fall
and, if so, to include a diagram showing the premises boundaries and the location of the work
incident. It further asked whether she was performing work duties or duties reasonably incidental
to employment at the time of the incident.
OWCP, in a May 24, 2017 development letter, informed appellant that she needed to
provide additional factual and medical information in support of her claim, including a description
of where she was at the time of the alleged incident, whether she was on the premises of the
employing establishment, and whether she was performing her assigned work duties.
L.D., a supervisor, in response to OWCP’s request for information, responded “no” to the
question of whether appellant was on premises owned, controlled, or operated by the employing
establishment at the time of injury. She provided a hand-drawn diagram indicating that the injury
occurred on the northwest corner of D and First Streets, NW, Washington, DC. L.D. also
submitted an image from a computer mapping service. She further responded “no” to the question
of whether appellant was performing any assigned duties or activities reasonably incidental to her
employment at the time of the incident.
By decision dated June 29, 2017, OWCP denied appellant’s traumatic injury claim. It
found that she was not in the performance of duty at the time of her alleged fall on April 25, 2017
as she was at lunch and not on the premises of the employing establishment.
Counsel, on July 18, 2017, requested a telephone hearing before an OWCP hearing
representative.
In an October 18, 2017 statement, appellant indicated that around 12:05 p.m. on April 25,
2017 she exited the front door of her building to pick up lunch. She related: “I turned right onto
the sidewalk in front of the building; I walked to the corner of the building and began to attempt
to cross the street toward the Hyatt Hotel located in front of the building. As I stepped off the
sidewalk onto the street in front of the building, I tripped and fell.” Appellant questioned how
L.D. knew the location of her fall and advised that the “location of First [Street] and D Street as
listed by [L.D.] in the denial letter is not accurate. In order for me to be headed in the direction

2

listed by [L.D.], I would have taken a left onto the sidewalk.” She submitted an image from a
computerized mapping service showing a picture of a corner at 101 D Street NW.
During the telephone hearing, held on December 18, 2017, appellant related that at the time
of her fall she had exited her work building located at 400 First Street NW, turned right onto the
sidewalk, and walked to the corner of the building to cross to D Street NW. She stated that she
fell on 401 First Street NW when she stepped off the sidewalk and onto the street. Appellant
underwent surgery on her shoulder on July 24, 2017. She related that she worked in a federal
building without a cafeteria. Employees commonly got breakfast and lunch from outside the
building. Appellant explained that a pedestrian assisted her after she fell. She returned to her
building and reported her injury to L.D. Subsequently, a workers’ compensation specialist with
the employing establishment informed appellant that she was off the premises and not working
and so her accident was not related to her employment. She described her medical treatment
subsequent to her injury. Appellant noted that the sidewalk where she fell was cracked and that
she fell forward into the street. Counsel asserted that Board case law provided that the premises
of the employing establishment could extend beyond the area it owned depending on its
relationship to the property. He asserted that appellant had to go out of the building to get lunch
and that the employing establishment did not prohibit employees from getting food at lunch outside
the building.
By decision dated January 19, 2018, OWCP’s hearing representative affirmed the June 29,
2017 decision. He found that appellant was not in the performance of duty at the time of her
April 25, 2017 fall as she was off premises and at lunch. The hearing representative further found
that she had not shown that the premises should be extended due to special circumstances.
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 said 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 his or her employment, and while he or she was
reasonably fulfilling the duties of his or her employment, or engaged in 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
3

5 U.S.C. § 8102(a).

4

See Valerie C. Boward, 50 ECAB 126 (1998).

5

B.P., Docket No. 14-0411 (issued July 17, 2014); David P. Sawchuck, 57 ECAB 316 (2006).

3

in the course of employment. Rather, such injuries are merely the ordinary, nonemployment
hazards of the journey itself, which are shared by all travelers, subject to certain exceptions.6
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,7 or which are in the nature of necessary
personal comfort or ministration.8 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.9 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 are concerned.10 The main
consideration in applying this rule is whether the conditions giving rise to the injury are causally
connected to the employment.11
ANALYSIS
The Board finds that appellant was not in the performance of duty on April 25, 2017 as she
was at lunch and not on the premises of the employing establishment at the time of the claimed
fall on April 25, 2017. Appellant fell when stepping off a sidewalk and onto the street. The
employing establishment indicated that it did not own, operate, or control the sidewalk. While
appellant maintains that she fell on a different corner than indicated by L.D., noting that she turned
right out of the building door rather than left, she has not submitted any evidence challenging the
employing establishment’s assertion that it did not own, operate, or control the sidewalk.
In Idalaine L. Hollins-Williamson,12 the employee fell and was injured while walking from
a parking lot to the employing establishment building on a snow-covered public sidewalk. The
Board found that the employee had not shown that the sidewalk on which she fell was used
exclusively or principally by employees of the employing establishment for the convenience of the
employer. The evidence of record supported that the sidewalk where the incident occurred was
not owned, operated, or maintained by the employing establishment and was open to the public.
The Board found that the employee’s injury was not in the performance of duty. In M.L.,13 the
employee fell while walking across the street from a train station to work. The Board found that

6

V.P., Docket No. 13-0074 (issued July 1, 2013); M.L., Docket No. 12-0286 (issued June 4, 2012); John M. Byrd,
53 ECAB 684 (2002).
7

See Maryann Battista, 50 ECAB 343 (1999) (activities such as delivering a bad check list and checking on a
customer’s telephone were incidental to employee’s listed duties).
8

See J.L., Docket No. 14-0368 (issued August 22, 2014).

9

R.O., Docket No. 08-2088 (issued February 18, 2011).

10

See C.B., Docket No. 15-1881 (issued October 7, 2016).

11

See Shirley Borgos, 31 ECAB 222 (1979).

12

55 ECAB 655 (2004).

13

M.L., supra note 6.

4

the employee fell while commuting to work on a public sidewalk and was not in the performance
of duty.
Even if a public sidewalk is the customary means of access to the employing establishment
for its employees, this does not alter the public nature of the sidewalk or render it a part of the
employing establishment’s premises.14 There is no evidence that the sidewalk on which appellant
fell was restricted to the employees of the employing establishment or that it owned, operated, or
maintained the area where the incident occurred. The area was open to the general public.
Appellant, consequently, was not on the premises of the employing establishment at the time of
her fall.15
As noted above, off-premises injuries that occur while an employee is going to or coming
from work or during a lunch period, are generally not compensable.16 The Board finds that the
exceptions to the rule are not applicable in this case. Appellant was not engaged on any special
errand when she left her building to obtain lunch and was not exposed to a special hazard that
became a hazard of employment. While appellant maintained that the sidewalk on which she fell
was uneven, this was not a special hazard of the route, but a hazard shared by all travelers.17
Appellant’s alleged fall on April 25, 2017 occurred during lunch, not at a time when she
may reasonably be said to be engaged in her employer’s business, and on a public sidewalk, not at
a place where she may reasonably be expected to be in connection with her employment. While
having lunch may be considered incidental to one’s employment under the personal comfort
doctrine,18 the premises rule explicitly excludes off-premises lunches from course of
employment.19
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 right shoulder,
right hand, and right knee injuries on April 25, 2017 in the performance of duty.

14

See supra note 9.

15

Id; see also Sallie B. Wynecoff, 39 ECAB 186 (1987).

16

See J.K., Docket No. 15-0198 (issued March 10, 2015); J.E., Docket No. 59 ECAB 119 (2007).

17

See M.L., supra note 6; R.O., supra note 9. In M.L., the Board found that a rock on a sidewalk where the employee
fell was a hazard commonly faced by pedestrians and thus, not a special hazard at the off-premises point. In R.O., the
Board found that the employee’s off-premises slip and fall on an icy public sidewalk did not arise in the performance
of duty as it was not a special hazard of the route, but a hazard shared by all commuters.
18

See Nancy E. Barron, 36 ECAB 428 (1985) (where an employee broke a tooth while eating breakfast at her desk).

19

See supra note 9; see also D.S., Docket No. 16-1252 (issued December 1, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 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

6