United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
HOSPITAL, Camp Lejeune, NC, Employer
__________________________________________

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

Docket No. 07-1720
Issued: February 26, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 12, 2007 appellant filed a timely appeal from the April 23, 2007 decision of the
Office of Workers’ Compensation Programs denying modification of the August 18, 2006
decision denying her traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an injury in the
performance of duty as alleged.
FACTUAL HISTORY
On June 13, 2006 appellant, then a 40-year-old food service worker, filed a traumatic
injury claim, Form CA-1, alleging that she injured her back on March 1, 2006 while lifting boxes
of vegetables weighing 50 pounds. The employing establishment controverted the claim.
Connie Scott, appellant’s department head, stated that she was not on duty the day of her alleged
injury. She noted that appellant was on sick leave March 1 to 3, 2006. Appellant’s immediate
supervisor, Joseph C. Jones, stated that she told him on March 4, 2006 that she was not feeling

well because of “female problems” or kidney stones and that her back hurt, perhaps from
injuring it. Mr. Jones told her to go to the employee health clinic or go home to take care of
herself.
On March 30, 2006 Dr. Johnny Williams, a Board-certified gynecologist, notified the
employing establishment that appellant had been diagnosed with lumbar disc disease, acute back
pain and lumbosacral strain. Appellant did not return to work until April 5, 2006 when she was
released with restrictions on lifting, standing and bending. Ms. Scott stated that, when appellant
provided her medical documentation to Mr. Jones and other officials, she told them that she had
been injured on February 25, 2006, gone to her own physician on February 27, 2006 and did not
returned to work until March 4, 2006. Appellant returned to work on April 6, 2006 but left early
and did not return.
On June 26, 2006 Dr. Michael Nunn, an osteopathic physician and a Board-certified
psychiatrist, evaluated appellant’s lumbar pain. He stated that appellant injured her back at work
on March 1, 2006 when she lifted a 50-pound box. Appellant complained of pain in the cervical,
thoracic and lumbar spine with slight involvement of the pelvis. She had episodes of irritability
and feelings of helplessness that worsened after her injury. Dr. Nunn diagnosed major
depressive episode, single episode; somatic dysfunction of the cervical, thoracic, lumbar, sacrum
and sacroiliac and other areas of the spine and muscle spasms.
On July 12, 2006 the Office notified appellant that she needed to provide additional
factual and medical evidence to establish her claim.
On August 14, 2006 appellant stated that her back and hips began hurting on
February 27, 2006 when she was lifting 50-pound bags of potatoes and onions. She notified her
supervisor, Mr. Jones, of her pain and he told her to go home. Appellant’s pain did not diminish
the following day. She called Mr. Jones on March 1, 2006 and told him that her back began
hurting after she lifted heavy bags at work. Appellant returned to work on March 4, 2004 and
informed Mr. Jones that Dr. Williams said the problem could be “female problems, kidney
stones or strained discs.” Mr. Jones advised her to go home and take care of herself. Appellant
returned to work briefly in early April 2006, but left again because the employing establishment
would did not honor the physical restrictions provided by Dr. Williams, who kept appellant out
of work and could not find the cause of her condition. On June 15 2006 he referred her to
Dr. Nunn, who was able to diagnose her condition. Appellant stated that the way she had been
treated by the employing establishment following her employment injury was a factor in the
development of her depression.
On August 12, 2006 Dr. Nunn stated that appellant was injured on March 1, 2006 while
lifting a 50-pound box, but did not report her condition immediately because she thought it
would improve. He stated that appellant’s prognosis was poor because her acute condition had
developed into a chronic condition and she had developed major depression secondary to her
initial injury.
By decision dated August 18, 2006, the Office denied appellant’s claim on the grounds
that she had not established the occurrence of the employment incident as alleged. The Office

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noted that the medical records provided March 1, 2006 as the date of injury, whereas she stated
that the date was February 27, 2006.
On February 13, 2007 appellant requested reconsideration. She stated that she
mistakenly provided the wrong date because of pressure and stress she was under. Appellant
realized the correct date of the incident because of the note her supervisor made on her
timesheet. The handwritten note stated: “Week 2, Day 7. Employee clocked in, but was unable
to work because of her sustain injury.[sic] [Appellant] had to leave work. M.J.” Appellant
stated that she had been out with the flu for a few days prior to March 4, 2006. She was still not
feeling very well when she came to work that day and was assigned to work in the scullery.
Because appellant was the only employee there, she was required to lift heavy bags of vegetables
by herself. As she lifted a bag of potatoes she felt something pop and experienced pain.
Appellant notified her supervisor, who told her to go home and take care of herself. She called
her doctor that day, but he was not available until Tuesday, March 7, 2006. Appellant stated that
Dr. Williams was not certain what the problem was and tried to refer her to an orthopedist or a
neurologist. She found Dr. Nunn on her own and began treatment.
On February 15, 2007 Dr. Nunn stated that he began treating appellant on June 26, 2006.
He experienced the same conditions he described in his initial report. Dr. Nunn stated that her
injury occurred on March 4, 2006, as noted on her time card by her supervisor. On February 15,
2007 Dr. Williams stated that appellant’s initial visit to his office occurred on March 7, 2006.
He diagnosed a lumbar sacral strain/sprain. Dr. Williams attempted to refer appellant for
orthopedic and neurological treatment because she was still symptomatic as of her last visit on
June 15, 2006.
By decision dated April 23, 2007, the Office denied modification of the August 18, 2006
decision. It found that appellant’s statement of the facts surrounding her alleged injury was
contradicted by the supervisors’ statements and that the new medical evidence did not establish a
valid diagnosis.
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
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
1

5 U.S.C. §§ 8101-8193.

2

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

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employment incident that is alleged to have occurred. The second component of “fact of injury”
is whether the incident caused a personal injury and, generally, this can be established only by
medical evidence.3
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and her subsequent
course of action. A consistent history of the injury as reported on medical reports, to the
claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of the
incident. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may cast doubt on an employee’s statements in determining whether she has
established a prima facie case. The employee has the burden of establishing the occurrence of
the alleged injury at the time, place and in the manner alleged, by a preponderance of the
reliable, probative and substantive evidence.4 An employee has not met this burden when there
are such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.5
However, an employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.6
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.7 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant8 and must be one of reasonable medical certainty,9 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.10
ANALYSIS
The Office did not accept that an employment incident occurred while appellant was
lifting bags of vegetables, nor that she sustained an injury as a result of the alleged incident.
Therefore, the issues are whether appellant has established the employment incident as alleged
and whether she sustained a compensable injury as a result of that incident.
3

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

4

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

5

Louise F. Garnett, 47 ECAB 639, 643-44 (1996).

6

Constance G. Patterson, 41 ECAB 206 (1989).

7

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

8

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

9

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

10

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

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Appellant alleged that, while she was lifting a 50-pound container of potatoes, she felt
pain in her back and told her supervisor, who then sent her home. On June 13, 2006 she claimed
that this incident occurred on March 1, 2006. Ms. Scott, appellant’s department head,
controverted this claim, stating that she was on sick leave from March 1 to 3, 2006. She also
stated that appellant initially reported that she was injured on February 25, 2006 and sought
medical attention on February 27, 2006.
On August 14, 2006 in response to the employing establishment’s comments, appellant
stated that her injury occurred on February 27, 2006. She indicated that she was on sick leave
March 1 to 3, 2006 because of her back pain. Appellant stated that she called her supervisor on
March 1, 2006 and told him that Dr. Williams, a Board-certified gynecologist, thought her
condition could be “female problems,” kidney stones, or a strained disc. However, she also
stated that she contacted Dr. Williams to make an appointment on March 6, 2006 and did not see
him until March 7, 2006. Dr. Williams confirmed that appellant’s first visit to his office
occurred on March 7, 2006.
On February 13, 2007 appellant stated that she originally mistook the date of the injury
because of the stress she was under. She stated that she was on sick leave because she had the
flu from March 1 to 3, 2006 and that she injured herself on March 4, 2006. This third date
corresponded with a note made by appellant’s supervisor on her timesheet, which stated that she
had clocked in, but was unable to work because she had sustained an injury. Appellant stated
that she tried to call Dr. Williams on the date of her injury, which was a Saturday, but that he
was not available until Tuesday, March 7, 2006. She stated that Dr. Williams was unsure of the
cause of her pain. However, Dr. Williams stated that he diagnosed appellant with lumbar sacral
strain/sprain.
The Board finds that appellant’s statements of the events surrounding her alleged injury
contain inconsistencies that cast serious doubt upon the validity of the claim. Appellant provided
multiple dates that the employment incident was alleged to have happened. She claimed at
different times that the injury occurred on February 25 and 27 and March 1 and 4, 2006. In each
instance, she provided different and sometimes inconsistent explanations of the surrounding
circumstances, including when she received medical treatment. While an employee’s statement
of the circumstances surrounding an employment injury is generally of great probative value,
appellant has failed to provide a consistent date of injury. The evidence of record casts serious
doubt on the validity of her claim. The Board finds that appellant’s statements are insufficient to
establish that an incident occurred as alleged.
Moreover, that the medical reports of record are not sufficient to establish the occurrence
of the alleged injury. Dr. Nunn, an osteopathic physician and a Board-certified psychiatrist,
began treating appellant on June 26, 2006, several months after the alleged accident occurred.
Though he opined that appellant’s back was injured by lifting a 50-pound box of vegetables, he
did not provide a consistent date of injury. He stated, alternately, that her injury occurred on
March 1 and 4, 2006. Dr. Williams, a Board-certified gynecologist, stated that appellant’s initial
visit to his office occurred on March 7, 2006. At that time, he diagnosed lumbar sacral
strain/sprain. Though his examination was much closer in time to the alleged injury, he did not
provide a history of the incident or provide an explanation as to the cause of appellant’s

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condition. Therefore, the Board finds that the medical reports are insufficient to establish the
occurrence of the event as alleged.
Appellant did not establish the occurrence of the employment incident. The Board finds
that she has not met her burden of proof to establish that she was injured in the performance of
duty.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 23, 2007 and August 18, 2006 are affirmed.
Issued: February 26, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
DEPARTMENT OF THE ARMY, U.S.
EMBASSY, La Paz, Bolivia, Employer
__________________________________________

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

Docket No. 15-347
Issued: April 8, 2015

Case Submitted on the Record

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

JURISDICTION
On November 25, 2014 appellant filed a timely appeal from an October 24, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On July 30, 2014 appellant, then a 57-year-old logistics management specialist, filed an
occupational disease claim alleging that he sustained a viral infection of the digestive tract while
on temporary duty in Bolivia. He alleged that he would not have contracted a viral infection had
1

5 U.S.C. § 8101 et seq.

he not been in Bolivia for work. Appellant related that he became aware of his condition and its
relation to his federal employment on July 24, 2014. He stopped work on July 25, 2014 and
returned to work on July 29, 2014.
By letter dated August 7, 2014, OWCP advised appellant that evidence of record was
insufficient to establish his claim because no medical evidence was received. Appellant was also
advised of the type of evidence needed to establish his claim.
In response to an OWCP questionnaire, appellant advised that, while on temporary duty
in La Paz, Bolivia, he was exposed to a viral infection as a result of the substandard living
conditions of a third world country. He noted that he was in Bolivia from July 23 to 27, 2014
and that he was hospitalized on July 25, 2014. In an undated letter, appellant noted that he was a
federal employee who was required to travel on temporary duty to Bolivia. He stated that he
contracted “some type of disease and was hospitalized” in Bolivia. Appellant advised that he
had to pay for the treatment he received and wanted to be reimbursed.
The record contains July 25 and 26, 2014 clinic records and diagnostic reports ordered by
Dr. A. Casanovas.2 In an October 24, 2014 OWCP memorandum, a Spanish translator advised
that the medical evidence consisted of diagnostic testing, including electrocardiogram, blood test,
fecal test, parasite test, electrolytes, and cardiac enzymes. She noted that there were positive
findings for mucus in the fecal testing, high lymphocyte levels, aortic sclerosis, concentric
hypertrophy, moderate pulmonary hypertension, and elevated blood sugar. The Spanish
translator advised that appellant was prescribed antibiotics and noted that the medical reports did
not address causal relationship to any particular diagnosis.
By decision dated October 24, 2014, OWCP denied appellant’s occupational disease
claim because evidence was insufficient to establish that he was diagnosed with a condition in
connection with factors of his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing by the weight
of the reliable, probative and substantial evidence that his or her condition is causally related to
factors of his or her federal employment. Where an employee is on a temporary-duty assignment
away from his or her regular place of employment, he or she is covered by FECA 24 hours a day
with respect to any injury that results from activities essential or incidental to his or her
temporary assignment.3
However, the fact that an employee is on a special mission or in travel status during the
time a disabling condition manifests itself does not raise an inference that the condition is
causally related to the incidents of the employment. A condition that occurs spontaneously
2

These reports are in Spanish. There were also several diagnostic reports from Drs. Murillo and Ledezma. The
full names and specialties of these physicians are not contained in the record.
3

Y.H., Docket No. 09-1271 (issued January 5, 2010); Susan A. Filkins, 57 ECAB 630 (2006); Cherie Hutchings,
39 ECAB 639 (1988).

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during a special mission or in travel status is not compensable. The medical evidence must
establish a causal relationship between the condition and factors of employment.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.7
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.8
ANALYSIS
Appellant claimed that he sustained a viral infection of the digestive tract while on
temporary duty in La Paz, Bolivia. The evidence supports that he was in La Paz, Bolivia from
July 23 to 27, 2014. However, the medical evidence is insufficient to establish that a medical
condition was diagnosed in connection with factors of appellant’s employment. As explained
above, the fact that an employee is on a special mission or in travel status during the time a
disabling condition manifests itself does not raise an inference that the condition is causally
related to the incidents of the employment.9
Appellant submitted several clinic records and diagnostic reports from his July 25, 2014
hospital visit. A Spanish translator noted the findings contained in these reports. However, these
reports did not address the cause of any particular condition or positive test finding. Appellant
claimed a viral infection sustained during his temporary-duty assignment but there is no medical
evidence supporting that he contracted any viral infection or other condition that was caused or
aggravated by employment factors while he was on temporary duty. As noted, a condition that
4

Id.

5

S.P., 59 ECAB 184, 188 (2007).

6

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

7

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

8

James Mack, 43 ECAB 321 (1991).

9

Supra notes 3 and 4.

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occurs spontaneously during a special mission or in travel status is not compensable. The
medical evidence must establish a causal relationship between the condition and factors of
employment.10 The medical evidence does not establish a cause of appellant’s symptoms nor
does it relate his symptoms to matters incidental to his trip to Bolivia. The Board has held that a
medical report without an opinion as to causal relationship is of little probative value.11
Therefore, the Board finds that appellant did not establish that a diagnosed medical
condition resulted from factors of his federal employment while he was on temporary duty in
Bolivia.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.12
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
caused by factors of his employment.

10

Id.

11

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).
12

Appellant submitted new evidence on appeal. However, the Board may only review the evidence that was
before OWCP at the time that it issued its final decision. 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the October 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, WORLDWAY AIR
MAIL CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 07-1609
Issued: December 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2007 appellant filed a timely appeal of the February 21, 2007 nonmerit
decision and the November 2, 2006 schedule award of the Office of Workers’ Compensation
Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.1
ISSUES
The issues are: (1) whether appellant has greater than 37 percent impairment of the right
upper extremity and greater than 32 percent impairment of the left upper extremity; and
(2) whether the Branch of Hearings & Review properly denied appellant’s December 7, 2006
request for a hearing.

1

The record on appeal includes additional medical evidence received after the Office issued its November 2, 2006
and February 21, 2007 decisions. The Board cannot consider evidence on appeal that was not in the case record
which was before the Office at the time of its final decision. 20 C.F.R. § 10.501.2(c) (2007).

FACTUAL HISTORY
Appellant, a 55-year-old former letter sorting machine operator, has an accepted
occupational disease claim for right wrist ganglion cyst, bilateral ring trigger finger and bilateral
carpal tunnel syndrome, which commenced on or about October 8, 1993. On May 30, 1996 she
underwent an Office-approved right carpal tunnel release. Appellant received schedule awards
on February 13, 2002 for 34 percent impairment of the right upper extremity and 32 percent
impairment of the left upper extremity.2 The awards totaled 205.92 weeks’ compensation,
covering the period January 21, 2001 to January 2, 2005.
On February 9, 2005 appellant underwent a second Office-approved surgical procedure
on her left wrist. Dr. Robert J. Kolesnik, a Board-certified orthopedic surgeon, performed a left
carpal tunnel release and left finger flexor tenosynovectomy. The Office paid appellant
appropriate wage-loss compensation and in June 2005, she returned to work part time. She
resumed her full-time duties on September 22, 2005.
In a report dated December 7, 2005, appellant’s treating physician, Dr. Michael J.
Einbund, a Board-certified orthopedic surgeon, advised that she had reached maximum medical
improvement following her latest surgery. He found 10 percent impairment of the right upper
extremity and 12 percent impairment of the left upper extremity due to sensory deficits or pain.
On March 9, 2006 appellant filed a claim for an additional schedule award. The Office
referred the case record to its medical adviser, Dr. Ellen L. Pichey. In an August 15, 2006 report,
Dr. Pichey found an additional three percent impairment of the right upper extremity.3 Her
assessment was based in part on Dr. Einbund’s December 7, 2005 examination findings. While
there was no evidence of impairment due to loss of range of motion, Dr. Pichey found bilateral
upper extremity impairment due to combined motor and sensory deficits involving the median
nerve. The left upper extremity impairment was 31 percent, while the right upper extremity
impairment was 36 percent. Dr. Pichey also found two percent impairment due to mild
triggering in both hands. The bilateral trigger finger impairment combined with the upper
extremity motor and sensory deficits, represented an overall right upper extremity impairment of
37 percent and a left upper extremity impairment of 32 percent. According to Dr. Pichey,
appellant reached maximum medical improvement on December 7, 2005.
On November 2, 2006 the Office awarded appellant an additional three percent
impairment of the right upper extremity, which represented 9.36 weeks’ compensation. With
respect to the left upper extremity, the Office found that there was no additional impairment
beyond the previously awarded 32 percent.

2

The overall impairment ratings were based on a combination of upper extremity impairments including loss of
range of motion, loss of strength and sensory deficits.
3

Dr. Pichey is Board-certified in both family medicine and occupational medicine. In addition to the August 15,
2006 impairment rating, he provided the July 9, 2001 rating that formed the basis of appellant’s February 13, 2002
schedule award.

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On December 7, 2006 appellant requested an oral hearing. She acknowledged that her
request was beyond the 30-day filing period, but explained that her father’s recent death kept her
away from home until November 28, 2006.
By decision dated February 21, 2007, the Branch of Hearings & Review denied
appellant’s request for an oral hearing because it was untimely. Appellant was also denied a
discretionary hearing. The Branch of Hearings & Review advised her that she could pursue her
claim for an additional schedule award by requesting reconsideration before the Office and
submitting additional evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.5 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).6
ANALYSIS -- ISSUE 1
Based on the December 7, 2005 examination findings, the Office medical adviser
calculated a right upper extremity impairment of 37 percent and a left upper extremity
impairment of 32 percent. Dr. Pichey explained that appellant’s left upper extremity symptoms
represented a 70 percent deficit and his right upper extremity symptoms represented an 80
percent deficit.7 Under Table 16-15, A.M.A., Guides 492, the maximum upper extremity
impairment for combined motor and sensory deficits involving the median nerve is 45 percent.
To determine the upper extremity impairment one multiplies appellant’s impairment
classification (70 percent, left and 80 percent, right) by the maximum percentage loss due to
combined motor and sensory deficits (45 percent). Applying this formula, appellant had 31
percent impairment for the left upper extremity (70 percent x 45 percent) and 36 percent
impairment for the right upper extremity (80 percent x 45 percent).
The additional two percent impairment for bilateral ring trigger finger was calculated by
applying Tables 16-18 and 16-29, A.M.A., Guides 499, 507. Pursuant to Table 16-18, the
4

For a total, or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1) (2000).
5

20 C.F.R. § 10.404.

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

7

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

3

maximum upper extremity impairment for disorders affecting the entire ring finger is nine
percent. In his December 7, 2005 report, Dr. Einbund noted triggering of both the left and right
ring fingers. He did not otherwise describe the severity of the triggering. Therefore, the Office
medical adviser rated the severity as mild, which under Table 16-29 represents a 20 percent
impairment of the digit. The upper extremity impairment is obtained by multiplying the 9
percent ring finger impairment under Table 16-18 by the 20 percent digit impairment obtained
from Table 16-29.8 The two percent impairment for ring finger triggering is then combined with
the upper extremity impairment due to motor and sensory deficits.9 The Office medical adviser
properly found 37 percent impairment of the right upper extremity and 32 percent for the left
upper extremity. The August 15, 2006 impairment rating is consistent with Dr. Einbund’s
examination findings and conforms to the A.M.A., Guides (5th ed. 2001). As such, the Office
medical adviser’s impairment rating constitutes the weight of the medical evidence.10 Because
appellant had already received an award for 34 percent impairment of the right upper extremity
and 32 percent impairment for the left upper extremity, she was entitled to receive an additional
3 percent impairment for the right upper extremity based on Dr. Pichey’s August 15, 2006 rating.
She has not presented any evidence that she has greater permanent impairment than what the
Office has already awarded her.
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or a review of the written record.11 A request for either an oral hearing or a
review of the written record must be submitted, in writing, within 30 days of the date of the
decision for which a hearing is sought.12 If the request is not made within 30 days, a claimant is
not entitled to a hearing or a review of the written record as a matter of right. Although a
claimant may not be entitled to a hearing as a matter of right, the Office has discretionary
authority to either grant or deny a hearing request and the Office must exercise its discretion.13
ANALYSIS -- ISSUE 2
Appellant filed her hearing request more than 30 days after the November 2, 2006
schedule award. Because of the untimely nature of the request, she is not entitled to a hearing as
a matter of right. In its February 21, 2007 decision, the Branch of Hearings & Review also
denied appellant’s request for a hearing on the grounds that the pertinent issue could be
addressed by requesting reconsideration and submitting additional relevant evidence. This
particular basis for denying appellant’s request is considered a proper exercise of discretionary
8

See Section 16.7c, A.M.A., Guides 506.

9

See Combined Values Chart, A.M.A., Guides 604-06; section 16.7, A.M.A., Guides 498.

10

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

11

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

12

20 C.F.R. § 10.616(a).

13

See Herbert C. Holley, 33 ECAB 140 (1981).

4

authority.14 Moreover, there is no evidence in the case record indicating that the Branch of
Hearings & Review otherwise abused its discretion. Accordingly, the Board finds that the Office
properly exercised its discretion in denying appellant’s request for a hearing.
CONCLUSION
Appellant has not demonstrated that she has greater than 37 percent impairment of the
right upper extremity and greater than 32 percent impairment of the left upper extremity. The
Board further finds that the Branch of Hearings & Review properly denied appellant’s
December 7, 2006 request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2007 and November 2, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

14

Mary B. Moss, 40 ECAB 640, 647 (1989).

5


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

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

Docket No. 09-30
Issued: March 3, 2009

Case Submitted on the Record

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

JURISDICTION
On October 3, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated June 20, 2008 finding that she had not established
an injury on December 14, 2005 causally related to her federal employment. 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 in establishing that she
sustained an emotional condition in the performance of duty.
FACTUAL HISTORY
On December 19, 2005 appellant, then a 44-year-old clerk, filed a traumatic injury claim
alleging that she sustained stress, anxiety and panic attacks when she was placed in an unsafe
work environment on December 14, 2005. She indicated that she had returned to work on

December 6, 2005.1 Appellant submitted a statement from a witness, Juanita P. Richardson, who
noted that appellant was assigned to work in a small room cluttered with 20 to 30 scanners and a
full coat rack. Ms. Richardson stated that the room appeared to be a storage area with a small
desk and chair. On December 19, 2005 Rayna B. Rufus stated that appellant’s assigned
workspace was a utility room with three long racks of scanners and a file cabinet, a coat rack full
of coats and a small desk and chair. She noted that appellant had no windows and very little
ventilation. Appellant described her assigned work area as an office with 40 to 50 scanners, file
cabinets, a filthy coat rack with old coats, rat debris, dirty carpet, an old desk and boxes of
outdated information. She did not believe that it was appropriate to work first-class mail in an
area without windows.
The Office requested additional factual and medical information by letter dated
February 22, 2006.
On February 16, 2006 Dr. Antoine Jean-Pierre, a Board-certified
psychiatrist, diagnosed aggravation of anxiety disorder and dysthymic disorder depressed. On
March 17, 2006 he stated that appellant’s work restrictions prohibited working in an isolated
storage room.
By decision dated April 6, 2006, the Office denied appellant’s claim for an emotional
condition finding that the medical evidence was not sufficient.
Dr. Jean-Pierre completed a report on April 24, 2006 and stated that appellant was placed
in a closed and isolated storage room to work with no ventilation and no windows he stated that
appellant’s work environment and continual harassment on the job was directly responsible for
her depression, anxiety and panic attacks.
Appellant requested reconsideration of the April 6, 2006 decision on May 7, 2006. By
decision dated June 15, 2006, the Office denied her claim finding that her claim was not based
on a compensable factor of employment, but instead on the desire to work in a particular
environment.
Appellant again requested reconsideration on July 25, 2006 and submitted additional
medical evidence. She submitted a list of stipulated facts including that she could not work firstclass mail because of the standard operating procedures. In a June 29, 2005 statement,
Ms. Rufus noted that appellant was working first-class mail in a private storage room. She
opined that first-class mail was not to be worked in a closed in area, but in an area “where it can
be inspected through a postal inspection gallery.”
By decision dated December 11, 2006, the Office declined to reopen appellant’s claim for
consideration of the merits.
On March 1, 2007 appellant requested reconsideration on the grounds that she was
instructed by her supervisor to violate employing establishment policy as she was instructed to
sort first-class mail in a closed room with no windows, no supervisor and no ability for the postal
inspectors to do their job. She also submitted additional medical evidence. In a statement dated
1

Appellant has several prior claims accepted by the Office for carpal tunnel syndrome, temporary aggravation of
a personality disorder and aggravation of anxiety disorders. She returned to work and filed the present claim.

2

March 8, 2007, appellant attributed her emotional condition not only to working in an isolated
storage room, but also to performing duties without proper procedures to guard the security of
the mail, such as postal inspectors gallery, cameras or video monitors to accommodate standard
operating procedures. She stated that working first-class mail in a storage area caused her to
experience panic and anxiety attacks.
In response to a query by the Office, an employing establishment supervisor confirmed
that it was permissible for first-class mail to be handled in offices without windows or cameras.
Appellant disputed this statement.
By decision dated June 20, 2008, the Office reviewed appellant’s claim on the merits and
denied modification of its prior decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employees’ fear of a reduction in force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of the Act. This principal recognizes that a supervisor or manager
must be allowed to perform their duties and that employee’s will at times disagree with actions
taken. Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.4
ANALYSIS
Appellant alleged that she developed panic attacks and anxiety when she returned to
work on December 6, 2005 assigned a work station without windows. She described this area as
a small, dirty and cramped storage room or office filled with equipment and a coat rack.
Appellant submitted witness statements that her work station was small, windowless and
contained a coat rack, scanners and a small desk. Neither she nor her witnesses provided any
statement or evidence explaining or describing why or how this work location was unsafe or
unsuitable to the work to be performed. As found by the Office, this aspect of appellant’s claim,
2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
4

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

3

clearly relates to her desire to work in a particular environment and does not pertain to her
regular or specially assigned duties.5
Appellant also alleged that her work area violated employing establishment policy as she
was required to work first-class mail in a location with no window, security camera or postal
inspectors’ gallery. The employing establishment responded to this allegation and denied that
first-class mail was required to be processed in an open observable area. Appellant did not
submit any evidence to establish that her supervisors committed error or abuse by instructing her
to process first-class mail in her assigned work station.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.6
CONCLUSION
The Board finds that appellant has failed to substantiate that a compensable factor of
employment as caused or contributed to her emotional condition and that the Office therefore
properly denied her claim.

5

But see, Brenda L. DuBuque, 55 ECAB 212 (2004) (in which being forced to work near a restroom with the
accompanying noises and smells was found to relate to the claimant’s regular and specially assigned work duties.)
6

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

4

ORDER
IT IS HEREBY ORDERED THAT the June 20, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Baltimore, MD,
Employer
__________________________________________

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

Docket No. 17-0068
Issued: April 6, 2017

Case Submitted on the Record

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

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from an August 31, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability commencing April 26, 2016, causally related to her accepted September 25, 2015
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 28, 2015 appellant, then a 30-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on September 25, 2015 she sustained right shoulder,
back, neck, finger, and arm pain while using a stick to pull mail across rollers on a mail sorting
machine. After a period off work she returned to limited duty on November 6, 2015. OWCP
accepted the claim for right shoulder joint sprain on May 24, 2016.
On May 9, 2016 appellant filed a claim for a recurrence of disability (Form CA-2a)
commencing April 26, 2016. She stated that she had been on light-duty work until the end of
March 2016 as she was only able to pull/push mail for 15 minutes per hour. Appellant was
uncertain as to the exact date of her recurrence of disability as her pain never stopped and her
condition never healed. She stated that her work stoppage was due to her unbearable pain from
the accepted injury. On the back of the form the employing establishment noted that appellant
stopped work on April 15, 2016 and her pay stopped on April 26, 2016. It further noted that she
had been given a light-duty position within her work restrictions.
Appellant filed claims for compensation (Form CA-7) for intermittent wage loss for the
period April 26 to July 8, 2016.
By letter dated July 19, 2016, OWCP informed appellant that the evidence of record was
insufficient to support her claim for a recurrence of disability. It provided a definition of a
recurrence under FECA. OWCP advised appellant regarding the medical and factual evidence
required to establish her claim. Appellant was afforded 30 days to provide the requested
evidence.
In a response to OWCP’s questions, appellant related that following her September 15,
2015 employment injury she was placed in a light-duty position in October 2015 and remained in
that position until April 15, 2016. She stated that while working the light-duty job she favored
the left side of her body. Appellant advised her supervisor in March 2016 that she was unable to
perform her usual job duties and that her injury continued to impact her. She stated that she
performed full-duty work from April 5 to 15, 2016 and then felt extreme and unbearable pain.
Appellant explained that her accepted shoulder condition never healed and that the pain
increased with walking or standing for long periods. She stated that she had been diagnosed with
a herniated disc by her physician based on a magnetic resonance imaging (MRI) scan.
A May 4, 2016 x-ray interpretation revealed right cervical radiculopathy. On May 20,
2016 appellant underwent a cervical spine MRI scan, which revealed moderate C4-5 central disc
herniation and small central C5-6 disc herniation.
On May 23, 2016 Dr. Eugene Young Koh, a treating Board-certified orthopedic surgeon,
released appellant to return to light-duty work on May 31, 2016. In a progress note dated
May 25, 2016, he reported that appellant was seen for complaints of bilateral shoulder pain with
pain radiating down her arms to her fingers with burning, tingling, and numbness, Dr. Koh
reviewed a May 20, 2016 MRI scan which showed C4-5 cervical disc herniation and stenosis.
He diagnosed cervical myelopathy and discussed surgical options.

2

In a July 11, 2016 report, Dr. Koh diagnosed C4-5 herniated disc, cervical myelopathy,
and right shoulder radicular pain. He requested that appellant be excused from work and advised
that she was currently undergoing physical therapy and that cervical surgery might be necessary
in the future.
By decision dated August 31, 2016, OWCP denied appellant’s recurrence claim. It found
that she had worked in a light-duty capacity since November 6, 2015 and had worked in that
position until she stopped work on April 15, 2016. OWCP also found that appellant had failed to
establish that she was disabled due to a material worsening of the employment-related condition.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
of proof to establish, by the weight of the reliable, probative, and substantial evidence a
recurrence of disability and to show that he or she cannot perform such light duty.2 As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty requirements.3
A recurrence of disability is defined as the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which had resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.4 The Board has held that whether a particular injury causes
an employee to be disabled for work is a medical question that must be resolved by competent
and probative medical evidence.5 The weight of medical opinion is determined on the report of a
physician, who provides a complete and accurate factual and medical history, explains how the
claimed disability is related to the employee’s work and supports that conclusion with sound
medical reasoning.6
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between her present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.7

2

K.C., Docket No. 08-2222 (issued July 23, 2009); Richard A. Neidert, 57 ECAB 474 (2006).

3

C.S., Docket No. 08-2218 (issued August 7, 2009); Joseph D. Duncan, 54 ECAB 471 (2003); Roberta L.
Kaaumoana, 54 ECAB 150 (2002); Terry R. Hedman, 38 ECAB 222 (1986).
4

20 C.F.R. § 10.5(x). See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman,
supra note 3.
5

See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

6

See C.S., supra note 3; Sandra D. Pruitt, 57 ECAB 126 (2005).

7

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability commencing April 26, 2016 causally related to her September 25, 2015 employment
injury.
OWCP accepted the claim for right shoulder joint sprain. Following her injury appellant
returned to a light-duty position on November 6, 2015. She stopped work on April 15, 2016.
Appellant filed a claim for a recurrence of disability beginning April 26, 2016 and filed claims
for compensation (Form CA-7) for intermittent wage loss for the period April 26 to July 8, 2016.
By decision dated August 31, 2016, OWCP denied appellant’s claim for a recurrence of
disability.
Appellant alleged that her pain increased because she worked full duty from April 5
to 15, 2016. On the back of her recurrence claim, the employing establishment indicated that
appellant had been given a light-duty job within her work restrictions. The record contains no
evidence reflecting that her light-duty job had been withdrawn or her work restrictions had
changed.8 On her recurrence claim, appellant attributed her inability to work to a worsening of
her employment-related condition and that her shoulder condition never healed. She, therefore,
has the burden of proof to provide medical evidence to establish that she was disabled due to a
worsening of her accepted work-related condition.9
Appellant submitted several reports from Dr. Koh diagnosing C4-5 herniated disc,
cervical myelopathy, and right shoulder radicular pain. While additional conditions have been
diagnosed, Dr. Koh’s reports fail to provide medical rationale explaining how the diagnosed
conditions were causally related to the accepted September 25, 2015 employment injury. The
only accepted condition is a right shoulder sprain. It is the employee’s burden to provide
rationalized medical evidence sufficient to establish a causal relationship for conditions not
accepted by OWCP as being employment related, not OWCP’s burden to disprove such
relationship.10
Dr. Koh provided reports dated May 25 and July 26, 2016 pertaining to appellant’s
bilateral shoulder pain and right shoulder radicular pain. He diagnosed cervical myelopathy,
stenosis, and C4-5 disc herniation, but he did not indicate the cause of these conditions. The
record also contains a May 23, 2016 report from Dr. Koh releasing appellant to light-duty work
effective May 31, 2016. The Board has found that medical evidence that does not offer any

8

Appellant is alleging that her pain and condition had been aggravated by work performed from April 5 to 15,
2016 aggravated her condition. To the extent that appellant is alleging new employment factors, this could be
considered a claim of occupational disease.
9

D.L., Docket No. 13-1653 (issued November 22, 2013).

10

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).

4

opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.11 Accordingly, Dr. Koh’s reports are of limited probative value.
The diagnostic reports appellant submitted are likewise insufficient to establish her
recurrence claim. Appellant submitted a May 4, 2016 x-ray interpretation and a May 20, 2016
MRI scan of her cervical spine. These diagnostic reports do not address disability or causal
relationship. The Board has found that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.12 Therefore, these diagnostic reports also fail to establish causal relationship
and appellant’s recurrence claim.
Appellant was advised by July 19, 2016 letter of the evidence needed to establish her
claim for recurrence of disability, including rationalized medical evidence from her attending
physician supporting a causal relationship between the accepted condition and her disability
commencing April 20, 2015. As she did not submit such evidence, she failed to meet her burden
of proof.13
On appeal appellant alleges that OWCP’s decision is incorrect as she never healed from
her original injury. She notes that she had been on limited duty for six months and had not been
informed her claim had been closed. As found above, none of the medical evidence appellant
submitted contained any discussion or rationale explaining how she sustained a recurrence of
disability on April 25, 2016 causally related to her accepted shoulder sprain or how the
additional conditions had been caused or aggravated by the accepted September 25, 2015
employment injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability commencing April 26, 2016 causally related to her accepted September 25, 2015
employment injury.

11

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007); Ellen L. Noble, 55 ECAB
530 (2004).
12

R.E., id.; K.W., id.; Jaja K. Asaramo, supra note 10.

13

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

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 31, 2016 is affirmed.
Issued: April 6, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elmwood, NJ, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-257
Issued: November 15, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On November 9, 2010, appellant filed an application for review of a merit decision of the
Office of Workers’ Compensation Programs (OWCP) dated July 20, 2010. The appeal was
docketed as No. 11-257.
Appellant, a 29-year-old mail carrier, filed a Form CA-2 claim for benefits, alleging that
she developed a back condition causally related to employment factors. OWCP accepted the
claim for lumbar intervertebral disc disorder with myelopathy, lumbar disc displacement,
brachial neuritis, degenerative lumbar disc disease, obesity, lumbago and sciatica. On June 9,
2006 appellant underwent laminectomy and fusion surgery at L5-S1 to ameliorate bilateral,
lower extremity radicular pain.
In a Form CA-7 dated February 13, 2007, appellant requested a schedule award based on
a partial loss of use of her right and left lower extremities. On July 26, 2007 she underwent an
authorized electromyelogram (EMG) which showed continued evidence of lumbar
radiculopathy, sub-acute right-sided S1 lumbar radiculopathy and neuropathy. Appellant again
underwent authorized surgery to correct these conditions on September 18, 2007.
In an August 18, 2008 report, Dr. Arthur Becan, Board-certified in orthopedic surgery
and appellant’s treating physician, found that appellant had a 26 percent impairment of the left
lower extremity and a 17 percent impairment of the right lower extremity pursuant to the

American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth
edition) (A.M.A., Guides). He based part of his impairment rating on L5-S1 radiculopathy,
noting that appellant had been diagnosed with lumbar radiculopathy by EMG as recently as
July 2007; he also stated that she continued to complain of low back pain radiating into her lower
extremities.
In a November 1, 2008 report, Dr. Andrew Merola, OWCP’s medical adviser, found that
appellant had a nine percent left lower extremity impairment and an eight percent impairment of
the right lower extremity under the A.M.A., Guides. He noted that appellant underwent surgery
to ameliorate bilateral S1 radiculopathy; he stated, however, that Dr. Becan found she had an
extensor hallucus deficit which, he stated, was not consistent with S1 radiculopathy.
OWCP found that there was a conflict in the medical evidence between these two
physicians and referred appellant to Dr. Andrew Hutter, Board-certified in orthopedic surgery,
for an impartial medical examination. OWCP provided Dr. Hutter with a statement of accepted
facts and asked him to provide a permanent impairment calculation for appellant and to establish
the date of maximum medical improvement.
In an April 20, 2009 report, Dr. Hutter stated that appellant complained of low back pain
radiating into both legs and noted that she underwent lumbar fusion surgery on June 9, 2006. He
advised that appellant underwent an EMG on July 26, 2007; however, he failed to mention that
this test revealed bilateral radiculopathy, or that appellant underwent additional surgery on
September 18, 2007 in an attempt to ameliorate this condition. Dr. Hutter stated that she had
subjective complaints but no objective abnormalities on examination. He concluded that
appellant had a five percent impairment of the lumbar spine under Chapter 17 of the A.M.A.,
Guides.
OWCP referred Dr. Hutter’s report to OWCP’s medical adviser and, by report dated
June 1, 2009, stated that Dr. Hutter did not provide a rating for the extremities and was evidently
unaware that the A.M.A., Guides contained no provision for rating the spine for permanent
impairment. He noted that an impairment rating for the involved extremities can be rendered
only if there is radiculopathy coming from the spinal condition. OWCP’s medical adviser stated
that, as Dr. Hutter found no objective abnormalities on examination, a rating for the peripheral
nerves in the lower extremities under the A.M.A., Guides was not warranted. He therefore found
that appellant had a zero percent rating for the lower extremities under Table 16-12 at page 534
of the A.M.A., Guides.
By decision dated March 10, 20101, OWCP, apparently relying on OWCP’s medical
examiner’s opinion, denied appellant’s request for a schedule award, finding that she had no
ratable impairment of the lower extremities.
Appellant requested a telephone hearing, which was held on June 2, 2010. By decision
dated July 20, 2010, OWCP’s hearing representative affirmed the March 10, 2010 decision.

1

This decision was later reissued on May 28, 2010 as the earlier decision had been returned to OWCP.

2

Section 8123(a) of the Federal Employees’ Compensation Act (FECA) provides that
when there is a disagreement between the physician making the examination for the United
States and the physician of the employee, a third physician shall be appointed to make an
examination to resolve the conflict.2 In order to properly resolve the conflict, it is the impartial
medical specialist who should provide a reasoned opinion as to a permanent impairment to a
scheduled member of the body in accordance with the A.M.A., Guides. An OWCP medical
adviser may review the opinion, but the resolution of the conflict is the responsibility of the
impartial medial specialist.3
On appeal, appellant’s attorney contends that Dr. Hutter’s opinion did not merit the
weight of an impartial medical examiner and that OWCP erred by relying on his opinion.
The Board finds that OWCP improperly relied upon OWCP’s medical adviser to resolve
the conflict in medical evidence. The independent medical specialist did not properly utilize the
A.M.A. Guides, did not adequately state his findings nor discuss or analyze the findings of
radiculopathy in Dr. Becan’s report and in other parts of the record.4 He merely found that
appellant had a five percent impairment rating based on the spine -- a rating not rendered in
accordance with the A.M.A., Guides5 -- because she showed no objective findings on
examination. Although OWCP’s medical adviser reviewed Dr. Hutter’s report and stated that,
because he found there were no objective abnormalities, a rating for the peripheral nerves in the
lower extremities under the A.M.A., Guides was not warranted, Dr. Hutter’s report is
insufficiently rationalized or based on proper factual background to be accorded special weight.
The medical adviser’s evaluation of the impartial medical specialist’s report is insufficient to
resolve the conflict in medical evidence.
Accordingly, the case will be set aside and remanded for referral to a new medical
specialist, along with an updated statement of accepted facts, to resolve the outstanding conflict
in medical evidence as to whether appellant has any permanent impairment stemming from her
accepted conditions, and to render findings pursuant to the applicable tables and protocols of the
A.M.A., Guides. After such further development as OWCP deems necessary, it should issue an
appropriate decision to protect appellant’s appeal rights.

2

Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a).

3

Thomas J. Fragale, 55 ECAB 619 (2004); Cf., 55 ECAB 564 (2004).

4

As noted above, Dr. Hutter stated that appellant complained of low back pain radiating into both legs and that
she had lumbar fusion surgery on June 9, 2006. While he stated that appellant underwent an EMG on July 26, 2007,
he failed to mention that this test showed bilateral radiculopathy and that she underwent additional surgery on
September 18, 2007 to ameliorate this condition.
5

Neither FECA nor the regulations provide for the payment of a schedule award for the permanent loss of use of
the back or the body as a whole. FECA itself specifically excludes the back from the definition of “organ.”
5 U.S.C. § 8101(19); see also Jay K. Tomokiyo, 51 ECAB 361 (2000). However, a schedule award is payable for a
permanent impairment of any of the extremities that is due to an employment-related back condition. Denise D.
Cason, 48 ECAB 530, 531 (1997); S. Gordon McNeil, 42 ECAB 140 (1990).

3

IT IS HEREBY ORDERED THAT the decision dated July 20, 2010 be set aside and
the case remanded for reconsideration of whether appellant has any permanent impairment to her
lower extremities stemming from her accepted lower back conditions.
Issued: November 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


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

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)

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

Docket No. 21-1185
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2021, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 9, 2021 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she suffered a “traumatic injury” on February 18, 2021 when she was
robbed at gun point by two male suspects while in the performance of duty. On the reverse side
of the claim form the employing establishment acknowledged that she was injured in the
performance of duty and that its knowledge of the facts of her injury was consistent with her
statements. Appellant stopped work on February 19, 2021.
A February 18, 2021 police report noted that appellant was robbed at gun point by two
male suspects who fled the scene.
In a development letter dated March 12, 2021, OWCP informed appellant that it had
received no medical evidence in support of her traumatic injury claim. It advised her of the type
of factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP also requested a narrative medical report from appellant’s treating physician,
which contains a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to submit the necessary evidence. Appellant did not submit a response.
By decision dated April 15, 2021, OWCP denied appellant’s traumatic injury claim,
finding that she had not established the factual component of her claim, as she had not provided
evidence or a statement explaining how she was injured as a result of the alleged employment
incident. It noted that she had not responded to the March 12, 2021 development letter. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 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. 6

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on the employee’s
statements in determining whether a prima facie case has been established. 10 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2021, as alleged.
In her Form CA-1, appellant indicated that she was robbed at gunpoint on February 18,
2021 by two male suspects, which was confirmed by a police report of even date. However, she
did not provide an explanation as to how she was injured or what body part was injured as a result
of the alleged employment incident. In a development letter dated March 12, 2021, OWCP
requested that appellant submit clarifying information describing how and when her claimed injury
occurred and provided a questionnaire for her completion. However, appellant did not complete
and return the March 12, 2021 development questionnaire. Therefore, she has failed to present a
clear factual statement in the record describing the specific alleged employment-related incident
alleged to have caused or contributed to her claimed medical condition.12 As she has not responded
to the request for factual information to describe the employment incident and circumstances

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

See D.C., Docket No. 18-0082 (issued July 12, 2018).

3

surrounding her alleged injury, the Board finds that appellant has not established that a traumatic
injury occurred in the performance of duty on February 18, 2021, as alleged.13
The Board further finds that, because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged. 14 Thus, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.

13

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New Orleans, LA, Employer
__________________________________________

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)
)
)

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

Docket No. 21-0777
Issued: November 15, 2021

Case Submitted on the Record

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

JURISDICTION
On March 17, 2021 appellant filed a timely appeal from a December 17, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $13,150.41, for which she was without fault, because she concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset for the period November 1, 2016 through August 15, 2020;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether

1

5 U.S.C. § 8101 et seq.

OWCP properly required recovery of the overpayment by deducting $468.19 every 28 days from
appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.2 The facts and
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference. The relevant facts are as follows.
On May 6, 1998 appellant, then a 44-year-old health technician, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she injured her knees, back, and neck when she
assisted a patient into bed while in the performance of duty. She stopped work on May 7, 1998.3
On June 18, 1998 OWCP initially accepted appellant’s claim for right knee sprain. It later
expanded the accepted conditions to include right knee medial meniscus tear. Appellant
underwent OWCP-authorized right knee arthroplasty on September 2, 1998. OWCP paid her
wage-loss compensation on the daily, periodic, and supplemental rolls for disability. On April 30,
2002 it granted appellant a schedule award for 42 percent permanent impairment of the right lower
extremity. The period of the award ran for 120.96 weeks from December 26, 2001 to
April 20, 2004. Thereafter, OWCP paid appellant wage-loss compensation for disability on the
supplemental and periodic rolls.
On June 24, 2020 SSA forwarded a completed Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that beginning in
November 2016 appellant’s SSA rate with FERS was $810.00 and without FERS was $390.00;
beginning in December 2016 her SSA rate with FERS was $812.00 and without FERS was
$391.00; beginning in December 2017 there was no FERS offset because she received disability
benefits; beginning in November 2018 her SSA rate with FERS was $908.00 and without FERS
was $437.00; beginning in December 2018 her SSA rate with FERS was $934.00 and without
FERS was $449.00; and beginning in December 2019 her SSA rate with FERS was $949.00 and
without FERS was $456.00.
On August 12, 2020 OWCP resent a FERS/SSA dual benefits calculation form to SSA. It
requested that SSA verify whether appellant received SSA disability benefits and if her disability
was for that period only.
On August 19, 2020 SSA forwarded a completed FERS/SSA dual benefits calculation form
to OWCP. The form indicated that beginning in November 2016 appellant’s SSA rate with FERS
was $810.50 and without FERS was $450.30; beginning in December 2016 her SSA rate with
FERS was $812.90 and without FERS was $451.60; beginning in November 2018 her SSA rate
with FERS was $908.20 and without FERS was $460.60; beginning in December 2018 her SSA
with FERS was $934.20 and without FERS was $473.40; and beginning in December 2019 her

2

Docket No. 05-590 (issued September 12, 2005).

3

On June 12, 1998 appellant’s employment was terminated by the employing establishment.

2

SSA rate with FERS was $939.10 and without FERS was $480.90. The form indicated that from
August 2017 through October 2018 appellant was entitled to receive disability benefits.
OWCP, by letter dated September 11, 2020, notified appellant that her compensation
would be offset by the portion of her SSA age-related retirement benefits attributable to her federal
service.
In a preliminary overpayment determination dated September 11, 2020, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $13,150.41
because her wage-loss compensation benefits had not been reduced for the period November 1,
2016 through August 15, 2020 by the portion of her SSA benefits that were attributable to her
federal service. It calculated the overpayment amount by determining the difference between her
SSA amount with and without FERS for the stated period and adding this amount to find a total
overpayment of $13,150.41. OWCP further advised appellant of its preliminary overpayment
determination that she was without fault in the creation of the overpayment and requested that she
complete an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20), and submit supporting financial documentation. Additionally, it notified her that she
could request a telephone conference, a final decision b ased on the written evidence, or a
prerecoupment hearing. OWCP allotted 30 days for appellant to respond.
On October 7, 2020 appellant completed an overpayment action request form and
requested that OWCP make a decision based on the written evidence. Sh e indicated that she was
requesting waiver of recovery of the overpayment because she relied on written information given
to her by OWCP and other governmental agencies to correctly calculate her payments. In an
accompanying Form OWCP-20 of even date, appellant reported monthly income of $5,127.00,
including SSA benefits of $2,759.00 and FECA compensation benefits of $2,368.00. She also
reported monthly expenses of $1,190.00 for rent or mortgage; $700.00 for food; $150.00 for
clothing; $550.00 for utilities; $1,600.00 for other expenses; $200.00 for a credit card; and $545.00
for a car loan, totaling $4,935.00. Additionally, appellant reported funds of $200.00 in a checking
account. She submitted financial documentation including a bank statement and bills.
OWCP, by decision dated December 17, 2020, finalized the preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$13,150.40 for the period November 1, 2016 through August 15, 2020, for which she was not at
fault, because her FECA compensation payments were not offset by the portion of her SSA age related retirement benefits attributable to her federal service. It found that she was without fault
in the creation of the overpayment, but denied waiver of recovery because the evidence of record
did not establish that recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience. OWCP found that, based on monthly bills submitted, appellant listed
monthly expenses totaling $3,078.95. It further found that she received $6,360.47 in monthly
deposits based on a bank statement. OWCP concluded that appellant’s monthly income of
$6,360.47 exceeded her monthly expenses of $3,078.95 by $3,281.52 , and thus, she was not
entitled to waiver on the basis of defeating the purpose of FECA. It required recovery of the
overpayment by deducting $468.19 from her continuing compensation payments.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 However, section 8116 also limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5 When an overpayment has been made
to an individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.6
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of any SSA benefits that are attributable to the federal service of
the employee.7 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$13,150.41, for which she was without fault, because she concurrently received FECA wage -loss
compensation and SSA age-related retirement benefits without an appropriate offset for the period
November 1, 2016 to August 15, 2020.
In its December 17, 2020 decision, OWCP found that an overpayment of compensation
was created for the period November 1, 2016 to August 15, 2020. The overpayment was based on
the evidence received from SSA with respect to retirement benefits paid to appellant. As noted, a
claimant cannot receive both compensation for wage loss and SSA age-related retirement benefits
attributable to federal service for the same period. 9 The information provided by SSA established
that appellant received SSA age-related retirement benefits that were attributable to federal service
beginning November 1, 2016. OWCP, however, neglected to offset her FECA benefits until
August 15, 2020. Accordingly, the Board finds that it properly determined that appellant received

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
8

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

9

5 U.S.C. § 8116(d)(2); see W.C., Docket No. 20-1241 (issued February 9, 2021); R.D., Docket No. 19-1598
(issued April 17, 2020); C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).

4

an overpayment of wage-loss compensation for the period November 1, 2016 through
August 15, 2020.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age -related retirement
benefits that were attributable to federal service. The SSA provided appellant’s SSA rates with
FERS and without FERS for the period November 1, 2016 through August 15, 2020. OWCP
provided its calculations of the amount that it should have offset during the relevant period based
on the SSA worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period November 1, 2016 through August 15, 2020 and finds that an overpayment of compensation
in the amount of $13,150.41, was created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 11
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.12
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics. 13 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 14
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
10

See W.C., id.; M.S., Docket No. 18-0740 (issued February 4, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
11

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued
June 12, 2019).
12

A.C., Docket No. 18-1550 (issued February 21, 2019); Robert Atchison, 41 ECAB 83, 87 (1989).

13

20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a (3) (September 2018).
14

Federal (FECA) Procedure Manual id. at Chapter 6.400.4(a)(3) (September 2018).

5

received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 15 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment. 16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 17
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown that she needs substantially all of her current income to meet
ordinary and necessary living expenses. Evidence of record reveals that appellant received an
income of $6,360.47 per month and that she had monthly expenses of $3,078.95. As appellant’s
monthly income exceeds her monthly expenses by more than $50.00, in this case, $3,281.52, she
has not shown that she needs substantially all of her current income to meet current ordinary and
necessary living expenses. 18 Because appellant has not met the first prong of the two-prong test
of whether recovery of the overpayment would defeat the purpose of FECA, it is unnecessary for
OWCP to consider the second prong of the test based on her assets.
Appellant also has not established that recovery of the o verpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment. 19
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, she has failed to establish tha t OWCP
acted improperly by denying waiver of recovery of the $13,150.41 overpayment.

15

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

16

FECA Procedure Manual, supra note 14 at Chapter 6.400.4c(3) (September 2018).

17

20 C.F.R. § 10.436.

18

Id. at § 10.437(a), (b).

1919

M.R., Docket No. 20-1622 (issued June 30, 2021); L.D., Docket No. 18-1317 (issued April 17, 2019); William J.
Murphy, 41 ECAB 569, 571-72 (1989).

6

LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further payments,
the individual shall refund to OWCP the amount of the overpayment as soon as the error is
discovered or his or her attention is called to same. If no refund is made, OWCP shall decrease
later payments of compensation, taking into account the probable extent of future payments, the
rate of compensation, the financial circumstances of the individual and any other relevant facts, so
as to minimize any hardship. 20
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$468.19 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate at $468.19, OWCP explained how it considered the factors set
forth at 20 C.F.R. § 10.441(a) in setting the amount of repayment from continuing compensation
benefits to minimize hardship, while liquidating the debt, as appellant had financial resources
sufficient for more than ordinary needs. 21 Thus, it did not abuse its discretion in setting the rate of
recovery.22 The Board therefore finds that OWCP properly required recovery of the overpayment
from appellant’s continuing compensation payments at the rate of $468.19 every 28 days.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$13,150.41, for which she was without fault, because she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits without an appropriate offset for the period
November 1, 2016 through August 15, 2020. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment and properly required recovery of the overpayment by
deducting $468.19 every 28 days from her continuing compensation payments.

20

20 C.F.R. § 10.441(a). See also L.B., Docket No. 11-2076 (issued August 29, 2012); G.B., Docket No. 11-1568
(issued February 15, 2012).
21

F.K., Docket No. 20-1609 (issued June 24, 2021); D.S., Docket No. 18-1447 (issued July 22, 2019).

22

F.K., id.; T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed,
Issued: November 15, 2021
Washington, DC

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

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

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

8