United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Goleta, CA, Employer
__________________________________________

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

Docket No. 09-1616
Issued: March 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 10, 2009 appellant filed a timely appeal of a May 18, 2009 decision of the Office
of Workers’ Compensation Programs, which affirmed the termination of her wage-loss
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective December 1, 2008; and (2) whether
appellant met her burden of proof to establish that she had any employment-related disability or
medical condition after December 1, 2008 causally related to her employment injury.
FACTUAL HISTORY
On March 8, 2003 appellant, then a 40-year-old transportation security screener, filed a
claim for a traumatic injury alleging that she sustained an injury on January 3, 2003 when she

lifted a large suitcase and felt something pull in her right side. She stopped work on March 7,
2003 and returned to work on May 26, 2003 in a limited-duty capacity. A March 7, 2003 lumbar
x-ray revealed mild spondylosis. A March 31, 2003 x-ray of the thoracic spine was negative.
Appellant stopped work again on September 18, 2003 due to a separate employment injury and
did not return to work.1 The Office accepted her January 3, 2003 claim for thoracic and lumbar
strains.
In a June 27, 2003 report, Dr. Steven Dosch, an attending physician, stated that a
magnetic resonance imaging (MRI) scan of appellant’s lumbar spine revealed multilevel facet
joint hypertrophy. An MRI scan of her thoracic spine was negative.
In a July 10, 2003 report, Dr. William C. Boeck, Jr., a Board-certified orthopedic surgeon
and an Office referral physician, reviewed the medical history and provided findings on physical
examination. He opined that appellant had residuals of her work-related lumbar strain but could
perform her modified-duty job.
On March 22, 2004 Dr. Steven Nagelberg, a Board-certified orthopedic surgeon, began
treating appellant for her accepted thoracic and lumbar strains. Electromyogram (EMG) and
nerve conduction velocity (NCV) testing performed on April 8, 2004 revealed left-sided S1
radiculopathy. A May 3, 2004 MRI scan revealed degenerative changes at C2-7. A January 31,
2005 EMG and NCV study was normal. A February 10, 2006 cervical spine MRI scan revealed
degenerative changes. March 27, 2006 discography of the lumbar spine revealed degeneration
and a disc bulge at L5-S1.
On May 4, 2006 Dr. Nagelberg requested authorization for surgery consisting of an
anterior lumbar interbody fusion at L5-S1. A November 27, 2006 lumbar MRI scan revealed
degenerative changes at L3-4 and L5-S1. On November 29, 2006 Dr. Nagelberg again
recommended spinal surgery.
On November 7, 2006 Dr. Boeck reexamined appellant. He opined that her accepted
thoracic strain had resolved. Dr. Boeck noted the positive March 27, 2006 L5-S1 discogram,
revealing an active lumbar strain with radiculopathy, but he opined that lumbar spine surgery
was not medically necessary to treat the condition. He found that appellant could return to her
regular work without restrictions.
On March 30, 2007 Dr. Nagelberg reiterated his request for authorization for lumbar
spine surgery based on the positive discogram and subjective findings on physical examination.
On June 4, 2007 Dr. Boeck stated that lumbar surgery was not warranted. On September 12 and
October 4, 2007 Dr. Nagelberg repeated his findings and recommendation for lumbar spine
surgery.
On December 10, 2007 the Office found a conflict in medical opinion between
Dr. Nagelberg and Dr. Boeck as to whether appellant needed lumbar spine surgery and as to the
nature and extent of her work-related medical condition and disability. It referred her, together
1

Under OWCP File No. xxxxxx795, the Office accepted appellant’s claim for a cervical strain, left shoulder
strain and left rotator cuff syndrome.

2

with a statement of accepted facts, a list of questions and the case file, to Dr. Alan P. Moelleken,
a Board-certified orthopedic surgeon, for an examination and evaluation to resolve the conflict.
In a July 25, 2008 report, Dr. Moelleken reviewed the medical history in detail, including
test results and provided findings on physical examination. He noted that appellant had a neck
injury in 1998 while working in private industry. Appellant had not worked at the employing
establishment since 2004. In 2006 or 2007, she was involved in a nonwork-related motor vehicle
accident but could not recall whether she injured her neck or back at that time. On physical
examination, appellant’s gait was normal. Dr. Moelleken found no lumbar or thoracic tenderness
or significant lumbar nerve compression. Neurological findings were normal. Dr. Moelleken
stated that there was an obvious discrepancy in appellant’s spine range of motion in that she
demonstrated a much greater range of motion when she was simply observed than when she was
asked to perform her range of motion evaluation. Hoffman’s, Babinski, clonus, straight leg
raising, Laseque and Lhermitte signs were all negative. Appellant had significant inorganic
findings, including a dramatically positive Waddell’s sign for inorganic pain. She screamed in
pain with Waddell’s testing to simulated axial compression and simulated axial rotation even
lightly. Appellant complained on light touch of her skin. Lumbar degenerative changes
disclosed in an MRI scan were not related to the January 3, 2003 employment injury.
Additionally, the changes were mild and did not warrant surgery. A thoracic spine MRI scan
was normal. Dr. Moelleken stated that no surgery was necessary to treat the thoracic and lumbar
strains sustained on January 3, 2003. There were no objective abnormalities on physical
examination that were causally related to the January 3, 2003 employment injury. Dr. Moelleken
opined that appellant had completely recovered from her January 3, 2003 accepted thoracic and
lumbar strains.
By letter dated October 29, 2008, the Office advised appellant of its proposed termination
of her wage-loss compensation and medical benefits on the grounds that the weight of the
medical evidence established that she had no remaining disability or medical condition causally
related to her January 3, 2003 employment-related thoracic and lumbar strains.
By decision dated December 1, 2008, the Office finalized its termination of appellant’s
wage-loss compensation and medical benefits.
Appellant requested a telephonic hearing that was held on March 20, 2009. In a
November 19, 2008 report, Dr. Nagelberg provided findings on physical examination and
diagnosed cervical and lumbar discogenic pain. He reiterated his recommendation for back
surgery.
By decision dated May 18, 2009, the Office affirmed the December 1, 2008 decision.2

2

Subsequent to the May 18, 2009 decision, additional evidence was associated with the case. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

3

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 It may not terminate compensation without establishing
that the disability ceased or that it is no longer related to the employment.4 The Office’s burden
of proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.5 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
authorization for medical treatment, the Office must establish that a claimant no longer has
residuals of an employment-related condition that require further medical treatment.6
Section 8123(a) of the Federal Employees’ Compensation Act provides that “if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary [of Labor] shall appoint a third physician who shall
make an examination.”7 Where a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.8
ANALYSIS -- ISSUE 1
Appellant’s claim for an injury on January 3, 2003 was accepted for thoracic and lumbar
spine strains. Dr. Moelleken provided a comprehensive report dated July 25, 2008. He was
provided with appellant’s case file, a list of questions and a statement of accepted facts.
Dr. Moelleken reviewed the medical history in detail, including test results and provided findings
on physical examination. He noted that appellant had a neck injury in 1998 while working in
private industry. Appellant had not worked at the employing establishment since 2004. In 2006
or 2007, she was involved in a nonwork-related motor vehicle accident but could not recall
whether she injured her neck or back at that time. On physical examination, appellant’s gait was
normal. Dr. Moelleken found no lumbar or thoracic tenderness or significant lumbar nerve
compression. Neurological findings were normal. Dr. Moelleken stated that there was an
obvious discrepancy in appellant’s spine range of motion in that she demonstrated a much
greater range of motion when she was simply observed than when she was asked to perform her
range of motion evaluation. Hoffman’s, Babinski, clonus, straight leg raising, Laseque and
Lhermitte signs were all negative. Appellant had significant inorganic findings, including a
dramatically positive Waddell’s sign for inorganic pain. She screamed in pain with Waddell’s
3

I.J. 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
4

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

5

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

7

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
8

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

4

testing to simulated axial compression and simulated axial rotation even lightly. Lumbar
degenerative changes disclosed in an MRI scan were not related to the January 3, 2003
employment injury. Additionally, the changes were mild and did not warrant surgery. A
thoracic spine MRI scan was normal. Dr. Moelleken stated that no surgery was necessary to
treat the thoracic and lumbar strains sustained on January 3, 2003. There were no objective
abnormalities on physical examination that were causally related to the January 3, 2003
employment injury.
Dr. Moelleken opined that appellant had completely recovered from her January 3, 2003
accepted thoracic and lumbar strains. The report is based upon a complete and accurate factual
and medical background and findings on physical examination. Dr. Moelleken provided medical
rationale in support of his opinion that appellant’s accepted thoracic and lumbar spine strains had
completely resolved and surgery was unnecessary. The Board finds that his thorough and wellrationalized report establishes that she had no continuing disability or medical condition causally
related to her January 3, 2003 accepted thoracic and lumbar strains. Accordingly, the Office met
its burden of proof in terminating appellant’s wage-loss compensation and medical benefits
effective December 1, 2008 based on the medical opinion of Dr. Moelleken that her accepted
thoracic and lumbar strains had resolved.
On appeal, appellant contends that the Office’s decisions are contrary to fact and law.
However, as noted, the report of Dr. Moelleken is entitled to special weight and establishes that
her accepted thoracic and lumbar strains had resolved. The Office properly terminated
appellant’s wage-loss compensation and medical benefits based on the opinion of Dr. Moelleken.
LEGAL PRECEDENT -- ISSUE 2
Where the Office meets its burden of proof in justifying termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
related to the employment injury.9 In order to prevail, the employee must establish by the weight
of the reliable, probative and substantial evidence that he or she had an employment-related
disability which continued after termination of compensation benefits.10
ANALYSIS -- ISSUE 2
The Board finds that, following the proper termination of her compensation and medical
benefits on December 1, 2008, appellant failed to establish that she had any continuing disability
or medical condition causally related to her January 3, 2003 employment-related thoracic and
lumbar strains.
In a November 19, 2008 report, Dr. Nagelberg provided findings on physical examination
and diagnosed cervical and lumbar discogenic pain. He reiterated his recommendation for back
surgery. A subsequent report submitted by a claimant’s attending physician is insufficient to
9

I.J., supra note 3; Anna M. Blaine, 26 ECAB 351, 353-54 (1975); see Fred Foster, 1 ECAB 127, 132-33 (1948).

10

I.J. supra note 3; Gary R. Sieber, 46 ECAB 215, 222 (1994); see Wentworth M. Murray, 7 ECAB 570,
572 (1955).

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outweigh the report of the impartial medical specialist, where the attending physician’s earlier
reports had created the medical conflict that was referred to the impartial medical specialist to
resolve.11 The supplemental report from Dr. Nagelberg does not provide additional rationale in
support of his opinion. The Office properly affirmed the December 1, 2008 termination
decision.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation and medical benefits effective December 1, 2008. The Board further finds
that appellant did not meet her burden of proof to establish that she had any work-related
disability or medical condition after December 1, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 18, 2009 is affirmed.
Issued: March 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

See Roger G. Payne, 55 ECAB 535 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westbury, NY, Employer
__________________________________________

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

Docket No. 16-0002
Issued: November 25, 2015

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 2, 2015 appellant timely appealed the September 21, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
February 16, 2015.
FACTUAL HISTORY
On February 23, 2015 appellant, then a 69-year-old sales, services, and distribution
associate, filed a traumatic injury claim (Form CA-1) for an unspecified injury. He claimed to
have been injured while outside unloading a truck on the dock. Appellant described it as a “full
and heavy load,” and also noted that it was very cold outdoors, “may be (sic) negative degrees.”
1

5 U.S.C. § 8101 et seq.

On the Form CA-1 the employing establishment indicated that appellant was unloading a truck in
extreme cold weather when he began to feel faint.
OWCP received a February 17, 2015 discharge notice indicating that appellant had been
admitted the previous day. There was no additional information regarding a diagnosis and/or
specific treatment received. Appellant also submitted two February 17, 2015 prescriptions. One
prescription was for aspirin, and the other was for Simvastatin.
On February 25, 2015 OWCP advised appellant that the evidence received thus far was
insufficient to support his traumatic injury claim. It afforded him at least 30 days in which to
submit additional factual information regarding the alleged employment incident, as well as
additional medical evidence regarding his claimed condition(s).
OWCP subsequently received emergency medical services (EMS) records, as well as
hospital (Nassau University Medical Center -- NUMC) records regarding appellant’s
February 16 to 17, 2015 admission.
An EMS crew encountered appellant at 8:32 a.m. on February 16, 2015. Appellant’s
chief complaint was “[syncope - I am dizzy]”. His symptoms included dizziness, general
weakness, lightheadedness, fatigue, and syncope. When EMS arrived appellant was sitting in a
chair complaining of dizziness and weakness of a few minutes duration. Appellant advised EMS
that he had been outside in the cold lifting boxes. He denied having lost consciousness.
Appellant also denied shortness of breath, chest pain, nausea/vomiting, and trauma. The EMS
report further noted that appellant presented with cool and pale skin, bradycardia, and
hypotension. Although the initial electrocardiogram results showed bradycardia, appellant’s
heart rate soon returned to normal sinus rhythm. The EMS report also noted that he stated that
he felt much better after having a bowel movement. Additionally, appellant denied any prior
medical history, medications, or allergies. He was transported without incident. Appellant
arrived at NUMC emergency department at 9:10 a.m. By then he had no complaints.
Appellant’s diagnosis was presyncope.
The NUMC treatment records noted that appellant had complained of dizziness and
tingling in both hands. Appellant was identified as a 68-year-old male who had been at work
unloading a mail truck. He reported that it was very cold and the boxes were heavy. Appellant
began feeling numbness in both hands, and then dizziness. He reportedly went inside and laid
down. EMS informed the hospital staff that when they first encountered appellant he was
bradycardia in the forties and hypotensive in the sixties. Appellant then went to the bathroom
and had a bowel movement, and afterwards appellant began to feel better. By the time he arrived
at the hospital, he was asymptomatic.
There was some question as to whether appellant lost consciousness. Appellant denied it,
but his wife advised the hospital staff that appellant’s coworker stated that he may have lost
consciousness. NUMC treatment records also noted that appellant advised that he does not have
breakfast in the morning. Appellant also reported having previously experienced dizziness with
exertion, but he did not seek medical attention at the time. Although asymptomatic, he was
admitted to the hospital for continuous cardiac monitoring (telemetry) because of the possibility

2

that he may have experienced a transient ischemic attack.2 An echocardiogram was administered
and appellant also had a neurological consultation with Dr. Nadeem Shabbir, a Board-certified
neurologist. No neurological problems were noted. Dr. Shabbir surmised that appellant’s
presyncope was probably due to bradycardia and hypothermia.3 From a neurological standpoint,
he cleared appellant for discharge.
On February 17, 2015 appellant was discharged by Dr. Roman Zeltser, a Board-certified
internist with a subspecialty in cardiovascular disease, with a principal diagnosis of near
syncope, “secondary to low temperature outside.” He was advised to avoid dehydration, stay
warm, wear protective clothing outdoors, and to follow-up with his primary care physician.
In an April 7, 2015 decision, OWCP acknowledged receiving “hospital treatment notes
dated [February 16, 20015].” It denied appellant’s claim because he did not provide additional
information regarding the alleged February 16, 2015 employment incident. OWCP found that
the events of February 16, 2015 remained unclear, and therefore, he failed to establish the factual
component of his claim. It also noted that, although the hospital treatment records included a
final diagnosis of near syncope, there was no rationalized medical opinion explaining how the
reported findings were either caused or aggravated by appellant’s February 16, 2015
employment exposure.
OWCP subsequently received appellant’s March 23, 2015 statement. Appellant
explained that on February 16, 2015 at approximately 8:30 a.m., he was unloading a truck with
heavy mail containers like cages, flat sequencing system (F.S.S.) casters, and postal containers
(Postcons). He further indicated that, with great difficulty, he and the driver were able to get a
few items from the truck to the lift, then to the dock, and then inside. Appellant also noted that
his fingers got numb and his body got weak, and he could not do anything more. He indicated
that he went inside and told the postmaster and leaned against the postcon. Appellant did not
recall what happened afterwards. He indicated that by the time he realized it, EMS, the police,
and the postmaster were next to him. Appellant was placed on a stretcher, taken to the hospital,
and discharged the following day. He indicated that he saw his personal physician on
February 20, 2015, and per his doctor’s instructions, appellant reported for duty on February 23,
2015, at which time the postmaster filled out Form CA-1.
OWCP also received a one-page, NUMC discharge plan with a final diagnosis of syncope
and collapse. The February 17, 2015 discharge instructions indicated that appellant could
resume normal activity. Appellant was also instructed to continue his medications, avoid
dehydration, wear protective clothes to go outside, and to follow-up with his primary care
physician.
On February 20, 2015 appellant had a follow-up appointment with Dr. Daniel M.
Appelbaum, a Board-certified internist with a subspecialty in cardiovascular disease.
2

The preliminary admitting diagnoses included syncope, prediabetes, pulmonary atelectasis, atelectasis,
hyperglycemia, and near syncope. A February 16, 2015 chest x-ray revealed a liner density/opacity at the left base
that was thought to represent either a consolidation or atelectasis.
3

Appellant’s body temperature upon arrival in the emergency department was 95 degrees Fahrenheit.

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Dr. Appelbaum noted that appellant was a postal worker who was recently admitted to NUMC.
He reported that appellant had been working outdoors in extremely cold weather when his hands
felt numb and he felt dizzy. Dr. Appelbaum further noted that appellant was taken by ambulance
to the hospital and was admitted overnight. The results of an echocardiogram revealed normal
left ventricle, enlarged right ventricle, dilated right atrium, mild mitral insufficiency, mild-tomoderate mitral annular calcifications, mild aortic regurgitation, and mildly elevated pulmonary
artery pressure. Dr. Appelbaum explained that the work-up and laboratory results were
unremarkable, and appellant was discharged to home. Since then there were no recurring
symptoms. Dr. Appelbaum opined that appellant’s dizziness was most likely related to doing
heavy work in the extreme cold. Because appellant’s condition improved and had not recurred,
there was no need for further work-up. Dr. Appelbaum noted additional problems of mild mitral
and aortic insufficiency, as demonstrated by appellant’s recent echocardiogram.
On July 20, 2015 appellant requested reconsideration of the April 7, 2015 decision.
By decision dated September 21, 2015, OWCP reviewed the merits, but continued to
deny appellant’s traumatic injury claim. It modified the April 7, 2015 decision to reflect that he
satisfied the factual component of the claim based on his March 23, 2015 statement. However,
OWCP found that the medical evidence failed to establish a causal relationship between
appellant’s accepted occupational exposure and the diagnosed condition(s). It explained that his
physician did not provide an opinion supported by medical rationale which explained how
unloading a truck in cold weather caused, aggravated, or contributed to the diagnosed
condition(s).
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.

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as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
ANALYSIS
OWCP accepted that the February 16, 2015 employment incident occurred as alleged.
Appellant was outdoors unloading a truck in what he described as very cold, possibly sub-zero
conditions. He reported feeling numbness and tingling in his bilateral upper extremities, as well
as dizziness. Appellant was transported via ambulance to the NUMC emergency department,
and was subsequently admitted for observation. The following day he was discharged with a
diagnosis of near syncope. Appellant’s condition and/or symptoms appeared to have resolved
without residuals. The issue currently before the Board is whether the medical evidence
establishes a causal relationship between appellant’s pre-syncope episode and his accepted
February 16, 2015 occupational exposure.
As noted, causal relationship is a medical question that generally requires rationalized
medical opinion evidence to resolve the issue.8 A physician’s opinion on causal relationship
must be based on a complete factual and medical background.9 The mere fact that a condition
manifests itself during a period of employment is not sufficient to establish causal relationship.10
Temporal relationship alone will not suffice.11 Furthermore, appellant’s personal belief that his
employment activities either caused or contributed to his condition is insufficient, by itself, to
establish causal relationship.12
Dr. Shabbir, a neurologist, who examined appellant during his February 16 to 17, 2015
hospitalization, found no neurological problems and surmised that appellant’s pre-syncope was
probably due to bradycardia and hypothermia. However, he provided no explanation of how
appellant’s employment exposure was sufficient to either cause or contribute to his transient
bradycardia and/or low body temperature and resultant pre-syncope.
Dr. Zeltser, the NUMC cardiologist, provided a discharge diagnosis of syncope
“secondary to low temperature outside.” Also, Dr. Appelbaum, appellant’s cardiologist, opined
that his dizziness was most likely related to doing heavy work in the extreme cold. However,
neither physician offered an explanation for their respective opinions on causal relationship.
A physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Robert G. Morris, supra note 6.

9

Victor J. Woodhams, supra note 6.

10

20 C.F.R. § 10.115(e).

11

See D.I., 59 ECAB 158, 162 (2007).

12

Id.; Phillip L. Barnes, 55 ECAB 426, 440 (2004).

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between the diagnosed condition and appellant’s specific employment factor(s).13 In this
instance, the above-referenced reports do not adequately explain how appellant’s specific duties
on February 16, 2015 either caused or contributed to the pre-syncope episode he experienced at
work that morning.
The Board finds that the medical evidence of record fails to establish that appellant’s presyncope episode was causally related to his February 16, 2015 accepted employment exposure.
Accordingly, appellant has failed to meet his 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
Appellant failed to establish that he sustained an injury in the performance of duty on
February 16, 2015.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2015
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
13

Victor J. Woodhams, supra note 6.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 19-0550
Issued: October 7, 2019

Case Submitted on the Record

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

JURISDICTION
On January 14, 2019 appellant, through counsel, filed a timely appeal from an October 23,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 23, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an employment related injury while in the performance of duty on August 9, 2018, as alleged.
FACTUAL HISTORY
On September 10, 2018 appellant, then a 45-year-old tractor trailer operator, filed a
traumatic injury claim (Form CA-1) alleging that on August 9, 2018 at 12:15 p.m., while at lunch
he and his supervisor had an altercation and his supervisor stabbed him multiple times in various
areas of his body. The employing establishment controverted the claim noting that appellant and
his supervisor, B.G., were off-premises during a lunch break when the altercation/assault occurred.
On August 9, 2018 appellant was treated in the emergency department and diagnosed with neck
stab wound, trauma.
In a handwritten statement largely illegible, appellant indicated a pattern of ongoing
harassment over the past few months by his supervisor, B.G. On August 9, 2018 at 12:00 p.m., he
reported going to lunch to buy a lottery ticket at Jim’s Liquor Store. When appellant got out of
his truck in the liquor store parking lot B.G. was present in the parking lot with a kitchen knife.
He reported approaching B.G. where they became engaged in a verbal and physical altercation and
B.G. stabbed him in the right shoulder.
An August 9, 2018 computerized tomography angiogram of the chest with contrast
revealed a stab wound to the left upper shoulder/neck region, status post right shoulder reduction,
and punctate air foci at the superficial aspect of the left sternocleidomastoid muscle. A duty status
(Form CA-17) report dated August 27, 2018 prepared by a health care provider whose signature
was illegible noted clinical findings of right shoulder pain and advised that appellant could not
resume work.
In a letter dated September 11, 2018, the employing establishment challenged appellant’s
claim based on the element of performance of duty. Appellant reported that he was at lunch at
Jim’s Liquor Store when he was stabbed by B.G. The employing establishment advised that he
was not in the performance of duty and that the incident took place off-premises and off the clock.
It referenced time and attendance reports for August 9, 2018 supporting its challenge. The
employing establishment submitted an “All Access Attempts History Report” from August 9, 2018
which noted that appellant entered the employing establishment building at 7:05 a.m. and exited
the building at 7:06 a.m., he entered the building again at 7:11 a.m. and exited the building at 12:07
p.m. It also submitted a “Restricted USPS Time and Attendance Information Report” dated
September 11, 2018 which noted that on August 9, 2018 he went out to lunch at 12:11 and returned
at “12:61.”
In a September 18, 2018 development letter, OWCP informed appellant that the evidence
was insufficient to show that he was injured while performing his employment duties. It requested
that he address whether he was on the premises of the employing establishment when the incident
occurred and whether he was performing his assigned work duties. OWCP further requested, if
the incident had occurred off-premises, that appellant identify the location of the incident and its
relationship to his workplace and work activities. It afforded him 30 days for submission of the
requested evidence.

2

OWCP received a duty status report (Form CA-17) dated September 24, 2018 from a
healthcare provider whose signature was illegible who noted clinical findings of right shoulder
pain and advised that appellant could not resume work.
Appellant provided a statement dated October 10, 2018 and noted that he experienced
ongoing harassment from B.G. for a few months and consistently for the past month and a half.
He indicated that B.G. was disrespectful toward him and stated “you don’t know who I am, you
better watch yourself.” Appellant recounted that on August 9, 2018 at 9:20 a.m. he returned back
to his unit from a break and approached his supervisor and stated “no one [is] going to listen to
you because you are disrespectful.” B.G. responded that he went to lunch at 11:00 a.m. and
appellant responded “ok.” Appellant interpreted this as an invitation to lunch which he
disregarded. He reported clocking out for lunch and saw B.G. in the parking lot outside his car.
When he was driving off the premises, B.G. was in the car in front of him and appellant attempted
to go around him and B.G. moved his car over preventing him from getting in the lane beside him.
Appellant drove to Jim’s Liquor Store to purchase a lottery ticket. When he arrived, he got out of
his truck in the liquor store parking lot and B.G. was standing by his car with a kitchen knife.
Appellant reported approaching B.G. and B.G. grabbed his shirt and stated “we are not at the
[employing establishment] now, I will kill your punk a**. You don’t know who you f**king
with.” He reported stating “what are you going to do, stab me?” Appellant then indicated that he
grabbed B.G. and B.G. began stabbing him. He reported throwing B.G. on the ground who then
ran into the liquor store. After the altercation appellant returned to the job. He reported that he
requested statements from the employing establishment relating to the assault “and was told by
management that the postal inspectors had them.”
On October 11, 2018 appellant was treated by a licensed social worker for post-traumatic
stress disorder reportedly from an incident at work on August 9, 2018. The social worker noted
that he was receiving treatment weekly since August 23, 2018.
By decision dated October 23, 2018, OWCP denied appellant’s traumatic injury claim. It
found that he was not in the performance of duty at the time of the alleged August 9, 2018 incident
when he was at lunch and not on the premises of the employing establishment.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty. 4 The phrase “sustained
while in the performance of duty” in FECA is regarded as the equivalent of the commonly found
requisite in workers’ compensation law of arising out of and in the course of employment. 5
In order to be covered under FECA, an injury must occur at a time when the employee may
reasonably be stated to be engaged in his or her master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment, and while he or she was

4

5 U.S.C. § 8102(a).

5

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

3

reasonably fulfilling the duties of his or her employment or engaged in doing something incidental
thereto.6
The Board has recognized a general principle, called the premises doctrine, that offpremises injuries sustained by employees having fixed hours and places of work while going to or
coming from work or during a lunch period are not compensable as they do not arise out of and in
the course of employment. 7 Rather, such injuries are merely the ordinary, nonemployment hazards
of the journey itself, which are shared by all travelers, subject to certain exceptions. 8
Exceptions to the premises doctrine have been made to protect activities that are so closely
related to the employment itself as to be incidental thereto,9 or which are in the nature of necessary
personal comfort or ministration. 10 The Board has also found that the course of employment
should extend to any injury that occurred at a point where the employee was within the range of
dangers associated with the employment. 11 This exception has two components. The first is the
presence of a special hazard at the particular off-premises point. The second is the close
association of the access route with the premises, so far as going and coming is concerned. 12 The
main consideration in applying this rule is whether the conditions giving rise to the injury are
causally connected to the employment.13
Assaults arise out of the employment either if the risk of assault is increased because of the
nature or setting of the work or if the reason for the assault was a quarrel having its origin in the
work. Assaults for private reasons do not arise out of employment unless, by facilitating an assault
that would not otherwise be made, the employment becomes a contributing factor. 14
In this regard, Federal (FECA) Procedure Manual, Chapter 2.080415 provides the following
as to the development of assault cases:
“10. Assault Cases. Where the injury or death is caused by the assault of another
person, it is necessary to establish to the extent possible whether the assault was
accidental, arose out of an activity directly related to the work or work environment,
or arose out of a personal matter having no connection with the employment. In
the case of a personal matter, the evidence must show whether it was materially and
substantially aggravated by the work association. An assault occurring off the
6

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

7

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

8

Id.

9

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

10

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

11

Id.

12

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

13

Id.

14

J.G., Docket No. 17-0747 (issued May 14, 2018).

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.10 (August 1992).

4

[employing establishment’s] premises and outside of work hours may be
compensable if it arose for reasons related to the employment.
a. It is the responsibility of the CE to obtain copies of any police reports
which may have been made. Statements should also be obtained from the
official superior and coworkers or other witnesses showing:
(1) Whether there was any animosity between the injured or
deceased employee and the assailant by reason of a personal
association away from work and, if so, this should be explained
fully; and
(2) A full description of the events and circumstances which
immediately preceded, led up to, and resulted in the assault.
b. A similar statement should be obtained from the assailant, if possible, and
in disability cases, from the injured employee.”
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed a traumatic injury claim (Form CA-1) alleging that, on August 9, 2018 at
12:15 p.m., while at lunch he and his supervisor had an altercation and his supervisor stabbed him
multiple times in various areas of his body. At the time of the assault he was clocked out to lunch,
not on the employing establishment premises, and outside of work hours.
OWCP found that appellant was not in the performance of duty at the time of the assault.
However, it did not address whether the assault arose for reasons related to the employment. In
an October 10, 2018 statement, appellant alleged that his supervisor had been harassing him.
Moreover, in responding to OWCP’s development questionnaire, he indicate that he requested
statements relating to the assault “and was told by management that the postal inspectors had
them.” As these “statements” are in the employing establishment’s possession or control, OWCP
should have attempted to secure them.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While appellant has the burden of proof to establish entitlement to compensation, OWCP
shares the responsibility in the development of the evidence, particularly when such evidence is of
the character normally obtained from the employing establishment or other governmental source. 16
On remand, OWCP should further develop the case based on Chapter 2.080417 of the
Federal (FECA) Procedure Manual and obtain any statements or investigatory report of the
August 9, 2018 incident from the employing establishment to clarify whether the altercation/fight
was within or outside the performance of duty. After such further development as deemed
necessary, it shall issue a de novo decision.
16

See L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

17

See supra note 15.

5

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: October 7, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
LOGAN INTERNATIONAL AIRPORT,
East Boston, MA, Employer
__________________________________________

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

Docket No. 09-652
Issued: October 5, 2009

Case Submitted on the Record

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

JURISDICTION
On January 7, 2009 appellant filed a timely appeal of the decisions of the Office of
Workers’ Compensation Programs dated July 24 and December 19, 2008 denying his claim for a
traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on April 29, 2008.
On appeal, appellant contends that the documentation clearly outlined that the incident
took place as he alleged and showed that the irritation rash was caused by the liquid to which he
was exposed during his federal employment. He argues that his claim is supported by his
statements as well as the statement of his supervisor, the agriculture specialist and the safety

investigation data form. Appellant argues that it would not be prudent for a physician to make an
accusation as to the cause of the rash as the physician was not there when the incident occurred.
FACTUAL HISTORY
On May 20, 2008 appellant, then a 40-year-old customs and border protection officer,
filed an occupational disease claim alleging that, on April 29, 2008, while conducting an
examination of a passenger, he came in contact with an unknown substance in the passenger’s
luggage, which caused him to suffer nausea, dizziness and a slight arm irritation. By letter dated
June 17, 2008, the Office asked him to submit further evidence, including medical evidence, in
support of his claim.
In an “authorization for examination and/or treatment, appellant’s supervisor authorized
treatment. The form noted, “Exposure to unidentified liquid believed to be organophosphate
which is harmful to humans. Exposure limited to right forearm.” Appellant also submitted a
safety investigation data form signed by his supervisor and a local safety officer, indicating that
while he was inspecting a passenger’s luggage, he was exposed to a pesticide/flammable leaked
in the luggage ...” The form indicated that he suffered from nausea, dizziness and a headache.
Appellant also submitted a copy of an article from the internet about Dichlorvos and a note from
an agriculture specialist with regard to the incident. He also submitted responses to the Office’s
questions with regard to how the incident occurred. Appellant described how on April 29, 2008,
with latex gloves while examining a passenger’s luggage after a flight from Nigeria, he opened a
bag with a strange and pungent odor. He noted that, when he reached into the bag, some of the
liquid which had spilled in transit got on his forearm. Appellant noted that, although he
immediately wiped the liquid off, he began to feel lightheaded, nauseous and dizzy and informed
his supervisor.
Appellant also submitted a discharge order dated April 30, 2008 by a
Dr. Vishnukrupa Reddy noting that he was treated in the emergency room after complaining of a
history of chemical exposure nausea for which Dr. Reddy diagnosed as organophosphate
exposure. In unsigned notes accompanying the report, Dr. Reddy noted that appellant was a
baggage handler and had a spill on his arm. He noted that, although there was skin rash present,
appellant had no headache, visual symptoms, drooling or increased salivation or shortness of
breath. Dr. Reddy released appellant to return to work full duty as of May 1, 2008.
By decision dated July 24, 2008, the Office treated appellant’s claim as one for a
traumatic injury and denied it as he failed to establish that he sustained an injury in the
performance of duty. It found that, although the evidence supported that the claimed events
occurred as alleged,1 there was no medical evidence showing that a diagnosis was made which
could be connected to the events.
By letter dated October 10, 2008, appellant requested reconsideration. In support of his
request, he resubmitted the April 30, 2008 report by Dr. Reddy and the accompanying
1

The Office found that evidence did support that appellant came in contact “with some type of liquid substance
on April 29, 2008, presumed to be Dichlorvos Organophosphate.” However, it found that there was no proof of the
identity of the liquid.

2

documents from his emergency room visit; however, this time the notes were signed by
Dr. Robert M. Miller, a Board-certified emergency medicine specialist.
By decision dated December 19, 2008, the Office found that the evidence established that
there was a physician’s diagnosis of a skin rash. However, it found that the medical records did
not indicate whether the skin rash was related to the workplace chemical exposure and, therefore,
the medical records were insufficient to show a causal relationship. Accordingly, the Office
modified the July 24, 2008 decision to find that the medical evidence was insufficient to
establish an injury-related condition causally related to appellant’s chemical exposure on
April 29, 2008.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or claim, including the fact that an individual
is an employee of the United States within the meaning of the Act, that the claim was timely
filed within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.4 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty,8
2

5 U.S.C. § 8122(a).

3

Id.

4

John J. Carlone, 41 ECAB 345 (1989).

5

Shirley A. Temple, 48 ECAB 404 (1997).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

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and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
ANALYSIS
There is no dispute that appellant established that he was exposed to a liquid during the
course of his employment as a customs and border protection officer and he suffered from a rash
on his forearm. The Office denied his claim because there was no medical evidence in the file
establishing that the rash on his forearm was causally related to the exposure to the liquid during
his federal employment.10
The Board finds that there is no rationalized medical evidence in the record establishing
that appellant’s rash was causally related to the exposure to the liquid during his federal duties.
The hospital medical records signed by physicians, Drs. Reddy and Miller, indicate that appellant
had a rash. These records, although noting appellant’s history of injury, do not conclusively
relate the rash to the specific incident.11 Thus, these reports are of diminished probative value.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief (nor the belief of his supervisor or other nonphysician) that the
condition was caused by his employment is sufficient to establish causal relationship.12 The
Board has held the fact that a condition manifests itself or worsens during a period of
employment13 or that the work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between the two. As appellant
failed to provide medical evidence establishing the causal relationship between his rash and his
employment, the Office properly denied the claim.
9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

Appellant filed his claim as an occupational disease claim; however, this claim is actually a traumatic injury
claim. A traumatic injury means a condition of the body caused by a specific event or incident or series of events or
incidents within a single workday or shift. An occupational disease or illness means a condition produced by the
work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q), (ee); Andy J. Paloukos,
54 ECAB 712 (2003). As the incident, i.e., exposure to a liquid on appellant’s forearm, occurred on a specific day,
April 29, 2008, this is a claim for a traumatic injury.
11

Appellant also submitted an article from the internet with regard to Dichlorvos Organophosphate. The Board
has held that newspaper clippings, internet articles, medical texts and excerpts from publications are of no
evidentiary value in establishing the causal relationship between a claimed condition and an employee’s federal
employment. Such materials are of general application are not determinative of whether the specific condition
claimed is related to the particular employment factors alleged by the employee. See Joe T. Williams, 44 ECAB
518, 521 (1993).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688,
691 (1965).
13

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
14

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on April 29, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 19 and July 24, 2008 are affirmed.
Issued: October 5, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Seattle, WA,
Employer
__________________________________________

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Appearances:
Jeffrey B. Tuttle, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0620
Issued: September 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 29, 2019 appellant, through counsel, filed a timely appeal from a
September 20, 2018 nonmerit decision2 of the Office of Workers’ Compensation Programs
(OWCP).3 As more than 180 days has elapsed since OWCP’s last merit decision, dated March 15,
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Counsel’s appeal to the Board notes an appeal from a March 15, 2018 merit decision. However, on April 11,
2018 appellant filed a request for reconsideration of OWCP’s March 15, 2018 decision, which was the basis of
OWCP’s September 20, 2018 decision. Therefore, the only OWCP decision over which the Board has jurisdiction is
the September 20, 2018 denial of merit review.
3
The Board notes that, following the September 20, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2018, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act4 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.5
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 9, 2018 appellant, then a 49-year-old investigative specialist, filed a traumatic
injury claim (Form CA-1) alleging that on December 9, 2017 he sustained a low back injury when
he was involved in a motor vehicle accident while driving in the performance of duty. The Form
CA-1 was signed by appellant on February 9, 2018 and requested continuation of pay (COP).
By decision dated March 15, 2018, OWCP accepted the claim for strain of muscle, fascia,
and tendon of lower back. Acceptance of the claim was later expanded to include the additional
condition of subluxation of L4-5 lumbar vertebra.
In a separate decision dated March 15, 2018, OWCP denied appellant’s claim for COP,
finding that the injury was not reported on an appropriate form within 30 days of the injury.
On April 11, 2018 appellant requested reconsideration of OWCP’s March 15, 2018
decision relative to the issue of COP. He provided an accompanying statement, alleging that he
did initiate his workers’ compensation claim in a timely manner, just four days following the
December 9, 2017 employment injury. Appellant reported that he used the Employees’
Compensation Operations and Management Portal (ECOMP) to file his claim. He completed an
Occupational Safety and Health Administration (OSHA) Injury and Illness Incident Report
(OSHA Form 301) via ECOMP on December 14, 2017 and received a seven-digit ECN number,
which he believed was his OWCP claim number. Appellant explained that he was not familiar
with the online process and had not realized that he had not filed the Form CA-1 until he was
informed by one of his medical providers that OWCP’s claim number is nine digits long. He
contacted his OWCP representative who informed him that he had filed the OSHA Form 301, but
still needed to file a Form CA-1. Appellant filed the Form CA-1 on February 9, 2018 and received
his OWCP claim number. He argued that the ECOMP filing process was very confusing and that
he did initiate his workers’ compensation claim within 30 days of the original injury. In support
of his claim, appellant submitted e-mails, which showed his inquiries regarding the filing process,
as well as ECOMP notification receipts for the filing of his OSHA Form 301 on December 14,
2017 and subsequent filing of his Form CA-1 on February 9, 2018.
By decision dated September 20, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

5 U.S.C. § 8101 et seq.

5

20 C.F.R. § 501.3(e).

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.8 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that this case is not in posture for decision.
The last merit decision of record was OWCP’s March 15, 2018 decision which denied
appellant’s request for continuation of pay. Following the March 15, 2018 decision appellant
requested reconsideration on April 11, 2018 -- a period of 27 days after the merit decision.
By decision dated September 20, 2018, OWCP found that the evidence of record was
insufficient to warrant merit review of the decision dated March 15, 2018 as the evidence of record
was irrelevant or immaterial and had no bearing on the issue of payment of COP benefits. This
decision was issued 162 days after appellant’s request for reconsideration. In order to preserve a
claimant’s right to timely request reconsideration, OWCP has a timeliness goal for issuing
reconsideration decisions within 90 days from the receipt of the request.10 Its procedures provide
that when a reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the
claimant’s right to a review of the merits of the case by the Board, OWCP should conduct a merit
review.11
As OWCP’s September 20, 2018 decision was issued more than 90 days after it received
appellant’s request for reconsideration, the question becomes whether the delay has jeopardized
his right to a review of the merits of the case by the Board.12 OWCP has determined that there is
6

20 C.F.R. § 10.606(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
7

20 C.F.R. § 10.607(a).

8

Id. at § 10.608(a); see also D.P., Docket No. 19-0001 (issued June 13, 2019); M.S., 59 ECAB 231 (2007).

9

20 C.F.R. § 10.608(b); S.M., Docket No. 18-1158 (issued January 16, 2019); J.F., Docket No. 17-1508 (issued
March 28, 2018); E.R., Docket No. 09-1655 (issued March 18, 2010).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (October 2011).

11

Id. at Chapter 2.1602.7.

12

See L.T., Docket No. 18-1311 (issued April 19, 2019).

3

no obligation to conduct a merit review on insufficient evidence if the maximum 180-day time
limit for requesting review by the Board would have expired within the 90-day period following
its receipt of the claimant’s reconsideration request.13 The Board has considered whether the 180day time limit for requesting review by the Board expired within the 90-day period following
OWCP’s receipt of appellant’s reconsideration request.14
Appellant filed his request for reconsideration on April 11, 2018 and 162 days lapsed from
the date of his request to the date of OWCP’s nonmerit decision. As appellant’s request for
reconsideration was made 27 days following the last merit decision, the total period from the last
merit decision to the September 20, 2018 nonmerit decision was 189 days. Therefore, the Board
finds that because OWCP issued its decision more than 90 days after receipt of the reconsideration
request, and because a total of 189 days had passed from the last merit decision, appellant was
denied the right to an appeal to the Board based upon a merit review.
The Board finds that this case shall be remanded to OWCP to conduct a review of the
merits of appellant’s claim to be followed by the issuance of an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.; see also C.L., Docket No. 10-1483 (issued May 12, 2011).

14

See G.B., Docket No. 16-1485 (issued January 6, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the September 20, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: September 3, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 12-936
Issued: April 22, 2013

Case Submitted on the Record

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

JURISDICTION
On March 20, 2012 appellant, through her attorney, filed a timely appeal of a March 2,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) regarding an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the
case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,056.78 for the period November 11 through 19, 2011; and (2) whether appellant
was at fault in the creation of the overpayment and thus not entitled to waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant disagreed with the finding of fault and alleged that her election of
the Office of Personnel Management (OPM) benefits during a period of wage-loss compensation
was not in fact an overpayment as she had not yet received OPM benefits.
FACTUAL HISTORY
On October 21, 2002 appellant, then a 40-year-old mail processor, filed a traumatic injury
alleging that she sustained an injury to her neck, shoulder and arm when a door fell on her in the
performance of duty. On November 19, 2002 OWCP accepted her claim for right shoulder arm
sprain/strain and cervical sprain/strain and chest wall strain. Appellant’s claim was expanded to
include the additional condition of right shoulder partial supraspinatus tear on January 29, 2003.
She underwent a right rotator cuff repair on August 31, 2004. OWCP accepted the additional
conditions of right shoulder bursitis and right shoulder impingement on April 4, 2005. Appellant
returned to light-duty work on February 9, 2006. She elected to receive direct deposit of her
FECA benefits on January 5, 2007. OWCP entered appellant on the periodic rolls on
February 15, 2007. Appellant accepted another light-duty position working 20 hours a week on
April 7, 2008.
In a decision dated September 28, 2010, OWCP accepted that appellant had sustained a
recurrence of total disability on September 16, 2010 due to the National Reassessment Process
(NRP) at the employing establishment.
On March 24, 2011 appellant indicated that she was pursuing disability retirement under
OPM. In a letter of that date, OWCP informed her of her current entitlement to compensation
benefits and the necessity to elect either OPM or OWCP benefits. Appellant responded on
March 31, 2011 and stated that she had applied for disability retirement and requested additional
information regarding the date of her entitlement to OPM benefits and the amount of OPM
benefits. On April 8, 2011 OWCP informed her that she was not entitled to receive OPM
retirement benefits and compensation under FECA from OWCP. It directed appellant to elect a
benefit and provide the date of her election. On November 2, 2011 OPM approved her
application for disability retirement. Appellant partially completed an election of benefits form
on November 11, 2011 indicating that she wished to receive retirement benefits, but without
providing an effective date of the election. OWCP received this letter on November 15, 2011.
Appellant completed a letter dated November 11, 2011, received by OWCP on November 16,
2011, stating that she elected OPM benefits effective November 11, 2011.
Appellant informed OWCP by letter dated November 18, 2011 that she intended to elect
OPM benefits as of the date of the form, November 11, 2011. She further stated, “If dual
compensation should occur it is without any intent on my part and I will reimburse any amounts
over paid.” In a letter dated November 22, 2011, OWCP stated that appellant had been removed
from the periodic rolls based on her selection of OPM retirement benefits effective
November 11, 2011. It stated that an overpayment had been established as she received a
compensation check for the period October 23 through November 19, 2011.
OWCP calculated that appellant had received an overpayment in the amount of
$1,056.78. In a letter dated December 5, 2011, appellant again confirmed her election of OPM

2

retirement benefits effective November 11, 2011 and stated that she would reimburse OWCP for
the overpayment from October 23 through November 19, 2011.
OWCP issued a preliminary determination on January 5, 2012 that appellant had been
overpaid in the amount of $1,056.78 because she elected OPM retirement benefits effective
November 11, 2011, but continued to receive wage-loss compensation for temporary total
disability through November 19, 2011. It found that she was at fault in the creation of the
overpayment. OWCP noted that appellant was entitled to receive compensation in the amount of
$2,258.29 for the period October 23 through November 10, 2011, but received compensation
through November 19, 2011 in the amount of $3,328.00 resulting in a gross overpayment of
$1,069.71. It reduced this overpayment by the deductions of basic life insurance and optional
life insurance to reach the net overpayment of $1,056.78. OWCP requested that appellant
complete an overpayment recovery questionnaire and provide additional financial information as
well as select any appeal rights.
In a letter dated January 6, 2012, OWCP requested that OPM reimburse $1,056.78 for the
overpayment of compensation from November 11 through 19, 2011.
Appellant responded to OWCP on January 30, 2012 and stated that she became eligible
for OPM benefits on November 2, 2011 and that OWCP received her election form on
November 14, 2011 before she received compensation for the period October 23 through
November 19, 2011. She stated that she had not yet received any OPM benefits and therefore
had not received concurrent payments.
By decision dated March 2, 2012, OWCP finalized the overpayment decision and
determined that appellant had received an overpayment in the amount of $1,056.78 for the period
November 11, 2011, when she elected to receive OPM benefits, through November 19, 2011
when her FECA benefits ended. It found that she was at fault in the creation of the overpayment
as she “consciously made the decision to receive benefits [through OPM] while still in the
receipt of benefits under … FECA.” OWCP determined that as appellant was at fault she was
not entitled to waiver. It also found that she had not provided any financial information and it
requested that she repay the debt in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA2 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, she
may not receive salary, pay or remuneration of any type from the United States, except for
services actually performed or for certain payments related to service in the Armed Forces,
2

5 U.S.C. §§ 8101-8193, 8102.

3

Id.

3

including benefits administered by the Department of Veterans Affairs unless such benefits are
payable for the same injury or the same death being compensated for under FECA.4 The
implementing regulations provide that a beneficiary may not receive wage-loss compensation
concurrently with a federal retirement or survivor annuity.5 The beneficiary must elect the
benefit that he or she wishes to receive.6
ANALYSIS -- ISSUE 1
Appellant received compensation benefits for total disability through
November 19, 2011. She completed an election form dated November 11, 2011 received by
OWCP on November 15, 2011, but failed to complete the section requesting the effective date of
her election. Appellant mailed a separate letter to OWCP dated November 11, 2011 in which she
stated that she had elected OPM retirement benefits effective November 11, 2011. OWCP
received this letter on November 16, 2011. In letters dated November 18 and December 5, 2011,
appellant again informed OWCP that she intended to elect OPM benefits on November 11, 2011
going forward.
The record establishes that appellant elected to receive OPM benefits effective
November 11, 2011. The record further establishes that she received FECA benefits through
November 19, 2011. Appellant has therefore received an overpayment payment of wage-loss
compensation from November 11 through 19, 2011. She is not entitled to receive benefits
concurrently from two sources, namely FECA and OPM retirement. Thus, the Board finds
appellant’s election of OPM benefits and FECA benefits created a prohibited dual benefit for this
period, thus resulting in an overpayment of compensation.
OWCP provided the calculations and the Board finds that it properly calculated the
amount of overpayment as $1,056.78. Appellant has not disputed the amount of the
overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA7 provides that, where an overpayment of compensation has
been made “because of an error or fact of law,” adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of FECA or would be

4

5 U.S.C. § 8116(a).

5

20 C.F.R. § 10.421(a).

6

Id.

7

5 U.S.C. § 8101-8193, 8129(a).

4

against equity and good conscience.”8 Accordingly, no waiver of an overpayment is possible if
the claimant is with fault in helping to create the overpayment.
In determining whether an individual is with fault, section 10.320(b) of OWCP’s
regulations9 provide in relevant part:
“An individual is with fault in the creation of an overpayment who-(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
(2) Failed to furnish information which the individual knew or should
have known to be material; or
(3) With respect to the overpaid individual only, accepted a payment
which the individual knew or should have been expected to know was
incorrect.”
The Board has found a claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.10 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from OWCP or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.11
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in the creation of a $1,056.78 overpayment for the period
November 11 through 19, 2011. It based its fault finding on her election of OPM benefits which
she received after the effective date of OPM benefits. As such, OWCP was unable to prevent
payment as of the election date of November 11 through 19, 2011. Therefore, it found that
appellant had accepted a payment, which she knew or should have known was incorrect.
Appellant was aware that she could not be in receipt of dual benefits after her election
date of November 11, 2011, however, on appeal, she disagreed with the fact of the overpayment
on the grounds that she had not received a concurrent payment from OPM on or before
November 19, 2011. She argued that she was never in actual receipt of dual benefits.

8

Id. at § 8129(b).

9

20 C.F.R. § 10.320(b).

10

See Karen K. Dixon, 56 ECAB 145 (2004).

11

See K.H., Docket No. 06-191 (issued October 20, 2006).

5

Appellant originally made her application for OPM benefits sometime on or about
March 2011. However, for reasons unknown she did not make OWCP aware of her election
until November 16, 2011. The record reflects that, due to appellant’s late notification, OWCP
issued a payment covering the period November 11 through 19, 2011. Appellant argued that the
only payment she actually received for that specific period was under FECA. The Board
recognized in Franklin L. Bryan12 the distinction between theoretical retroactive benefits and
actual receipt of retroactive benefits. In that case, the Board found that the employee, although
he was aware of the prohibition of receiving simultaneous benefits, did not actually receive and
accept a dual payment from two entities during the period in question. In this appeal, the record
is absent of any evidence that OPM paid benefits to appellant for the period November 11 to 19,
2011, the period covered by the last payment from FECA. On January 6, 2012 OWCP sent a
correspondence to OPM notifying them of the amount of overpayment and requesting that it
reimburse $1,056.78 from her initial payments. There is no evidence of a response, nor evidence
of reimbursement in the record. Although appellant was aware that she could not receive both
FECA and OPM benefits simultaneously, there is no fiscal evidence that she actually received a
payment from OPM for the period in question.
Accordingly, OWCP’s determination of fault in creating the overpayment is set aside and
the case remanded for a determination of whether appellant is entitled to waiver of recovery of
the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $1,056.78 for
the period November 11 through 19, 2011 and remands the case for OWCP to appropriately
consider the issues of fault, and if appropriate, waiver of recovery of the overpayment.

12

56 ECAB 310 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the March 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed in part and remanded for further development
consistent with this decision of the Board.
Issued: April 22, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7