United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, NEW
YORK AIR NATIONAL GUARD, Latham, NY,
Employer
__________________________________________

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Appearances:
Dr. Cary Marks, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1370
Issued: December 6, 2012

Case Submitted on the Record

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

JURISDICTION
On June 11, 2012 appellant filed a timely appeal from a May 3, 2012 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 established that he sustained a back injury in
performance of duty on March 16, 2012.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 3, 2012 OWCP decision, appellant submitted new evidence. However,
the Board is precluded from reviewing evidence which was not before OWCP at the time it issued its final decision.
See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal written request for
reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
On March 19, 2012 appellant, then a 60-year-old aircraft electrician, filed a traumatic
injury claim, alleging that he had sustained a lower back injury on March 16, 2012 in
performance of his work duties when he sat on a chair that had been lowered to its lowest
position.
By letter dated March 28, 2012, OWCP requested that appellant provide additional
factual and medical evidence within 30 days.
OWCP received a March 16, 2012 report from Dr. Sue Schemel, an emergency medicine
physician. The report noted that appellant experienced back pain and numbness in the left leg
after sitting in a chair that was lower than he expected while he was at work. Appellant’s
condition was diagnosed as lumbar strain.
Also submitted was a March 21, 2012 report from Dr. Luis A. Mendoza, an emergency
medicine physician, who noted that appellant was “involved in a work[-]related incident” on
March 16, 2012. In the history of injury section of his report, Dr. Mendoza stated that appellant
was “attempting to sit in his chair which someone had lowered the chair as far as it will go,” and
when appellant went to sit down, he “ended up landing in the chair hard”; and because the
chair’s cushion was thin, his left buttock and coccyx were injured. Dr. Mendoza also indicated
in the “chief complaint” section of the report that “as a direct result of this accident, [appellant]
continued to complain of moderate to severe pain to the coccyx, left buttock with pain,
numbness, tingling and weakness to the lower extremity.” He diagnosed appellant with acute
exacerbation of lumbar sprain, fractured coccyx, contusion to the coccyx and left sciatic. OWCP
also received a March 29, 2012 work capacity form from Dr. Mendoza which indicated that
appellant was temporarily totally disabled.
In a March 31, 2012 statement, appellant described the accident, his back condition and
the subsequent treatments for his condition. He also indicated that he had sustained a previous
back injury at work and that the March 16, 2012 incident caused further injury to his existing
condition.
Appellant also submitted treatment notes signed by Geert Bos, a physical therapist.
By decision dated May 3, 2012, OWCP denied appellant’s claim on the grounds that he
had failed to submit medical evidence to establish that his alleged back injury was causally
related to the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
3

5 U.S.C. §§ 8101-8193.

2

and that any disabilities and/or specific conditions for which compensation is claimed are
causally related to the employment injury.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his or her claimed injury and his
or her employment.8 To establish a causal relationship, appellant must submit a physician’s
report, in which the physician reviews the employment factors identified by appellant as causing
his condition and, taking these factors into consideration as well as findings upon examination of
appellant and his medical history, states whether the employment injury caused or aggravated
appellant’s diagnosed conditions and presents medical rationale in support of his opinion.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10
ANALYSIS
OWCP has accepted that the incident occurred as alleged on March 16, 2012. Appellant
sat down in a chair that was lower than he expected. The Board finds that he failed to establish
that his lower back condition was causally related to the March 16, 2012 employment incident.
Appellant has not established that this incident caused his diagnosed low back conditions.
In support of his claim, he submitted Dr. Schemel’s March 16, 2012 and Dr. Mendoza’s
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

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

7

Id.

8

Donald W. Long, 41 ECAB 142 (1989).

9

Id.

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5 at 352.

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March 21, 2012 medical reports. While both Dr. Schemel and Dr. Mendoza referenced
appellant’s March 16, 2012 workplace incident and provided a firm diagnosis of his condition in
their reports, they did not provide a well-rationalized medical opinion as to how sitting down on
a low chair could aggravate his lower back condition. The Board notes that, while appellant has
acknowledged that he had sustained a previous back injury, which he has claimed was caused by
his federal employment, neither Dr. Schemel nor Dr. Mendoza provided any factual or medical
history relative to his back condition, prior to March 16, 2012. Both the March 16 and 21, 2012
medical reports only noted appellant’s workplace incident in the “history” section, and did not
discuss how the incident impacted his lower back. The Board has held that a physician’s opinion
on causal relationship which consists of merely restating the employee’s complaints is
insufficient to establish a claim.11 Dr. Mendoza stated in the “chief complaint” section that
appellant suffered back pain as a direct result of his work incident. However, without further
discussion and rationale,12 he failed to explain how sitting down on the chair caused or
aggravated appellant’s diagnosed condition. As Dr. Schemel and Dr. Mendoza did not provide a
medical explanation, incorporating a proper medical history, explaining how sitting down in a
low chair caused the diagnosed conditions, rather than just the complaints of pain, the Board
finds that their opinions are insufficient to establish appellant’s claim.
The treatment notes signed by Mr. Bos is also of little probative value in establishing
appellant’s claim, as a physical therapist is not a physician as defined under FECA.13
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 his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on March 16, 2012.

11

William A. Archer, 55 ECAB 674 (2004); see also Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
13

See B.B., Docket No. 09-1858 (issued April 16, 2010); L.D., 59 ECAB 648 (2008); David P. Sawchuk, 57
ECAB 316 (2006) (lay individuals such as physician s assistants, nurses and physical therapists are not competent to
render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law).

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ORDER
IT IS HEREBY ORDERED THAT the May 3, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 6, 2012
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

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

Docket No. 13-1403
Issued: December 9, 2013

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 May 28, 2013 appellant filed a timely appeal from January 2 and March 29, 2013
merit decisions 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 has more than a five percent right arm permanent
impairment; and (2) whether OWCP properly determined the pay rate for compensation purposes
with respect to the schedule award.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated September 21,
2010, the Board found that appellant was entitled to a merit review with respect to a June 10,
1

5 U.S.C. § 8101 et seq.

2009 OWCP decision denying an additional schedule award for the upper extremities.2 As the
Board noted, there were two claims for compensation: (1) an occupational disease claim filed
October 18, 2002 for a left wrist condition from holding mail in her left hand; and (2) an
occupational disease claim filed January 13, 2003 for a right hip condition resulting from
repetitive activity as a mail processing clerk.3 The 2002 claim was initially accepted for left
thumb tenosynovitis and the 2003 claim for right hip tendinitis/bursitis. The claims were
administratively combined.
OWCP referred appellant to Dr. Allan Brecher, a Board-certified orthopedic surgeon. In
a report dated October 16, 2012, Dr. Brecher provided a history of medical treatment and results
on examination. He noted that appellant had right carpal tunnel surgery on January 25, 2008. As
to the right arm, Dr. Brecher diagnosed carpal tunnel syndrome. He opined that, under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), appellant had a five percent arm impairment. Dr. Brecher
explained that, under Table 15-23, the applicable grade modifier was two for test findings,
history, physical examination and functional scale. The date of MMI was found to be one year
after the carpal tunnel surgery.
In a report dated October 22, 2012, Dr. Brecher advised that appellant’s carpal tunnel
syndrome was aggravated by work. He stated that, although the record did not contain detailed
notes on the carpal tunnel syndrome, the evidence “clearly suggests that this is an overuse injury
from lifting at work.”
OWCP accepted a right carpal tunnel syndrome as employment related. In a letter dated
November 26, 2012, it listed the accepted conditions for the combined claims: right
tenosynovitis, bilateral enthesopathy of hip region, thoracic or lumbosacral neuritis or radiculitis,
bilateral pain in pelvic and thigh joints, left wrist ganglion cyst, left radial styloid tenosynovitis,
other left wrist tenosynovitis, right carpal tunnel syndrome and muscle weakness.
In a report dated December 3, 2012, Dr. David H. Garelick, an OWCP medical adviser,
stated that he agreed with Dr. Brecher’s rating of five percent right arm impairment pursuant to
Table 15-23. The medical adviser found that the date of MMI was January 25, 2009, one year
after carpal tunnel surgery.
By decision dated January 2, 2013, OWCP issued a schedule award for a five percent
right arm permanent impairment. The period of the award was 109.20 days from December 16,
2012, which OWCP indicated was the date of the last daily rolls, payment.4 The effective pay
rate date was reported as April 21, 2002, with a pay rate of $808.40 per week.

2

Docket No. 10-543 (issued September 21, 2010). Appellant had received schedule awards for the left arm
totaling 16 percent. She had not received a schedule award for the right arm.
3

On the claim form appellant identified standing, walking, lifting, bending, squatting and twisting. She indicated
that date she became aware of the condition as December 10, 2001, the date she was aware of an employmentrelated condition as April 21, 2002.
4

The record indicated that appellant had received compensation for wage loss through December 15, 2012.

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Appellant requested a review of the written record. In a decision dated March 29, 2013,
an OWCP hearing representative affirmed the schedule award decision.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.8 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.9
ANALYSIS -- ISSUE 1
Dr. Brecher provided an opinion that appellant had a five percent right arm impairment
based on Table 15-23. As noted, application of Table 15-23 involves assigning grade modifiers
for test findings, history and physical findings. Dr. Brecher assigned grade modifier two for test
findings (minor conduction block), history (significant intermittent symptoms) and physical
findings (decreased sensation). These are averaged for an overall grade modifier two, which has
a default arm impairment of five percent. The functional scale resulted in no adjustment.
Dr. Garelick, the medical adviser, concurred in the findings of Dr. Brecher.
The Board finds that Dr. Brecher properly applied Table 15-23 and provided a
rationalized medical opinion that appellant had a five percent right arm impairment based on the
carpal tunnel syndrome. There is no probative evidence of a greater impairment.
The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the arm, the maximum
5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
6

A. George Lampo, 45 ECAB 441 (1994).

7

FECA Bulletin No. 09-03 (March 15, 2009).

8

A.M.A., Guides 448-50.

9

Id.

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number of weeks of compensation is 312 weeks. Since appellant’s impairment was five percent,
she is entitled to five percent of 312 weeks or 15.60 weeks of compensation.
On appeal, appellant stated that her physician advised that she had not reached MMI.
She also stated that she had two claims and should be able to receive both a schedule award and
wage loss concurrently, for different injuries to different parts of the body. In this regard, the
Board notes that a schedule award is paid from the date of MMI.10 The medical evidence reflects
that the date of MMI was January 25, 2009. OWCP began the schedule award on December 16,
2012, stating that this was the date of appellant’s last daily rolls payment.
The Board notes that a claimant is not entitled to concurrent wage-loss compensation and
a schedule award for the same injury.11 Appellant has raised the issue of whether her
compensation for wage loss was for a different part of the body than the schedule award. A
claimant can receive concurrent compensation for wage loss and a schedule award if they do not
involve the same part of the body.12 The record is unclear as to the relationship between the
schedule award and the wage-loss compensation in this case. The two claims were
administratively combined with several accepted conditions involving both the upper and lower
extremities. The case will be remanded to OWCP for further adjudication with respect to this
issue and an appropriate decision.
LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. § 8101(2), ““monthly pay” means the monthly pay at the time of injury,
or the monthly pay at the time disability begins or the monthly pay at the time compensable
disability recurs, if the recurrence begins more than 6 months after the injured employee resumes
regular full-time employment with the United States, whichever is greater.…” Once the proper
date is determined, the pay rate for compensation purposes is calculated in accord with 5 U.S.C.
§ 8114.13
ANALYSIS -- ISSUE 2
On appeal, appellant raised the issue as to the pay rate for compensation purposes used in
the January 2, 2013 schedule award. The “effective date” of the pay rate was reported as
April 21, 2002, with a pay rate of $808.40. April 21, 2002 was the date appellant identified on
her January 13, 2003 claim form as the date she became aware of her employment-related
condition. OWCP does not explain how use of this date to determine pay rate is in accord with

10

See Peter C. Belkind, 56 ECAB 580 (2005).

11

See James A. Earle, 51 ECAB 567 (2000).

12

See E.P., Docket No 10-428 (issued October 22, 2010) (appellant argued in a reconsideration request that her
wage-loss compensation and schedule awards were for different parts of the body).
13

See also 20 C.F.R. § 10.5(s), defining pay rate for compensation purposes as the employee’s pay, as determined
under 5 U.S.C. § 8114, at the time of injury, the time disability begins or the time compensable disability recurs if
the recurrence begins more than six months after resumption of regular full-time employment, whichever is greater.

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5 U.S.C. § 8101(2). The effective date must be a date of injury, a date disability began or a date
of recurrence (if more than six months after resumption of full-time work), whichever is greater.
With respect to date of injury, it is well established that in an occupational disease or
illness claim,14 the date of injury is the date of last exposure to the factors contributing to the
injury.15 The Board has noted that in schedule award cases, if exposure to work factors
contributing to the accepted condition continued after the filing of the claim, the date of the
medical examination establishing permanent impairment may be used as the date of injury.16 On
return of the case record, OWCP should make proper findings as to the pay rate for
compensation purposes. After such further development as it deems necessary, it should issue an
appropriate decision.
CONCLUSION
The Board finds that appellant has a five percent right arm permanent impairment. As to
the pay rate for compensation purposes and the issue of concurrent benefits, the case is remanded
to OWCP for further development.

14

20 C.F.R. § 10.5(q) defines an occupational disease or illness as a condition produced by the work environment
over more than one day.
15

See Henry D. Miles, Docket No. 92-1757 (issued September 7, 1993); Thomas V. Harper, 32 ECAB
400 (1980).
16

R.S., 58 ECAB 362 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the March 29 and January 2, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed with respect to the extent of right arm
impairment. The case is remanded with respect to pay rate and concurrent benefits.
Issued: December 9, 2013
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sheridan, WY, Employer
__________________________________________

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Appearances:
Randy D. Wilson, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1759
Issued: February 27, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from the April 19, 2007 decision of the
Office of Workers’ Compensation Programs 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 a traumatic injury in the
performance of duty on February 22, 2007. On appeal, she contends that she was on the
employing establishment premises at the time of her fall because the employing establishment
derived benefits from her employee housing and because she was outside the house when she
fell.
FACTUAL HISTORY
On March 6, 2007 appellant, then a 55-year-old fiscal accountant’s assistant, filed a
traumatic injury claim, Form CA-1, alleging that she fractured her left wrist and forearm when

she slipped on ice on the stairs to her quarters on February 22, 2007. The employing
establishment controverted her claim stating that she was not on the employing establishment’s
premises and not involved in official duties when she slipped on the front steps of her employee
housing. It indicated that employees were responsible for clearing the walkways of their own
quarters.
On March 14, 2007 the Office requested additional information from both appellant and
the employing establishment about the ownership and management of appellant’s residence and
her medical condition.
In a letter dated March 12, 2007, the employing establishment stated that appellant lived
in quarters on the employing establishment grounds. Appellant was not required to live in the
quarters and the housing was not associated with her position. The opportunity to rent housing
owned by the employing establishment was a benefit available to all Federal Government
employees moving into the area. The employing establishment provided a copy of the
Assignment of Quarters Agreement for Quarters No. 10, signed by appellant’s husband, who was
also employed by the employing establishment.1 The lease gave the facility management service
of the employing establishment the right to conduct inspections, including annual interior
inspections and periodic exterior inspections and the obligation to make repairs. Appellant and
her husband had the responsibility of shoveling sidewalks and maintaining the yard. The lease
stated:
“The quarters are a sizable part of the Sheridan VA Medical Center and their
appearance helps to create a favorable or unfavorable impression on the public.
As a federal health care facility, we have a responsibility to patients and visitors
to maintain all areas in a clean, safe and orderly manner. Quarters occupants
share in the responsibility for keeping both exterior and interior areas in a
reasonable condition.”
On March 9, 2007 Dr. James Ferries, a Board-certified orthopedic surgeon, stated that
appellant was doing well following the open reduction internal fixation surgery for her
comminuted left distal radius fracture. He stated that she had maintained the alignment of the
bone which was a very good sign, given the nature of the fracture. On March 30, 2007 Dr. John
Ritterbusch, a Board-certified orthopedic surgeon, indicated that a voler plate had been placed in
appellant’s left arm to treat her comminuted wrist fracture. He removed her short arm cast, fitted
her with a removable wrist splint and prescribed physical therapy. Dr. Ritterbusch stated that she
may be able to return to work in a part-time capacity at the end of the following week.
On April 2, 2007 appellant stated that she left her residence between 7:05 and 7:10 a.m.
on February 22, 2007 so that she could open the payment window where she worked by 7:30
a.m. Her workplace was less than a city block from her residence and walking from the front
porch was the most direct route to the building where she worked. Appellant’s house was closer
to her office than the employee parking lot. On the front steps of the house, she lost her balance
and fell forward, catching herself with her hands. Appellant did not realize that she was injured
1

The Board notes that the agreement, signed on January 17, 2006 was for the period of one year. The record does
not contain a copy of the lease operative on February 22, 2007.

2

until she walked to her office and noticed that her left wrist was swelling. The employing
establishment physician recognized the seriousness of her condition and sent appellant to the
emergency room where she underwent surgery the same day.
Appellant stated that the CA-1 form dated March 6, 2007 had been completed by the
employing establishment on her behalf. She indicated that it was not filled out correctly because
she never told anyone that she slipped on ice. Appellant’s husband kept the sidewalk, steps and
porch clear of snow and ice by using a deicer regularly. The day of the accident, the steps were
clear and dry. She fell because there was no handrail on the wooden steps, which were not very
solid because of neglect, age and weather. The chief engineer of the employing establishment
had been notified of the need for repairs on the porch steps, rain gutter, outside walkways,
windowpanes and windows, but had not taken any steps to repair them.
On April 4, 2007 the employing establishment stated that its facility sat on a former
military compound and covered approximately 300 acres. The grounds contained 66 buildings,
23 of which were residential housing units that were maintained for employees who were
moving into the area and chose to live there. On the day in question, appellant reported to work
with her wrist condition and was taken to the employee health unit when she was unable to
continue working. The employing establishment further stated that appellant’s supervisor and
the workers’ compensation claims specialist were both told that appellant slipped on ice on the
steps of her house.
On February 22, 2007 Dr. John Carmen, a physician at the employing establishment,
stated that appellant slipped on some ice in the parking lot and sustained a Colle’s fracture to the
left wrist. In an addendum, he stated that she did not injure herself on the parking lot as he was
initially told, but on the front steps of her house.
By decision dated April 18, 2007, the Office denied appellant’s claim on the grounds that
she was not injured in the performance of duty.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against each and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his employment; liability does not
attach merely upon the existence of an employee/employer relation.2 In the Federal Employees’
Compensation Act,3 Congress provided for the payment of compensation for disability or death
of an employee resulting from personal injury sustained while in the performance of duty. The
Board has interpreted the phrase “while in the performance of duty” to be the equivalent of the
commonly found prerequisite in workers’ compensation law of “rising out of and in the course of
employment.”4 In addressing this issue, the Board has stated that it is generally held that an
2

Bruce A. Henderson, 39 ECAB 692 (1988); Minnie M. Huebner, 2 ECAB 20 (1948).

3

5 U.S.C. §§ 8101-8193.

4

Timothy K. Burns, 44 ECAB 125 (1992); Jerry L. Sweeden, 41 ECAB 721 (1990).

3

injury arises out of and in the course of employment when it takes place: (a) within the period of
employment; (b) at a place where the employee may reasonably be expected to be in connection
with the employment; (c) while the employee is reasonably fulfilling the duties of the
employment or engaged in doing something incidental thereto; and (d) when it is the result of a
risk involved in the employment or the risk is incidental to the employment or to the conditions
under which the employment is performed.5
Under the Act, an injury sustained by an employee, having fixed hours and place of work,
while going to or coming from work is generally not compensable because it does not occur in
the performance of duty. However, many exceptions to the rule have been declared by courts
and workers’ compensation agencies. One such exception almost universally recognized is the
premises rule: an employee going to or coming from work is covered under workers’
compensation while on the premises of the employer. This exception includes a reasonable
interval before and after official working hours while the employee is on the premises engaging
in preparatory or incidental acts.6 What constitutes a reasonable interval depends not only on the
length of time involved, but also on the circumstances occasioning the interval and nature of the
employment activity. The mere fact that an injury occurs on the premises of the employer within
a reasonable interval before or after working hours is not sufficient to bring the injury within the
performance of duty. The employee must also show that the injury resulted from some risk
incidental to the employment and that the employing establishment received some substantial
benefit from the activity involved.7
As used in workers’ compensation law, the term “premises” is not synonymous with
term “property,” as it is not solely dependent on ownership. The Board has held that
premises of the employer are not necessarily coterminous with the property owned by
employer; they may be broader or narrower and are dependent more on the relationship of
property to the employment than on the status or extent of the legal title.8

the
the
the
the

ANALYSIS
The issue to be determined is whether appellant was in the performance of duty when she
fell on the steps of Quarters No. 10 on the morning of February 22, 2007.
There is no dispute that appellant was on her way to work when she fell on the steps of
her rented house injuring her wrist. As discussed above, the premises rule holds that an
employee who is going to work is in the performance of duty if she is on the employing
establishment’s premises within a reasonable period before her duties begin and her actions are
incidental to her employment. The Board notes that appellant’s fall occurred at 7:05 or 7:10
a.m., which is a reasonable amount of time before her duties began, given that she needed to
5

Angela J. Burgess, 53 ECAB 568 (2002); Barbara D. Heavener, 53 ECAB 142 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Industrial Premises, Chapter
2.804.4(a)(3) (August 1992).
7

Narbik A. Karamian, 40 ECAB 617 (1989).

8

A.M., 58 ECAB ___ (Docket No. 06-1472, issued April 25, 2007); Denise A. Curry, 51 ECAB 158 (1999).

4

prepare to open her window at 7:30 a.m. There is no evidence that appellant was engaged in any
other activity than going to work which the Board has held to be incidental to employment.9
Having determined that her actions met the requirements of “going to work,” the Board must
now determine whether appellant was on the premises of the employing establishment at the time
of her fall.
The employing establishment facility covers approximately 300 acres and contains 66
buildings. Twenty-three of these buildings are residential housing units that the employing
establishment maintains for employees who are transitioning into the area and chose to live
there. The record establishes that appellant and her husband rented Quarters No. 10 from the
employing establishment. The lease agreement in effect at the time of appellant’s fall is not in
the record. However, as it has not been argued that appellant did not have a right to occupy
Quarters No. 10, the Board will presume that the terms of the subsequent lease were identical to
those in the record. Under the terms of the lease, appellant and her husband were responsible for
maintenance of the lawn and snow removal from the steps and walkways. The employing
establishment reserved the right to conduct annual interior inspections and periodic exterior
inspections and was responsible for general maintenance of the interior and exterior structure.
In previous cases, the Board has found several instances in which thoroughfares and
nonworksite buildings on the employer’s property were part of the employer premises for
purposes of workers’ compensation.10 However, the fact that an area or building is owned by the
employing establishment is not enough, by itself, to make it part of the premises of the
employing establishment.11 When determining whether a particular area is part of the
employer’s premises, the relationship of the property to the employment is more important than
the ownership of the property.12
9

See Diane Bensmiller, 48 ECAB 675 (1997) (“the Board has accepted the general rule of workers’ compensation
law that, as to employees having fixed hours of places of work, injuries occurring on the premises of the employing
establishment, while the employee is going to or from work, before or after working hours or at lunch time, are
compensable”).
10

Anneliese Ross, 42 ECAB 371 (1991) (streets of military base were employer premises where employee was
driving home from work); Hope J. Kahler, 39 ECAB 588 (1988) (government owned street between employee
parking lot and building entrance was employer premises where employee was leaving work or returning from
lunch); Nona J. Noel, 36 ECAB 329 (1984) (nonommissioned officers’ club on military base was on employer
premises, though employee was not in the performance of duty); Emma Varnerin, M.D., 14 ECAB 253 (1963) (steps
of dormitory on hospital grounds were on employer premises where employee walked to work); JoAnn Curtis, 38
ECAB 122 (1986) (hospital parking lot on military base was on employer premises, though employee was not in
performance of duty); John F. Castro, Docket No. 03-1653 (issued May 14, 2004) (streets of military base are
employer premises where employee was driving home from work). CF. Barbara Roy, 42 ECAB 960, n.9 (1991)
(where employee fell in bathroom of an employee club on base, the Board declined to discuss whether “the premises
should be considered to be only the building where appellant worked or included all property within the boundaries
of the employing establishment”).
11

A.M., supra note 8 (sidewalk owned by employing establishment and fronting the building where appellant
worked was not “premises” because it was a public thoroughfare); Dollie J. Braxton, 37 ECAB 186 (1985)
(sidewalk owned by the employing establishment in front of another facility of the employing establishment was not
“premises”).
12

Id.

5

In Emma Varnerin, M.D.,13 the Board addressed a situation similar to appellant’s, in
which an employee was injured while walking from her living quarters on one part of the
employing establishment’s grounds to the building where she worked, on another part. The
employee, who rented a room in the nurses’ home, slipped on the icy steps of her dormitory
while walking out of the building to work. In discussing the case, the Board stated:
“Regardless of whether she lived on the hospital grounds merely for her own
convenience, the Board finds that appellant was in the course of her employment
after she left her room in the nurses’ home on the employer’s premises to go to
work. [Appellant] had left what is properly called her living quarters and was
walking on Government property toward that portion of the property where her
duties were to be performed. She must be treated no differently than an employee
living off the premises who enters into the performance of duty when she reaches
the property of the establishment on her way to work. Thus, the accident here
occurred while in the performance of duty.”
The Board drew a distinction between the employee’s living quarters and the rest of the
employing establishment’s property when determining whether appellant’s fall occurred on the
“premises.” This follows the general principle that, with some exceptions, actions taken by an
employee at her residence are not covered by the Act.14 Though the rest of the employing
establishment’s grounds were “premises” for the purpose of appellant’s walk to work, her living
quarters were not. In finding that the employee was in the course of duty only “after she left her
room in the nurses’ home” (emphasis added), the Board indicated that the employing
establishment’s ownership of the room in which the employee lived did not change its status as
her residence. Likewise, in this case, the Board finds that the employing establishment’s
ownership rights over appellant’s living quarters did not alter the fact that, for purposes of
workers’ compensation, Quarters No. 10 served primarily as appellant’s residence. As such, it
cannot be considered as the premises of the employing establishment unless it had some other
relation to appellant’s employment.
Appellant argues that the employing establishment received several benefits from the
employee’s housing, including the ability to recruit employees to a geographically isolated and
high-cost area and the convenience of having employees nearby in times of inclement weather.
The fact that the employing establishment received some general benefit from the employee’s
quarters does not mean that the housing was related to appellant’s federal employment.
Similarly, the employing establishment’s obligations related to appellant’s residence, including
the responsibility for its general maintenance, are related to its ownership of the property rather
than appellant’s employment or job duties.15 The Board finds that, because appellant has
13

Supra note 10.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1)
(August 1992) (“[o]rdinarily, the protection of the [Act] does not extend to the employee’s home”).
15

The employing establishment’s potential liability under the Federal Tort Claims Act (FTCA) is unrelated to
appellant’s qualification for workers’ compensation benefits. See Denise A. Curry, supra note 8 (“[w]hile the
employing establishment’s responsibility to clear the sidewalk may subject it to tort liability under the FTCA, this
responsibility does not make the sidewalk part of the employing establishment’s premises”).

6

presented no evidence that her rented house played a role in her duties as a fiscal accountant’s
assistant, she has not established that her living quarters were related to her employment.
Appellant contends that she was on the employing establishment premises as soon as she
stepped outside of her rented house. Unlike the situation in Emma Varnerin, M.D., which
involved a single room in a shared building, it appears from the record that the lease for Quarters
No. 10 covered both the house and the yard. The Board notes that, under the lease, appellant and
her husband shared in the responsibility for keeping the house and yard associated with Quarters
No. 10 in a “clean, safe and orderly manner” and had the obligation of maintaining the yard and
the walkways. At the time of her fall, appellant had not walked out of her yard to enter onto the
common areas of the employing establishment’s larger grounds. The Board therefore finds that
appellant was still within her living quarters at the time of her fall.
The Board therefore finds that appellant was not on the employer premises when she fell
on the steps of her residence on February 22, 2007.
CONCLUSION
The Board finds that appellant has not established that she sustained a traumatic injury in
the performance of duty on February 22, 2007 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 19, 2007 is affirmed.
Issued: February 27, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, El Centro, CA, Employer
__________________________________________

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

Docket No. 08-1897
Issued: January 26, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 24, 2008 appellant filed a timely appeal of the June 4, 2008 merit decision of the
Office of Workers’ Compensation Programs, finding that he received an overpayment in the
amount of $2,565.17 for which he was at fault. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
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 $2,565.17 during the period March 31 through April 12, 2008 when he returned to
work; and (2) whether the Office properly found that appellant was at fault in creating this
overpayment and, therefore, ineligible for waiver of the recovery of the overpayment.
FACTUAL HISTORY
On March 16, 2007 appellant, then a 32-year-old special agent, sustained injury to his
neck and lower and middle back as a result of a traffic accident. By letter dated April 26, 2007,

the Office accepted the claim for neck sprain. It advised appellant that compensation benefits for
total disability were only payable while he could not perform his regular work duties due to his
accepted employment injury. Appellant was advised to immediately inform the Office if he
returned to work and to return any payment to the Office to prevent an overpayment. He was
also advised of the penalties for accepting compensation payments to which he was not entitled.
On November 1, 2007 the Office accepted appellant’s claim for a herniated disc at C3-4. It
authorized a cervical discectomy and disc replacement at C3-4 performed on November 27, 2007
by Dr. Choll W. Kim, an attending Board-certified orthopedic surgeon.
On March 28, 2008 Dr. Kim released appellant to return to part-time work, four hours per
day with restrictions. Appellant returned to modified work on March 31, 2008.
On April 16, 2008 the Office made a preliminary determination that appellant received an
overpayment in the amount of $2,565.17, during the period March 31 through April 12, 2008
because he knew or should have known that he was not entitled to wage-loss compensation for
total disability following his return to part-time modified work. Worksheets revealed that he
received a compensation check dated April 12, 2008 in the amount of $5,107.92 for the stated
period when he was only entitled to receive $2,542.75. Appellant was advised that he could
request a telephone conference, a final decision based on the written evidence only or a
prerecoupment hearing within 30 days if he disagreed that the overpayment occurred, if he
disagreed with the amount of the overpayment and if he believed that recovery of the
overpayment should be waived. The Office requested that appellant complete an accompanying
overpayment recovery questionnaire (Form OWCP-20) and submit financial documents in
support thereof within 30 days. Appellant did not respond within the allotted time period.
By decision dated June 4, 2008, the Office finalized the determination that appellant was
at fault in the creation of an overpayment of compensation in the amount of $2,565.17 for the
period March 31 through April 12, 2008. It directed him to either repay the overpaid amount in
full or contact the Office within 30 days to arrange a repayment plan.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty.2 Section
8116 of the Act defines the limitations on the right to receive compensation benefits. This
section of the Act provides that, while an employee is receiving compensation, he or she may not
receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.3

1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

2

Section 10.500 of the Office’s regulations provides that compensation for wage loss due
to disability is available only for any periods during which an employee’s work-related medical
condition prevents him from earning the wages earned before the work-related injury.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $2,565.17. The record supports that he returned to part-time modified work, four hours per
day, beginning on March 31, 2008 and worked through April 12, 2008 while receiving wage-loss
compensation for total disability in the amount of $5,107.92. Appellant should have received
wage-loss compensation in the amount of $2,542.75. As he returned to work and had earnings
for part-time work, he should not have received compensation for total disability. The Board,
therefore, finds that appellant’s receipt of compensation created an overpayment in the amount of
$2,565.17 for the period March 31 through April 12, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act5 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.6 Thus, the Office may not waive the overpayment of compensation
unless appellant was without fault.7 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.8
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following: “(1) made an
incorrect statement as to a material fact which he or she knew or should have known to be
incorrect; (2) failed to provide information which he or she knew or should have known to be
material; or (3) accepted a payment which he or she knew or should have known was incorrect.”9
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the

4

20 C.F.R. § 10.500.

5

5 U.S.C. § 8129(b).

6

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

7

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

8

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

9

20 C.F.R. § 10.433(a).

3

complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”10
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment because he knew
or should have known he was not entitled to wage-loss compensation for total disability during
the period March 31 through April 12, 2008 when he also worked part time. In order for the
Office to establish that he was at fault in creating the overpayment of compensation, it must
establish that, at the time appellant received the compensation check in question, he knew or
should have known that the payment was incorrect.11
The Office’s April 26, 2007 acceptance letter clearly advised appellant that he was to
immediately inform the Office upon his return to work to avoid an overpayment in
compensation. Moreover, if he worked during any period covered by a compensation payment,
he was to return the payment to the Office. Appellant was also advised of the penalty provision
for accepting compensation for which he was not entitled. Under these circumstances, the Board
finds that appellant knew or should have known that the payment he received of wage-loss
compensation was incorrect.12 Appellant returned to part-time modified work on March 31,
2008 but did not inform the Office or return the compensation received for the period he worked.
Therefore, the Board finds that appellant accepted compensation he knew or should have known
was incorrect. Under section 10.433(a) of the Office’s regulations, appellant is properly found to
be at fault pursuant to section 8129 of the Act and is not entitled to waiver of the overpayment in
compensation.
On appeal, appellant contends that he was without fault in creating the overpayment. He
contends that Sherry Coffin, an Office referral nurse, advised him that she would inform the
Office that he was working part time at the employing establishment. However, the Board notes
that the Office advised appellant of his responsibility to notify it upon his return to work.
Moreover, the Board has held that the fact that the Office may have been negligent in issuing a
check for temporary total disability after being informed of a claimant’s return to work, does not
excuse the claimant’s acceptance of such checks, which he knew or should have known to be
incorrect.13
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,565.17, during the period March 31 through April 12, 2008, because he incorrectly
received temporary total disability compensation after he returned to work. The Board further

10

Id. at § 10.433(b); Diana L. Booth, supra note 8.

11

Diana L. Booth, supra note 8.

12

Neill A. Dewald, 57 ECAB 451 (2006).

13

Russell E. Wageneck, 46 ECAB 653 (1995).

4

finds that the Office properly found that appellant was at fault in creating this overpayment and,
therefore, ineligible for waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 26, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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

Docket No. 17-2008
Issued: March 22, 2018

Case Submitted on the Record

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

JURISDICTION
On September 25, 2017 appellant filed a timely appeal from a March 28, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 28, 2017, the date of OWCP’s last decision was
September 24, 2017. As this fell on a Sunday, the appeal would have been due the following business day, which was
Monday, September 25, 2017. See 20 C.F.R. § 501.3(f)(2). Since using September 27, 2017, the date the appeal was
received by the Clerk of the Appellate Boards would result in the loss of appeal rights, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is September 25, 2017, rendering the
appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish a right shoulder
condition causally related to the accepted April 30, 2015 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On May 2, 2015 appellant, then a 56-year-old manager of distribution operations, filed a
traumatic injury claim (Form CA-1) alleging that on April 30, 2015 he sustained a right shoulder
strain in the performance of duty as a result of tripping over a nut and bolt protruding from the
base of a pole. He did not stop work.
On August 7, 2015 OWCP received a notice of recurrence of medical treatment (Form CA2A). The form noted that the date of injury was April 30, 2015 and that appellant required right
shoulder surgery.
In a development letter dated August 10, 2015, appellant was informed that when his claim
was received it appeared to be for a minor injury that resulted in minimal medical expense and
wage loss, which was administratively approved. However, since appellant had requested surgery,
the case was reopened for merit review. Appellant was advised that the medical evidence of record
was insufficient to establish that his right humerus fracture was caused or aggravated by the
claimed employment injury. He was afforded 30 days to submit additional evidence in support of
his claim, but did not respond with additional evidence.
In a September 18, 2015 decision, OWCP denied appellant’s traumatic injury claim as the
medical evidence failed to establish that his diagnosed condition was causally related to the
accepted April 30, 2015 employment-related incident.
In an appeal request form dated December 12, 2015, postmarked December 16, 2015, and
received by OWCP’s Branch of Hearings and Review on December 21, 2015, appellant requested
a review of the written record by an OWCP hearing representative. In an accompanying letter
dated December 12, 2015, he asserted that he sustained a right shoulder injury due to the April 30,
2015 employment incident based on his physicians’ opinions.
In a June 8, 2015 progress note, Dr. Hugh B. Foshee, an attending internist, related
appellant’s history which included a fractured right shoulder he sustained at work, five weeks
prior.
In a June 9, 2015 progress note, Dr. Barton Reutlinger, a Board-certified orthopedic
surgeon, related a history that appellant sustained a right shoulder injury on the job six weeks ago.
He noted that appellant had a dislocation and a magnetic resonance imaging (MRI) scan showed
Hill-Sachs and Bankart lesions and a superior labral tear from anterior to posterior (SLAP) tear.
3

Docket No. 16-0857 (issued August 8, 2016).

2

Dr. Reutlinger also noted appellant’s medical history and medications. He discussed clinical
observations and advised appellant to see a shoulder specialist for surgical repair.
By decision dated January 19, 2016, the Branch of Hearings and Review denied appellant’s
request for a review of the written record as it was untimely filed. It found that the request was
not postmarked within 30 days of the issuance of the September 18, 2015 OWCP merit decision.
After exercising its discretion, the Branch of Hearings and Review further found that the issue in
the case could equally well be addressed through the reconsideration process.
On March 14, 2016 appellant filed a timely appeal of both OWCP decisions with the Board.
While the case was on appeal to the Board, OWCP received a March 7, 2016 letter from
Dr. Foshee who related that on June 8, 2015 appellant first told him about his right shoulder injury
that occurred on his job about five weeks earlier. Appellant reported that he had been walking in
the employing establishment plant where he was working when he tripped over a metal bolt that
was protruding slightly from the floor, lost his balance and fell forward. He further reported that
metal or concrete posts set into the floor to partially block a doorway entry were ahead of him.
Appellant reached out with his left hand to grab one of the posts, but lost his grip. He spun and
lost his balance more and continued to fall forward into the next post. Appellant’s right shoulder
took the full force of the fall, slamming into the post. He reported that initial plain x-rays did not
reveal the extent of his injury. An MRI scan that was performed on May 14, 2015 for continuing
pain showed a large Bankart fracture of the glenoid, a Hill-Sachs impaction fracture, a labral tear,
tears of the bicep and supraspinatus tendons, and subcoracoid bursitis. Dr. Foshee noted
appellant’s medical history, which included right shoulder surgery performed on August 27, 2015
that was described as arthroscopy with reduction and fixation of the glenoid fracture, labral
repair/capsulorrhaphy, superior labral tear from anterior to posterior repair, subacromial
decompression, acromioplasty, biceps tenotomy, rotator cuff debridement, and chondroplasty. He
related that on February 10, 2016 appellant informed him that he had returned to work. Dr. Foshee
opined that the job-related incident as reported by appellant was the direct cause of his shoulder
conditions.
In an August 8, 2016 decision, the Board affirmed OWCP’s September 18, 2015 merit
decision. The Board found that the medical evidence of record was insufficient to establish that
appellant sustained a right shoulder condition causally related to the accepted April 30, 2015
employment incident. The Board also affirmed OWCP’s January 19, 2016 nonmerit decision. The
Board found that it properly denied appellant’s request for a review of the written record as
untimely filed pursuant to 5 U.S.C. § 8124.
On January 27, 2017 appellant requested reconsideration before OWCP regarding its
September 18, 2015 decision.
By decision dated March 28, 2017, OWCP denied modification of its September 18, 2015
decision. It found that Dr. Foshee’s reports did not provide a sufficiently rationalized medical
opinion explaining how the accepted April 30, 2015 work incident caused or contributed to
appellant’s right shoulder conditions.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon complete factual and medical
background, showing causal relationship between the claimed condition and the identified factors.9
The belief of the claimant that a condition was caused or aggravated by the employment is
insufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish his right shoulder
conditions were causally related to the accepted April 30, 2015 employment incident.
The Board affirmed the September 18, 2015 denial of appellant’s claim by decision dated
August 8, 2016. The Board’s review of the previously submitted medical evidence of record is
res judicata and therefore need not be addressed again in this decision.11
OWCP continued to receive medical evidence following its September 18, 2015 denial of
the claim.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8
John J. Carlone, 41 ECAB 354 (1989); see supra note 2 at § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

See M.A., Docket No. 17-0352 (issued June 16, 2017).

4

In his June 8, 2015 progress note, Dr. Foshee related a history that appellant sustained a
fractured right shoulder five weeks ago at work. However, he appears merely to be repeating the
history of injury as reported by appellant without providing his own opinion regarding whether
appellant’s condition was work related.12 To the extent that Dr. Foshee is providing his own
opinion, he failed to provide a rationalized opinion based on objective findings regarding the causal
relationship between appellant’s fractured right shoulder and the accepted work incident.13
Dr. Reutlinger’s June 9, 2015 progress note is similarly flawed. He related a history that
appellant sustained a right shoulder injury six weeks ago at work and noted his diagnoses.
Dr. Reutlinger described his clinical findings and recommended that appellant see a shoulder
specialist for surgical repair. However, he merely repeated the history of injury as reported by
appellant without providing his own opinion regarding whether appellant’s conditions were work
related.14 Dr. Reutlinger failed to provide a rationalized opinion addressing the causal relationship
between appellant’s right shoulder conditions and the accepted employment incident.15
Dr. Foshee’s March 7, 2016 report related a history of the accepted April 30, 2015
employment incident and noted right shoulder MRI scan diagnoses and appellant’s August 27,
2015 right shoulder arthroscopic surgery. He opined that the work-related incident was the direct
cause of appellant’s shoulder injury. Although Dr. Foshee provided an opinion on causal
relationship, the Board finds that he did not provide any medical rationale to support his opinion.
The Board has held that a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.16 Dr. Foshee did not adequately explain how the accepted work incident
physiologically caused or aggravated appellant’s right shoulder conditions for which he underwent
surgery.17 The Board finds that the lack of medical rationale diminishes the probative value of
Dr. Foshee’s opinion.18
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish that his right shoulder condition was causally related to the accepted
April 30, 2015 employment incident. Appellant has, therefore, not met his burden of proof.

12

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
13

See T.M., Docket No. 16-1456 (issued January 10, 2017); S.E., Docket No. 08-2214 (issued May 6, 2009); A.D.,
58 ECAB 149 (2006) (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).
14

Supra note 13.

15

Supra note 14.

16

C.M., Docket No. 14-0088 (issued April 18, 2014).

17

See M.M., Docket No. 15-0607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

18

Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report providing
a diagnosed condition and a reasoned opinion on causal relationship with the employment incident, appellant did not
meet her burden of proof).

5

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 failed to meet his burden of proof to establish a right
shoulder condition causally related to the April 30, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2018
Washington, DC

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

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

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

6


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

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

Docket No. 15-551
Issued: April 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2015 appellant filed a timely appeal from a December 2, 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 to review the merits of this case.
ISSUE
The issue is whether appellant established neck and bilateral shoulder, wrist, and knee
injuries causally related to factors of her federal employment.
On appeal, appellant contends that her claimed injuries were caused by her employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 31, 2014 appellant, then a 58-year-old retired part-time flexible sales service
associate clerk filed an occupational disease claim alleging that on February 27, 2013 she first
became aware of pain in her neck and both shoulders, wrists, and knees.2 She further alleged
that on July 31, 2014 she first realized that the conditions were caused or aggravated by her
repetitive work duties.
By letter dated October 17, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical information.
OWCP also requested that the employing establishment respond to appellant’s allegation and
submit evidence any medical evidence, if appellant had been treated at its medical facility. Both
appellant and the employing establishment were afforded 30 days to submit the requested
information.
In a June 16, 2005 light-duty request form, Dr. Erwin A. Cruz, a Board-certified
neurologist, diagnosed headaches and listed appellant’s temporary work restrictions.
In a December 2, 2014 decision, OWCP denied appellant’s occupational disease claim. It
noted that she failed to respond to its October 17, 2014 request for additional factual information.
OWCP found that appellant had not submitted rationalized medical evidence to establish a
medical condition or disability causally related to her work factors. Consequently, OWCP found
that she failed to establish an injury as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
2

Appellant retired from the employing establishment on February 28, 2014.

3

5 U.S.C. §§ 8101-8193.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

2

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6
ANALYSIS
Appellant must establish all of the elements of her claim in order to prevail. She must
prove her employment, the time, place, and manner of injury, a resulting personal injury and that
her injury arose in the performance of duty.7 Appellant alleged that she sustained a neck and
bilateral shoulder, wrist, and knee condition as a result of her federal employment duties as a
sales service associate clerk.
Appellant did not present a clear factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition.
In this case, appellant has not explained how work duties caused or aggravated her claimed neck
and bilateral shoulder, wrist and knee conditions.
On October 17, 2014 OWCP informed appellant that the evidence received to date was
insufficient to establish that she experienced any employment factors that were alleged to have
caused an injury. Appellant was asked to provide a detailed description of the employmentrelated activities she believed contributed to her condition and how often she performed the
described activities. OWCP afforded her 30 days to submit this additional evidence. Appellant
did not provide any statement responding to OWCP’s inquiry. Dr. Cruz’s June 16, 2005 report
dates back more than eight years before appellant’s dates of awareness and while he sets forth
her work restrictions, he fails to describe her employment duties.
Thus, the Board finds that appellant has not sufficiently identified employment factors
alleged to have caused or contributed to her claimed neck and bilateral shoulder, wrist, and knee
conditions to meet her burden of proof.8
As appellant has not established the factual component of her claim, the Board will not
address the medical evidence with respect to causal relationship.9
On appeal, appellant contended that her claimed injuries were caused by her federal
employment. As discussed, she did not adequately describe the employment duties which she
alleged caused her injuries. The Board has held that the mere fact that a condition manifests
6

I. J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5 at 351-52.

7

See R.Z., Docket No. 13-1911 (issued September 15, 2014).

8

Id.

9

See Bonnie A. Contreras, 57 ECAB 364 (2006).

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itself during a period of employment does not raise an inference of causal relation.10 An award
of compensation may not be based on surmise, conjecture, speculation or on the employee’s own
belief of causal relation.11 Appellant failed to provide evidence to prove the fact of injury, its
time, place, and manner and that the injury was causally related to her federal employment.
Because she did not submit sufficient evidence demonstrating the alleged occupational exposure
actually occurred as alleged, she did not meet 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 did not meet her burden of proof to establish neck and
bilateral shoulder, wrist, and knee injuries causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Daniel O. Vasquez, 57 ECAB 559 (2006).

11

D.D., 57 ECAB 734 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charleston, WV, Employer
__________________________________________

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

Docket No. 13-2158
Issued: March 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2013 appellant filed a timely appeal from an August 12, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
further merit review. As more than 180 days elapsed from the last merit decision of August 2,
2012 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 6, 2011 appellant, then a 47-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that his back condition was caused or aggravated by factors
1

5 U.S.C. § 8101 et seq.

of his employment which included constant lifting, bending, stooping and other carrier duties.
He indicated that he became aware of his condition on November 1, 2003 and realized it was
caused or aggravated by factors of his employment on November 20, 2011. Appellant submitted
a December 6, 2011 statement describing his employment duties, a copy of his position
description, a December 6, 2011 report from Dr. Jonathan Carmouche, a Board-certified
orthopedic surgeon, and x-ray results dated December 6, 2011.
By letter dated February 3, 2012, OWCP advised appellant of the deficiencies in the
evidence and requested that he submit a medical report which contained a physician’s wellrationalized opinion supported by objective evidence as to how his employment activities
caused, contributed to or aggravated any diagnosed condition(s).
Appellant submitted additional medical reports which included a January 5, 2012 report
from Dr. Murray E. Joiner, a Board-certified physiatrist, January 13, 2012 electromylogram and
nerve conduction velocity studies and fluoroscopic procedure reports dated January 12
and 26, 2012.
By decision dated April 9, 2012, OWCP denied the claim on the grounds that the medical
evidence did not establish that appellant sustained an injury that was causally related to his
employment duties.
On May 7, 2012 appellant requested a review of the written record before an OWCP
hearing representative. In a May 8, 2012 statement, he described his employment injuries
sustained and alleged that those accidents also worsened his condition. Appellant noted that his
doctor had placed him on light duty. However, the employing establishment did not put him on
light duty but, instead, issued a letter of removal. No additional evidence was submitted.
On June 7, 2012 OWCP provided a copy of appellant’s May 8, 2012 statement to the
employing establishment and requested comments or a response within 20 days. However, no
response was received from the employing establishment.
By decision dated August 2, 2012, an OWCP hearing representative affirmed the April 9,
2012 denial of appellant’s claim.
In a September 27, 2012 letter, appellant requested reconsideration. He advised that he
was forwarding copies of two doctor reports which he believed should satisfy the requirement for
causal relationship between his position as a city mail carrier and his injury. However, no
medical evidence was received.
By decision dated August 12, 2013, OWCP denied appellant’s request for reconsideration
without reviewing the merits of the case.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
OWCP denied appellant’s claim as it found that the medical evidence did not establish
that appellant sustained a medical condition causally related to the accepted factors of his federal
employment. On appeal, appellant asserts his belief that his entire medical record was not
considered and makes various arguments that address the merits of his case. However, the last
merit decision in this case was issued on August 2, 2012 at which time OWCP determined that
none of the medical reports of record were sufficient to meet his burden of proof in establishing
that his medical conditions are causally related to specific factors of his employment. As
previously stated, this decision was issued over 180 days prior to the filing of this appeal and,
accordingly, the Board does not have jurisdiction to review the merits of the case.6 The only
issue before the Board is whether OWCP properly denied appellant’s reconsideration request.
In his letter requesting reconsideration, appellant did not allege or show that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant new argument not
previously considered. Consequently, he was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(2).
In support of his reconsideration request, appellant alleged that he was submitting
additional documentation from physicians which support causal relationship. However, he did
not identify the physicians, or the date of the reports and no additional evidence was submitted
into the record. Thus, appellant did not submit relevant and pertinent new evidence not
previously considered by OWCP and is not entitled to a review of the merits based on the third
requirement under 20 C.F.R. § 10.606(b)(2).

2

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Id. at § 501.3(e).

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Because appellant did not show that OWCP erroneously interpreted a specific point of
law, advance a relevant legal argument not previously considered or submit relevant and
pertinent new evidence not previously considered by OWCP, it did not abuse its discretion in
denying appellant’s request for reconsideration.7
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first time
on appeal. 20 C.F.R. § 501.2(c).

4