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

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

Docket No. 11-1904
Issued: March 26, 2012

Case Submitted on the Record

DECISION AND ORDER

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

JURISDICTION
On August 18, 2011 appellant filed a timely appeal from the July 21, 2011 Office of
Workers’ Compensation Programs’ (OWCP) decision which denied his emotional condition
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
an emotional condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 6, 2010 appellant, then a 50-year-old rural carrier, filed an occupational
disease claim alleging that he sustained job-related stress and depression in the performance of
duty. He alleged that he became dysfunctional as a result of negative ridicule of his working
habits as described by his previous supervisor, which adversely affected his behavior. Appellant
alleged that he first realized the disease or illness was caused or aggravated by his employment
on November 15, 2010. He stopped work on November 9, 2010. The employing establishment
controverted the claim.
In a separate statement, appellant alleged that, on or about September 2010, he became
aware of stress-related anxiety associated with harsh and derogatory comments about his work
performance by Kuldip Gill, supervisor.2 He asserted that Kuldip Chatha told him that “there
were people” on his route that wanted him fired, advised him on numerous occasions that he was
unable to perform job tasks correctly and mocked appellant by stating that he “never” did
“anything wrong.” Appellant alleged that his exposure to stress was mainly at the employing
establishment and that he had anxiety two to three times a week for one to three hours daily.
This caused headaches and stomach uneasiness.
In a November 11, 2010 disability certificate, Dr. Richard K. Elia, a family practitioner,
placed appellant off work from November 15 to December 15, 2010. In November 18 and
December 17, 2010 treatment notes, he diagnosed depression, insomnia and diabetes.
In a January 31, 2011 e-mail, Mr. Chatha noted that he was the acting station manager at
the employing establishment until mid-September 2010. He noted that there were several issues
regarding appellant which included that there were many calls from customers that he drove too
fast and misdelivered the mail. Mr. Chatha advised that one customer contacted him to inform
him that she had a problem with appellant. He indicated that he had a discussion with appellant
regarding the customer because she wanted him fired. Mr. Chatha further noted that a California
Highway Patrol (CHP) officer came in with a complaint that appellant was stalking his wife in
stores and complementing her on her looks. He indicated that he had to call Frank Ducar, postal
inspector, who got in touch with the CHP officer. Mr. Chatha noted that this incident happened
the day appellant called in sick. He noted that Aaron D. Hudgens, the new station manager, took
over around the 12th of September. Mr. Chatha noted that appellant was “working fine” when
“he was n[o]t mad at me.”
On February 7, 2011 OWCP received an undated statement from Mr. Hudgens who
stated that, during the first week in November 2010, appellant called in sick. Mr. Hudgens noted
that appellant called and requested a meeting which was held on November 15, 2010. Appellant
indicated that he had not been to work because he had trouble sleeping and concentrating after
falling and scraping his face. He was not sure what caused the fall. Appellant advised that “the
stress he felt at work was too much for him.” He related that people at work stressed him out
and tried to have him fired, that everyone talked bad about him and he hated coming to work.
Appellant referred to a previous injury to his hand which the employing establishment refused to
“fix.” He advised him that it caused hand and shoulder pain and he did not know how to
2

The evidence indicates that the person to whom appellant refers to as Kuldip Gill is Kuldip Chatha.

2

proceed. Mr. Hudgens indicated that, when he asked appellant why he felt stressed, appellant
informed him that it was because of the previous manager, Mr. Chatha. Even though Mr. Chatha
was gone, appellant felt stress due to the way other employees felt about him and because the
employer previously tried to fire him. He informed Mr. Hudgens that he was depressed, that he
had found out that he was diabetic and that he had to watch what he ate and drank. Mr. Hudgens
noted that he gave appellant information for employee assistance as well as the Family Medical
Leave Act paperwork. He noted that appellant provided a physician’s note placing him off work
until December 15, 2010.
By letter dated February 8, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim and requested that he submit additional supportive factual
and medical evidence.
In a February 13, 2011 statement, appellant asserted that, on October 7, 2004, Henry
Delatorre, the station manager, and Rudy Almarez, a supervisor, falsely accused him of having
injuries outside the scope of employment. He alleged that the accusations were proven in court
to be false and unjustified without merit. Appellant alleged that, on October 1, 2006, Soni
Sihota, a station manager, falsely accused him “without merit” of a hit and run accident. He
indicated that the Fresno Police department was contacted for a report; however, there was no
such report. Appellant alleged that this was “clearly a witch hunt on behalf of the [employing
establishment] management.” On November 3, 2006 Kiran Gill, a rural carrier supervisor and a
relative of Kuldip Chatha, issued him a letter of warning and reprimand. Appellant indicated
that it was related to an incident in which he alleged that he observed him talking on a cell phone
and driving with no hands. He stated that this was proven false and no action was taken. At the
time of the accusation, appellant’s time sheet documented that he was working in the employing
establishment building and not on any public road. On July 18, 2007 Mr. Sihota accused him of
stealing a customer’s credit card and using the card at a local Home Depot store. Appellant
noted incurring over $4,500.00 in attorney fees, being out of work for six weeks but asserted that
the employer was proven wrong. On March 15, 2008 Mr. Delatorre and Mr. Chatha accused him
of hitting a vehicle on his route but a police report showed that he was not at fault. Additionally,
in September 2010, Mr. Chatha accused him of being at fault and insisted that he “admit to
guilt.” Appellant alleged that in October 2010, Erin Hodges, a supervisor, contacted him on two
occasions to discuss customer mail that was misdelivered. He noted that the issues were brought
up on a discussion basis only. However, appellant was fearful that he was being targeted and set
up for a more serious reprimand and possible punishment. He stated that the employer’s
previous attacks pertained to issues of misdeliveries or customer complaints. Appellant alleged
that the employer routinely and consistently made derogatory statements about his character and
professionalism on the job, which were false. He indicated that it took a heavy toll and he would
not tolerate further harassment.
In a March 8, 2011 response, Joan Andama, a health and resource manager with the
employing establishment, controverted the claim and provided manager and supervisor
statements in response to appellant’s allegations. She noted that his allegations pertained to
administrative matters and self-generated perceptions and he was reacting to corrective actions
and the frustration of losing his job. Ms. Andama stated that appellant had performance issues
and several customers complained about misdelivered mail and poor service.

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In a February 22, 2011 e-mail, Mr. Sihota indicated that he had no knowledge pertaining
to an incident on October 1, 2006. He denied contacting the Fresno Police department and
indicated that he was the manager at the “WWP’ in 2006. Mr. Sihota referred to a grievance
settlement that occurred on September 12, 2006 related to a July 18, 2006 incident in which
appellant was placed in a nonduty, nonpay status while an investigation was made into a matter
related to unauthorized purchases with a customer’s credit card. It was determined that
appellant’s emergency off-duty status was not warranted and that he should be compensated
during his nonduty period.
OWCP also received a December 17, 2008 letter from a Mr. Phillips, a customer on
appellant’s route. Mr. Phillips alleged that in September 2008, his outgoing mail was
“misdelivered and lost. He indicated that he had to cancel checks that were written.
Furthermore, Mr. Phillips’ credit card statement was delivered to his neighbor, which caused him
to have to make an auto debit payment by telephone to avoid damaging his credit score and he
was assessed a late fee. He advised that he received mail intended for his neighbors and had to
deliver it to them. Mr. Phillips indicated that he had to spend extra time and money to undo the
damage to his credit caused by appellant. Furthermore, during the seven years he had lived at his
residence, he had repeatedly received mail from his neighbors, despite advising his carrier on
numerous occasions to be “more careful when delivering mail, and to deliver to the correct
address.” Mr. Phillips explained that his requests were ignored, he still received his neighbors
mail and had to deliver their mail personally. He stated that he ordered medication for his pets,
which was supposed to be delivered by November 13, 2008, but never received it although the
seller reported that the package was left at his house on November 13, 2008. Mr. Phillips
explained that no delivery had occurred. He indicated that he contacted Ms. Gill, the employing
establishment manager, who investigated and found the missing package. Mr. Philips expressed
concern that appellant was not performing his duties and questioned why he was still employed.
In a February 17, 2011 e-mail correspondence, Mr. DeLaTorre denied knowledge of any
allegations pertaining to October 7, 2004. He indicated that he was never given affidavit or
subpoena to testify in court. Mr. DeLaTorre noted that he recalled responding to a motor vehicle
accident in which appellant was involved; however, he did not recall the date or details.
On March 8, 2011 Mr. Hudgens repeated information from his previous statement. He
noted speaking with appellant on two occasions about customer complaints of misdeliveries.
Mr. Hudgens noted that he spoke with appellant at his case and the discussions took less than
two minutes each time. He noted that the November 15, 2010 meeting was held in his office and
concerned various health problems and how to deal with them.
In a July 1, 2011 letter, Ms. Andama noted that, while a grievance was settled regarding
the July 18, 2006 matter, this did not mean that appellant was not at fault, it merely corrected his
nonpay status. She enclosed a July 1, 2011 e-mail from Ms. Gill who responded to appellant’s
allegation about the November 3, 2006 incident. Ms. Gill confirmed that she observed appellant
talking on the cell phone and driving with no hands. She noted that a grievance was settled and
management contended that she did not violate the union contract by doing a street observation.
A grievance settlement was attached in which no adverse findings were made.

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By decision dated July 21, 2011, OWCP denied appellant’s claim. It found that he had
not established any compensable factors of employment and thus had failed to establish an
emotional condition in the performance of duty.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of FECA. On the other hand the disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force or his frustration
from not being permitted to work in a particular environment or to hold a particular position.3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions, which he believes caused or adversely
affected the condition or conditions, for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.7
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of stress related to
his position as a rural carrier. The Board must thus, initially review whether these alleged
incidents and conditions of employment are covered employment factors under the terms of
FECA. Appellant has not attributed his emotional condition to the regular or specially assigned
3

See Lillian Cutler, 28 ECAB 126 (1976).

4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Id.

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duties of his position as a rural carrier. Therefore, he has not alleged a compensable factor under
Cutler.8
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,9 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board notes that these matters are
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and do not fall within the coverage of FECA.10 Although these matters are generally
related to the employment, they are administrative functions of the employer, and not duties of
the employee.11 The Board noted, however, that coverage under FECA would attach if the
factual circumstances surrounding the administrative or personnel action established error or
abuse by the employing establishment superiors in dealing with the claimant. Absent evidence
of such error or abuse, the resulting emotional condition must be considered self-generated and
not employment generated. In determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.12
Appellant alleged that he improperly received a letter of warning and reprimand in regard
to being observed talking on a cell phone and driving with no hands on November 3, 2006. In a
July 1, 2011 e-mail, Ms. Gill confirmed that she observed him on the street talking on a cell
phone and driving with no hands. She indicated that her street observation did not violate the
union contract. A grievance settlement of the matter did not attribute any error to the employer
in this matter. Although appellant alleged that the employing establishment acted abusively, he
did not provide sufficient evidence to support such a claim. The employing establishment
provided a reasonable explanation and denied any improper motive. Thus, appellant has not
established a compensable employment factor under FECA in this respect.
Appellant alleged that, on July 18, 2007, Mr. Sihota accused him of stealing a customer’s
credit card and using it to buy items at a Home Depot and that he was placed off work without
pay, pending an investigation. Mr. Sihota referred to a grievance settlement in this matter in
which it was determined that appellant’s emergency off-duty status was not warranted and that
he should be compensated during his nonduty period. Ms. Andama noted that the grievance
settlement corrected appellant’s nonpay status and did not find that he was at fault. Although he
has made allegations that the employing establishment erred in conducting its investigation,
appellant has not provided sufficient evidence to support such a claim. A review of the evidence
8

See supra note 3.

9

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

10

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988). See also Beverly R. Jones, 55
ECAB 411 (2004) (monitoring work is an administrative function of a supervisor).
11

Id.

12

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

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does not show that the employer’s actions in this matter were unreasonable and the grievance
settlement corrects appellant’s pay status during a particular period but does not find that the
employer’s reasons for investigating him were erroneous.13 Thus, appellant has not established a
compensable employment factor under FECA in this respect.
Appellant alleged that in October 2010, Mr. Hudgens contacted him and discussed issues
regarding the misdelivery of mail. On March 8, 2011 Mr. Hudgens noted speaking with
appellant on two occasions to discuss customer complaints of misdeliveries. He noted that the
discussions took place at appellant’s case, and took less than two minutes. Also submitted was a
letter from Mr. Phillips documenting problems with appellant’s delivery of his mail.
Mr. Chatha’s statement also noted customer complaints about appellant’s job performance and
his discussion with appellant about poor performance. The Board has characterized criticisms of
performance,14 supervisory discussions of job performance15 and reprimands16 as administrative
or personnel matters of the employing establishment, which are covered only when a showing of
error or abuse is made. The record reflects that the employer had received complaints about
appellant’s mail delivery and reasonably took action that it deemed appropriate. Appellant did
not submit evidence showing how it was error for the employer to discuss his performance
deficiencies. He has not established a compensable employment factor with respect to this
administrative matter.
Appellant also made general allegations that he was harassed in the form of derogatory
statements about his character and his professionalism. To the extent that disputes and incidents
alleged as constituting harassment and discrimination by supervisors and coworkers are
established as occurring and arising from appellant’s performance of his regular duties, these
could constitute employment factors.17 However, for harassment or discrimination to give rise to
a compensable disability under FECA, there must be evidence that harassment or discrimination
did in fact occur. Mere perceptions of harassment or discrimination are not compensable under
FECA.18 Appellant stated that Mr. Chatha harassed him by noting that many customers on his
route wanted him fired as he did not perform his job tasks correctly, and that he mocked
appellant by stating that he never did anything wrong. Mr. Chatha disputed those allegations and
asserted that he acted properly. He confirmed that appellant had performance issues, noting
customer complaints about driving too fast and misdelivered mail. As noted, one of appellant’s
customers, Mr. Phillips also confirmed that appellant routinely misdelivered mail. As appellant
has not submitted any evidence corroborating that he was harassed, abused or treated disparately,

13

Jimmy B. Copeland, 43 ECAB 339, 345 (1991).

14

O. Paul Gregg, 46 ECAB 624 (1995).

15

Lorna R. Strong, 45 ECAB 470 (1994).

16

Effie O. Morris, 44 ECAB 470 (1993).

17

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

18

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

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and as the employer has denied acting inappropriately, appellant has not submitted sufficient
evidence to establish his allegations of harassment.19
Likewise, appellant alleged that he was being targeted for additional accusations or a
reprimand. While he may have felt that he was being targeted, his perception is not sufficient to
establish a compensable work factor.20 The record does not establish or support that appellant
was being targeted or set up. This allegation is not established as factual.
Further unsubstantiated allegations which are not supported by the record include that, on
October 7, 2004, he was accused by Mr. Delatorre and Mr. Almarez of having injuries outside
the scope of employment and that, on October 1, 2006, he was falsely accused of a hit and run
accident by Mr. Sihota. Mr. Delatorre and Mr. Sihota denied any knowledge of these
accusations. Appellant also referred to a March 15, 2008 and September 2010 accident and
alleged that Mr. Delatorre and Mr. Chatha accused him of being at fault. However,
Mr. Delatorre recalled only that he responded to an accident in which appellant was involved but
he did not recall the date or details. The Board notes that these allegations are unsupported and
insufficient to establish a compensable factor.
As appellant has not established a compensable employment factor, it is not necessary to
address the medical evidence.21
Appellant may submit evidence or argument with a written request for reconsideration
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
For the foregoing reasons, as appellant has not established any compensable employment
factors under FECA, he has not met his burden of proof to establish an emotional condition in
the performance of duty.

19

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
20

J.F., 59 ECAB 331 (2008); M.D., 59 ECAB 211 (2007).

21

Garry M. Carlo, 47 ECAB 299 (1996); see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the July 21, 2011 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: March 26, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL FOREST SERVICE,
Fort Bragg, CA, Employer
__________________________________________

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

Docket No. 10-2122
Issued: June 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 13, 2010 appellant filed a timely appeal from a March 12, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his claim for disability
compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he was disabled from November 22 to
December 2, 2009 due to his accepted left shoulder condition.
FACTUAL HISTORY
On October 16, 2009 appellant, then a 44-year-old primary firefighter, filed an
occupational disease claim alleging that he developed shoulder impingement as a result of
1

5 U.S.C. § 8101 et seq.

working as a firefighter for 17 years. He first realized his condition and related it to his
employment on September 9, 2009. In a supplemental statement, appellant explained that he
first experienced shoulder problems around 2003, which progressed to the point that certain
overhead motions caused him extreme pain. He opined that his rotator cuff impingement was
caused by working as a firefighter and engine captain for over 17 seasons.
By decision dated November 3 and 12, 2009, the Office accepted appellant’s claims for a
left shoulder sprain and bursae and tendons disorder. On December 3, 2009 appellant filed a
claim for compensation for the period November 22 to December 19, 2009.
Appellant provided medical reports from Dr. Brian Cable, a Board-certified orthopedic
surgeon. In a September 23, 2009 medical report, Dr. Cable stated that appellant had been a
firefighter for over 17 years and experienced persistent shoulder problems since 2003. Appellant
described the pain as sharp and located anteriorly with some radiation down the biceps to the
deltoid insertion. He further explained that activities of daily living, particularly at work,
aggravated his shoulder with reflexive overhead motion being bothersome. Dr. Cable reported
that the pain was work related, specifically the activity of pulling heavy fire hose. He further
noted that appellant’s work involved upper body repetitive activities requiring upper body
strength such as laying fire lines and using a chain saw. Dr. Cable also conducted a physical
examination and observed no significant asymmetry or atrophy in appellant’s shoulders, point
tender over the anterolateral and posterolateral acromion aggravated with impingement
maneuvers and a grossly intact rotator cuff function. He noted that appellant’s Neer, Hawkins
and O’Brien’s testing were positive. Dr. Cable reviewed appellant’s MRI scan results and did
not find any significant rotator cuff pathology, but did observe some signal change consistent
with mild tendinitis. He opined that appellant’s work-related activities contributed to his left
shoulder large tear and recommended a shoulder arthroscopy. On November 24, 2009 the Office
authorized appellant’s left shoulder arthroscopy.
In a December 15, 2009 letter, the Office informed appellant that it received his claim for
compensation beginning on November 22, 2009. It requested he provide a medical report by his
treating physician indicating that appellant should be off work beginning on November 22, 2009
and confirming that appellant had surgery on December 8, 2009.
Appellant responded on December 18, 2009 by submitting additional medical reports by
Dr. Cable. In a December 4, 2009 letter, Dr. Cable confirmed that appellant was under his
medical care and stated that he should remain off work from December 2 to 19, 2009. In a
December 7, 2009 medical report, he stated that appellant was a 45-year-old right-handed
firefighter who was diagnosed with left shoulder outlet impingement and rotator cuff tendinitis.
Dr. Cable also noted that appellant was scheduled for left shoulder surgery on December 8, 2009.
In a December 8, 2009 surgical report, he noted that he performed a left shoulder arthroscopy on
appellant for his shoulder impingement. In a December 15, 2009 treatment note, Dr. Cable
checked a box indicating that appellant should remain off work until further notice.
In a letter dated December 23, 2009, the Office advised appellant that the medical
evidence was insufficient to demonstrate that appellant was disabled beginning on
November 22, 2009.

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In a letter dated December 28, 2009, the Office reported that appellant received a
payment for the period December 8 to 31, 2009 for the amount of $2,578.56 and included a
payroll sheet. It also requested medical evidence supporting appellant’s disability for the period
December 2 to 8, 2009 and specifically explained that pain was not considered an objective
medical finding. On December 30, 2009 the Office issued another letter reporting that appellant
received a payment for the period January 1 to 3, 2010 in the amount of $368.36 and included a
supplemental payroll sheet.
Appellant provided additional reports by Dr. Cable and by Lem Martin, a physical
therapist. In a January 5, 2010 medical note, Dr. Cable confirmed that appellant was under his
medical care and had been off work from December 2 to 8, 2009 as a result of severe left
shoulder pain, little to no range of motion and heavy pain medication. In a December 18, 2009
work status report, he checked a box that appellant should remain off work until further notice,
but noted that appellant could return to modified work status with restrictions beginning on
January 4, 2010. In a February 3, 2010 medical report, Dr. Cable saw appellant for a
postoperative examination. He noted appellant’s date of injury as September 9, 2009 and date of
surgery as December 8, 2009. Dr. Cable further reported that appellant had returned to work
doing administrative duties and did not complain of any pain. He observed that appellant had
full range of motion of the shoulder with negative impingement signs, no pain on cross body
abduction and an intact rotator cuff function. Dr. Cable noted some weakness on isolation of
supraspinatus to heavy resistance, but x-rays revealed adequate decompression in both the
acromion and distal clavicle. In a December 8, 2009 operative report, he reported that the
surgery revealed a large anterior acromial spur, a hypertrophied coracoacromial ligament, an
inflamed and irritated underlying bursal surface of the rotator cuff, and a significant arthritic AC
joint impinging on the underlying rotator cuff with evidence of tendinitis.
In a December 29, 2009 physical therapy evaluation, Lem Martin, a physical therapist,
stated that appellant was a 45-year-old fireman with several episodes of left shoulder pain while
putting on a fire hose, which progressed to the point that he was unable to exercise. He reported
that appellant underwent a left shoulder subacromial decompression on December 10, 2009
performed by Dr. Cable and is currently undergoing physical therapy for early range of motion
and strength. Mr. Martin noted that appellant’s right shoulder range of motion was within
normal limits and his left shoulder range of motion was 0 to 145 degrees flexion, 0 to 125
degrees abduction, 0 to 90 degrees external rotation and 0 to 50 degrees internal rotation.
Appellant was advised to continue physical therapy treatments at least two times per week for six
weeks.
According to a January 11, 2010 payroll sheet, appellant received compensation for the
period December 2 to 7, 2009 in the amount of $736.73. The report noted that he had been
temporarily totally disabled since December 2, 2009.
In a decision dated March 12, 2010, the Office denied appellant’s claim for disability
compensation for the period November 22 to December 7, 2009 because he failed to submit
medical evidence demonstrating that he was totally disabled for that period.

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LEGAL PRECEDENT
The term disability as used in the Act2 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.3 For each period
of disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to be disabled for employment is a medical issue which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.5 Findings on
examination are generally needed to support a physician’s opinion that an employee is disabled
for work.6
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.7
ANALYSIS
The Office accepted appellant’s claim for left shoulder sprain and bursae and tendons
disorder. On December 3, 2009 appellant filed a claim for compensation for the period
November 22 to December 19, 2009. The record reflects that the Office paid him compensation
for the periods December 2 to 7, 2009, December 8 to 31, 2009 and January 1 to 3, 2010. The
issue, therefore, is whether appellant is entitled to compensation for the period November 22 to
December 2, 2009. The Board finds that the medical evidence submitted is insufficient to
support that the claimed period of disability was causally related to the accepted employment
conditions.
In support of his claim for disability compensation, appellant provided medical reports
and treatment notes from Dr. Cable. In a December 4, 2009 report, Dr. Cable stated that
appellant should remain off work from December 2 to 19, 2009. In December 15 and 18, 2009
treatment notes, he indicated that appellant should not work until further notice. In a January 5,
2010 report, Dr. Cable stated that appellant was off work from December 2 to 8, 2009 because of
severe shoulder pain. In addition, in a December 29, 2009 physical therapy report, Dr. Lem
described appellant’s improvement and advised him to continue physical therapy treatments.
None of these medical reports, however, state that appellant was disabled beginning on
November 22, 2009. As noted above, the employee has the burden of establishing that he was

2

Id. at §§ 8101-8193.

3

20 C.F.R. § 10.5(f); Paul E. Thams, 56 ECAB 503 (2005).

4

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

5

G.T., 59 ECAB 447 (2008); Gary J. Watling, 52 ECAB 278 (2001).

6

See S.F., 59 ECAB 525 (2008); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Amelia S. Jefferson, 57 ECAB 183 (2005); see William A. Archer, 55 ECAB 674 (2004).

4

disabled for each period of disability claimed as a result of the accepted employment injury.8
The earliest date that appellant was excused from work is December 2, 2009, for which he
received compensation. He, therefore, did not provide any medical evidence establishing that he
was disabled beginning on November 22, 2009 as a result of his accepted employment condition.
On appeal, appellant alleged that his pain kept him from doing his work as he was
waiting for his surgery and that his physician sent medical documents to support this claim. The
issue of whether a claimant’s disability is related to an accepted condition is a medical question
that must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.9 Despite appellant’s allegations, the
Board finds that no such medical evidence was provided demonstrating that he was disabled
from November 22 to December 2, 2009 due to his accepted shoulder condition. Thus, he has
failed to meet his burden of proof in this case.
CONCLUSION
The Board finds that appellant has not established that he was disabled from
November 22 to December 2, 2009 as a result of his accepted shoulder condition.10

8

See Sandra D.Pruitt, supra note 4; Amelia S. Jefferson, 57 ECAB 183 (2005).

9

T.F., 58 ECAB 128 (2006); K.L., Docket No. 09-2053 (issued August 9, 2010).

10

The Board notes that appellant submitted additional evidence following the March 12, 2010 decision. Since the
Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, supra
note 4.

5

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: June 3, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Sam Houston, TX, Employer
__________________________________________

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

Docket No. 17-1043
Issued: November 28, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 12, 2017 appellant filed a timely appeal from a January 18, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $25,000.00 due to receipt of a voluntary
separation incentive payment (VSIP); (2) whether OWCP properly found that appellant was at
fault in the creation of the overpayment and therefore not entitled to waiver of the recovery; and
(3) whether OWCP properly determined that it would recover the overpayment by deducting
$150.00 from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 3, 2014 appellant, then a 58-year-old training technician, filed an
occupational disease claim (Form CA-2) alleging carpal tunnel syndrome and cervical disc
displacement due to factors of her employment. She did not initially stop work. On
September 22, 2014 OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and
displacement of the cervical intervertebral disc without myelopathy. Appellant stopped work on
March 16, 2015 and filed a claim for compensation (Form CA7). She received wage-loss
compensation on the supplemental rolls as of March 16, 2015 and medical benefits.
On March 18, 2015 appellant registered for electronic direct deposit of her compensation
benefits. She was placed on the periodic rolls beginning May 31, 2015.
By letter dated August 4, 2015, OWCP notified appellant that she was being placed on
the periodic rolls for compensation and emphasized that annuity benefits paid by the Office of
Personnel Management and benefits for wage loss were not payable for the same period of time.
Appellant’s weekly compensation was listed as $2,395.95.
By letter dated October 9, 2015, the employing establishment advised OWCP that
appellant had taken a VSIP lump-sum payment of $25,000.00. It noted that the VSIP could
constitute a dual benefit, and that it was making OWCP aware so that appellant did not incur an
overpayment.
In a record of a telephone conversation with an OWCP representative dated October 20,
2015, appellant informed OWCP that she had received $25,000.00 as her VSIP on
September 30, 2015.
As appellant was on the periodic rolls, OWCP sent her a Form EN1032 that requested
information, inter alia, regarding other Federal Government benefits or payments that she had
received. The form covered a 15-month period. On October 27, 2015 appellant completed the
Form EN1032 and reported that she had not received any other Federal Government benefits or
payment.
On January 26, 2016 appellant elected FECA benefits in preference to retirement
benefits, effective January 27, 2016.
By letter dated November 17, 2016, OWCP informed appellant of a preliminary
determination of an overpayment of compensation in the amount of $25,000.00 from
September 30, 2015 through July 18, 2016. It determined the amount of overpayment equivalent
to the VSIP by dividing the net monthly payment of FECA benefits of $2,395.95 by 28 days,
then multiplying by 293 days the number of days from September 30, 2015 to July 18, 2016, and
subtracting $71.90. This equaled $25,000.00. OWCP noted that an offset was required when
receiving an incentive payment simultaneously with temporary total disability payments under
FECA, and that because compensation was not suspended effective the date of the incentive
payment, there was an overpayment.
On December 5, 2016 appellant requested a telephonic conference and contested the
overpayment, because she believed that it occurred through no fault of her own, and she

2

requested a waiver. She explained that an OWCP liaison had assured her that, because she was
no longer on the active rolls, she did not need to worry about receipt of dual benefits.
In a record of a telephone conversation with an OWCP representative dated
December 29, 2016, the representative explained to appellant that her compensation should have
been suspended for the period of time that she received the $25,000.00 separation incentive. He
noted that appellant agreed to pay $150.00 per month to repay the debt.
By decision dated January 18, 2017, OWCP finalized the preliminary determination and
found that appellant received an overpayment in the amount of $25,000.00. It found that
appellant was at fault in the creation of the overpayment, and directed recovery by deducting
$150.00 per cycle from her continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Employing establishments may offer separation pay or buyouts to encourage employees
to leave federal employment voluntarily. OWCP procedures provide that compensation for
temporary total disability may not be paid for the period covered by separation pay.2 Some
separation payments are based on a specific number of weeks of pay while others are capped at a
specified amount of money. In order to apply uniform standards to all claimants, however,
offsets for both types of payments should be computed in the same manner regardless of the way
an employing establishment has offered separation pay.3 Whether separation pay is based on
weeks of pay or a specified dollar amount, compensation should be suspended for the number of
weeks of salary that the separation pay represents.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation. The evidence
of record supports that appellant received a VSIP of $25,000.00. Appellant also received
contemporaneous compensation for temporary total disability. Under 5 U.S.C. § 8116 and
20 C.F.R. § 10.421(c), appellant is not entitled to receive both compensation and separation pay
concurrently.5 Therefore an overpayment of compensation was created. A claimant in receipt of
compensation benefits may not concurrently receive separation pay and payment of wage loss

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17c.(1) (June 2009).

3

See Lynne M. Schaack, Docket No. 05-695 (issued November 9, 2005).

4

The Board notes that OWCP’s Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter
2.1000.17 (April 1996) originally provided that separation pay could be offset by either a dollar-for-dollar amount or
based on the period of weeks salary the payment represented. Following the Board’s decisions in Schaack, id. and
L.J., 59 ECAB 264 (issued December 11, 2007), OWCP revised this section of the procedure manual in FECA
Transmittal No. 09-05 (issued June 1, 2009). Where severance or separation pay is based on weeks of pay,
compensation should be suspended for the period in question effective the date of retirement or separation. Where
the payment is based on an amount of money, the claims examiner is to calculate the number of weeks’ worth of
salary that the separation pay represents and suspend compensation for the number of weeks calculated. See R.H.,
Docket No. 08-2025 (issued July 20, 2009).
5

See R.H., supra note 4.

3

for total disability.6 As such, the record establishes that an overpayment of compensation was
created.
The Board further finds that OWCP correctly calculated the amount of overpayment.
OWCP determined the amount of overpayment equivalent to the VSIP by dividing the net
monthly payment of FECA benefits of $2,395.95 by 28 days, then multiplying by 293 days (the
number of days from September 30, 2015 to July 13, 2016), and subtracted $71.90. This amount
equaled $25,000.00.7 Appellant has submitted no evidence to the contrary. As such, the Board
finds that OWCP properly determined that appellant received an overpayment of compensation
in the amount of $25,000.00.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that 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 this subchapter or would be against
equity and good conscience.8 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.9
On the issue of fault, 20 C.F.R. § 10.433(a) provides that 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.10
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP 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 complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.11

6

See Robert B. Hutchins, 52 ECAB 344 (2001); Michael A. Grossman, 51 ECAB 673 (2000).

7

See supra note 4. The Board notes that while OWCP’s calculation utilized days instead of weeks, if the amount
of $2,395.95, appellant’s net compensation every 28-day cycle is divided into $25,000.00 to determine the number
of weeks of compensation to be offset, the number of weeks to be offset is 41.737. The number of weeks in the
period September 30, 2015 through July 18, 2016 equals 41.737. Therefore OWCP’s calculation of the period of the
overpayment was correct.
8

5 U.S.C. § 8129(b).

9

Gregg B. Manston, 45 ECAB 344, 354 (1994).

10

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

11

Id. at § 10.433(b).

4

ANALYSIS -- ISSUE 2
OWCP applied the third standard in this case, finding that appellant accepted
compensation payments that she knew or should have known were incorrect. Appellant accepted
a prohibited dual benefit of a VSIP which was equal to the period September 30, 2015 through
July 18, 2016. In this regard appellant completed the Form EN1032 on October 27, 2015 failing
to report the separation incentive payment she had received from the employing establishment.
On December 5, 2016 appellant contested the overpayment, because she believed that it occurred
through no fault of her own, and she requested a waiver. She explained that an OWCP liaison
had assured her that because she was no longer on the active rolls, she did not need to worry
about receipt of dual benefits. In a record of a telephone conversation with an OWCP
representative dated December 29, 2016, the representative explained to appellant that her
compensation should have been suspended for the period of time that she received the
$25,000.00 separation incentive. He noted that appellant agreed to pay $150.00 per month to
repay the debt.
The Board finds that OWCP properly found appellant at fault in the creation of the
$25,000.00 overpayment, because she should have known that the $25,000.00 voluntary
separation pay constituted a prohibited dual benefit while contemporaneously receiving
temporary total disability from OWCP. A reasonable person should have known that she was
not entitled to a VSIP and receipt of OWCP temporary total disability benefits at the same
time.12
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of OWCP’s regulations provide that when an overpayment has been made to an
individual who is entitled to further payments, the individual shall refund to OWCP the amount
of the overpayment as soon as the error is discovered or his or her attention is called to same. 13
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship.14
ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation payments by $150.00 every 28 days,
taking into account the factors set forth in section 10.441 of OWCP’s regulations. The case
record indicates that appellant agreed to these terms in a telephone conversation with an OWCP
representative on December 29, 2016. The Board finds that OWCP properly required repayment
of the overpayment of compensation by deducting $150.00 from each continuing compensation
payment.
12

See supra note 10.

13

Id. at § 10.441.

14

Id.

5

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $25,000.00. The Board further finds that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver of the recovery and that OWCP properly
required repayment of the overpayment by deducting $150.00 from appellant’s future
compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2017 is affirmed.
Issued: November 28, 2017
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 13-1981
Issued: April 10, 2014

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 August 28, 2013 appellant filed a timely appeal from an August 7, 20131 merit
decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal
Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than four percent left monaural hearing loss for
which he received a schedule award.
1

Appellant indicated that he was appealing an August 16, 2013 decision. The Board notes, however, that the
record does not contain a final decision issued on August 16, 2013.
2

Appellant requested an oral argument. The Clerk of the Board mailed a letter to him to confirm a continuing
desire for an oral argument in Washington, DC. No written confirmation was received. The Board, in its discretion,
will decide the appeal on the record.
3

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that he is entitled to a greater schedule award as a hearing
test performed by a Dr. Tolen4 showed significant damage to his left ear.
FACTUAL HISTORY
On November 19, 2012 appellant, then a 58-year-old production and material support
supervisor, filed an occupational disease claim alleging that on October 16, 2012 he first became
aware of his hearing loss. He further alleged that on November 16, 2012 he first realized that his
condition was caused by his exposure to noise from machinery at work.5
By letter dated February 12, 2013, OWCP referred appellant, together with the medical
record and a statement of accepted facts, to Dr. Kenneth J. Walker, a Board-certified
otolaryngologist, for an otologic examination and audiological evaluation to determine whether
he had any employment-related noise-induced hearing loss.
In an April 8, 2013 medical report, Dr. Walker advised that, upon examination, appellant
reported a history of onset of hearing loss over the past several years. Appellant also reported
long-term exposure to machinery while working as a production and material support supervisor.
He did not wear hearing protection at work. Dr. Walker set forth findings on examination and
diagnosed mild noise-induced sensorineural hearing loss in the right ear, moderate noise-induced
sensorineural hearing loss in the left ear and tinnitus. He opined that appellant’s hearing loss
was consistent in pattern with noise-induced hearing loss due, at least in part, to noise exposure
during his federal employment. An audiometric test was conducted on the same day as
Dr. Walker’s examination. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz
(Hz) revealed decibel losses of the right ear as 15, 20, 15 and 25, respectively. Testing at the
same frequency levels noted above revealed decibel losses of 15, 20, 25 and 50, respectively,
regarding the left ear. Dr. Walker recommended hearing conservation measures, annual
audiograms and a hearing aid evaluation.
On May 9, 2013 OWCP’s medical adviser reviewed Dr. Walker’s April 2, 2013 otologic
examination report. The medical adviser agreed that appellant had binaural sensorineural
hearing loss. The medical adviser applied the audiometric data to OWCP’s standard for
evaluating hearing loss under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) and determined that appellant
sustained four percent hearing loss of the left ear. Decibel losses for the right ear were totaled at
75 and divided by 4, to obtain the average hearing loss per cycle of 18.75. The 18.75 average
was then reduced by the 25-decibel fence to equal 0 decibels, resulting in zero percent right
monaural loss. Decibel losses for the left ear were totaled at 110 and divided by 4, to obtain the
average hearing loss per cycle of 27.5. The 27.5 average was then reduced by the 25-decibel
fence to equal 2.5 decibels, multiplied by 1.5 decibels, resulting in 3.75 or 4 percent right
monaural loss. No percentage was added for tinnitus. The medical adviser stated that the date of
maximum medical improvement was April 2, 2013, the date of Dr. Walker’s examination and

4

The Board notes that appellant did not provide Dr. Tolen’s complete name.

5

Appellant retired from the employing establishment effective January 1, 2013.

2

audiogram. Hearing aids were not authorized and an examination by a specialist was not
recommended.
On May 13, 2013 OWCP accepted appellant’s claim for bilateral sensorineural hearing
loss.
On July 23, 2013 appellant filed a claim for a schedule award.
In a June 14, 2013 memorandum, the employing establishment controverted appellant’s
schedule award claim based on an accompanying memorandum and audiometric history from
Dr. Captain Erin E. Artz, flight commander of the employing establishment’s audiology
department. In a memorandum of the same date, Dr. Artz reviewed appellant’s audiological
records and provided a history of the positions he held at the employing establishment from 1977
to 2012. He stated that from 1991 to 2012 appellant was not enrolled in the employing
establishment’s hearing conservation program as he was no longer exposed to hazardous noise as
defined by an employing establishment safety and health regulations. Appellant’s first hearing
test on November 17, 1976 showed normal hearing thresholds in both ears. There was no change
in his hearing while enrolled in the hearing conservation program through 1986. Appellant
received a hearing examination outside of the hearing conservation program on November 16,
2012 that showed severe to profound hearing loss which was inconsistent with his ability to
communicate effectively at normal conversational volume and without amplification of any kind
consistent with nonorganic hearing loss. Dr. Artz stated that appellant reported at that time that
his own provider had diagnosed him with severe hearing loss due to his exposure to hazardous
workplace noise. An audiogram performed on the same day showed a mild-to-moderate high
frequency sloping hearing loss in both ears that was consistent with presbycusis (aging of the
auditory system). Dr. Artz stated that in 1977 appellant presented at the employing
establishment with normal hearing in both ears which remained stable while he was assigned to a
hearing conservation program through 1986. Thresholds obtained upon his retirement revealed
mild-to-moderate high frequency hearing loss which was inconsistent with exposure to
hazardous noise. According to the sixth edition of the A.M.A., Guides, Dr. Artz determined that
appellant demonstrated no bilateral hearing impairment in 1986 and currently demonstrated a
two percent bilateral hearing impairment.
In an August 7, 2013 decision, OWCP granted appellant a schedule award for four
percent impairment of the left ear based on its medical adviser’s opinion.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice under the law, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
6

5 U.S.C. §§ 8101-8193.

3

all claimants. The implementing regulations have adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined
in accordance with the sixth edition of the A.M.A., Guides.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.9 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.10 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted appellant’s claim for binaural sensorineural hearing loss. Appellant
received a schedule award for four percent impairment to the left ear. The Board finds that he
did not meet his burden of proof to establish that he sustained greater impairment to the left ear.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Walker, a
Board-certified otolaryngologist, for a second opinion evaluation to determine the extent and
degree of any employment-related hearing loss. An audiogram was completed on April 2, 2013
which revealed the following decibel losses at 500, 1,000, 2,000 and 3,000 Hz: 15, 20, 15 and
25, respectively, for the right ear and 15, 20, 25 and 50, respectively, for the left ear. Dr. Walker
7

20 C.F.R. § 10.404.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
9

A.M.A., Guides 250 (6th ed. 2009).

10

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

11

J.H., supra note 10; J.Q., 59 ECAB 366 (2008); Robert E. Cullison, 55 ECAB 570 (2004). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (January 2010).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).

4

diagnosed mild noise-induced hearing loss in the right ear, moderate noise-induced hearing loss
in the left ear as a result of appellant’s federal workplace noise exposure. He diagnosed tinnitus,
but did not provide any indication that it was employment related. Dr. Walker recommended
hearing aids.
OWCP then properly referred the medical record to its medical adviser, for a rating of
permanent impairment in accordance with the A.M.A., Guides.13 On May 9, 2013 OWCP’s
medical adviser reviewed the otologic and audiologic testing performed on appellant on April 2,
2013 and properly applied the applicable standards of the A.M.A., Guides, to find that appellant
had 3.75 percent impairment of the left ear, which he properly rounded up to determine that
appellant had 4 percent hearing loss.14 There is no other medical evidence of record establishing
greater loss under established OWCP procedures. Based on Dr. Artz’s June 14, 2013 report,
OWCP controverted the claim. Dr. Artz indicated that appellant was not enrolled in a hearing
conservation program from 1991 to 2012 and his exposure is inconsistent with exposure to
hazardous noise.
The Board finds that OWCP properly relied on its medical adviser’s opinion, based on
the clinical findings of Dr. Walker, to find that appellant has no more than four percent hearing
loss in the left ear, for which he has received a schedule award.
On appeal, appellant contended that he has more than four percent impairment to the left
ear as a hearing test performed by Dr. Tolen showed significant damage to his left ear. The case
record, however, does not contain such a test.
Appellant also submitted new evidence on appeal. However, the Board lacks jurisdiction
to review such evidence for the first time on appeal.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award
for more than four percent monaural, left ear, loss of hearing.

13

Id.

14

See supra note 11.

15

20 C.F.R § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB
281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2014
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTION,
Ashland, KY, Employer
__________________________________________

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

Docket No. 21-0071
Issued: August 27, 2021

Case Submitted on the Record

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

JURISDICTION
On October 22, 2020 appellant, through counsel, filed a timely appeal from a September 8,
2020 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 investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the September 8, 2020 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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation, effective May 24, 2020, as he no longer had disability causally related
to the accepted February 24, 2016 employment injury; and (2) whether appellant has met his
burden of proof to establish continuing residuals or disability causally related to his accepted
February 24, 2016 employment injury on or after May 24, 2020.
FACTUAL HISTORY
On February 25, 2016 appellant, then a 54-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that, on February 24, 2016, he sustained a right knee injury
when he was assaulted by an inmate which developed into an altercation then a chase while in the
performance of duty. OWCP accepted the claim for complex tear of right medial meniscus and
right knee effusion.4 Appellant stopped work on February 24, 2016 and returned to work on
May 20, 2016 in a light-duty position. On September 13, 2016 the employing establishment
advised that it could no longer accommodate appellant with a limited-duty assignment as of
September 10, 2016. OWCP paid appellant wage-loss compensation on the supplemental rolls as
of September 13, 2016 and on the periodic rolls as of June 25, 2017. On September 3, 2019 it
expanded acceptance of the claim to include temporary aggravation of right knee osteoarthritis.
Appellant underwent an OWCP-authorized right total knee arthroplasty on September 9, 2019,
which was performed by Dr. Felix Cheung, a Board-certified orthopedic surgeon.
On September 17, 2019 appellant was seen at an emergency department by Dr. Kevin
Franks, an osteopathic physician specializing in emergency medicine for the recent onset of right
knee pain following his total knee replacement surgery. He diagnosed knee pain. In a
September 17, 2019 consultation note, Dr. William Fravel, Board-certified in family medicine,
related that appellant’s clinical examination and laboratory findings were consistent with normal
postoperative changes following a right total knee arthroplasty without any current clinical concern
for infectious etiology or blood clot on his workup. Appellant continued under Dr. Cheung’s care
for post right total knee arthroplasty and he underwent physical therapy.
In an October 23, 2019 report, Dr. Cheung reported that appellant’s range of motion of the
right knee was “acceptable, but not great.” He noted that there was no evidence of infection and
appellant’s right knee x-rays taken that day revealed a well-fixed, press-fit, cruciate stabilizing
right knee total knee replacement in excellent position without evidence of failure.
In December 6, 2019 and January 17, 2020 reports, Dr. Cheung indicated that appellant’s
right knee x-rays taken that day indicated that the right total knee replacement remained in
excellent position without evidence of failure.
In a February 19, 2020 report, Dr. Cheung noted that since appellant’s total knee
replacement surgery, he had pain globally in the knee and an area of tenderness over the medial
femoral condyle. Dr. Cheung provided an assessment of painful right total knee replacement. He
4
Appellant has prior claims involving the right lower extremity. Under OWCP File No. xxxxxx455, OWCP
accepted that appellant sustained a right knee sprain on February 14, 2003. Appellant underwent surgery on April 15,
2003 for a right medial meniscus tear. Under OWCP File No. xxxxxx339, OWCP accepted an April 1, 2011 sprain
of other specified sites, right knee and leg.

2

indicated that appellant was stable despite some mid flexion instability and stiffness both in flexion
and extension and point tenderness over the medial femoral condyle. Dr. Cheung recommended
that appellant wear a knee brace to help improve stability and to determine if his knee would “scar
down.”
In a February 24, 2020 attending physician’s report (Form CA-20), Dr. Cheung checked a
box marked “Yes” indicating that appellant was able to resume regular full-duty work with no
restrictions as of December 2, 2019. He further noted that appellant was advised of his work status
on December 2, 2019.
In a March 20, 2020 letter, OWCP, relying on Dr. Cheung’s February 24, 2020 Form CA20, notified appellant that it proposed to terminate his wage-loss compensation as the weight of
the evidence from Dr. Cheung established that he was no longer disabled from work as a result of
the February 24, 2016 employment injury. It afforded him 30 days to submit additional evidence
or argument.
In a letter dated April 20, 2020, which OWCP received on April 22, 2020, appellant’s
counsel requested an extension of time to respond to the notice of proposed termination. He
indicated that appellant had been unable to see his physician as the physician’s office was closed
due to the “shut down.”
By decision dated April 22, 2020, OWCP terminated appellant’s wage-loss compensation,
effective May 24, 2020. It found that the weight of the evidence was represented by Dr. Cheung
in his February 24, 2020 Form CA-20 report. OWCP noted that no additional argument or
additional evidence had been received.
On May 1, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
August 3, 2020.
In a May 20, 2020 Form CA-20, Dr. Cheung opined that appellant had been totally disabled
from September 19, 2019 onward. In his attached May 20, 2019 report, he indicated that he
performed appellant’s right total knee replacement in September 2019 and that appellant always
had some pain and swelling in the knee post-surgery. Dr. Cheung noted that he had tried to send
appellant back to work in December, but appellant was upset because he believed that he could
not perform his date-of-injury job duties and there was no light-duty work available. He reported
appellant’s physical examination findings, noting that the right knee wound had no evidence of
infection, but mild swelling, range of motion to 130 degrees, mid flexion instability and an antalgic
gait. Dr. Cheung reported that May 2, 2020 x-rays demonstrated a well-fixed press-fit, cruciate
substituting right total knee replacement in excellent position without evidence of failure. He
outlined appellant’s medical course regarding appellant’s painful right total knee replacement and
opined that a revision surgery may give appellant a little more stability. Dr. Cheung indicated that
he liked to wait a year from the time of the total knee replacement surgery to see if there was any
improvement. He noted his agreement that appellant could not return to work based on the job
description appellant provided. Dr. Cheung provided work restrictions, which he indicated were
presented by appellant, so that appellant would not be a danger to himself or his coworkers while
he performed his job duties. He indicated that he would see appellant in about three months’ time
to determine whether revision surgery should be scheduled.

3

On June 10, 2020 OWCP referred appellant along with a statement of accepted facts
(SOAF) to its District Medical Adviser (DMA) regarding the medical necessity of proposed
revision total knee arthroplasty. In a July 2, 2020 report, Dr. Todd Fellars, a Board-certified
orthopedic surgeon serving as the DMA, agreed with Dr. Cheung that the proposed revision total
knee arthroplasty was causally related and medically necessary. He indicated that the medical
record documented that appellant has mid flexion instability, which caused symptoms and which
prevented his return to work. The DMA noted that, while there is no sign of infection, if appellant
continued to have instability, he would never be able to return to work. He also noted that the
proposed revision surgery was the standard of care for the diagnosed problem given appellant’s
mid flexion instability. Based on the DMA’s July 2, 2020 report, OWCP authorized a right
revision total knee arthroplasty.
In a July 29, 2020 report, Dr. Cheung reiterated that appellant had some right knee mid
flexion stability and mechanical issues. He noted that appellant’s right knee symptoms had
improved with a knee brace. Dr. Cheung noted that appellant was tentatively scheduled for
revision surgery in September, because he liked to wait at least a year following surgery to see
whether further improvement would occur.
By decision dated September 8, 2020, an OWCP hearing representative affirmed OWCP’s
April 22, 2020 termination decision. The hearing representative found that appellant’s treating
physician had indicated that he could return to light and full duty.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 OWCP may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.6 Its burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective May 24, 2020.
In terminating appellant’s wage-loss compensation benefits effective May 24, 2020,
OWCP found that the weight of the evidence was represented by Dr. Cheung’s February 24, 2020
Form CA-20 report. In that report, Dr. Cheung checked a box marked “Yes” indicating that
appellant was able to resume regular full-duty work with no restrictions as of December 2, 2019.

5

See S.H., Docket No. 19-1855 (issued March 10, 2021); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

G.T., Docket No. 18-01302 (issued October 22, 2019); A.G., Docket No. 18-0749 (issued November 7, 2018); see
I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).
7

See T.M., Docket No. 19-1068 (issued March 30, 2021); R.R., Docket No. 19-0173 (issued May 2, 2019); Del K.
Rykert, 40 ECAB 284 (1988).

4

However, the Board notes that Dr. Cheung, in his February 19, 2020 report which was
contemporaneous to his February 24, 2020 Form CA-20 report, provided an assessment of painful
right total knee replacement. He indicated that appellant had some right knee mid flexion
instability and stiffness both in flexion and extension and point tenderness over the medial femoral
condyle, and he recommended that appellant wear a knee brace to help improve stability and that
he would see him back in about three months to see how things were going. These reports, which
are five days apart, demonstrate an inconsistent opinion on appellant’s ability to return to work.
Because OWCP relied on Dr. Cheung’s inconsistent opinions, OWCP failed to meet its burden of
proof in terminating appellant’s wage-loss compensation benefits effective May 24, 2020.8
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective May 24, 2020, as he no longer had disability causally related to the
accepted February 24, 2016 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 8, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

In light of the Board’s finding with regard to Issue 1, Issue 2 is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 14-892
Issued: June 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 11, 2014 appellant filed a timely appeal from a February 27, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days elapsed from the last merit decision dated January 2,
2014 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated January 2, 2014, the
Board affirmed, as modified,2 the November 9, 2012 and February 21, 2013 OWCP decisions
finding that appellant had not filed a timely claim for compensation and that his June 12, 2012
occupational disease claim, assigned file number xxxxxx203, duplicated a December 16, 2002
occupational disease claim, assigned file number xxxxxx738.3 In his 2002 occupational disease
claim, appellant alleged that he sustained central nervous system conditions, including
tachycardia due to exposure to Turco 6776. The Board found that his June 12, 2012 claim that
he sustained an aggravation of preexisting PSVT due to exposure to Turco 6776 in the course of
his federal employment duplicated his December 16, 2002 claim. The Board noted that appellant
had not contended that his injury arose from any new exposure to employment factors nor did he
submit medical evidence supporting that exposure after 2002 caused his claimed condition. The
facts of the claim as set forth in the prior decision are hereby incorporated by reference.
On January 9, 2014 appellant requested reconsideration. He submitted copies of OWCP
and Board decisions in his case and resubmitted medical evidence dated 1974 through 2013.
Appellant also submitted a hospital report dated March 25, 2013 regarding his treatment for
symptoms of a heart attack. He received follow-up treatment on April 23, 2013 and an
electrocardiogram (EKG) on June 6, 2013.
Appellant further resubmitted a December 20, 2012 response from the employing
establishment regarding his claim. On the form he indicated that he had timely filed claim
number xxxxxx203. Appellant also resubmitted a January 22, 2010 decision by the Social
Security Administration (SSA) finding that he was disabled and a May 19, 2011 decision by the
Department of Veterans Affairs (DVA) continuing its determination that he had a 10 percent
impairment due to supraventricular tachycardia.
By decision dated February 27, 2014, OWCP denied appellant’s request for
reconsideration finding that he did not submit evidence or raise an argument sufficient to warrant
reopening his case for further review of the merits under section 8128.
On appeal, appellant argues that he continues to experience supraventricular tachycardia
due to exposure to the chemical Turco 6776. He asserts that his supervisor had actual notice of
his injury and that he obtained medical treatment from its dispensary. Appellant relates that the
evidence established that his condition was employment related and that OWCP should not have
considered it a duplicate claim.
2

The Board determined that he had timely filed his claim in file number xxxxxx203 for compensation as his
supervisor had actual knowledge of his previously filed December 16, 2002 occupational disease claim.
Nonetheless, the Board affirmed OWCP’s denial as it was a duplicate claim.
3

Docket No. 13-1310 (issued January 2, 2014). On June 12, 2012 appellant, then a 57-year-old former heavy
mobile equipment mechanic, filed an occupational disease claim alleging that he sustained an aggravation of
preexisting paroxysmal supraventricular tachycardia (PSVT) due to exposure to Turco 6776 in the course of his
federal employment. He indicated that he became aware of his condition and its relationship to his federal
employment in May 2002. Appellant was last exposed to the work factors identified as causing his condition on
December 14, 2004, when he was removed from employment. OWCP assigned the claim number xxxxxx203.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that 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.5 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.6 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.7
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.8 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.9 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.10
ANALYSIS
The last merit decision in this case is the Board’s January 2, 2014 decision finding that
appellant’s June 12, 2012 occupational disease claim duplicated a prior occupational disease
claim dated December 16, 2002. On January 9, 2015 he requested reconsideration before
OWCP.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his January 9, 2014 request for reconsideration, he did not show that OWCP erroneously
applied or interpreted a specific point of law. Appellant did not identify a specific point of law
or show that it was erroneously applied or interpreted. He did not advance a new and relevant
legal argument. A claimant may be entitled to a merit review by submitting pertinent new and
relevant evidence, but in this instance appellant did not submit any pertinent new and relevant
medical evidence. Appellant resubmitted evidence previously considered by OWCP, including
4

Supra note 1. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.”
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

9

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

3

medical evidence dated 1974 to 2013, a January 22, 2010 SSA determination, a May 19, 2011
decision by the DVA, a December 20, 2012 statement from the employing establishment and
copies of decisions by OWCP and the Board in his claim. Evidence which repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.11
Appellant also submitted a hospital report dated March 25, 2013, a treatment note dated
April 23, 2013 and the results of an EKG on June 6, 2013. None of this evidence, however,
pertained to the relevant issue of whether his June 12, 2012 occupational disease claim
duplicated his December 16, 2002 occupational disease claim. It does not address whether any
exposure to Turco 6776 after 2002 caused his condition. Evidence that does not address the
particular issue involved does not warrant reopening a case for merit review.12
On appeal, appellant maintains that he still has symptoms of supraventricular tachycardia
due to exposure to the chemic Turco 6776 and that the weight of the evidence establishes that his
condition is causally related to employment. He further argues that his supervisor had actual
notice of his injury and that he obtained medical treatment from its dispensary. The issue,
however, is whether appellant submitted new evidence or argument sufficient to warrant
reopening his case for further consideration of whether his June 12, 2012 occupational disease
claim duplicated a December 16, 2002 occupational disease claim.
Appellant asserts that OWCP should not have considered his claim a duplicate claim and
should have reviewed all the evidence. He did not, however, submit any evidence in support of
his contention.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent new evidence not previously considered.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his case for
further review of the merits under section 8128(a).

11

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

12

Id.; see also Freddie Mosley, 54 ECAB 255 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.I., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Bellevue, WA, Employer
__________________________________________

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

Docket No. 09-1014
Issued: December 22, 2009

Case Submitted on the Record

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

JURISDICTION
On March 9, 2009 appellant filed a timely appeal from the January 16, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits
of this claim.
ISSUE
The issue is whether appellant has established that he sustained a back condition causally
related to his federal employment.
FACTUAL HISTORY
On December 3, 2008 appellant, then a 38-year-old mail collector, filed an occupational
disease claim alleging that on November 26, 2008 he first realized his back condition was due to
his repetitive job duties. He noted that he had sore muscles and cramping when he awoke on the
morning of November 26, 2008. Appellant related working a collection route that involved
driving a truck with an electric lift gate. The number of stops required pickups of between 150

to 350 pounds of mail. Appellant reported that the soreness began after he was required to lift
mail and mail hampers into the truck when the electric lift gate had been broken and not
replaced.
By letter dated December 16, 2008, the Office informed appellant that the evidence was
insufficient to support his claim. Appellant was advised as to the medical and factual evidence
required to support his claim and given 30 days to provide the requested information.
Appellant submitted a November 26, 2006 attending physician’s report (Form CA-20)
and November 26, 2008 duty status report (Form CA-17) from Dr. Abid Haq, a treating
physician; progress notes dated November 26 and December 19, 2008 from William M. Baluch,
a physician’s assistant; and a December 19, 2008 CA-17 by Dr. Sanders Chai, a treating Boardcertified preventive medicine practitioner. In a December 2, 2008 disability note, Dr. Regina
Terranova, a treating Board-certified family medicine practitioner, noted that appellant stated
that he was unable to work that day due to illness.
Dr. Haq diagnosed a thoracic area sprain that was a result of repetitive overhead lifting.
He attributed appellant’s back injury to lifting containers of mail. Dr. Haq reported physical
findings of limited flexion and tenderness of the paraspinous thoracic muscles. He advised that
appellant was capable of working light duty and could resume his usual job duties on
December 2, 2008. Dr. Haq opined that appellant’s condition was employment related based
upon appellant’s description of repetitive overhead lifting.
Mr. Baluch diagnosed a thoracic back sprain and listed a history of appellant’s
employment duties. Appellant related having problems with his mid back tightening and pain as
a result of repetitive job duties. Mr. Baluch opined that the condition was more probably than
not employment related as it was an overuse injury.
Dr. Chai reported that appellant had no upper back tenderness and good range of motion.
No work restrictions or diagnosis was provided.
By decision dated January 16, 2009, the Office denied appellant’s claim, finding that the
medical evidence was not sufficient to establish causal relation.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced in the work environment
over a period longer than a single workday or shift by such factors as systemic infection,
continued or repeated stress or strain or other continued or repeated conditions or factors of the
work environment.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
1

Donald W. Wenzel, 56 ECAB 390 (2005); William Taylor, 50 ECAB 234 (1999); see also 20 C.F.R. § 10.5(q).

2

(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.2
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.3 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.4 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
conditions and the specific employment factors identified by the employee.5
ANALYSIS
The record reflects that appellant’s job duties consist of picking up mail and mail
hampers while on his collection route. The issue is whether his repetitive work duties caused a
thoracic sprain. The Board finds that the medical evidence of record does not explain how the
identified employment duties caused appellant’s thoracic strain.
Dr. Haq diagnosed a thoracic back sprain and indicated that appellant injured his back
while lifting containers of mail. He opined that the condition was employment related based
upon appellant’s description of repetitive overhead lifting. The CA-20 and CA-17 forms
completed by the physician do not include explanations addressing causal relation. There were
no reasons provided by Dr. Haq for his stated conclusion. The forms do not provide a full
medical history of appellant’s back condition. These brief notations do not represent a
rationalized opinion on causal relationship.6 The reports of Dr. Haq are insufficient to meet
appellant’s burden that he sustained a thoracic sprain due to the identified employment factors.
On December 19, 2008 Dr. Chai reported no upper back tenderness and good range of
motion. He did not provide any restrictions or make a diagnosis. The December 2, 2008
disability note from Dr. Terranova merely noted appellant’s opinion that he was unable to work
that day due to an unspecified illness. There was no opinion as to the cause of appellant’s
2

D.D., 57 ECAB 734 (2006); Donna L. Mims, 53 ECAB 730 (2002).

3

David Apgar, 57 ECAB 137 (2005).

4

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
5

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

6

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Victor J. Woodhams, 41 ECAB 345 (1989) (to
establish causal relationship, a claimant must submit a physician’s report in which the physician reviews the
employment factors identified as causing the claimed condition and, taking these factors into consideration as well
as findings upon examination, states whether the employment injury caused or aggravated the diagnosed conditions
and presents medical rationale in support of his or her opinion).

3

disability. The Board has held that medical evidence providing no opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.7
These reports are insufficient to establish that appellant sustained a thoracic condition due to his
employment.
Appellant also submitted treatment notes from Mr. Baluch, a physician’s assistant, who
diagnosed a thoracic back sprain. However, these reports have no probative value as they were
not approved by a physician.8 Section 8101(2) of the Act provides that the term physician
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by the applicable state law.9
A physician’s assistant is not a physician as defined under the Act.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.10
Neither the fact that the condition became apparent during a period of employment nor the
employee’s belief that the condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11 Causal relationship must be established
by reasoned medical opinion evidence, which is appellant’s responsibility to submit.
CONCLUSION
The Board finds that appellant did not establish that he sustained a thoracic sprain
causally related to factors of his federal employment.

7

A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

8

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (Reports of physician’s assistants have no
probative value as medical evidence. A physician’s assistant is not a physician as defined under the Act and any
report from such individual does not constitute competent medical evidence which, in general, can only be given by
a qualified physician).
9

5 U.S.C. § 8102; see S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); J.M., 58 ECAB ___
(Docket No. 06-2094, issued January 30, 2007).
10

R.T., 60 ECAB ___ (Docket No. 08-408, issued December 16, 2008); Michael S. Mina, 57 ECAB 379 (2006).

11

P.K., 60 ECAB ___ (Docket No. 08-2551, issued June 2, 2009); Roy L. Humphrey, supra note 5.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 16, 2009 is affirmed.
Issued: December 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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