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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-368
Issued: August 22, 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 December 3, 2013 appellant, through counsel, filed a timely appeal from the
September 4, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on May 16, 2012.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 16, 2012 appellant, then a 52-year-old custodial laborer, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a work injury on that date at 12:50 p.m.2 In an
attached statement, he indicated that on May 16, 2012 he was retrieving letters he had to mail
that day from his truck which was parked near the recycle dumpsters at work. Appellant was
leaving his truck when a driver named Marty backed up his truck to the loading dock at an
accelerated speed. He yelled at Marty to stop and dropped the letters he was holding. Appellant
reached for the letters, thinking that he could retrieve them in time and get out of the way of the
truck. He slipped and fell on his left wrist and became stuck between the truck and the loading
dock.3 Appellant stopped work on May 16, 2012.
Appellant sought medical treatment on May 17, 2012 and an attending physician report
from that date contained the diagnosis of displaced commuted distal radius fracture of the left
wrist.4 His left wrist initially was placed in a plaster splint and he later underwent a closed
reduction procedure.5 Appellant was found to be totally disabled.
The employing establishment challenged appellant’s claim for a May 16, 2012 work
injury. In a May 16, 2012 e-mail, Cheryl McNair-Johnson, a supervisor, stated that on the
morning of May 16, 2012 appellant stated to her, “You know Cheryl, it’s just no fun living
anymore.” Ms. McNair-Johnson told appellant that it could not be that bad and he responded,
“I’m not kidding, it’s just no fun living anymore.” In light of his statements and the events later
that day, appellant appeared to be under an extreme amount of stress.
In a May 16, 2012 e-mail, Peggy Clifford, the postmaster at appellant’s workplace, stated
that appellant claimed that he hurt his left wrist that day when he slipped and fell at the back
dock. She noted that other witnesses claimed that appellant purposely put himself in harm’s way
and placed himself in a location against the dock where the truck driver would not see him. The
driver backed up to appellant and pinned him against the dock, thereby injuring his wrist.
Another custodian ran up to the driver and yelled at him to drive forward in order to unpin
appellant. Ms. Clifford stated that she thought that this accident was a “strange act” and
indicated that she took appellant to the hospital. She informed Ms. McNair-Johnson of the
incident, who noted that when she spoke to appellant earlier that morning he mentioned that he
did not feel like living anymore.

2

Appellant’s regular schedule was Monday through Friday, 10:30 a.m. to 7:30 p.m. May 16, 2012 fell on a
Wednesday.
3

John Galan, appellant’s immediate supervisor, indicated on the Form CA-7 that the claimed May 16, 2012
injury did not occur in the performance of duty.
4

On May 17, 2012 the employing establishment executed a Form CA-16 (Authorization for Examination and/or
Treatment).
5

The medical reports contain descriptions of the May 16, 2012 incident that are similar to the account appellant
provided when filing his claim.

2

In response to the June 28, 2012 letter from OWCP appellant submitted additional
medical evidence showing that in early June 2012, he was released to work with restrictions from
using his left arm.
In an August 28, 2012 decision, OWCP denied appellant’s claim finding that he did not
sustain an injury in the performance of duty on May 16, 2012. It noted that in order for a claim
to be accepted under FECA, the claim must meet five basic elements.6 OWCP stated that
appellant’s claim was denied because the factual component of the third basic element, fact of
injury, had not been met. It stated:
“Specifically your case is denied because the evidence is not sufficient to
establish that the event(s) occurred as you described. The reason for this finding
is that you failed to respond to our letter and your agency’s challenge; therefore
the circumstances of your claim are in doubt as is your mental status at the time of
the injury and whether you intended to harm yourself.
“In the absence of a statement from you addressing your agency’s challenge and
validating the circumstances of your injury, we cannot assume the history
provided by your physician is complete and accurate and therefore the medical
aspects of your claim cannot be accepted. Additionally, if you had intended to
harm yourself, you may not have been injured in the performance of duty.”
On October 15, 2012 appellant requested reconsideration of the denial of his claim. In an
August 9, 2012 statement received on September 17, 2012, he stated that on May 16, 2012 he did
not injure his left wrist on purpose. Appellant noted that it was a freak accident. He read the
statements of record from the employing establishment supervisors and questioned how they
could be considered to be witnesses when they were not at the location of the accident at the time
that it occurred. In an October 10, 2012 statement received on October 15, 2012, appellant
indicated that on May 16, 2012 he was walking back to the loading dock when a contract driver
named Marty backed into the loading dock without any warning and pinned him between the
truck and the dock. He made every attempt to get out of the driver’s way to avoid the accident,
but that “things happened so fast” and his left wrist got pinned when he could not get out of the
way. Appellant noted that he never made any statements that he would intentionally hurt himself
and that he went to the hospital immediately for treatment. He stated that there were no
witnesses to the accident except for the truck driver who was fired after the incident. The truck
driver panicked after the accident and departed the scene in his own car.7

6

OWCP indicated that the claim must: (1) be timely filed; (2) be made by a federal civil employee; (3) establish
fact of injury both factually (accident or work factor alleged must have actually occurred) and medically (medical
condition must be diagnosed in connection with the injury or event); (4) establish performance of duty (injury and/or
medical condition must have arisen during the course of employment and within the scope of compensable work
factors); and (5) establish causal relationship (medical evidence establishes that the diagnosed condition is causally
related to the injury or event).
7

Appellant also submitted additional medical records and physical therapy notes in support of his claim.

3

In a January 9, 2013 decision, OWCP again denied appellant’s claim that he sustained an
injury in the performance of duty on May 16, 2012. It indicated that he provided “two details” of
how and why the May 16, 2012 incident occurred.8 OWCP denied appellant’s claim on the
grounds that the factual component of the third element of fact of injury was not supported. It
found that appellant had not shown that the claimed injury or event occurred as alleged.
On January 23, 2013 appellant again requested reconsideration of the denial of his claim.
In a January 18, 2013 statement received on January 23, 2013, he provided a clarification of his
prior statements. Appellant noted:
“What I meant by no warning the truck driver was backing up suddenly to the
loading dock at a high rate of speed which did not enable me to get out of the way
of the fast moving truck and loading dock. Therefore I was pinned between the
truck and loading dock with my wrist as I was trying to hold on to my letters that
were in my hand. Things happened at such a fast pace.”9
In a July 15, 2013 letter, Ms. Clifford advised that the employing establishment continued
to contest appellant’s claim for a May 16, 2012 work injury. She stated that his statements
reflected that on May 16, 2012 he was in a private vehicle doing personal business, including
writing personal bills, when he exited his vehicle to mail his personal correspondence.10
Ms. Clifford indicated that appellant was parked in a no parking zone near the loading dock and
he had previously been subjected to corrective action for parking in this area. She stated that his
parking in this area on May 16, 2012 constituted wilful misconduct. Ms. Clifford asked
appellant if he deliberately was trying to hurt himself on May 16, 2012 and he responded, “No,
but I know I am not thinking clearly, and I am not making good decisions. I could be making
some wrong decision because of all of the things going wrong in my life.” She referred him to
the employee assistance program and stated, “There is absolutely no doubt in my mind that
[appellant] was purposefully and willfully trying to hurt himself.”
In an undated statement received on August 7, 2013, appellant indicated that on May 16,
2012 he was coming from his own personal vehicle with letters he retrieved from his vehicle to
mail inside the employing establishment. He asserted that he was authorized to park in the space
that day. Appellant acknowledged that he was experiencing personal problems around
May 16, 2012.

8

OWCP stated, “You initially stated that you were between the dock and the truck. When the truck backed up
and accelerated, you yelled that you were back there. All during this time, you dropped letters and grabbed the
letters you dropped. On your [October 10, 2012] statement, you stated that you had no warning and you made every
attempt to get out of the way; but things happened so fast.”
9

Appellant submitted additional medical records including a May 30, 2013 report in which an attending Boardcertified psychiatrist indicated that he did not appear to be a threat to himself or others. In a June 17, 2013 letter,
counsel argued that OWCP did not show that the May 16, 2012 accident occurred due to wilful misconduct on
appellant’s part.
10

Ms. Clifford noted that the personal nature of appellant’s activities was confirmed by a coworker’s statement,
but the record does not contain a copy of the statement.

4

In a September 4, 2013 decision, OWCP denied appellant’s claim that he sustained an
injury in the performance of duty on May 16, 2012. It modified its prior denial of appellant’s
claim noting that he had submitted a clarifying factual statement regarding the circumstances of
how his injury occurred as well as a statement in response to the challenge from the employing
establishment. Regarding the reason for the denial of the claim, OWCP stated:
“However, the case remains denied for insufficient evidence to meet all five basic
elements for FECA coverage because you have not provided sufficient evidence
to establish that you were injured while in the performance of duty. In the
statement from both you and your employing [establishment] it was noted that
you were in your personal vehicle and handling your personal business when you
exited the vehicle to mail your personal mail. There is no evidence which
substantiates that you were engaged in work[-]related business or that you were
performing the duties of your employing [establishment] or engaged in workrelated business.”11
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,12 including that he or she is an employee within the meaning of FECA13 and that he or
she filed his or her claim within the applicable time limitation.14 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.15
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. It is not
sufficient under general principles of workers compensation law to predicate liability merely
upon the existence of an employee-employer relationship.16

11

OWCP effectively affirmed its January 9, 2013 decision as modified to reflect that appellant did not show that
he was in performance of duty at the time of the May 16, 2012 injury because his personal actions were not related
to the employing establishment’s business or reasonably incidental to his employment.
12

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

13

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
14

R.C., 59 ECAB 427 (2008); Kathryn A. O Donnell, 7 ECAB 227 (1954); see 5 U.S.C. § 8122.

15

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

16

George A. Fenske, 11 ECAB 471 (1960).

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Congress has provided for the payment of compensation for disability or death resulting
from personal injury sustained while in the performance of duty.17 The Board has interpreted the
phrase while in the performance of duty to be the equivalent of the commonly found prerequisite
in workers’ compensation law of arising out of and in the course of employment.18 The phrase,
in the course of employment deals with the work setting, the locale and the time of injury.
Arising out of the employment encompasses not only the work setting, but also a causal concept,
the requirement being that an employment factor caused the injury.19
In the compensation field, it is generally held that an injury arises out of and in the course
of employment when it takes place: (a) within the period of employment; (b) at a place where
the employee may reasonably be expected to be in connection with the employment; (c) while he
is reasonably fulfilling the duties of the employment or engaged in doing something incidental
thereto; and (d) when it is the result of a risk involved in the employment, or the risk is incidental
to the employment or the conditions under which the employment is performed.20
ANALYSIS
Appellant alleged that he sustained a left wrist injury on May 16, 2012 at 12:50 p.m.21
He alleged that he had retrieved personal letters from his vehicle at work in order to mail them.
When in the vicinity of the loading dock appellant fell to the ground and became trapped
between the loading dock and a vehicle which was backing up. The employing establishment
did not dispute that the May 16, 2012 incident occurred during his working hours and on the
premises of the employing establishment. Further, the statements by appellant are consistent in
indicating that, around the time of the incident, he was engaged in retrieving and carrying
personal letters from his vehicle for the personal purpose of mailing them at the employing
establishment.
The mere fact that appellant was on the premises and on duty at the time of injury is not
sufficient to establish entitlement to compensation benefits. It must also be established that he
was engaged in activities which may be described as incidental to his employment, i.e., that he
was engaged in activities which fulfilled his employment duties or responsibilities thereto.22

17

5 U.S.C. § 8102(a).

18

See Timothy K. Burns, 44 ECAB 291 (1992); Jerry L. Sweeden, 41 ECAB 721 (1990); Christine Lawrence, 36
ECAB 422 (1985).
19

See Larry J. Thomas, 44 ECAB 291 (1992).

20

R.S., 58 ECAB 660 (2007).

21

Appellant’s regular schedule was Monday through Friday, 10:30 a.m. to 7:30 p.m. May 16, 2012 fell on a
Wednesday.
22

See Barbara D. Heavener, 53 ECAB 142 (2001).

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In the case of Barbara D. Heavener,23 the Board found a claimant’s fall while on duty
and on the premises of the employing establishment was not in the performance of duty. The
claimant left her office building to retrieve an address book from her motor vehicle. The Board
found that she was engaged in a personal mission unrelated to her employment and not in
activities reasonably incidental to her employment.
In Robert A. Pszczolkowski,24 a claimant was injured during working hours in a parking
lot on the premises of the employing establishment when he left his building to get personal mail
from his vehicle and fell on ice. The Board held that he was not in the performance of duty as
his action was not reasonably incidental to employment but constituted a personal mission
unrelated to employment. The Board further found that obtaining his mail was not an activity
necessary for personal comfort or ministration.
In A.K., a claimant was injured during working hours on the premises of the employing
establishment while going to his vehicle to retrieve personal correspondence. The Board held
that he was not in the performance of duty as his actions were personal in nature and not related
to the employing establishment’s business or reasonably incidental to his employment. It found
that the claimant’s activities could not be likened to incidental acts, such as using a toilet facility,
drinking coffee or similar beverages or eating a snack during a recognized break in the daily
work hours, which are generally recognized as personal ministrations that do not take the
employee out of the course of his employment.
In this case, appellant’s injury occurred while he was retrieving personal letters from his
motor vehicle, which he carried to the employing establishment. Despite occurring on the
employing establishment’s premise while on duty, his actions were personal in nature and not
related to the employing establishment’s business or reasonably incidental to his employment.25
The Board finds that appellant’s activities cannot be likened to incidental acts, such as using a
toilet facility,26 drinking coffee or similar beverages27 or eating a snack during a recognized
break in the daily work hours.28 The departure of appellant from his workstation to retrieve
personal items is not considered an activity necessary for personal comfort or ministration or
incidental to his employment. Therefore, he was not in the performance of duty when he fell on

23

Id.

24

Docket No. 01-1645 (issued April 11, 2002).

25

See also Valerie C. Boward, 50 ECAB 126 (1998) (where the Board found that an injury arising out of an
employee’s washing her car windows while on the employing establishment’s premises did not occur in the
performance of duty because she was engaging in a personal activity unrelated to her employment); Mary Beth
Smith, 47 ECAB 747 (1996) (where the employee’s injury on the employer’s premise while picking up her child
from day care did not occur in the performance of duty as her activity was purely personal in nature).
26

See V.O., 59 ECAB 500 (2008); Frank M. Escalante, 13 ECAB 160 (1961).

27

See Helen L. Gunderson, 7 ECAB 707 (1955).

28

See Mary Kokich, 52 ECAB 239 (2001). See also Mary M. Martin, 34 ECAB 525 (where the Board held that
taking a walk was not an activity closely related to personal ministration).

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May 16, 2012 and sustained injury. For these reasons, OWCP properly denied appellant’s claim
for a May 16, 2012 work injury.29
Before OWCP and on appeal, counsel argued that OWCP did not adequately support its
denial of appellant’s claim for a May 16, 2012 work injury on the grounds that the injury
occurred due to his wilful misconduct. The Board notes that OWCP did not deny appellant’s
claim on the grounds that he engaged in wilful misconduct. The statutory defense was not
invoked. OWCP found that appellant’s injury did not occur in the performance of duty on
May 16, 2012 because he was not reasonably fulfilling the duties of his employment or engaged
in doing something incidental thereto at the time of the claimed work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on May 16, 2012.

29

On May 17, 2012 the employing establishment executed a Form CA-16 (Authorization for Examination and/or
Treatment). The Board notes that where an employing establishment properly executes a Form CA-16 which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16
form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003).
The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c). The record is silent as to whether OWCP paid for
the cost of appellant’s examination or treatment for the period noted on the form.

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ORDER
IT IS HEREBY ORDERED THAT the September 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 07-612
Issued: June 5, 2007

Case Submitted on the Record

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

JURISDICTION
On January 5, 2007 appellant filed a timely appeal from a December 26, 2006 merit
decision of the Office of Workers’ Compensation Programs, finding that he did not sustain an
emotional condition while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition
while in the performance of duty.
FACTUAL HISTORY
On June 12, 2006 appellant, then a 48-year-old airway transportation systems specialist,
filed an occupational disease claim. On December 3, 2004 he first realized that his posttraumatic stress disorder was caused by his July 18, 2003 employment-related automobile

accident.1 Appellant stated that he continued to have nightmares of the employment-related car
accident which was responsible for his multilevel cervical fusion. He further stated that, during
an examination by a behavioral/mental health specialist, he was told that his repeated nightmares
of being hit from the rear by cars were probably related to the July 18, 2003 employment injury
since he did not have post-traumatic stress disorder symptoms prior to the accepted injury.
Appellant noted that his irritability and ability to concentrate seemed to become extreme. At the
time of the filing of his claim, he was performing limited-duty work in the position of airway
transportation systems specialist.
By letter dated November 14, 2006, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It addressed the additional factual and medical
evidence he needed to submit directly to the Office within 30 days to establish his claim. This
included a detailed description of the employment-related conditions or incidents that he
believed contributed to his condition and a comprehensive medical report from his physician,
which described his symptoms and included results of examinations and testing and provided a
diagnosis and opinion, with medical reasons, on the cause of his condition. Appellant did not
respond within the allotted time period.
By decision dated December 26, 2006, the Office found that appellant did not sustain an
emotional condition while in the performance of duty. Appellant failed to submit evidence
establishing that he sustained an injury at the time, place and in the manner alleged and a
diagnosed medical condition causally related to the claimed event.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential

1

On August 15, 2006 the Office combined the instant claim assigned file number 252063541 with appellant’s
prior claim assigned file number 132085235, which pertained to employment-related injuries he sustained as a result
of a July 18, 2003 car accident, into a master claim assigned file number 132085235. The Office stated that the
instant claim was being treated as a consequential injury of the accepted July 18, 2003 employment injuries. The
Board notes that the record does not specifically identify the accepted employment-related conditions.
2

Following the issuance of its December 26, 2006 decision, the Office received factual and medical evidence.
The Board may not consider evidence for the first time on appeal which was not before the Office at the time it
issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and
request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.5
To establish that he sustained an emotional condition in the performance of duty, a
claimant must submit: (1) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to his condition; (2) medical evidence establishing that he has an
emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to his emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,7 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Act.8 There are situations where an injury or
an illness has some connection with the employment but nevertheless does not come within the
concept or coverage under the Act.9 When an employee experiences emotional stress in carrying
out his employment duties and the medical evidence establishes that the disability resulted from
his emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of his work.10 There are situations where an injury or
an illness has some connection with the employment but nevertheless does not come within the
concept or coverage under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, 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 a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office 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
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
5

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

6

See Donna Faye Cardwell, 41 ECAB 730 (1990).

7

28 ECAB 125 (1976).

8

5 U.S.C. §§ 8101-8193.

9

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

10

Lillian Cutler, supra note 7.

11

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

12

Id.

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Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. 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.13 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.14
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.15
ANALYSIS
Appellant alleged that he sustained an emotional condition due to his July 18, 2003
employment-related injuries. The Board notes that an emotional condition related to pain and
other limitations resulting from an employment injury is covered under the Act.16 Appellant’s
July 18, 2003 injuries were accepted by the Office as occurring in the performance of duty and
appellant has attributed his emotional condition to the pain generated by the injuries.
However, appellant’s burden of proof is not discharged by the fact that he has identified
an employment factor which may give rise to a compensable disability under the Act. To
establish his claim for an emotional condition, appellant must also submit rationalized medical
evidence establishing that he has an emotional or psychiatric disorder and that such disorder is
causally related to the identified compensable employment factor, the July 18, 2003 employment
injuries.17
The Board notes that, at the time of the Office’s December 26, 2006 decision, appellant
had submitted no medical evidence. By letter dated November 14, 2006, the Office clearly
informed appellant that he had 30 days to submit a statement identifying employment factors and
a comprehensive medical report from his physician to the Office. As the record before the
Office at the time of its December 26, 2006 decision did not contain sufficient medical evidence
to establish that the condition for which compensation is claimed is causally related to a
compensable employment factor identified by appellant, the Board finds that appellant failed to
establish that his emotional condition was caused by his July 18, 2003 employment-related
injuries.18

13

Lillian Cutler, supra note 7.

14

Michael L. Malone, 46 ECAB 957 (1995).

15

Charles D. Edwards, 55 ECAB 258 (2004).

16

Arnold A. Alley, 44 ECAB 912 (1993); Charles J. Jenkins, 40 ECAB 362, 367 (1988).

17

William P. George, 43 ECAB 1159 (1992).

18

Leslie C. Moore, 52 ECAB 132 (2000).

4

CONCLUSION
Appellant has established a compensable factor of employment, namely his emotional
reaction to the July 18, 2003 employment-related injuries, but has not submitted medical
evidence sufficient to establish that this compensable factor of employment caused or
contributed to his emotional condition.
ORDER
IT IS HEREBY ORDERED THAT the December 26, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: June 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
Sheilah F. McCarthy, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1247
Issued: April 12, 2018

Case Submitted on the Record

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

JURISDICTION
On May 15, 2017 appellant, through counsel, filed a timely appeal from a November 16,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 16, 2016, the date of OWCP s last decision, was
May 15, 2017. Since using May 16, 2017, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is May 15, 2017 rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to schedule award benefits, effective May 29, 2016, as she
refused an offer of suitable work under 5 U.S.C. § 8106(c)(2); (2) whether OWCP properly denied
appellant’s request for the issuance of a subpoena.
On appeal counsel contends that the medical evidence was insufficient to terminate benefits
as it did not consider all the reasons for refusing the offered position.
FACTUAL HISTORY
On October 27, 1992 appellant, then a 32-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed left carpal tunnel syndrome due to turning over
bundles of mail to read zip codes and pushing them on the belt for sorting. She indicated that she
performed these actions repetitively while keying the mail. OWCP accepted appellant’s claim for
de Quervain’s tendinitis of the left wrist on February 26, 1993.
Appellant worked in a series of modified positions. The employing establishment offered
her a temporary, limited-duty position on April 24, 1997 as a quality checker. Appellant’s
physician found that this position was safe and consistent with her work restrictions on
September 9, 1998. The employing establishment offered appellant a light-duty position as a
modified distribution clerk on August 31, 1998. On April 7, 2003 it provided her a modified job
offer performing record collection and assisting in throwing parcels weighing less than 20 pounds.
The employing establishment offered appellant a position as a modified mail processing clerk on
December 8, 2004 which she accepted on that date.
In a report dated September 17, 2008, Dr. Steven G. McCloy, an occupational medicine
physician, noted treating appellant for 10 years and diagnosed de Quervain’s tendinitis and forearm
tendinitis. He found tenderness in the extensor muscle on the right, good grip strength, and
negative Finkelstein’s test. Dr. McCloy diagnosed overuse syndrome of both arms secondary to
her job as well as resolved de Quervain’s tendinitis. He noted that appellant currently required no
treatment and found that she was capable of performing modified work. Dr. McCloy determined
that she was at a high risk for recurrence of symptoms if she resumed all the tasks of a mail handler.
On April 20, 2009 the employing establishment offered appellant a limited-duty position
as a clerk working three hours a day. Appellant filed a recurrence of disability claim (Form CA2a) alleging that on May 1, 2009 she stopped work as there was no light-duty work available for
four hours a day. She listed her work restrictions as no fine manipulation and no pinching. OWCP
combined appellant’s injury files noting her accepted conditions of left wrist de Quervain’s and
tendinitis in File No. xxxxxx577 and left thumb tenosynovitis in File No. xxxxxx412. By decision
dated September 18, 2009, it denied her recurrence of disability claim. On September 24, 2009
3

5 U.S.C. § 8101 et seq.

2

appellant requested an oral hearing from OWCP’s Branch of Hearings and Review. She noted
that, prior to April 20, 2009, the employing establishment had provided her with 40 hours a week
of limited duty. Under the National Reassessment Process (NRP) appellant’s limited-duty position
was withdrawn as it was unnecessary. She asserted that she was not offered a suitable work
position.
By decision dated May 25, 2010, OWCP’s hearing representative reversed OWCP’s
September 18, 2009 decision. In a decision dated June 22, 2010, OWCP accepted appellant’s
recurrence of disability claim, effective May 1, 2009. It authorized compensation benefits. On
June 22, 2011 OWCP entered appellant on the periodic rolls, effective June 5, 2009.
On November 28, 2012 the employing establishment offered appellant a modified mail
processing clerk position. This position entailed physical requirements of lifting up to 30 pounds,
simple grasping for 15 minutes per hour, and fine manipulation for 30 minutes per hour. The
position involved working 8 hours a day with the duties of flat sequencing system operations,
general expeditor, and waste mail or rewrap. Appellant refused the position on December 11, 2012
noting that the assignment required repetitive grasping and fine manipulation.
In a letter dated January 10, 2013, OWCP provided Dr. McCloy with the offered position
description and asked that he provide an opinion of whether appellant was medically able to
perform the job duties. Dr. McCloy responded on January 16, 2013 and opined that she could not
perform the offered job, because “every time [appellant] took on tasks with repetitive grasping her
[d]e Quervain’s tendinitis flared severely.” However, on May 23, 2013 he again reviewed the job
offer dated November 28, 2012 and found that the job was consistent with the limitations he
provided. Dr. McCloy noted that he was not clear why appellant had rejected the job offer based
on his assumption that it was a fair representation of the job.
In a letter dated May 24, 2013, OWCP informed appellant that the December 11, 2012
position of mail processing clerk was suitable in accordance with her medical limitations as
provided by Dr. McCloy. It noted that the position was still available for her and afforded her 30
days to accept the position or offer her reasons for refusal. OWCP informed appellant of the
penalty provision of 5 U.S.C. § 8106(c)(2) and noted that, if she failed to report to the offered
position, and failed to demonstrate that her denial of the suitable work position was justified, then
her right to wage-loss compensation and schedule award benefits would be terminated.
On June 21, 2013 OWCP noted the May 24, 2013 letter and noted that appellant continued
to refuse to accept or to report to work. It considered her reasons for refusing to accept the offered
position and found that these reasons were not valid. OWCP noted that the position remained
available and afforded appellant an addition 15 days to accept and report to the offered position.
It noted that if she did not accept and report to the position with 15 days of June 21, 2013 her
entitlement to wage-loss compensation and schedule award benefits would be terminated.
OWCP contacted the employing establishment via e-mail on July 16, 2013 and the
employing establishment advised that, while the offered position was still available, it was not a
permanent position.

3

In a note dated July 1, 2014, Dr. McCloy reported his findings and conclusions. He further
noted that the employing establishment had repeatedly offered appellant’s a job which appeared
to be an amalgam of her various job restrictions. Dr. McCloy reported, “It is not an actual job in
[appellant’s] view. I have been asked to certify whether she can or cannot do that ‘job.’” He noted
that the employing establishment had not been able to provide appellant with a job consistent with
her restrictions. Dr. McCloy completed a work capacity evaluation (Form OWCP-5) and indicated
that she could perform full-time work with restrictions. He restricted repetitive movements of
appellant’s wrists and elbows noting that speed was more relevant than duration. Dr. McCloy
further restricted her lifting to 20 pounds. He directed that appellant should have limited repetitive
grasp and pinch with both hands, grasping for 15 minutes per hour, and fine manipulation for 30
minutes per hour. Dr. McCloy indicated that she should perform “flat-hand activity” for the
remaining time.
OWCP referred appellant for vocational rehabilitation services on August 1, 2014. The
vocational rehabilitation counselor selected the positions of receptionist, general office clerk,
security guard, and animal caretaker as within appellant’s vocational and physical abilities.
On June 11, 2015 the employing establishment offered appellant a permanent, modifiedduty assignment as a modified mail processing clerk. The duties involved flat sequencing systems
operating the feeder with a toggle switch, clearing jams in the feeder, and containerizing rejects
into flat tubs for processing. Appellant would also perform automated flat sorting machine
operation via a toggle switch, clearing jams in the feeder and transport area, sweeping flat tubs
from the bins, and containerizing flat tubs. The physical requirements were standing, walking,
reaching, bending, and stooping each intermittently for eight hours a day. Lifting up to 20 pounds
for 4 hours intermittently, repetitive grasp or pinch for 15 minutes per hour intermittently, and fine
manipulation for 30 minutes per hour intermittently. Appellant would perform flat hand activity
as needed.
Dr. McCloy completed a work restriction evaluation (Form OWCP-5) on June 17, 2015
and indicated that appellant could perform restricted duty eight hours a day. He indicated that she
could perform repetitive grip for a maximum of 15 minutes per hour. Dr. McCloy noted that the
hand position of grasping could be a risk, and indicated that appellant had limitations on repetitive
movements of the wrists and elbows. He indicated that she could push, pull, and lift up to 25
pounds and that her lifting should be occasionally.
In a July 16, 2015 letter, OWCP noted that appellant had been offered a light-duty job as a
modified mail processing clerk at the employing establishment. It found that the position was
suitable work based on Dr. McCloy’s June 17, 2015 restrictions. OWCP noted that the position
remained available, and afforded appellant 30 days to accept the position or provide a written
explanation of her refusal. It provided appellant with a description of the penalty provisions of 5
U.S.C. § 8106(c)(2) noting that if she refused a suitable work position she would not be entitled to
further wage-loss compensation benefits or schedule award benefits.
Appellant responded on August 11, 2015 and refused the offered position asserting that she
could not accept the position without causing herself further painful physical harm. She alleged
that the job required repetitive grasping, pulling, and lifting while sweeping the machine and
containerizing. Appellant further alleged that she would be required to grasp and manipulate with

4

her fingers, wrist, elbows, and shoulders hundreds of times an hour. She further asserted that the
buckets weighed between 30 and 35 pounds and had to be lifted shoulder height and above.
Appellant alleged the position required strong pinching and grasping to constantly pull the jammed
mail from the rubber belts and pulleys. She further noted fine manipulation required to slot
hundreds of paper labels on each bucket. Appellant asserted that the job description lacked
specifics and merely relisted her work restrictions provided by Dr. McCloy.
The vocational rehabilitation counselor performed a job analysis of automated flat sorting
machine operation and found occasional lifting, defined as up to one third of the shift. She noted
that lifting buckets was at the clerk’s discretion and that appellant could limit the weight of the
buckets to 20 to 25 pounds if needed. The same discretion applied to carrying buckets. Handling
and fingering were both described as occasional or up to 1/3 of the 8-hour shift to operate the
toggle switch, place labels on buckets, and handle mail and clear mail out of the machine and to
hold buckets. The job analysis of the flat sequencing system mail processing clerk also required
occasional handling, fingering, and lifting up to 20 pounds.
In a letter dated April 14, 2016, OWCP found that the offered position was not repetitive
and that the weight requirement was within appellant’s lifting restrictions. It found that she had
not offered a valid reason for refusing the offered position. OWCP noted that the position was still
available and provided appellant with an additional 15 days to accept and report to the position. It
advised her that, if she did not accept and report to the position within the allotted period, her
entitlement to wage-loss compensation and schedule award benefits would be terminated.
On April 21, 2016 appellant again refused the offered position alleging that she could not
accept the position without causing herself further painful physical harm. She repeated her prior
allegations that the offered position was repetitious and submitted a statement from a coworker
agreeing with this assessment.
By decision dated May 18, 2016, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award benefits effective May 29, 2016 due to her refusal to accept the
offered position.
On June 3, 2016 appellant requested an oral hearing from OWCP’s Branch of Hearings
and Review. In a July 25, 2016 letter, she requested a subpoena to obtain all memoranda, reports,
forms, and faxes regarding the vocational rehabilitation counselor’s visit to the employing
establishment to develop the job analysis. Appellant explained that a subpoena was necessary as
the vocational rehabilitation counselor had not responded to her telephone messages. On
September 8, 2016 OWCP’s Branch of Hearings and Review denied her request for a subpoena
finding that the documentation was part of the case record and that a subpoena was unnecessary.
It noted that, if OWCP’s hearing representative’s decision was not in her favor, appellant could
appeal all issues in the case, including the denial of her request for a subpoena.
Counsel contended that the offered position was not suitable as it was makeshift or odd lot
work, the position description lacked specificity based on a coworker’s statement, and that the
offer position exceeded appellant’s work restrictions. In a statement dated September 21, 2016, a
coworker, J.A., described the duties of a clerk on the flat sorter machine and asserted that the

5

machine required three clerks who generally rotate every three hours and required repetitive work
with the hands and wrists.
Appellant testified at the oral hearing on October 11, 2016 before an OWCP hearing
representative. She stated that in her opinion the offered position was machine driven and could
not be modified. Appellant asserted that J.A.’s description of his duties, would have been the
duties that she would have had to perform. She noted that she could not know the weight of the
buckets. Before the hearing representative, counsel submitted a CD containing documents related
to the NRP at the employing establishment and appellant’s loss of her position in 2009.
In a report dated October 27, 2016, Dr. McCloy diagnosed right carpal tunnel syndrome
based on findings from August 31, 2016. He noted his familiarity with the Flat Sorter Machine
and the Flat Sorter Sequencing Machine and reported concerns regarding the repetitive nature of
the grabbing, lifting, carrying, and manipulations required by these positions. Dr. McCloy
indicated that he had concerns that the offered position would aggravate and accelerate appellant’s
carpal tunnel syndrome symptoms. He opined that the job was unsuitable for appellant.
By decision dated November 16, 2016, OWCP’s hearing representative found that OWCP
met its burden of proof to terminate appellant’s wage-loss compensation and entitlement to
schedule award benefits as she refused an offer of suitable work. He found that her arguments did
not establish that the offered position was not suitable work.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or that
it is no longer related to the employment.5 5 U.S.C. § 8106(c) provides in pertinent part, “A
partially disabled employee who (2) refuses or neglects to work after suitable work is offered ... is
not entitled to compensation.” It is OWCP’s burden of proof to terminate compensation under
section 8106(c) for refusing to accept suitable work or neglecting to perform suitable work.6 To
justify such a termination, OWCP must show that the work offered was suitable7 and must inform
appellant of the consequences of refusal to accept such employment.8 Section 8106(c) will be
narrowly construed as it serves as a penalty provision, which may bar an employee’s entitlement
to compensation based on a refusal to accept a suitable offer of employment.9

4

G.R., Docket No. 16-0455 (issued December 13, 2016); Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Id.

6

D.S., Docket No. 16-1593 (issued December 21, 2016); Henry P. Gilmore, 46 ECAB 709 (1995).

7

D.S., id.; John E. Lemker, 45 ECAB 258 (1993).

8

G.R., supra note 4.

9

Id.; Joan F. Burke, 54 ECAB 406 (2003).

6

According to OWCP’s procedure, a job offer must be in writing and contain a description
of the duties to be performed and the specific physical requirements of the position.10 OWCP
regulations provide factors to be considered in determining what constitutes suitable work for a
particular disabled employee, including the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.11 The issue of whether an employee
has the physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by medical evidence. All impairments, whether
work related or not, must be considered in assessing the suitability of an offered position.12 Section
10.517(a) of FECA’s implementing regulations provides that an employee who refuses or neglects
to work after suitable work has been offered or secured by the employee has the burden of proof
to show that such refusal or failure to work was reasonable or justified.13 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.14
After termination or modification of benefits clearly warranted on the basis of the evidence,
the burden for reinstating compensation benefits shifts to appellant.15
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s compensation
and entitlement to schedule award benefits, effective May 29, 2016, as she refused an offer of
suitable work under 5 U.S.C. § 8106(c)(2).
On June 11, 2015 the employing establishment offered appellant a permanent modifiedduty assignment as a modified mail processing clerk. The duties involved flat sequencing systems
operation and automated flat sorting machine operation. The employing establishment provided
the specific duties of the position and the physical requirements. The physical requirements were
standing, walking, reaching, bending, and stooping each intermittently for eight hours a day.
Lifting up to 20 pounds for 4 hours intermittently, repetitive grasp or pinch for 15 minutes per hour
intermittently, and fine manipulation for 30 minutes per hour intermittently. Appellant would
perform flat hand activity as needed.
The physical requirements of the position as listed by the employing establishment comply
with Dr. McCloy’s work restrictions provided on work capacity evaluations (Form OWCP-5)
completed in July 2014 and June 17, 2015. The Board finds that the weight of the medical
10

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

11

J.J., Docket No. 17-0410 (issued June 20, 2017); Rebecca L. Eckert, 54 ECAB 183 (2002).

12

Id.

13

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

14

Id. at § 10.516.

15
K.J., Docket No. 16-0846 (issued August 18, 2016); Talmadge Miller 47 ECAB 673, 679 (1996); see also George
Servetas, 43 ECAB 424 (1992).

7

evidence establishes that the offered position was within appellant’s medical restrictions as
established by Dr. McCloy.16
The vocational rehabilitation counselor performed a job analysis of the two machine
operations and found that lifting buckets was at the clerk’s discretion and that appellant could limit
the weight of the buckets to 20 to 25 pounds if needed. Handling and fingering were both described
as occasional or up to 1/3 of the 8-hour shift to operate the toggle switch, place labels on buckets
and handle mail and clear mail out of the machine and to hold buckets.
In a letter dated July 16, 2015, OWCP informed appellant that the light-duty position as a
modified mail processing clerk was suitable work based on Dr. McCloy’s June 17, 2015
restrictions and afforded her 30 days to accept the position or provide a written explanation of her
refusal. Appellant refused the position and disagreed with the vocational rehabilitation counselor’s
job analysis. In a letter dated April 14, 2016, OWCP found that she had not offered a valid reason
for refusing the offered position. It provided appellant with an additional 15 days to accept and
report to the position. OWCP advised her that if she did not accept and report to the position
within the allotted period, her entitlement to wage-loss compensation and schedule award benefits
would be terminated.
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
entitlement to schedule award benefits effective May 29, 2016 in the May 18, 2016 decision.
Where OWCP shows that, an offered limited-duty position was suitable based on the claimant’s
work restrictions at that time, the burden shifted to appellant to show that her refusal to work in
that position was justified.17
Before OWCP’s hearing representative, appellant submitted a statement from a coworker
describing the full-duty work he performed on the two machines. While appellant, in her
testimony, and her coworker asserted that the offered position requires repetitive work, both the
employing establishment and the vocational rehabilitation counselor disputed this allegation. She
did not actually return to work in the offered position and her allegations that this limited-duty
position was beyond her restrictions as the machine dictates the type and amount of motion and
lifting involved are unsubstantiated by her coworker’s description of his full-duty position on the
machines in question.
Appellant also submitted a report from Dr. McCloy dated October 27, 2016, diagnosing
right carpal tunnel syndrome. Dr. McCloy indicated that he had concerns that the offered position
would aggravate and accelerate her carpal tunnel syndrome symptoms. He opined that the job was
unsuitable for appellant.
The Board has long held that OWCP must consider preexisting and subsequently-acquired
conditions in the evaluation of suitability of an offered position.18 While Dr. McCloy provided
the diagnosis of an additional condition on October 27, 2016 and indicated that appellant should
16

G.G., Docket No. 16-1081 (issued May 9, 2017).

17

Gloria J. Godfrey, 52 ECAB 421 (2003); Id.

18

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004); G.G., supra note 16.

8

not perform the job duties of the offered position due to this condition, the Board finds that his
note is couched in speculative terms. He notes his “concerns” without providing a clear medical
opinion. Medical opinions which are speculative or equivocal in character have little probative
value.19 Likewise, a medical opinion not fortified by medical rationale is of little probative value.20
Dr. McCloy did not provide any medical rationale explaining how or why the limited-duty position
with 15 minutes of intermittent grasping per hour and 30 minutes of intermittent fine manipulation
per hour would impact appellant’s subsequently diagnosed condition of right carpal tunnel
syndrome. The Board concludes that this evidence is of insufficient rationale to establish that she
could not perform the duties of the offered position.
With respect to whether the position was vocationally or otherwise suitable, the Board
notes that appellant has argued that the offered position was makeshift, but this analysis would be
appropriate if OWCP had performed a loss of wage-earning capacity determination pursuant to 5
U.S.C. § 8115(a).21 However, that is not the issue presented. To be suitable, a job offer must be
in writing and with a proper description of the job duties. It cannot be a temporary position.22
There is no evidence that the job offer was temporary in nature or otherwise vocationally
unsuitable in this case.
Therefore, the Board finds that appellant’s reasons for refusing the offered position were
not acceptable, and OWCP properly terminated her wage-loss compensation and entitlement to
schedule award benefits based on her refusal to accept a suitable work position.23 Also, as noted
above, OWCP complied with its procedural requirements in advising her that the position was
suitable.
LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. § 8126 of FECA, and its implementing regulations (20 C.F.R. § 10.619),
subpoenas may be issued by the hearing representative for the attendance and testimony of
witnesses and the production of relevant documents. Subpoenas are issued for documents only if
they are relevant and cannot be obtained by other means, and for witnesses only where oral
testimony is the best way to ascertain the facts. A person requesting a subpoena must submit the
request in writing no later than 60 days after the date of the original hearing request and explain
why the testimony or evidence is directly relevant to the issues at hand, and why the information

19

G.G., supra note 16.

20

Id.

21

See D.S., Docket No. 16-1594 (issued December 21, 2016); D.B., Docket No. 16-0261 (issued June 9, 2016).

22
D.S., id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9
(June 2013). “There may be occasions when the (employing establishment) is only able to provide a temporary lightduty assignment to the claimant even though the claimant held a permanent job at the time of injury. In these instances,
the penalty language of section 8106(c) cannot be applied. (Emphasis in the original.) See K.T., Docket No. 16-0975
(issued June 9, 2017).
23

See Sandra R. Shepherd, 53 ECAB 735 (2002); G.G., supra note 16.

9

cannot be obtained without the use of a subpoena. The decision to grant or deny a subpoena request
is within the discretion of OWCP’s hearing representative.24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for the issuance of a
subpoena. In a July 25, 2016 letter, appellant requested the issuance of a subpoena to produce
documents regarding the vocational rehabilitation counselor’s visit to the employing establishment
to observe the machines.
The Board notes that OWCP’s hearing representative properly determined within her
discretion that, with respect to documentation requested, this information was part of the case
record which appellant could request at any time and a subpoena was not necessary.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits effective May 29, 2016 as she refused
an offer of suitable work under 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP
properly denied appellant’s request for the issuance of a subpoena.

24

See 5 U.S.C. § 8126; 20 C.F.R. § 10.619; J.M., Docket No 16-1575 (issued May 25, 2017).

10

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-605
Issued: October 9, 2009

Case Submitted on the Record

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

JURISDICTION
On January 2, 2009 appellant, filed a timely appeal of the December 30, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that she received an
overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$2,340.24; (2) whether she was at fault in the creation of the overpayment such that it is not
subject to waiver; and (3) whether the Office properly determined to recover the overpayment by
withholding $500.00 every 28 days from her continuing compensation benefits.
FACTUAL HISTORY
This case has previously been before the Board. The Office accepted that appellant
developed right carpal tunnel syndrome and resultant carpal tunnel release due to her
employment on September 9, 1986. On July 15, 1988 appellant filed an occupational disease

claim alleging that she developed pain in the upper extremities, neck and shoulders due to her
employment. In a decision dated January 30, 1991, the Board remanded appellant’s claim for
additional development of the medical evidence.1 The Office accepted appellant’s claim for
aggravation of thoracic outlet syndrome on the right side on August 29, 1991. On April 22, 1994
it granted appellant a schedule award for 20 percent permanent impairment of her right upper
extremity. The Office granted appellant a schedule award for 75 percent impairment of her right
upper extremity on May 13, 1996.
Appellant filed a claim for recurrence of disability on June 24, 1998. The Office denied
this claim on October 1, 1998. The Branch of Hearings and Review affirmed this decision on
July 1, 1999. The Office denied appellant’s requests for reconsideration on October 27, 1999
and July 26, 2000. The Board set aside the July 26, 2000 decision on July 16, 2002.2 The facts
of the case as set out in the Board’s prior decisions are incorporated herein by reference.
The Office accepted the additional condition of aggravation of bilateral thoracic outlet
syndrome on November 19, 2002. By decision dated December 5, 2003, it granted appellant a
schedule award for 70 percent impairment of her left arm.
On November 20, 2007 appellant accepted a modified job offer working 16 hours a week.
On January 4, 2008 she filed a claim for compensation requesting wage-loss compensation from
December 23, 2007 through January 4, 2008. Appellant’s leave summary indicated that she
began working four hours a day on December 23, 2007.
On February 14, 2008 appellant noted that she returned to work on December 23, 2007
and received payment for the period December 23, 2007 through January 19, 2008 in the amount
of $2,340.24 as well as a payment of $603.45. She stated that she would refund the payment of
$2,340.24. In a letter dated February 29, 2008, the Office noted that appellant had received an
overpayment of $2,717.00 and requested that she return this amount.
By letter dated March 11, 2008, the Office informed appellant of a preliminary
determination that she had received an overpayment in the amount of $2,340.24 from
December 23, 2007 to January 19, 2008 as she returned to part-time work and received wage loss
for total disability. It found that appellant was at fault in the creation of the overpayment.
Appellant requested a prerecoupment hearing on March 31, 2008 and submitted an
overpayment recovery questionnaire. She had earnings of $1,100.00 and her husband earned
$5,500.00 per month for total monthly earnings of $6,600.00. Appellant listed her expenses as:
rent or mortgage, $1,300.00; food, $650.00; clothing, $3,000.00 and utilities, $485.00, totaling
$5,345.00 per month. She listed her funds as $870.00.
Appellant acknowledged the overpayment of $2,340.00 and stated that she informed the
Office of the overpayment on the date that it was deposited in her bank account. She stated that
life and health insurance benefits had not been paid since December 2007. Appellant also stated
1

Docket No. 90-1870 (issued January 30, 1991).

2

Docket No. 01-869 (issued July 16, 2002).

2

that the Office failed to provide her with the additional compensation payments that she was
owed and used the overpayment to pay her debts. She stated that she did not believe that she
created the overpayment and requested to repay the overpayment on a schedule.
Appellant testified at the prerecoupment oral hearing on September 10, 2008. Upon
deposit of the January 18, 2008 payment from the Office, she spoke to the human resources
department at the employing establishment and was instructed to wait for directions from the
Office. Appellant spoke to the Office and was instructed to return the payment of $2,340.24.
She stated that she had not made any incorrect statements or failed to provide information. The
hearing representative requested supporting financial documents. Appellant stated that she was
working 20 hours a week and receiving compensation benefits.
Appellant submitted her transportation expenses, which averaged $168.00 per month,
credit card and other monthly expenses. Her mortgage was $1,140.22; her medical expenses
averaged $175.78; her utilities were $186.43; groceries expenses totaled $377.40; massages
averaged $243.34 per month and her credit card debt totaled $4,452.12 with minimum monthly
payments of $132.78 for monthly expenses of $2,387.73.
By decision dated December 9, 2008, the hearing representative found that appellant had
received an overpayment of compensation in the amount of $2,340.24. Appellant was at fault in
the creation of the overpayment as she knew the check she received should be returned to the
Office. The hearing representative found that appellant failed to include her compensation
benefits in her monthly income and that she and her husband had a combined household income
of $7,700.00 per month. He found total monthly expenses of $3,500.00 and concluded that
appellant had $4,000.00 per month in excess. The hearing representative determined that
appellant should repay the overpayment through deductions of $500.00 every 28 days from her
continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States “shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty. Section
8106(a) provides in pertinent part as follows:
“If the disability is partial, the Unites States shall pay the employee during the
disability monthly monetary compensation equal to 66 2/3 percent of the
difference between his monthly pay and his monthly wage-earning capacity after
the beginning of the partial disability, which is known as his basic compensation
for partial disability.”4

3

5 U.S.C. §§ 8101-8193, 8102(a).

4

Id. at § 8106(a).

3

The Act further provides that an employee who is receiving compensation for an
employment injury may not receive wages for the same time period.5 Section 8129(a) of the Act
provides that when an overpayment has been made to an employee because of an error of fact or
law, adjustment shall be made by decreasing later payments to which she is entitled.6
ANALYSIS -- ISSUE 1
The record establishes that appellant received compensation for total disability while
working part time. She received an overpayment of compensation. In the February 14, 2008
conversation with the Office, appellant agreed that the amount of the overpayment was
$2,340.24. The Board finds that the record establishes that appellant received an overpayment in
the amount of $2,340.24.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act7 provides: 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 the Act of would be against equity and
good conscience.”
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events, which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).8
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.9

5

Id. at § 8116(a).

6

Id. at § 8129(a).

7

Id. at § 8129(b).

8

20 C.F.R. § 10.433(a).

9

Id. § 10.433(b).

4

ANALYSIS -- ISSUE 2
Appellant testified that she immediately realized that she was overpaid and initially
offered to refund the amount of the overpayment to the Office on February 14, 2008. The record
establishes that she accepted a payment which she knew was incorrect. As appellant was at fault
in the creation of the overpayment it is not subject to waiver.
LEGAL PRECEDENT -- ISSUE 3
The method by which the Office may recover overpayments is defined by regulation.
The applicable regulations, 20 C.F.R. § 10.441(a) provides as follows:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or attention is called to the
same. If no refund is made [the Office] 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.”
ANALYSIS -- ISSUE 3
Appellant completed an overpayment recovery questionnaire and listed her monthly
income as $6,600.00. She provided documentation of monthly expenses of $2,387.73.
Appellant’s monthly income exceeds her monthly expenses by $4,212.37. The hearing
representative properly noted that she had not included her compensation benefits of $1,162.00
per month in calculating her compensation benefits and concluded that she could repay the
overpayment through deductions of $500.00 from her continuing compensation benefits. The
Board finds that the hearing representative properly considered appellant’s rate of compensation
and her financial circumstances in determining the overpayment recovery schedule.
CONCLUSION
The Board finds that appellant has received an overpayment of compensation in the
amount of $2,340.24 for which she was at fault and that the Office properly determined to
recover this overpayment by reducing her compensation benefits in the amount of $500.00 every
28 days.

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ORDER
IT IS HEREBY ORDERED THAT the December 30, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WARFARE CENTRAL WEAPONS DIVISION,
China Lake, CA, Employer
__________________________________________

)
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)
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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2030
Issued: May 20, 2010

Case Submitted on the Record

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

JURISDICTION
On August 4, 2009 appellant, through his attorney, filed a timely appeal from a decision
of the Office of Workers’ Compensation Programs dated July 17, 2009 denying his
consequential injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that he sustained a chronic pain condition
as a consequence of his accepted injuries.
On appeal appellant’s counsel contends that the evidence of record establishes that
appellant sustained chronic pain syndrome as a consequence of his accepted employment
injuries.
FACTUAL HISTORY
On August 5, 1997 appellant, then a 44-year-old police officer, filed a traumatic injury
claim alleging that on July 20, 1997 he ruptured a disc in his mid-back while changing a tire.

The Office accepted the claim for permanent aggravation of a preexisting L4-5 herniated nucleus
pulposus and authorized a lumbar laminectomy, which was performed on August 14, 1997.1 On
August 13, 1998 appellant filed a recurrence of disability claim commencing on August 4, 1998,
which the Office adjudicated as a new claim.2 On September 28, 1998 the Office accepted this
claim for temporary aggravation of a back strain, depressive disorder, intervertebral disc disorder
with lumbar myelopathy, postlaminectomy syndrome of the lumbar region and other unspecified
lumbar region disc disorders. Appellant stopped work on August 26, 1998 and the Office placed
him on the periodic rolls in receipt of compensation for temporary total disability. The Office
authorized a laminectomy and spinal stabilization surgery of March 31, 1999 and low back
decompression laminotomy of March 28, 2001. It also authorized the implantation of an
intrathecal morphine pump on November 11, 2002.3 On March 24, 2003 appellant underwent
authorized surgery to remove the dorsal column implant.4
The record contains reports from Dr. John Beck, a treating Board-certified psychiatrist.
As of 2002, he diagnosed a pain disorder due to the accepted back conditions and mood disorder
as a result of a work injury.
Dr. Abdallah S. Farrukh, a treating Board-certified neurological surgeon, submitted
treatment records in 2002, noting appellant’s complaints of back and leg pain as a result of his
back injuries. He diagnosed nerve root damage, failed back syndrome, chronic back pain and
chronic leg pain. On June 5, 2007 Dr. Farrukh diagnosed chronic pain disorder as a result of
appellant’s worsening back condition. He stated that appellant’s “clinical symptoms are all
related to his chronic pain.”
In a February 2, 2009 report, Dr. Farrukh diagnosed chronic back pain, nerve injury,
chronic pain, status post lumbar fusion and status post implantation of intrathecal catheter and
delivery of intrathecal morphine. A February 27, 2009 magnetic resonance imaging (MRI) scan
revealed L4-5 discogenic disease with moderate central canal stenosis on the left and moderately
severe right foraminal narrowing, suspected right L3 nerve root impingement and status post
posterior and anterior L4-5 fusion. Appellant’s complaint of low back pain, bilateral hip and leg
pain radiating to his toes was noted.
In an April 4, 2009 report, Dr. Farrukh diagnosed chronic back pain with associated right
lower extremity sciatica. He stated that appellant was known to have a nerve root injury. On
March 30, 2009 Dr. Farrukh diagnosed chronic pain and nerve injury as a result of multiple L4-5
recurrent injuries.
On April 20, 2009 Dr. Farrukh stated that appellant’s sensory disturbance was consistent
with chronic pain and probably associated peripheral neuropathy. Based on the MRI scans he

1

The Office assigned claim number xxxxxx116.

2

The Office assigned claim number xxxxxx582.

3

The preoperative diagnoses noted on the surgerical report included chronic pain, chronic back pain and
morphine receptor deficit.
4

Preoperative diagnoses included nerve root injury, chronic back pain, chronic leg pain and failed dorsal column
stimulator to relieve leg pain.

2

reviewed, he found that appellant’s L4-5 discogenic disease was worsening and reiterated that
appellant had chronic pain.
In a May 12, 2009 report, Dr. Farrukh diagnosed lumbar myelopathy, postlumbar region
laminectomy syndrome and other lumbar unspecified disc disorders. He attributed appellant’s
chronic pain syndrome to his injuries. Dr. Farrukh stated that, “[b]y definition, chronic pain is a
structural deformity of morphine receptors” and reiterated that the February 27, 2009 MRI scan
revealed worsening L4-5 discogenic disease with foraminal narrowing.
In a letter dated June 15, 2009, appellant, through his attorney, requested that the Office
accept chronic pain syndrome as related to his accepted claims. On June 29, 2009 counsel
requested a final decision be issued on appellant’s claim for consequential chronic pain.
In a July 17, 2009 decision, the Office denied appellant’s consequential injury claim.5 It
found that pain was not a firm diagnosis and that his pain was considered a subjective finding.6
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.7
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.8 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.9
ANALYSIS
The Office accepted that appellant sustained lumbar and cervical sprains, a contusion of
the left elbow, a disc herniation at C4-5, depressive disorder, intervertebral disc disorder with
5

On January 24, 2008 appellant’s counsel requested that the Office accept appellant’s claim for bilateral ulnar
nerve neuropathy. There is no evidence that the Office issued a final decision on this request. As this matter is in an
interlocutory posture, it is not before the Board on this appeal. See 20 C.F.R. § 501.2(c)(2) (the Board has
jurisdiction to consider and decide appeals from final decisions; there shall be no appeal with respect to any
interlocutory matter disposed of or not disposed of during the pendency of the case). See also E.L., 59 ECAB ___
(Docket No. 07-2421, issued March 10, 2008); Scott R. Walsh, 56 ECAB 353 (2005); Gloria Swanson, 43 ECAB
161 (1991).
6

Following the July 17, 2009 decision, the Office received additional evidence. The Board may not consider new
evidence for the first time on appeal. See 20 C.F.R. §§ 501.2(c); M.B., 60 ECAB ___ (Docket No. 09-176, issued
September 23, 2009); J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB 389
(2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
7

Albert F. Ranieri, 55 ECAB 598 (2004).

8

S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117
(1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).
9

L.S., 60 ECAB ___ (Docket No. 08-1270, issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

3

lumbar myelopathy, postlaminectomy syndrome of the lumbar region, depression and other
unspecified lumbar region disc disorders as a result of his accepted employment injuries.
Appellant claimed chronic pain as a consequence of his accepted conditions. The Board notes
that appellant has the burden to establish this condition is the direct and natural result of his
compensable injuries.10
The Office denied the claim, stating that pain is not an acceptable diagnosis; however, the
Board has held that chronic pain and limitations resulting from an employment injury are
compensable under the Federal Employees’ Compensation Act.11 To establish his claim,
appellant must submit rationalized medical evidence relating his chronic pain syndrome to his
accepted back conditions.12
Appellant submitted the medical reports of Dr. Farrukh who attributed appellant’s
chronic pain to his accepted employment injuries. On June 5, 2007 Dr. Farrukh first diagnosed a
chronic pain disorder as a result of appellant’s worsening back condition. On April 20, 2009 he
advised that a review of recent MRI scan testing showed appellant’s L4-5 discogenic disease was
worsening with nerve damage and resulting in chronic pain. Dr. Farrukh noted the history of
appellant’s low back surgeries and use of a morphine pump for control of pain. Based on injury
to the nerve roots in the lumbar spine, appellant developed a chronic pain disorder which
precluded him from returning to work. In a May 12, 2009 report, he noted that “[b]y definition
chronic pain is a structural deformity of morphine receptors.” Dr. Farrukh found that appellant
remained disabled due to his accepted lumbar disc disorders and had chronic pain syndrome
resulting from these injuries. The reports from Dr. Beck diagnosed a pain condition and mood
disorder which he attributed to appellant’s back injuries.
While the reports of Dr. Farrukh and Dr. Beck are not completely rationalized, as to the
issue of causal relation, the physicians have maintained that appellant’s employment-related back
injuries caused a chronic pain syndrome. This evidence, moreover, is not contradicted by any
substantial medical evidence of record nor did the claims examiner seek review of an Office
medical adviser.13 While the reports are not sufficient to meet appellant’s burden of proof, they
raise an uncontroverted inference of causal relationship between his accepted back conditions
sufficient to require further development of the medical evidence.14

10

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); Debra L. Dillworth, supra note 8; Kathy A.
Kelley, supra note 9.
11

See N.M., 60 ECAB ___ (Docket No. 08-2081, issued September 8, 2009); see also J.B., Docket No. 09-95
(issued July 15, 2009); Patricia Stryker, Docket No. 99-654 (issued March 6, 2001).
12

Charles D. Gregory, 57 ECAB 322 (2006).

13

The procedure manual notes that, as to consequential injuries, the claims examiner should obtain an evaluation
of the evidence by an Office medical adviser. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.6(a) (June 1995).
14

See E.J., 61 ECAB ___ (Docket No. 09-1481, issued February 19, 2010); see also John J. Carlone, 41 ECAB
354 (1989).

4

It is well established that proceedings under the Act15 are not adversarial in nature. While
the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.16 On remand, the Office should obtain the
review of an Office medical adviser or refer appellant to an appropriate Board-certified specialist
for a rationalized opinion as to whether appellant has a consequential condition causally related
to his accepted injuries. After such further development as deemed necessary, the Office shall
issue a decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further development
consistent with this decision.
Issued: May 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

5 U.S.C. §§ 8101-8198.

16

R.B., 60 ECAB ___ (Docket No. 08-1662, issued December 18, 2008); A.A., 59 ECAB ___ (Docket No. 08951, issued September 22, 2008); Donald R. Gervasi, 57 ECAB 281 (2005).

5