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

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

Docket No. 16-0507
Issued: August 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 14, 2016 appellant filed a timely appeal from a July 21, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 21, 2015, the date of OWCP’s last decision, was January 17,
2016, a Sunday. Consequently, the period for filing the appeal ran to the next business day, Monday,
January 18, 2016. Since using January 20, 2016, 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 January 14, 2016, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an injury on
January 20, 2013 in the performance of duty.
FACTUAL HISTORY
On January 21, 2013 appellant, then a 44-year-old supervisory transportation security
officer, filed a traumatic injury claim (Form CA-1) alleging that on January 20, 2013 he injured
his left shoulder and neck when he was a passenger in a van that drove over a curb and numerous
pot holes. The incident occurred at 7:40 p.m. and his duty shift was from 11:00 a.m. until 7:30
p.m. The employing establishment controverted the claim, contending that appellant was not in
the performance of duty as he was taking a shuttle bus to his vehicle and not on its property.
In letters dated January 30, 2013, OWCP requested additional factual and medical
information from both appellant and the employing establishment. It requested that the
employing establishment provide information relative to parking and transportation options for
employees, the distance between the lot and the work station, and whether it owned or controlled
the parking area and shuttle bus.
On a form dated January 21, 2013, appellant advised that the injury occurred because the
driver of the Spot bus shuttle taking him to the parking lot was “speeding and driving
erratically.”
Appellant, in a statement dated February 20, 2013, advised that he was taking the Spot
bus to a parking lot off the airport premises as employees were not permitted to park at the
airport. He asserted that the employing establishment provided the bus service. Appellant noted
that the public also used the Spot bus, that the employing establishment only used Spot parking
services for employees, and that it paid most of his parking expenses. He indicated that on the
bus he was considered at work and could be disciplined for actions on the bus even after his duty
hours. Appellant advised that Spot owned the shuttle bus and parking lot and that the employing
establishment contracted it out for its employees.
By decision dated March 5, 2013, OWCP denied appellant’s claim as the medical
evidence was insufficient to establish that he sustained a diagnosed condition causally related to
the accepted work incident.
On March 4, 2014 appellant, through counsel, requested reconsideration. In a decision
dated May 27, 2014, OWCP modified its prior decision to show that he had not established that
his injury occurred in the performance of duty. It found that he was not on the premises of the
employing establishment at the time of the alleged incident.
Counsel, on May 21, 2015, again requested reconsideration. He asserted that the
employing establishment had control over the parking, intervened in disputes or concerns, and
paid for the employee’s transportation on the shuttle bus.
In support of his reconsideration request, appellant submitted an approved acquisition
plan for a parking assistance program signed January 31, 2011 with a purpose of providing “fee
2

collection for [employing establishment] employee participating in this program, and contract
management with service providers for parking and shuttle service.”3 The plan maintained that
contractors should provide a parking facility for a specific number of employees 24 hours per
day, be within three miles of the airport, and be maintained in good condition.
Appellant further submitted a memorandum, dated July 28, 2012, from Thomas J. Carter,
deputy federal security director at appellant’s work location. Mr. Carter advised all employees
that beginning April 1, 2012 it would begin using The Parking Spot (TPS) as its parking
program. He related that the employing establishment had met with TPS to discuss issues such
as parking space, shuttle service, and the conduct of TPS employees. Mr. Carter indicated that it
was monitoring TPS’s improvements to the pavement in the parking lots. He advised that
employees of the employing establishment must act in a professional manner toward TPS
employees, noting that the public also rode on the shuttles and that any unprofessional conduct
would be “investigated and appropriate action taken.”
By decision dated July 21, 2015, OWCP denied modification of its May 27, 2014
decision.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.4 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.5 In the course of employment relates to the elements of time, place, and work
activity. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in his master’s business, at a place when he may
reasonably be expected to be in connection with his employment, and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto. As to
the phrase in the course of employment, the Board has accepted the general rule of workers’
compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to or
from work, before or after working hours or at lunch time, are compensable.6
The term premises as it is generally used in workmen’s compensation law, is not
synonymous with property. The former does not depend on ownership, nor is it necessarily
coextensive with the latter. In some cases premises may include all the property owned by the
3

Appellant also submitted a 2006 acquisition plan.

4

5 U.S.C. § 8102(a).

5

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
6

Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule of workers’
compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons, 52
ECAB 209 (2001).

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employer; in other cases, even though the employer does not have ownership and control of the
place where the injury occurred, the place is nevertheless considered part of the premises.7
Underlying the proximity exception to the premises rule is the principle that course of
employment should extend to any injury that occurred at a point where the employee was within
the range of dangers associated with the employment.8 The most common ground of extension is
that the off-premises point at which the injury occurred lies on the only route, or at least on the
normal route, which employees must traverse to reach the premises, and that therefore the special
hazards of that route become the hazards of the employment.9 Factors that generally determine
whether an off-premises point used by employees may be considered part of the premises include
whether the employing establishment has contracted for exclusive use of the area and whether
the area is maintained to see who may gain access to the premises.10
OWCP’s procedures provide:
“If the employee has a fixed place of work, the CE [claims examiner] must
ascertain whether the employee was on the premises when the injury occurred.
The answers to the appropriate sections of Forms CA-1, CA-2 and CA-6 contain
information on this point. If clarification is needed, it should be secured from the
official superior in the form of a statement which describes the boundaries of the
premises and shows whether the employee was within those boundaries when the
injury occurred. Where indicated, the clarification should include a diagram
showing the boundaries of the industrial premises and the location of the injury
site in relation to the premises.”11
ANALYSIS
Appellant alleged that he injured his left shoulder and neck on January 20, 2013 while
riding a shuttle bus between the airport where he worked and an off-site parking lot. At the time
of his injury, he had fixed hours and place of work and was traveling from his work location to
the parking lot on a shuttle bus that served both employees of the employing establishment and
the general public. Barring an exception to the general rule, appellant’s injury was an ordinary,
nonemployment hazard of the journey shared by all travelers.12 The issue, thus, is whether the
shuttle bus between his work station and the parking lot should be considered part of the
premises.
7

Denise A. Curry, 51 ECAB 158 (1999).

8

Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

9

A. Larson, The Law of Workers’ Compensation § 13.01(3) (2006); Michael K. Gallagher, 48 ECAB
610 (1997).
10

Linda D. Williams, 52 ECAB 300 (2001).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(b) (August 1992);
see also D.D., Docket No. 15-0837 (issued July 10, 2015).
12

See R.B., Docket No. 11-1320 (issued September 5, 2012); Denise A. Curry, 51 ECAB 158 (1999).

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The premises of the employer are generally extended when an employee must travel a
public thoroughfare to traverse between two premises of the employer.13 Appellant,
consequently, may be covered under an exception to the general rule if the employing
establishment exercised sufficient control over the shuttle bus for it to be considered part of the
premises, or over the parking lot that he was traveling to at the time of his injury.
The Board finds that this case is not in posture for decision as the record is insufficient to
determine whether appellant was on the premises of the employing establishment at the time of
the alleged January 20, 2013 work incident. As noted, in determining whether the parking lot
should be considered part of the employing establishment’s premises, the Board must consider
such factors as whether the employing establishment contracted for its exclusive use by its
employees, whether spaces were assigned by the employing establishment, whether the area was
checked to see that no unauthorized cars were parked in the lot, whether parking was provided
without cost to the employees, whether the public was permitted to use the lot, and whether other
parking was available to the employees.14
In response to OWCP’s request for additional information, appellant related that the
employing establishment provided the bus service; however, it was also used by the general
public. He also maintained that it did not permit employees to park at the airport and partially
paid for his use of the parking lot. Appellant additionally indicated that the employing
establishment considered him on duty while riding the bus and subject to discipline for
misconduct. He submitted a letter dated July 28, 2012 from Mr. Carter advising employees of a
change in parking programs to TSP and that it was monitoring issues such as space, shuttle
service, and the conduct of employees.
OWCP requested that the employing establishment provide factual information, including
whether it owned or controlled the shuttle bus and parking area and the various transportation
options for employees. It did not, however, respond to the request. OWCP’s procedures provide
that it should obtain relevant information from an official superior if it requires clarification
before determining whether or not the employee was on the premises.15 Its procedures further
provide that it should request that an official superior relate whether the parking facilities are
owned, controlled, or managed by the employing establishment.16 OWCP, however, failed to
obtain a statement from the employing establishment in accordance with its procedures prior to
finding that appellant had not shown that he was on the premises of the employing establishment
when injured.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While appellant has the burden to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence, particularly when such evidence is of the

13

See R.B., id.

14

Id.

15

See supra note 12.

16

See supra note 13.

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character normally obtained from the employing establishment or other governmental source.17
The Board finds that OWCP did not sufficiently develop the evidence regarding whether
appellant was on the premises of the employing establishment at the time of injury.18
On remand OWCP should obtain information from the employing establishment and
determine whether the parking lot or shuttle bus was owned, managed, or controlled by the
employing establishment and thus part of the premises. It should then determine whether
appellant was in the performance of duty and under any control by the employing establishment
at the time of the incident and, if so, adjudicate whether the factual and medical evidence
establishes that he sustained an injury as alleged. Following such further development as
deemed necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

17

See L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

18

See Rosie P. Colmer, Docket No. 03-116 (issued May 2, 2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CENTRAL
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-1192
Issued: March 14, 2022

Case Submitted on the Record

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

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 23, 2021 merit decision and
a May 26, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 26, 2021 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.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 18, 2015 appellant, then a 47-year-old sales and services distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2015 she
strained her abdomen when lifting a package while in the performance of duty. OWCP accepted
the claim for a ventral hernia without obstruction or gangrene. On August 15, 2016 appellant
underwent an OWCP-authorized ventral hernia repair. OWCP paid her wage-loss compensation
on the supplemental rolls for time lost from work for the period August 13 through
October 21, 2016. Appellant returned to modified light-duty employment on October 17, 2016
and to her date-of-injury employment on November 7, 2016.
In an impairment evaluation dated November 23, 2020, Dr. Blair Andrew Rhode, a Boardcertified orthopedic surgeon, discussed appellant’s history of sustaining a ventral hernia lifting a
package at work on December 12, 2015. He noted that the hernia had been surgically repaired and
that she had returned to her regular work duties. On examination, Dr. Rhode found tenderness
along the midline of the abdomen with no evidence of a recurrent hernia. Referencing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 he found class 1 impairment of the abdomen using Table 6-4 on page 107,
relevant to determining impairments of the digestive tract, which yielded a default whole person
impairment of five percent. Dr. Rhode applied grade modifiers of zero for functional history,
physical examination, and clinical studies, and found a total of five percent whole person
impairment.
On February 3, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated February 3, 3021, OWCP requested that appellant submit an
impairment evaluation addressing whether she had obtained maximum medical improvement
(MMI) and providing an impairment rating in accordance with the A.M.A., Guides.
On March 18, 2021 Dr. David I. Krohn, a Board-certified internist serving as a district
medical adviser (DMA), noted that Dr. Rhode had not described any current symptoms or
attributed the tenderness to palpation along the midline to the surgical incision. Utilizing Table
6-10 on page 122 of the A.M.A., Guides, relevant to determining impairment due to abdominal
herniation, he found class 0 impairment based on physical findings showing “no palpable defect
in supporting structures of the abdominal wall and no description of slight protrusion at the site of
defect with increased abdominal pressure.” Dr. Krohn advised that Dr. Rhode had used Table 6-4,
which was relevant to impairment of the upper digestive tract, instead of Table 6 -10, the
appropriate method set forth in the A.M.A., Guides for calculating impairment due to herniations.
He found that appellant had reached MMI on December 15, 2020.

3

A.M.A., Guides (6 th ed. 2008).

2

On March 22, 2021 OWCP requested that Dr. Rhode review and discuss Dr. Krohn’s
March 14, 2021 report. It afforded him 30 days to submit the requested information. No response
was received.
By decision dated April 23, 2021, OWCP denied appellant’s schedule award claim. It
found that Dr. Krohn’s report constituted the weight of the evidence and established that she had
no permanent impairment.
On May 24, 2021 appellant requested reconsideration. She argued that Dr. Rhode had not
responded to OWCP’s March 22, 2021 letter requesting clarification of his report, as he had
retired. Appellant asserted that she had recently attended an appointment at a new facility for an
evaluation.
By decision dated May 26, 2021, OWCP denied appellant’s request for reconsideration of
the merits under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,4 and its implementing federal regulations,5 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 loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009. 6 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF): A Contemporary Model of Disablement.8 Under the sixth edition, the evaluator
identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE), and clinical studies

4

Supra note 1.

5

20 C.F.R. § 10.404.

6

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id., at Chapter 3.700, Exhibit 1 (January 2010).
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

A.M.A., Guides (6 th ed. 2009), p.3, section 1.3.

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(GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores. 11
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.12 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.13 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor. 14 The Secretary of Labor has made such a determination and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus, and tongue to the schedule. 15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the p ercentage of permanent impairment
using the A.M.A., Guides.16
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a November 23, 2020 impairment evaluation, Dr. Rhode found that appellant had
tenderness along the abdominal midline with no evidence of a recurrent hernia. Utilizing Table
6-4 on page 107, which rates upper digestive tract impairment, he found that she had five percent
whole person impairment. FECA, however, does not allow schedule awards for impairment of the
body as a whole. 17 Furthermore, a schedule award cannot be granted for a digestive impairment
or hernia because neither are listed in FECA or the regulations as a scheduled member or function
of the body. 18 The terms of FECA are specific as to the method and amount of payment of

9

Id. at 494-531.

10

Id. 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

12

See G.S., Docket No. 17-1318 (issued October 11, 2017); Leroy M. Terska, 53 ECAB 247 (2001).

13

5 U.S.C. § 8107(c).

14

Id. at § 8122(c)(22).

15

20 C.F.R. § 10.404; Henry B. Floyd, III, 52 ECAB 220 (2001).

16

Supra note 6 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

17

D.K., Docket No. 21-0303 (issued July 8, 2021); S.M., Docket No. 14-1052 (issued September 4, 2014).

18

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404; see D.C., Docket No. 14-1618 (issued December 15, 2014).

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compensation. Neither OWCP, nor the Board, has the authority to enlarge the terms of FECA or
to make an award of benefits under terms other than those specified in the statute. 19
On March 18, 2021 Dr. Krohn found that appellant had no impairment due to her hernia
using Table 6-10 on page 122, which provides criteria for evaluating whole person impairment
due to abdominal herniation. As discussed, however, a hernia is not listed in FECA or the
regulations as a scheduled member or function of the body, and thus there is no basis for awarding
a schedule award for a hernia. 20
As the medical evidence of record is insufficient to establish permanent impairment of a
member or function of the body listed in FECA or its implementing regulations, the Board finds
that appellant has not met her burden of proof. 21
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progressio n of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application. 22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 23
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought. 24 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.25 If the request is timely, but fails to meet at least one

19

G.S., supra note 12; S.K., Docket No. 08-848 (issued January 26, 2009).

20

Supra note 18.

21

G.S., supra note 12.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.606(b)(3); see also S.S., Docket No. 18-0647 (issued October 15, 2018).

24
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4
(September 2020). Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter
2.1602.4b.
25

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

5

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered appellant’s representative’s
correspondence as a request for reconsideration and not as a claim for a schedule award. 27 The
underlying issue on reconsideration is whether the medical evidence demonstrates a permanent
impairment of a scheduled member or function warranting a schedule award. Thus, the Board
must determine whether appellant presented sufficient evidence or argument demonstrating
permanent impairment sufficient to warrant a merit review pursuant to 5 U.S.C. § 8128(a).28
Appellant has not submitted evidence or raised an argument in support of her request for
reconsideration sufficient to warrant further merit review pursuant to 20 C.F.R. § 10.606(b)(3).
She did not show that OWCP erroneously applied or interpreted a specific point of law or raise a
relevant legal argument not previously considered. On reconsideration, appellant asserted that
Dr. Rhode had retired and that she had sought an impairment evaluation from another physician.
Her contention, however, is not relevant to the underlying issue of whether she sustained a
permanent impairment causally related to her accepted employment injury. 29 That is a medical
issue which must be addressed by relevant and pertinent medical evidence. 30 Thus, appellant is
not entitled to a review of the merits of her claim based on the first and second above -noted
requirements under section 10.606(b)(3). 31
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. As she did not provide relevant and pertinent new evidence,
appellant is not entitled to a merit review based on the third requirement under section
10.606(b)(3). 32
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 33

26

Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

27

See K.W., Docket No. 19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

28

S.W., Docket No. 18-1261 (issued February 22, 2019).

29

See A.G., Docket No. 20-0290 (issued June 24, 2020).

30

See T.V., Docket No. 19-1504 (issued January 23, 2020); S.P., Docket No. 18-1419 (issued February 27, 2019).

31

20 C.F.R. § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

32

Id. at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

33

A.F., Docket No. 18-1154 (issued January 17, 2019); C.C., Docket No. 17-0043 (issued June 15, 2018).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied her request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 26, 2021 and April 23, 2021 are affirmed.
Issued: March 14, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Fort Lauderdale, FL, )
Employer
)
__________________________________________ )
M.M., Appellant

Appearances:
Joanne Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 09-361
Issued: October 2, 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 November 19, 2008 appellant filed a timely appeal from an August 14, 2008 decision
of the Office of Workers’ Compensation Programs denying her claim for an emotional condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that her emotional
condition was causally related to a compensable employment factor.
FACTUAL HISTORY
On June 12, 2007 appellant, then a 32-year-old letter carrier/modified clerk, filed a claim
for an emotional condition alleging that Vernita London, a supervisor, harassed her on June 11,
2007 during her 10:15 p.m. to 6:45 a.m. work shift at the employing establishment. She alleged
that she was sitting down while processing the mail when Ms. London told her to perform her
work standing up. Appellant explained that she was sitting down due to medication which made

her nauseous. When she got up to get more mail to process, Ms. London asked her to perform a
different task. Ms. London subsequently walked by appellant’s workstation six times in an
intimidating way. Walking by a seventh time, she requested angrily that appellant stand up
instead of sitting down to work. Appellant advised that she had completed her work and there
was no reason for her to stand. Ms. London told her that, unless she had a written medical
restriction against standing, she should stand. Appellant requested a union steward. Ms. London
told her that she would provide a union steward when she was ready and screamed at appellant.
Another supervisor approached and appellant requested a union steward but one was not
provided. An investigative interview was held later in the work shift and she was “yelled at” for
30 minutes. Appellant went to the break room for her break. Ms. London kept walking into the
break room and staring at appellant. After requesting a claim form, appellant left work at
4:00 am. She contended that she was unable to complete her entire shift due to physical
restrictions related to her accepted lumbar and right shoulder injuries sustained on
August 18, 2000.1
Supervisor David Morgan noted that on June 11, 2007 appellant submitted medical
documentation to Ms. London stating that she could work only six hours a day. He conducted an
investigative interview with appellant later that work shift based on insubordination towards
Ms. London earlier in the work shift. In a June 13, 2007 Form CA-16 authorizing medical
treatment, supervisor James Naples wrote “Employee felt stress after investigative interview with
supervisor.” He checked the section on the form indicating that there was doubt as to whether
the employee’s condition was sustained in the performance of duty.
Appellant subsequently alleged that harassment by Ms. London began prior to the
June 11, 2007 incident. On several occasions, Ms. London had followed her into the restroom
and waited for her outside the stall, tapping on a clipboard with a pen. On May 30, 2007 she
asked a coworker where appellant was and was told she was in the restroom. Ms. London went
into the restroom and shouted appellant’s name so loudly that it frightened her. Appellant rushed
out of the stall and Ms. London stated that she was waiting to tell her where she was assigned to
work that night. Ms. London also told appellant that she needed to know where she was at all
times. On June 7, 2007 she again followed appellant into the restroom. When appellant exited
the stall, she saw Ms. London impatiently tapping a pen on a clipboard and tapping her shoes on
the floor.
In a report dated June 11, 2007, Dr. John E. Vinsant, Jr., an attending orthopedic surgeon,
advised that appellant was scheduled for a change in work hours beginning that date. Appellant
previously worked 8:00 a.m. to 4:30 p.m. and her new schedule was 10:00 p.m. to 6:30 a.m. She
indicated that the new schedule was difficult for her. Dr. Vinsant provided a note for appellant’s
supervisor requesting that she be allowed to return to her previous work schedule.
The employing establishment controverted appellant’s claim. In a June 15, 2007
statement, Sherry Lundy-Stephen, a health and resource management specialist, advised that on
June 11, 2007 appellant began a modified-duty assignment as a mail processing clerk working
1

Appellant sustained a work-related lumbar and right shoulder injury on August 18, 2000. On September 19,
2005 she sustained a work-related sprain and strain of her neck and thoracic spine and a chest wall contusion when
she was involved in a motor vehicle accident.

2

from 10:15 p.m. to 6:45 a.m. at the employing establishment. Carlene Golphine provided a
statement that she heard appellant and Ms. London talking on June 11, 2007. Ms. London’s tone
of voice was “soft” and appellant’s voice was “louder than [Ms. London’s].” During the work
shift, at approximately 12:05 a.m. on June 12, 2007, Mr. Morgan held an investigative interview
with appellant for insubordination and conduct unbecoming a postal employee. Appellant was
accused of creating a disturbance on the workroom floor by raising her voice to Ms. London. At
4:00 a.m. she asked Mr. Morgan for a Form CA-1 traumatic injury claim form claiming that the
incident with Ms. London caused stress.
By letter dated June 21, 2007, the Office asked appellant to submit additional
information. It requested a detailed description of the incidents contributing to her emotional
condition with dates and times, the individuals involved and what occurred, and medical
evidence establishing that her condition was causally related to the factors she identified.
Appellant submitted medical reports from a psychiatrist who diagnosed adjustment disorder with
depressed mood. She attributed her condition to harassment by her supervisor.
By decision dated July 23, 2007, the Office denied appellant’s claim on the grounds that
she failed to establish that her emotional condition was causally related to a compensable
employment factor.2
On July 18, 2008 appellant requested reconsideration. She alleged that Ms. London’s
actions on June 11, 2007 created a hostile work environment. Ms. London refused to allow her
to work while sitting down after she explained that her medication was making her feel
nauseous. The supervisor also spoke to her in an angry voice, denied her request for union
representation and followed her into the break room. By letter dated July 8, 2008, Carolyn
Pierce, president of the local union, provided copies of grievance settlements for four employees
dated April 17 and 26, 2007 which stated that Ms. London would be counseled regarding her
need to treat employees with dignity and respect. Appellant contended that the grievance
settlements reflected that Ms. London had a history of abusive behavior toward her employees.
She alleged that the statement noted by Mr. Naples in the June 13, 2007 authorization for
medical treatment, that she felt stress after the investigative interview with Mr. Morgan, was
inaccurate. Appellant requested her claim form several hours after the investigative interview
and that the cause of her stress was harassment by Ms. London following the interview. She was
never disciplined for insubordination or conduct unbecoming a postal employee involving the
incident of June 11, 2007. Appellant alleged that management erred in denying representation
by a union representative and in failing to reassign her to a clerk position. A July 20, 2007
prearbitration settlement agreement stated that appellant would be returned to the Aldridge
Station at the modified position offered on June 23, 2006, effective July 20, 2007.3 A
September 18, 2007 grievance decision stated that appellant would receive $1,200.00 because
she worked 110 hours at her night shift at the employing establishment which was outside her
regular schedule and not at her regular facility. The decision found that appellant’s position at
2

In its July 23, 2007 decision, the Office inadvertently transposed the last two numbers of appellant’s case for her
accepted injury on September 19, 2005, citing xxxxxx125 rather than xxxxxx152.
3

The June 23, 2006 modified job offer specified that appellant would work six hours a day, five days a week, at
the Aldridge Station.

3

the employing establishment was not provided in accordance with the Employee and Labor
Relations Manual. The decision stated that the settlement did not constitute a waiver of either
party’s position in similar cases and was not to be cited as precedent or referenced in future cases
that might arise.
By decision dated August 14, 2008, the Office denied modification of the July 23, 2007
decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.4 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 her frustration from not being permitted to work in a
particular environment or to hold a particular position.5
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. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.6
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.7 When an employee fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If
an employee does implicate a factor of employment, the Office should then determine whether
the evidence of record substantiates that factor.8 As a rule, allegations alone by an employee are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.9 Where the employee alleges compensable factors of
employment, she must substantiate such allegations with probative and reliable evidence.10
4

5 U.S.C. §§ 8101-8193.

5

Lillian Cutler, 28 ECAB 125 (1976).

6

Michael Thomas Plante, 44 ECAB 510 (1993).

7

Dennis J. Balogh, 52 ECAB 232 (2001).

8

Margaret S. Krzycki, 43 ECAB 496 (1992).

9

See Charles E. McAndrews, 55 ECAB 711 (2004).

10

Joel Parker, Sr., 43 ECAB 220 (1991).

4

When the matter asserted is a compensable factor of employment, and the evidence of record
establishes the truth of the matter asserted, then the Office must base its decision on an analysis
of the medical evidence.11
ANALYSIS
Several of appellant’s allegations are not established as factual. She alleged that she was
unable to work her entire shift on June 11, 2007 due to physical restrictions from her
employment-related September 17, 2005 injury and management improperly refused to allow her
to leave work after six hours. However, she provided no evidence establishing this allegation as
factual. There are no medical reports stating that she was unable to perform her job on June 11,
2007 due to restrictions related to her September 17, 2005 employment injury. On June 11, 2007
Dr. Vinsant noted appellant’s statement that her new night work schedule was difficult for her.
He provided a note for her supervisor requesting that she return to her previous daytime work
schedule or be allowed to work six hours a day. However, Dr. Vinsant did not explain why
appellant was able to work only six hours on June 11, 2007 or why she needed to return to her
former daytime work schedule. Based on the evidence, this allegation that management required
her to work outside her restrictions on June 11, 2007 is not accepted as factual and is not a
compensable employment factor. Appellant alleged that she was denied union representation on
June 11, 2007 by Ms. London and another supervisor. However, there is no supporting evidence,
such as witness statements, to establish this allegation as factual. Therefore, this allegation is not
established as a compensable employment factor.
Several of appellant’s allegations involved administrative or personnel matters. The
Board has held that an administrative or personnel matter will be considered to be an
employment factor only where the evidence discloses error or abuse on the part of the employing
establishment.12 In determining whether the employing establishment erred or acted abusively,
the Board has examined whether the employing establishment acted reasonably.13 Appellant
alleged that on June 11, 2007 Ms. London harassed her all night long. She alleged that
Ms. London told her to stand up while processing the mail, rather than sitting down. Appellant
explained that she was sitting down because she was taking medication and felt nauseous.
Ms. London told her that, unless she had a written medical restriction against standing, she
should stand. As noted, there is no medical evidence that appellant could not perform her
modified duties on June 11, 2007. Appellant alleged that Ms. London screamed at her. She
alleged that she was “yelled at” for 30 minutes later that night during an investigative interview
into possible insubordination when Ms. London instructed her to stand up while processing the
mail. Although the Board has held that yelling at an employee can be a compensable factor of
employment,14 there is insufficient evidence that Ms. London or anyone else yelled at appellant
during the events of June 11, 2007. Ms. Golphine stated that she heard the discussion between
11

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

12

Id.

13

Janice I. Moore, 53 ECAB 777 (2002).

14

See Georgia F. Kennedy, 35 ECAB 1151 (1984).

5

appellant and Ms. London on June 11, 2007 and she described Ms. London’s tone of voice as
“soft” and appellant’s tone as louder than Ms. London’s. Mr. Morgan stated that he held an
investigative interview with appellant for insubordination and conduct unbecoming a postal
employee because she was accused of creating a disturbance on the workroom floor by raising
her voice to Ms. London. Appellant noted that she was not disciplined for the incident with
Ms. London. However, the fact that management did not discipline appellant does not establish
error or abuse on the part of Ms. London. Appellant’s union president provided copies of
grievance settlements for four employees stating that Ms. London would be counseled to treat
employees with dignity and respect. She alleged that the grievance settlements reflected that
Ms. London had a history of abusive behavior toward employees. However, this evidence does
not establish that Ms. London yelled or otherwise acted abusively in her discussions with
appellant on June 11, 2007. Therefore, this allegation does not constitute a compensable factor
of employment.
Appellant alleged that management created a hostile work environment by reassigning
her to the employing establishment. The September 18, 2007 grievance decision found that
appellant’s reassignment to a position at the employing establishment was not carried out in
accordance with the employing establishment labor relations manual. However, the decision
stated that the settlement did not constitute a waiver of either party’s position and was not to be
cited as precedent in future cases that might arise. The grievance decision does not otherwise
address appellant’s allegations of harassment by management on June 11, 2007. It did not find
error or abuse by management in its actions on June 11, 2007. Appellant’s allegation that
management created a hostile work environment by assigning her to the employing
establishment is not established as a compensable factor of employment.
Appellant alleged that Ms. London harassed her on June 11, 2007 by following her into
the break room. She alleged that on previous occasions Ms. London followed her into the
restroom and waited for her outside the stall, tapping on a clipboard with a pen. On May 30,
2007 Ms. London went into the restroom and shouted appellant’s name loudly. She advised
appellant that she was waiting to tell her where she was assigned to work that night. Ms. London
also told appellant that she needed to know where appellant was at all times. On June 7, 2007
she followed appellant into the restroom. When appellant exited the stall she saw Ms. London
tapping a pen on a clipboard and tapping her shoes on the floor. Monitoring an employee is an
administrative action and is not compensable unless the employee establishes error or abuse.15
There is insufficient evidence to establish that Ms. London erred or acted abusively in
monitoring appellant’s location during her work shift. The evidence does not establish that
Ms. London erred or acted abusively in performing this supervisory function. This allegation
does not constitute a compensable factor of employment.

15

See Brian H. Derrick, 51 ECAB 417 (2000).

6

The Board finds that appellant failed to establish that her emotional condition was
causally related to a compensable factor of employment. Therefore, the Office properly denied
her emotional condition claim.16
On appeal, appellant argues that she was subjected to an abusive environment and
harassment from Ms. London because management erred in assigning her to the employing
establishment facility. She asserts that support for her allegation of harassment on June 11, 2007
is provided by the fact that she did not receive any disciplinary action for the events of
June 11, 2007. These allegations are addressed in the Board’s analysis above.
CONCLUSION
The Board finds that appellant failed to establish that her emotional condition was
causally related to a compensable factor of employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2008 is affirmed.
Issued: October 2, 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

16

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

7


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

)
)
)
)
)
)
)
)

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

Docket No. 10-454
Issued: November 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 8, 2009 appellant filed a timely appeal from the November 20, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.

FACTUAL HISTORY
On January 21, 2009 appellant, then a 32-year-old letter carrier, filed a claim alleging that
she sustained an emotional condition in the performance of duty due to various incidents and
conditions at work.1 In a January 20, 2009 statement, she attributed her emotional condition to
management’s failure to follow her physicians’ restrictions. Appellant alleged that several
supervisors, including Nilsa Mercado, Ernest Jackson and Elise Vidro, tried to strong-arm her
into doing overtime or to rack other routes. She asserted that she had been promised a transfer
that did not occur and that she was threatened with being suspended. On January 15, 2009
appellant was scheduled to be at work at 8:30 a.m., but traffic was backed up due to the weather,
causing her to spend two hours in traffic. She telephoned Ms. Vidro to advise her that she was
running late and was told that Ms. Vidro would inform Mr. Jackson. When appellant arrived at
9:30 a.m., Mr. Jackson told her that he never got the message and that Ms. Vidro was not her
supervisor. Since she was late, Mr. Jackson told her to rack on route 1441 for 30 minutes.
Appellant indicated that she did so and consequently was late for her route at 11:00 a.m. She had
been working for an hour when a postal truck pulled up and she was brought 30 minutes of
overtime work on route 1427, a task which she had never performed. Appellant called
Mr. Jackson to ask why she was assigned this pivot, given that he knew that her medical
restrictions dictated that she work no more than eight hours a day and she only work one route,
namely route 1421. She alleged that Mr. Jackson told her that he took these actions because she
was an hour late and he was short on help. Appellant got a call from Ms. Mercado, who
threatened her with emergency replacement if she did not do the pivot work. She told
Ms. Mercado that she was coming back to turn in her keys, the rest of her route and the pivot.
Appellant also alleged that her anniversary date was illegally changed from 2006 to 2008.
In a January 22, 2009 statement, Ms. Mercado stated that due to the large amount of open
routes, the supervisors had to make a last minute change for coverage and they assigned
appellant a half-hour pivot. Although appellant was on an eight-hour restriction, she reported to
work over an hour late on January 15, 2009 and completing the pivot was within her restrictions.
Ms. Mercado noted that appellant told Mr. Jackson that she would not do the pivot work because
of her restrictions and that she was also restricted to work only on her assigned route. She and
Mr. Jackson checked her medical documentation which confirmed the eight-hour restriction, but
it was not clear that she was restricted to only her assigned route. Ms. Mercado telephoned
appellant in the presence of Mr. Jackson and told her to complete the pivot, because it was not
beyond her eight-hour restriction. Appellant refused and began to shout that she was not going
to do it, so Ms. Mercado gave her a direct instruction. She then shouted that not only was she
not going to do the pivot, but she was not going to deliver the rest of her route. Ms. Mercado
told appellant that she would be placed on emergency replacement if she refused to follow
instructions and that she responded that she should do what she had to do and hung up the
telephone. Appellant then returned to the station and turned in her keys. Ms. Mercado stated
appellant’s behavior was a violation of the labor-management agreement.
1

The Office previously accepted on May 19, 2008 that appellant sustained an anxiety disorder (not otherwise
specified) and a major depressive disorder due to work factors. Appellant had alleged that prior to December 2007
she had been subjected to profanities, yelling and implied threats from supervisors. These accepted conditions are
not the subject of the present appeal.

2

In a January 28, 2009 statement, appellant reiterated that she was threatened with
emergency replacement when she told Mr. Jackson and Ms. Mercado to follow her restrictions.
She subsequently received a predisciplinary action while she was still on sick leave despite the
fact that she had not done anything wrong.
In a March 18, 2008 report, John Rogawski Ph.D., an attending clinical psychologist,
released appellant to work and recommended that she be transferred to another work unit. He
advised that she was willing to work 40 hours a week and to be placed on her hold-down
delivery route. In a March 19, 2008 form report, Dr. Rogawski stated that appellant was “to be
placed on same route daily” for the five weeks beginning March 20, 2008 and that she should not
work more than 40 hours a week. He noted on April 29, 2008 that he was requesting that
appellant’s light-duty work continue until she was transferred to another station or until she was
no longer under his care or on medication. Appellant was doing fine working 40 hours a week,
but still experienced symptoms of anxiety. If she worked more than 40 hours a week, she might
suffer a relapse as overwork previously contributed to her work-related stress.
In March 13, 2009 letters, the Office requested additional factual and medical evidence
from appellant and the employing establishment.
In a March 20, 2009 statement, Derek Hudson, manager of customer service,2 stated that
appellant was being accommodated by doing the same route everyday and by only being given
eight hours of work each day. The accommodation request was to allow her to work on the same
route, but Dr. Rogawski’s request did not specify to put her on one route only. Mr. Hudson
noted that some days the route appellant was assigned did not warrant eight hours of work, so
she would be given additional duties on another route to fill eight hours, but this practice did not
constitute overtime work.
Appellant’s counsel at the time provided a March 9, 2009 statement that reiterated her
prior statements. She submitted documents filed in connection with an Equal Employment
Opportunity (EEO) complaint, leave records, excerpts from employee handbooks and the
February 19, 2008 denial of her transfer request due to her unacceptable work record.
In a March 19, 2009 statement, appellant stated that she received a disciplinary letter on
January 26, 2009 due to the events of January 15, 2009. She was unable to complete her route
on January 15, 2009 due to verbal and mental abuse that contributed to her depression, anxiety
and panic attack. Appellant’s physician again provided a letter stating she was struggling with
an eight-hour day and that it would be better if she were transferred.
In a July 28, 2009 decision, the Office denied appellant’s claim finding that she did not
establish any compensable employment factors. It found that appellant failed to establish that
the 30 minutes of work on another route she was asked to perform was overtime or constituted a
violation of her medical restrictions, that she was discriminated against when her transfer was
denied, that her anniversary date was illegally changed or that Ms. Mercado screamed at her on
January 15, 2009.

2

It appears that Mr. Hudson later became a station manager.

3

Appellant disagreed with the July 28, 2009 decision and requested a review of the written
record by an Office hearing representative. In an August 12, 2009 statement, she noted that her
supervisors never denied she was sick and reiterated her version of the January 15, 2009 events.
Appellant stated that her clock rings and her carrier auxiliary control forms proved she had an
eight-hour route, such that she would have to do her eight-hour route and the 30-minute pivot.
Regardless of whether she came in at 8:30 or 9:30 a.m., she would still have to do an eight-hour
route.
The employing establishment was notified of the request for a review of the written
record and provided statements dated October 19, 2009 from Mr. Hudson, Michael Boccio, the
postmaster and Ms. Mercado. It also submitted an undated statement from Mr. Jackson.
Mr. Boccio stated he did not talk with appellant on January 15, 2009 as she alleged and indicated
that he was not aware of her diagnosis or medications. Mr. Hudson noted that, on occasion, he
did tell Mr. Jackson to assign undertime to appellant, but that at no time was she assigned
overtime. He was generally aware of appellant’s work restrictions, but he was unaware that she
was diagnosed with fibromyalgia. Ms. Mercado asserted that she did not shout at or otherwise
harass appellant. She noted that appellant was not placed on an overtime pivot and that her clock
rings did not establish her claims about overtime work. Ms. Mercado denied appellant’s
statement that she gave her overtime or that she admitted giving appellant overtime when she
completed an EEO statement. She stated that appellant was not issued a predisciplinary letter,
but rather was given a predisciplinary interview appointment request. Mr. Jackson stated that
Mr. Hudson had advised him about the undertime on appellant’s route, which he had to adjust
accordingly. He stated the 30-minute pivot was undertime. Appellant was allowed to rack on
other routes to bring her to an eight-hour day, but they could have required her to do more on the
street. Mr. Jackson stated he did not recall Ms. Mercado yelling at appellant.
On October 21, 2009 appellant disagreed with the statements of Mr. Hudson, Mr. Boccio,
Mr. Jackson and Ms. Mercado. She contended she had provided all necessary documentation to
support her claim and that it should be approved.
In a November 20, 2009 decision, the Office hearing representative affirmed the July 28,
2009 decision. She found that appellant did not establish any of her claims with respect to error
or abuse in administrative matters or with respect to harassment or discrimination.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an

3

5 U.S.C. §§ 8101-8193.

4

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.4
With regard to personnel and administrative matters, the Board has held that these are
generally related to the employment as functions of the employer rather than the work duties of
the employee.5 Generally, actions taken unrelated to the employee’s regular or specially
assigned work duties do not fall within coverage of the Act.6 An administrative or personnel
matter will be considered as a compensable factor where the evidence of record establishes error
or abuse on the part of managers or supervisors.
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.7 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.8
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.9 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.10
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of various
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that she did not establish any compensable employment factors. The Board must
review whether these alleged incidents and conditions of employment are covered employment
factors under the terms of the Act. The Board notes that appellant’s allegations do not pertain to
4

See Lillian Cutler, 28 ECAB 125 (1976).

5

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

6

See Donny T. Drennon-Gala, 56 ECAB 469 (2005); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
7

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

8

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

9

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

10

Id.

5

her regular or specially assigned duties under Culter.11 Rather, appellant has alleged that
managers committed error and abuse with respect to administrative matters and that she was
subjected to harassment and discrimination.
Appellant contends that on January 15, 2009 managers mishandled her work assignments
and violated her medical restrictions by giving her more than eight hours of work to perform and
having her work on a route other than her regular route, i.e. route 1421. She also claimed that
managers subjected her to unfair disciplinary actions, wrongly denied leave and transfer requests
and committed errors regarding her anniversary date at work.
Appellant’s allegations relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties and do not fall within the coverage of the
Act.12 Although the handling of such matters are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.13 However, the Board
has also found that 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. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.14
The Board finds that appellant did not submit sufficient evidence to establish that the
employing establishment committed error or abuse with respect to the alleged administrative
matters. The employing establishment acknowledged that appellant had a medical restriction
from working more than eight hours a day, but multiple statements from management show that
her route was not a full eight-hour route and the 30-minute pivot she was assigned to work would
not have been outside of her restriction from working more that eight hours a day. Management
noted that appellant had to be assigned work tasks known as undertime work to build her route
up to an eight-hour day. The evidence reveals that appellant arrived late to work on January 15,
2008 and there is no evidence that assigning her pivot work was error or against the
recommended restrictions. Appellant did not provide adequate documentation to support her
claim that she had to work more than an eight-hour route.
With respect to whether management violated a medical restriction when it had appellant
work on a route other than her regular route, she has not submitted sufficient evidence to show
that error or abuse occurred. In a March 18, 2008 report, Dr. Rogawski, an attending clinical
psychologist, indicated that appellant was willing to be placed on her hold-down delivery route.
He did not state, however, that there was any reason against appellant working on more than one

11

See Cutler supra note 4.

12

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).
13

Id.

14

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

6

route or a route other than her regular route.15 Appellant also did not present evidence showing
management error or abuse with respect to disciplinary actions, leave usage, transfer requests or
her anniversary date at work.
Appellant also alleged that harassment and discrimination on the part of her supervisors
contributed to her claimed stress-related condition. She claimed that Ms. Mercado shouted at her
on January 15, 2009 and that Ms. Mercado and Mr. Jackson threatened to place her on
emergency replacement status. 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.16 However, for harassment or discrimination to give rise to a compensable disability
under the Act, there must be evidence that harassment or discrimination did in fact occur. Mere
perceptions of harassment or discrimination are not compensable under the Act.17 In the present
case, the employing establishment denied that appellant was subjected to harassment or
discrimination and appellant has not submitted sufficient evidence to establish that she was
harassed or discriminated against by her supervisors.18 Appellant alleged that supervisors made
statements and engaged in actions which she believed constituted harassment and discrimination,
but she provided no corroborating evidence, such as witness statements, to establish that the
statements actually were made or that the actions actually occurred.19 She apparently filed an
EEO complaint, but the record does not contain any determinations resulting from this
complaint. Thus, appellant has not established a compensable employment factor under the Act
with respect to the claimed harassment and discrimination.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.20
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

15

In a March 19, 2008 form report, Dr. Rogawski indicated that appellant was “to be placed on same route daily”
for the five weeks beginning March 20, 2008. It is also uncertain whether this note contains a clear prescription
against ever working on more than one route. Moreover, it relates to a period which is not the subject of the present
claim.
16

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

17

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

18

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).
19

See William P. George, 43 ECAB 1159, 1167 (1992).

20

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

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20, 2009 is affirmed.
Issued: November 22, 2010
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Portland, OR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-946
Issued: November 24, 2009

Case Submitted on the Record

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

JURISDICTION
On February 19, 2009 appellant filed a timely appeal of the August 25, 2008 merit
decision of the Office of Workers’ Compensation Programs determining his permanent
impairment and a November 26, 2008 nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has more than 12 percent binaural hearing loss for
which he has received a schedule award; and (2) whether the Office properly refused to reopen
his case for further consideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 31, 2007 appellant, then a 63-year-old power plant operator, filed an
occupational disease claim alleging that he developed substantial nerve damage in his ears as a
result of exposure to loud noises in the performance of duty. He first became aware of his

condition on January 1, 2003 and first attributed his hearing loss to his employment on
April 23, 2003. The employing establishment noted that appellant retired on June 12, 2007 and
was last exposed to noise on that date. Appellant also noted that he had a nonemploymentrelated condition of cholestreatoma in his right ear which had required two surgeries. He
submitted hearing assessment reports from the employing establishment health program
beginning in 1983.
Appellant submitted operative reports from Dr. Caroline Y. Yang, a Board-certified
otolaryngologist, dated April 23, 2003 and January 22, 2004. Dr. Yang performed right
tympanoplasty and mastoidectomy. She diagnosed mixed hearing loss with a conductive
component caused by Eustachian tube dysfunction and cholesteatoma was well as nerve hearing
loss. Dr. Yang stated, “The nerve portion of his hearing loss could definitely have been
exacerbated by noise exposure through work.”
The Office referred appellant for a second opinion evaluation with Dr. Craig Hertler, a
Board-certified otolaryngologist on December 12, 2007. In a report dated January 8, 2008,
Dr. Hertler noted appellant’s history of noise exposure at the employing establishment and stated
that appellant reported constant tone-like tinnitus particularly in the right ear. He opined that
appellant’s exposure to loud noise was sufficient in intensity and duration to have contributed to
appellant’s hearing loss. Dr. Hertler noted that a substantial portion of appellant’s hearing loss
was due to chronic middle ear disease and cholesteatoma. He diagnosed mixed sensorineural
and conductive hearing loss which was in part due to noise exposure. Dr. Hertler included an
audiogram which demonstrated on the right 30 decibels at 500 hertz (Hz); 20 decibels at 1,000
Hz; 60 decibels at 2,000 Hz and 65 decibels at 3,000 Hz. On the left appellant’s audiogram
demonstrated 35, 20, 35 and 45 decibels respectively.
The district medical adviser reviewed Dr. Hertler’s report on February 5, 2008 and found
that appellant had 13.13 percent left monaural hearing impairment; 28.13 percent right monaural
impairment and binaural hearing impairment of 15.6 percent. He recommended a hearing aid.
The Office accepted appellant’s claim for bilateral sensorineural hearing loss.
Dr. Yang performed a right tympanoplasty on April 17, 2008. In a letter dated June 17,
2008, appellant noted that Dr. Yang opined that he had reached maximum medical improvement
and that his tinnitus was permanent. He requested a schedule award on June 17, 2008. On
June 12, 2008 Dr. Yang stated that appellant had mixed hearing loss with a conductive
component caused by Eustachian tube dysfunction and cholesteatoma. She also opined that
appellant had nerve hearing loss which could have been exacerbated by noise exposure through
work and had reached maximum medical improvement. Dr. Yang submitted an audiogram dated
June 12, 2008 which demonstrated 500 Hz, 20 decibels; 1,000 Hz, 20 decibels, 2,000 Hz, 45
decibels and 3,000 Hz, 65 decibels on the right. On the left appellant had 35, 20, 30 and 45
decibels respectively. Appellant’s speech discrimination scores were 96 on the right and 100
percent on the left.
The Office authorized Dr. Hertler to perform additional testing on July 1, 2008 to
determine appellant’s hearing loss for schedule award purposes. Dr. Hertler reviewed
audiographic testing on June 12, 2008 taken eight weeks after appellant’s most recent surgery

2

and opined that appellant had reached maximum medical improvement with a slight
improvement in his hearing loss.
The district medical adviser reviewed the medical records on August 6, 2008 and found
that appellant’s June 12, 2008 audiogram demonstrated 11.25 percent left monaural hearing loss
and 18.75 percent right monaural hearing loss for a 13 percent binaural hearing impairment.
On August 14, 2008 the Office requested that the employing establishment provide
appellant’s pay rate information as the date of last exposure, June 12, 2007, the date he retired. It
determined that appellant was earning $32.81 per hour when he retired for a weekly pay rate of
$1,316.82.
By decision dated August 25, 2008, the Office granted appellant a schedule award for 13
percent binaural loss of hearing or 26 weeks of compensation beginning June 12, 2008. It found
that appellant’s weekly pay rate for schedule award purposes was $1,316.82.
Appellant requested reconsideration on October 8, 2008 and resubmitted the June 12,
2008 audiogram, the February 5, 2008 decision and the August 25, 2008 schedule award
decision. He asked that the Office clarify how his impairment rating was reached, how the
period of his award was determined and his pay rate.
By decision dated November 26, 2008, the Office declined to reopen appellant’s claim
for reconsideration of the merits finding that he failed to submit relevant and pertinent new
evidence or argument in support of his reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 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. Where the loss of use is less than 100 percent the amount of compensation is paid in
proportion to the percentage loss of use.3 However, the Act does not specify the manner in
which the percentage of loss shall be determined. For consistent results and to ensure equal
justice under the law to all claimants, good administrative practice necessitates the use of a single
set of tables so that there may be uniform standards applicable to all claimants. The American
Medical Association, Guides to the Evaluation of Permanent Impairment has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.4

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

5 U.S.C. § 8107(c)(19).

4

Id.

3

Effective February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the
appropriate edition for all awards issued after that date.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at
each frequency are added up and averaged.7 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.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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.10 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.11
The A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral
hearing impairment may impair speech discrimination: “Therefore, add up to five percent for
tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.12
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the employment
injury. The Board has defined maximum medical improvement as meaning “that the physical
condition of the injury member of the body has stabilized and will not improve further.”13 The
determination of whether maximum medical improvement has been reached is based on the
probative medical evidence of record and is usually considered to be the date of the evaluation
by the attending physician which is accepted as definitive by the Office.14
Section 8105(a) of the Federal Employees’ Compensation Act provides: “If the disability
is total, the United States shall pay the employee during the disability monthly monetary
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
6

A.M.A., Guides 226-51 (5th ed. 2001).

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).
12

Id.

13

J.C., 58 ECAB ___ (Docket No. 06-1018, issued January 10, 2007); James E. Earle, 51 ECAB 567 (2000).

14

Mark A. Holloway, 55 ECAB 321, 325 (2004).

4

compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.”15 Under 5 U.S.C. § 8101(4), “monthly pay” means the
monthly pay at the time of injury, or the monthly pay at the time disability begins or the monthly
pay at the time compensable disability recurs, if the recurrence begins more than six months after
the injured employee resumes regular full-time employment with the United States, whichever is
greater.
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a binaural sensorineural hearing loss as a
result of noise exposure in the performance of his federal duties. Appellant’s attending
physician, Dr. Yang, performed surgery for a right tympanoplasty on April 17, 2008. She
determined that appellant reached maximum medical improvement on June 12, 2008 and
submitted an audiogram of that date. The Office properly determined that appellant’s schedule
award should begin on the date of maximum medical improvement as reported by his attending
physician.
The district medical adviser calculated appellant’s schedule award by adding the losses at
the frequencies of 500, 1,000, 2,000 and 3,000 Hz and then averaging these losses and deducting
the “fence of 25 decibels.”16 The remaining amount was multiplied by 1.5 to arrive at the
percentage of monaural hearing loss. For decibels in the left ear of 35, 20, 30 and 45, the above
formula derives 11.5 percent monaural loss and for decibel levels recorded in the right ear of 20,
20, 45 and 65, the formula derives 18.75 percent monaural loss. The binaural loss is determined
by calculating the loss in each ear using the formula for monaural loss; the lesser loss, in this
case 11.5 is multiplied by five, equaling 57.5 then added to the greater loss or 18.75 for a sum of
76.25 and the total is divided by six to arrive at the amount of the binaural hearing loss of 12.71,
rounded up to 13 percent.17 The record does not contain evidence that appellant’s tinnitus
impacted activities of daily living as his discrimination scores were 96 on the right and 100
percent on the left. The Board finds the medical evidence does not establish that tinnitus is an
impairment factor to be considered in calculating appellant’s schedule award.
The Act provides that complete loss of hearing in both ears is 200 weeks’
compensation.18 Appellant had 13 percent binaural hearing loss or entitlement to 26 weeks of
compensation.19 The Board finds that the Office properly determined appellant’s pay rate at the
date injury occurred, in this case his retirement of June 12, 2007, the date of his last
employment-related noise exposure.
15

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
16

The A.M.A., Guides points out that the loss below an average of 25 decibels is deducted as it does not result in
impairment in the ability to hear everyday sounds under everyday listening conditions.
17

The policy of the Office is to round the calculated percentage of impairment to the nearest decimal point.
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.b (June 2003).
18

5 U.S.C. § 8107(a)(13)(B).

19

This figure is reached by multiplying 200 by 13 percent.

5

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.21 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.22
20

ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the Office’s August 25, 2008 schedule award
decision and resubmitted documents already included in the record. In support of his request, he
asked that the Office provide him with information describing how his schedule award was
calculated. The Board finds that appellant failed to submit any relevant new evidence or
argument in support of his request for reconsideration and that the Office properly declined to
reopen his claim for review of the merits.
CONCLUSION
The Board finds that appellant has no more than 13 percent binaural loss of hearing for
which he has received a schedule award beginning on the appropriate date of maximum medical
improvement, for the appropriate number of weeks and based on the proper pay rate. The Board
further finds that the Office properly declined to reopen appellant’s claim for consideration of the
merits on November 26, 2008.

20

5 U.S.C. §§ 8101-8193, 8128(a).

21

20 C.F.R. § 10.606(b)(2).

22

Id. at § 10.608(b).

6

ORDER
IT IS HEREBY ORDERED THAT the November 26 and August 25, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7