United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Ann Arbor, MI, Employer
__________________________________________

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

Docket No. 11-1938
Issued: April 2, 2012

Case Submitted on the Record

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

JURISDICTION
On August 25, 2011 appellant filed a timely appeal from an August 1, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he abandoned
his hearing request. 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 nonmerit decision. As more
than 180 days has elapsed between the last merit decision dated February 18, 2011 and the filing
of this appeal, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly found that appellant abandoned his request for a
hearing.
1
2

5 U.S.C. § 8101 et seq.

An appeal of adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of
the decision. See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On April 1, 2010 appellant, then a 39-year-old housekeeping aid, filed a traumatic injury
claim alleging that he sustained an injury on March 15, 2010 in the performance of duty. OWCP
accepted the claim for lumbar and thoracic sprain. Appellant stopped work on March 15, 2010
and received compensation for total disability.
By decision dated February 18, 2011, OWCP terminated appellant’s compensation and
authorization for medical treatment effective that date. It determined that the weight of the
medical evidence established that he had no further disability or condition requiring treatment as
a result of his March 15, 2010 work injury.
On March 15, 2011 appellant timely requested a telephone hearing. By letter dated
June 6, 2011, OWCP notified him that it had scheduled a telephone hearing for July 12, 2011 at
12:15 p.m. eastern time. It instructed appellant to call the provided toll-free number a few
minutes before the hearing time and enter in the pass code when prompted. OWCP mailed the
notice to his address of record.
By decision dated August 1, 2011, OWCP determined that appellant had abandoned his
requested hearing. It found that he received written notification of the hearing 30 days in
advance but failed to appear. OWCP further indicated that there was no evidence that appellant
contacted OWCP either prior to or after the scheduled hearing to explain his failure to
participate. Consequently, it concluded that he abandoned his telephone hearing request.
On appeal appellant related that he fell asleep the day of his scheduled hearing due to his
sleep disorder. When he awoke he telephoned OWCP. The receptionist instructed appellant to
telephone the hearing representative but he was unsuccessful.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claims examiner, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days
before the scheduled date.4 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.5
OWCP’s procedure manual provides that a hearing can be considered abandoned only
under very limited circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a scheduled
3

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991). It is presumed in absence of evidence to the contrary that a
notice mailed to an individual in the ordinary course of business was received.

2

hearing; and the claimant has failed to provide any notification for such failure within 10 days of
the scheduled date of the hearing. Under these circumstances, the Branch of Hearings and
Review will issue a formal decision finding that the claimant has abandoned his or her request
for a hearing.6
ANALYSIS
By decision dated February 18, 2011, OWCP terminated appellant’s compensation and
medical benefits. Appellant timely requested a telephone hearing. By letter dated June 6, 2011,
OWCP notified appellant that it had scheduled a telephone hearing on July 12, 2011 at 12:15
p.m. eastern time. It instructed him to telephone a toll-free number and enter a pass code to
connect with the hearing representative. Appellant did not telephone at the appointed time. He
did not request a postponement of the hearing or explain his failure to appear at the hearing
within 10 days of the scheduled hearing date of July 12, 2011.7 The Board therefore finds that he
abandoned his request for a hearing.8
On appeal, appellant submitted an undated letter explaining that he fell asleep the date of
the hearing as a result of his sleep disorder. He telephoned OWCP and the hearing
representative when he awoke but could not get through to the hearing representative. Appellant
submitted evidence in support of his contention. The Board, however, lacks jurisdiction to
consider this evidence as it was not before OWCP at the time of its decision.9 Appellant may
submit this evidence to OWCP with a request for reconsideration pursuant to 5 U.S.C. § 8128
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant abandoned his request for a telephone hearing.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also G.J., 58 ECAB 651 (2007).
7

Id.

8

See G.J., supra note 6.

9

See 20 C.F.R. § 501.2(c)(1).

3

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 21-1026
Issued: January 19, 2022

Case Submitted on the Record

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

JURISDICTION
On June 26, 2021 appellant filed a timely appeal from a March 26, 2021 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 has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 11, 2020 appellant, then a 54-year-old claims examiner, filed an occupational
disease claim (Form CA-2) alleging that she developed a back condition due to factors of her
federal employment, including teleworking without proper office equipment and sitting for
1

5 U.S.C. § 8101 et seq.

prolonged periods without the ability to stand while working. She indicated that she first became
aware of her condition and first realized its relation to her federal employment on April 13, 2020.
Appellant did not stop work.
In a May 1, 2020 letter, Dr. Christina DiCello, a chiropractor, noted that appellant initially
presented for treatment on April 17, 2020 for diagnoses of right sacroiliac joint sprain,
subluxations, cervical spine sprain with myalgia, and tension headaches resulting from working at
home without proper ergonomic positioning. She related that appellant had been experiencing
back pain radiating into her right leg for more than two weeks, causing appellant to walk with a
limp. Dr. DiCello advised that appellant required a standing frame desk and chair with adjustable
height and lumbar support while working from home.
In an undated statement received by OWCP on May 11, 2020, appellant explained that she
began teleworking on March 23, 2020 due to COVID-19 and that the employing establishment did
not grant her request to use her office chair or external monitors. She asserted that she did not
have a home office and had to work from a table and regular chair, until the week of April 6, 2020
when she secured an office chair. Appellant alleged that the sedentary nature of her job duties and
inadequate office equipment caused physical stress on her body, which resulted in increasing back
pain and difficulties performing her activities of daily living independently. She further noted that
she previously had back surgery approximately 25 years prior.
In a May 29, 2020 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim.
OWCP afforded appellant 30 days to submit the necessary evidence.
On April 17, 2020 appellant was seen by Dr. DiCello with complaints of worsened right
leg pain caused by inadequate ergonomic support at her home workstation. She explained that,
before she began teleworking, she used a standing desk to support her lower back, but that this
equipment was unavailable after she was ordered to telework. Dr. DiCello diagnosed a right
sacroiliac joint sprain, and subluxation, and recommended transcutaneous electrical nerve
stimulation (TENS) and ice treatment twice a week for three weeks.
In subsequent follow-up treatment notes dated April 22 through June 17, 2020, Dr. DiCello
noted appellant’s complaints and detailed findings on physical examination of appellant’s cervical
and thoracic spine, including right L5-S1 subluxation with right multifidus small trigger point.
She recommended continued treatment with TENS, ice, and home exercises. Dr. DiCello further
noted that appellant’s condition improved with changes to appellant’s home workstation and
continued treatment.
By decision dated July 7, 2020, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish a medical condition
causally related to the accepted factors of her federal employment. It noted that, under FECA a
physician includes chiropractors only if there is a diagnosed spinal subluxation and it is
demonstrated by x-ray, however, the record did not contain an x-ray to support Dr. DiCello’s
finding of subluxation. OWCP concluded, therefore, that the requirements had not been met to
establish an injury under FECA.

2

OWCP continued to receive evidence. In a June 26, 2020 treatment note, Dr. DiCello
reported that appellant’s back condition significantly improved after appellant changed the
arrangement of her work from home setting and continued the prescribed treatment.
On January 28, 2021 appellant requested reconsideration of the July 7, 2020 decision. She
reiterated that her injuries were caused by inadequate equipment. Appellant also submitted a
September 4, 2020 report of a computerized tomography (CT) scan of the abdomen and pelvis
from an unidentifiable healthcare provider, which revealed degenerative disc changes at L5-S1.
By decision dated March 26, 2021, OWCP denied modification of its July 7, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
2

Id.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019);
Joe D. Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

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

8

Elaine Pendleton, 40 ECAB 1143 (1989).

3

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted treatment notes dated April 17 to June 26,
2021, and a May 1, 2020 narrative statement, from her chiropractor, Dr. DiCello, who diagnosed
right sacroiliac joint sprain, subluxations, cervical spine sprain with myalgia, and tension
headaches. Chiropractors are not considered physicians under FECA unless it is established that
there is a spinal subluxation as demonstrated by x-ray to exist.10 As Dr. DiCello did not diagnose
subluxation based on an x-ray, her reports have no probative value. 11
Appellant also submitted a September 4, 2020 CT scan from an unidentifiable healthcare
provider revealing degenerative disc changes at L5-S1. The Board has held that reports that are
unsigned or bear illegible signatures cannot be considered probative medical evidence because
they lack proper identification that the author is a physician. 12 Accordingly, the September 4, 2020
CT scan report is also insufficient to satisfy appellant’s burden of proof to establish her claim.
As the medical evidence of record is insufficient to establish a diagnosed medical condition
causally related to the accepted factors of appellant’s federal employment, the Board finds that she
has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of her federal employment.

9

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

10

A.C., Docket No. 21-0087 (issued November 9, 2021); C.H., Docket No. 19-1127 (issued March 1, 20201);
Kathryn Haggerty, 45 ECAB 383 (1994).
11

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x -ray to exist
and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
12

A.B., Docket No. 20-0971 (issued January 26, 2021); J.P., Docket No. 19-0197 (issued June 21, 2019); Merton J.
Sills, id.

4

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 19, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
Edward L. Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 07-36
Issued: March 19, 2007

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 October 2, 2006 appellant, through her representative, filed a timely appeal from an
October 31, 2005 merit decision of the Office of Workers’ Compensation Programs denying her
emotional condition claim, a December 19, 2005 nonmerit decision denying reconsideration and
an August 29, 2006 merit decision denying her emotional condition claim after modifying the
October 31, 2005 decision to show that she had not shown an injury 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 she sustained an emotional condition
in the performance of duty.
FACTUAL HISTORY
On September 6, 2005 appellant, then a 51-year-old monitor/bulk mail technician, filed a
traumatic injury claim for injury to her brain occurring on May 18, 2005. She stopped work on

June 6, 2005. In an accompanying statement, appellant related that her duties included
monitoring the entrance to the front lobby, checking identification, observing a closed caption
television (CCTV) monitor and operating a computer to open and close an entrance gate. She
stated:
“On May 18, 2005 at approximately 12:00 a.m.[,] I received a telephone call from
a clerk in the [manager of distribution operations] (MDO’s) office. The clerk
stated that there was an attorney in the office who needed assistance to her
vehicle. She also stated that the attorney noticed the gate was opened when she
came to the facility and was[,] therefore[,] ‘[a]fraid’ to walk to her car alone. I
relayed the information to the police [officer] on duty who instructed me to have
the attorney come to the police unit and someone would assist her to her car.
“After relaying the information back to the clerk on the [tele]phone I continued
my duties. As I attempted to open an entrance for someone I was unable to do so
because I suddenly became fearful. I was trembling and forgetful[,] therefore[,] I
could not perform the computer operations to open the entrance. My attention
was focused on the statement that the [a]ttorney was ‘[a]fraid.’”
Appellant needed assistance from the police officer on duty to perform her work. She
missed intermittent days from work until June 20, 2006, when she stopped work with a diagnosis
of delusional disorder.1
In a statement dated September 13, 2004, Janice T. Perry, a supervisory police officer for
the employing establishment, related that she was at work on May 18, 2005. She remembered a
conversation with appellant “in reference to the attorney needing an escort to her vehicle.”
Ms. Perry indicated that she did not remember whether appellant had difficulty performing her
job following the telephone call.
Appellant submitted a statement dated October 2, 2005 in which she related that she
experienced a hostile and harassing work environment.2 She described her job duties as a
monitor and noted that sometimes the entrance gate to the employing establishment was left
open. Appellant requested that management provide additional lighting for the parking lot. She
stated:
“The aspect of my employment that I consider detrimental to my health is to work
in an unprotected, unsafe, hostile environment with mean, hateful people and
having fears of being harmed at any time by any one. I cannot explain why after
receiving that call on May 18, 2005 for assistance for an attorney, who was afraid
to walk to her car alone caused my emotional condition as it did.”

1

The record contains medical reports documenting appellant’s treatment for a delusional disorder.

2

Appellant indicated that she feared retaliation from coworkers, supervisors and managers because she filed
complaints against them with the Equal Employment Opportunity Commission.

2

Appellant noted that Ms. Perry was the police officer on duty at the time, but that she was
unwilling to provide a statement confirming that she told her to calm down and helped her
perform her duties.
In a statement dated October 5, 2005, Gwendolyn Hall, a coworker, related that on
May 18, 2005 appellant was “upset and shaky as she told me about the call she received when
another [employing establishment] employee, an attorney, Ms. Snyder, requested a police escort
to the employees’ parking lot, the lot we also parked on.” Ms. Hall described problems with the
gate being left open and security issues in the parking lot. She listed the job duties of a monitor
and noted that both she and appellant were working in rehabilitation positions. Ms. Hall stated,
“[Appellant] told me that, when Ms. Snyder requested a police escort (which the [employing
establishment] police gave her), this triggered her to experience fearfulness and a panicky feeling
and could not remember what to do on the computer.”
In a statement dated October 21, 2005, the employing establishment noted that
appellant’s rehabilitation position was not stressful and attached the duties of a CCTV monitor.
By decision dated October 31, 2005, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to establish an injury due to the accepted work events.
On November 22, 2005 she requested reconsideration. In a decision dated December 19, 2005,
the Office denied appellant’s request for reconsideration under section 8128.
On June 13, 2006 appellant again requested reconsideration. She submitted a statement
dated May 1, 2005 in which she asserted that the employees’ parking lot had dim lighting and
often the gate was unlocked.3 Appellant spoke with management about the need for additional
lighting in the parking lot because in her job as monitor she was unable to see people entering the
building until the door was open. She related:
“The aspect of my employment I consider to be detrimental to my health is that I
could be injured or perhaps killed by that supervisor, other supervisors, managers
and coworkers because of mechanical problems with the gate, poor lighting, poor
security and the fact that I have made complaints about the supervisor and other
employees I feel want to harm me.”
Appellant further stated:
“I have had to speak directly with [employing establishment] police/security to
assist someone (locked out of car, needing a handicapped parking space to park,
[etcetera]) on a few occasions. Stress calls, threats, burglary [etcetera] are
handled directly by the postal police/security [tele]phone lines only. However,
‘THAT CALL’ came directly to the [tele]phone line answered by the monitors. I

3

Appellant also alleged that her former supervisor threatened to bomb the employing establishment if an
employee did not leave the building. When the employee left the building and got into a vehicle, the supervisor
pulled a gun out and beat the employee. Appellant became fearful of the supervisors. She complained and the
supervisor increased the harassment. In January 2003, the supervisor physically injured appellant’s finger.

3

had never had to call or talk with security to assist anyone when referencing
anyone being ‘AFRAID’ to walk to their car alone.”4 (Emphasis in the original.)
By decision dated August 29, 2006, the Office noted that the October 31, 2005 decision
denied appellant’s claim because the medical evidence did not establish that her condition was
due to the May 18, 2005 employment incident. The Office found that it had previously
adjudicated the incidents appellant described as occurring on dates other than May 18, 2005
under other claim numbers. The Office determined that appellant did not establish a
compensable employment factor on May 18, 2005 and modified the October 31, 2005 decision to
show no compensable employment factors and, thus, no injury in the performance of duty.
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 her 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.5 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.6
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.7 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.8
ANALYSIS
Appellant argued that she experienced fear on May 18, 2005 in part because she felt
unsafe at work as the lighting in the parking lot was dim and the gate often left open. The Board
4

Appellant also submitted additional medical evidence with her request for reconsideration.

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

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

8

Id.

4

has recognized that unsafe work conditions may constitute a factor of employment.9 Appellant,
however, has not submitted any evidence establishing that she was endangered while performing
the duties of her employment. Her emotional reaction is, thus, considered self-generated as it
resulted from her perception regarding her work environment,10 nor did she submit evidence to
substantiate her allegations of harassment by her coworkers.
Appellant attributed her delusional disorder to receiving a telephone call on May 18,
2005 from an attorney requesting an escort to her vehicle.11 The attorney related that she was
afraid to walk to the parking lot alone. Appellant notified the police officer on duty, who told
her to have the attorney report to the police unit for an escort. Following the telephone call, she
became nervous and unable to concentrate on her employment duties. Appellant stated, “After
relaying the information back to the clerk on the telephone I continued my duties. As I
attempted to open an entrance for someone I was unable to do so because I suddenly became
fearful. I was trembling and forgetful, therefore, I could not perform the computer operations to
open the entrance. My attention was focused on the statement that the [a]ttorney was ‘afraid.’”
In a statement dated September 13, 2004, Ms. Perry, a police officer, confirmed that she spoke
with appellant about an attorney who wanted an escort to her vehicle. She did not remember
whether appellant had difficulties with her employment duties after receiving the telephone call.
In a statement dated October 5, 2005, Ms. Hall, a coworker, described appellant as “upset and
shaky” on May 18, 2005 when she told her about a telephone call from an attorney who wanted a
police escort to the parking lot. Appellant told her that receiving the telephone call “triggered
her to experience fearfulness and a panicky feeling and [she] could not remember what to do on
the computer.”
Appellant submitted witness statements supporting that she received a telephone call
from an attorney requesting an escort to the parking lot. At the time she received the telephone
call she was performing her duties as a CCTV monitor. As a result of receiving the telephone
call, appellant alleged that she became frightened and experienced difficulty performing her job
duties. The Office found that her emotional reaction was self-generated because she was not in
any actual danger. Whether appellant was in actual danger, however, is not determinative of
whether her emotional reaction falls within coverage of the Act. The Board has long held that
where a claimed disability results from an employee’s emotional reaction to her regular or
specially assigned duties or to an imposed employment requirement, the disability comes within
coverage of the Act.12 As appellant attributed her emotional condition to the performance of her
regular or specially assigned work duties on May 18, 2005 the case presents a medical question
regarding whether her emotional condition resulted from the compensable employment factor.
The Office found that there were no compensable employment factors in its last merit decision
and thus, did not analyze or develop the medical evidence. The case will be remanded to the

9

David S. Lee, 56 ECAB ___ (Docket No. 04-2133, issued June 20, 2005).

10

Id.

11

The Board will not address work incidents occurring on dates other than May 18, 2005 as the Office indicated
that it had adjudicated these allegations in other claims.
12

Penelope C. Owens, 54 ECAB 684 (2003).

5

Office for this purpose.13 After such further development as deemed necessary, the Office
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 decisions of the Office of Workers’
Compensation Programs dated August 29, 2006, December 19 and October 31, 2005 are set
aside and the case is remanded for further proceedings consistent with this decision of the Board.
Issued: March 19, 2007
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

13

Robert Bartlett, 51 ECAB 664 (2000).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
R.C., Appellant
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and
)
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SOCIAL SECURITY ADMINISTRATION,
)
OFFICE OF THE DEPUTY COMMISSIONER,
)
Savannah, GA, Employer
)
___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1904
Issued: May 5, 2011

Case Submitted on the Record

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

JURISDICTION
On July 13, 2010 appellant’s representative filed a timely appeal from a June 9, 2010
Office of Workers’ Compensation Programs’ schedule award decision. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has an
impairment caused by his accepted employment injuries that would entitle him to a schedule
award.
FACTUAL HISTORY
On July 31, 2003 appellant, then a 49-year-old claims representative, filed a traumatic
injury claim alleging that on June 26, 2003, he sustained a back injury in the performance of
1

5 U.S.C. § 8101 et seq.

duty. He stopped work on July 28, 2003. On September 30, 2003 the Office accepted the claim
for lumbar radiculitis, unspecified thoracic/lumbar neuritis and displaced lumbar disc. It
authorized surgery that appellant underwent on March 31, 2006, which included the removal of
spinal lamina at L4-5 and lumbar spine fusion at L4-5. The Office paid wage-loss benefits.
On October 21, 2009 appellant’s representative filed a claim for a schedule award.2
By letter dated November 4, 2009, the Office requested that appellant obtain a report
from his treating physician, and provide an evaluation of permanent impairment. It advised him
that he should submit a report utilizing the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (6th ed. 2008) (A.M.A., Guides). No further medical
evidence was submitted.
On December 21, 2009 the Office denied appellant’s claim for a schedule award. It
found that the medical evidence of record did not establish any permanent impairment to a
scheduled member or function of the body.
On December 28, 2009 appellant’s attorney requested a telephonic hearing, which was
held on March 19, 2010. Counsel requested that the matter be held open for 30 days to obtain a
medical report addressing permanent impairment. No additional medical evidence was
submitted.
In a June 9, 2010 decision, an Office hearing representative affirmed the December 21,
2009 decision.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.3
Section 8107 of the Act sets forth the number of weeks of compensation to be paid for
the permanent loss of use of specified members, functions and organs of the body.4 The Act,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the

2

The record reflects that the Office denied an earlier claim for a schedule award in an August 18, 2005 decision.

3

Veronica Williams, 56 ECAB 367 (2005).

4

5 U.S.C. § 8107.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

2

appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.7
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.8 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award. Appellant failed to establish any permanent impairment in accordance with the sixth
edition of the A.M.A., Guides.
The Office accepted appellant’s claim for lumbar radiculitis, unspecified thoracic/lumbar
neuritis and displaced lumbar disc. It approved his March 31, 2006 low back surgery.
Appellant claimed a schedule award on October 21, 2009; however, he did not submit
any medical evidence from a physician finding that he sustained permanent impairment of a
scheduled body member, caused or aggravated by his accepted conditions. The Office requested
that he obtain such information from his physician in a letter dated November 4, 2009.
Appellant was allowed the opportunity following the March 19, 2010 hearing to provide medical
evidence, but no medical evidence was received. Appellant did not submit any other medical
evidence to support that he was entitled to a schedule award, under the sixth edition of the
A.M.A., Guides, for a scheduled member of the body under the Act. Accordingly, the Board
finds that appellant has not established entitlement to a schedule award.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
entitled to a schedule award.

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 9, 2010 is affirmed.
Issued: May 5, 2011
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 16-0006
Issued: November 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 23, 2015 appellant filed a timely appeal from a July 7, 2015 merit decision
and an August 14, 2015 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 the case.2

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R.
§ 501.5(b). By order dated March 14, 2016, the Board denied the request, finding that the arguments on appeal
could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket
No. 16-0006 (issued March 14, 2016). The Board’s Rules of Procedure provide that any appeal in which a request
for oral argument is not granted by the Board will proceed to a decision based on the case record and any pleadings
submitted. 20 C.F.R. § 505.5(b).

ISSUES
The issues are: (1) whether OWCP met its burden of proof to reduce appellant’s
monetary benefits based on her capacity to earn wages in the constructed position of customer
complaint clerk; and (2) whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that she was not sufficiently notified that a February 2015
medical appointment would be determinative of her workers’ compensation rights, that her
rehabilitative training was inadequate, and that, based on an October 23, 2011 letter from
OWCP, she is entitled to continue to receive periodic wage-loss compensation.
FACTUAL HISTORY
On March 18, 2011 appellant, then a 51-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that she injured the fifth toe of her left foot the previous day
when a patient in a wheelchair ran over her foot. The employing establishment removed her
from employment on March 30, 2011, when her temporary appointment ended.3
On April 5, 2011 Dr. Justin Franson, a podiatrist, performed open reduction, internal
fixation of the left fifth metatarsal. On May 10, 2011 OWCP accepted left foot fracture.
Appellant received wage-loss compensation benefits and was placed on the periodic
compensation rolls. An October 4, 2011 letter informing appellant of her periodic compensation
payments notified her that she would receive periodic payments “for the period from
[October 23, 2011] until you have been placed in suitable modified work.”
In October 2011, OWCP referred appellant to Dr. Richard P. Pollis, a Board-certified
orthopedic surgeon, for a second-opinion evaluation to determine her work capacity. In a
November 7, 2011 report, he diagnosed left foot pain status post left fifth metatarsal surgery.
Dr. Pollis advised that, upon recovery from the surgery in approximately six months, appellant
could resume gainful employment. He provided six-month restrictions of no walking or
standing.4
In April 2012, appellant was referred to Dr. John F. Lawrence, Board-certified in
orthopedic surgery, for a second-opinion evaluation. In a May 2, 2012 report, Dr. Lawrence
noted her complaint of continued left foot pain and a history of back pain resulting from a 2000
nonemployment-related motor vehicle accident. Following physical examination, he diagnosed
status post crushing injury to the left foot with complex regional pain syndrome. Dr. Lawrence
recommended pain management and advised that appellant had not reached maximum medical
improvement. He advised that she could not return to a nursing assistant position, but was a
3

The temporary appointment was made effective January 30, 2011, to run until March 1, 2011. It was extended
on March 2, 2011, to run through March 31, 2011. The employing establishment indicated that appellant worked
eight-hour shifts.
4

Appellant filed a schedule award claim on July 19, 2011. On March 1, 2012 OWCP informed her that, because
her condition was not permanent and stationary, it was premature to develop a schedule award. Appellant was
informed that she should file another schedule award claim when her condition became permanent.

2

candidate for vocational rehabilitation. Dr. Lawrence provided restrictions including no walking
or standing.
On September 18, 2012 OWCP expanded the accepted conditions to include fracture of
other tarsal and metatarsal bones, closed, left, and other mononeuritis of the left fifth metatarsal
(sural nerve). Surgical sural nerve resection was authorized on September 25, 2012. On
February 4, 2012 Dr. Justin J. Franson, a podiatrist, noted that appellant was scheduled for
ambulatory surgery the next day. A copy of the operative report is not in the case record. In a
follow-up treatment note, dated February 12, 2013, a medical student noted that appellant was
doing well, ambulating on crutches.
On April 11, 2013 the employing establishment informed OWCP that at the time
appellant was temporarily appointed in 2011, it was and continued to be a requirement that a
nursing assistant be a United States citizen. It stated that she had recently been forwarded a new
application, and that it had been discovered that she was not a United States citizen. Therefore,
appellant would not be offered a modified position.
A May 8, 2013 functional capacity evaluation demonstrated that appellant could perform
sedentary work with her physician’s approval. On June 14, 2013 Dr. Jeffrey Spina, a Boardcertified internist and chief of employee health at the employing establishment, advised that
appellant was permanent and stationary with regard to her employment injury and did not meet
the strength requirements to return to full-time work as a nursing assistant.
In June 2013, appellant was referred to a rehabilitation specialist for vocational
rehabilitation services. A second functional capacity evaluation was done on July 16, 2013. The
report demonstrated that appellant could perform sedentary duties and advised that it would be
beneficial for her to begin working four hours a day and gradually increase to eight hours a day
as her left foot continued to heal.5 On a work capacity evaluation (OWCP Form 5c) dated
August 1, 2013, Dr. Spina advised that appellant could no longer perform her usual position due
to permanent limited ambulation and standing, but could work eight hours of restricted duty
daily. He noted that she could walk for four hours, stand for six hours, twist, bend, and stoop for
four hours, reach above the shoulder, push, pull, and kneel for two hours, climb for one hour’
and had a 50-pound restriction on pushing and pulling. Dr. Spina further found that appellant
should not walk distances greater than 150 feet at a time with no fast-paced walking, no
crawling, and could lift and carry 11 to 15 pounds intermittently, and 0 to 10 pounds
continuously.
In her initial intake report, the rehabilitation specialist noted that appellant had worked as
a certified nurse assistant for at least 10 years. Appellant had vocational testing on August 21,
2013 and a transferable skills analysis on August 30, 2013. The rehabilitation specialist
identified the positions of customer complaint clerk and receptionist, and completed a labor
market survey for each position on September 16, 2013. These included a job description for
5

In an undated report, Dr. Spina advised that, as appellant was no longer an employee at the employing
establishment and was a nonveteran, she was no longer eligible for continued care at the employing facility. On
August 1, 2013 the employing establishment forwarded his report to her and advised that she should seek private
treatment.

3

each position. The rehabilitation specialist indicated that each position was within the physical
restrictions provided by Dr. Spina and were available in the local commuting area. A vocational
rehabilitation plan for computer and customer service skills training for these positions was
approved on September 27, 2013. Appellant began training on September 30, 2013 and
completed training on March 27, 2014.
A telephone conference was held on May 21, 2014 with appellant, the vocational
rehabilitation specialist, and an OWCP claims examiner participating. The placement phase of
vocational rehabilitation and appellant’s responsibilities for seeking employment were discussed.
Appellant indicated that she was having thyroid surgery on May 29, 2014. Job development and
search activity continued.
On August 5, 2014 OWCP forwarded an OWCP Form CA-1032 to appellant for
completion. It also asked her to provide a narrative medical report within 30 days. On
September 29, 2014 OWCP noted that appellant had been last seen for her foot condition at the
employing establishment health clinic on June 12, 2013.
Rehabilitation services were closed on October 16, 2014. The rehabilitation specialist
submitted extensive labor market surveys for the positions of customer complaint clerk and
receptionist and provided updated job classification reports with updated salary information
reflecting a starting salary ranging from $10.00 to $17.00 per hour for the customer complaint
clerk and $10.00 to $16.00 per hour for the receptionist position.
In a January 14, 2015 letter, OWCP informed appellant that a second-opinion evaluation
was being made. Appellant was informed that the purpose of the examination was to “provide us
with additional evidence on the nature of your condition, the extent of disability, and appropriate
treatment.” On January 16, 2015 she was notified that an appointment was made with Dr. Ghol
Bahman Ha-Eri, a Board-certified orthopedic surgeon.
In a February 20, 2015 report, Dr. Ha-Eri noted his review of the statement of accepted
facts and medical record. He described appellant’s work injury, her subsequent medical care,
and her complaint of mild pain in the outer border of the left foot. Dr. Ha-Eri indicated that she
wore regular shoes, had a normal gait, and walked without assistance. Physical examination
demonstrated mild tenderness over surgical scars on the left foot, with normal ankle range of
motion and satisfactory peripheral circulation in the left foot. Neurological examination
demonstrated decreased sensation in the outer border of the left foot. Strength was 5/5 in the left
ankle and foot. Dr. Ha-Eri diagnosed soft tissue contusion secondary to being run over with an
electric wheelchair, and two prior surgical procedures on the left fifth metatarsal. In response to
OWCP questions, he reported that appellant had only subjective mild pain and, objectively, she
had scar of prior surgery and decreased sensation in the outer border of the left foot. Dr. Ha-Eri
advised that she did not need further medical care for her accepted left foot condition. He
reported that appellant could work an eight-hour day for 40 hours a week, but she could not
perform the duties of a nursing assistant, mainly due to the residual subjective pain and left foot
scarring. Dr. Ha-Eri reviewed descriptions of the receptionist and customer complaint clerk
positions and advised that she could perform both. In an attached work capacity evaluation
(OWCP Form 5c), he advised that appellant had indefinite restrictions of four hours of walking
and standing with no squatting and one hour of climbing.

4

On May 28, 2015 appellant informed OWCP that she had been performing volunteer
work at a private-sector employing establishment for three days a week.
By letter dated June 5, 2015, OWCP proposed to reduce appellant’s compensation, based
on her capacity to earn wages as a customer complaint clerk, DOT No. 241.367-014. It noted
that on June 14, 2013 Dr. Spina had advised that her condition was medically stationary and,
based on his opinion, she was referred for vocational rehabilitation and completed authorized
training. The June 5, 2015 notice also described Dr. Ha-Eri’s restrictions and indicated that the
customer complaint clerk position was selected as being the most appropriate, based upon the
rehabilitation counselor’s review of appellant’s work history and transferrable skills analysis. It
described the physical requirements of the position as sedentary with occasional handling of
items weighing up to 10 pounds and noted that the job did not involve climbing, balancing,
stooping, kneeling, crouching, or crawling.6 OWCP indicated that, based on recent wage and
position information, the customer complaint clerk position was reasonably available at an entry
pay level of $400.00 per week. It recommended that appellant’s wage-loss compensation be
reduced to zero because the pay rate of the selected position was equal to or greater than the
current pay rate of the job held when injured.
In a telephone call on June 30, 2015 appellant disagreed with the proposed reduction.
By decision dated July 7, 2015, OWCP reduced appellant’s wage-loss compensation
based on her capacity to earn wages as a customer complaint clerk. It reduced her compensation
to zero because the pay rate of the selected position was equal to or greater than the current pay
rate of the job held when injured.
On an OWCP Appeal Request Form dated July 22, 2015, received by OWCP on July 27,
2015, appellant requested reconsideration. She submitted nothing further.
In a nonmerit decision dated August 14, 2015, OWCP denied further review of the merits
of the claim. It noted that appellant did not submit a statement, or factual or medical evidence to
support this request.

6

The duties of the customer complaint clerk (DOT No. 241.367-014) were described in the Department of
Labor’s Dictionary of Occupational Titles (DOT) as: Investigates customer complaints about merchandise, service,
billing, or credit rating: Examines records, such as bills, computer printouts, microfilm, meter readings, bills of
lading, and related documents and correspondence, and converses or corresponds with customer and other company
personnel, such as billing, credit, sales, service, or shipping, to obtain facts regarding customer complaint.
Examines pertinent information to determine accuracy of customer complaint and to determine responsibility for
errors. Notifies customer and designated personnel of findings, adjustments, and recommendations, such as
exchange of merchandise, refund of money, credit of customer’s account, or adjustment of customer’s bill. May
recommend to management improvements in product, packaging, shipping methods, service, or billing methods and
procedures to prevent future complaints of similar nature. May examine merchandise to determine accuracy of
complaint. May follow up on recommended adjustments to ensure customer satisfaction. May key information into
computer to obtain computerized records. May trace missing merchandise and be designated tracer clerk (clerical).
May investigate overdue and damaged shipments or shortages in shipments for common carrier and be designated
over-short-and-damage clerk (clerical). May be designated according to type of complaint adjusted as bill adjuster
(clerical); merchandise-adjustment clerk (retail trade); service investigator (utilities, tel. & tel.). The position was
classified as sedentary.

5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.7 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.8
Section 8115 of FECA and section 10.520 of OWCP regulations provide that wageearning capacity is determined by the actual wages received by an employee if the earnings fairly
and reasonably represent his or her wage-earning capacity. If the actual earnings do not fairly
and reasonably represent wage-earning capacity or the employee has no actual earnings, the
wage-earning capacity is determined with due regard to the nature of the injury, the degree of
physical impairment, the employee’s usual employment, age, qualifications for other
employment, the availability of suitable employment, and other factors or circumstances which
may affect his or her wage-earning capacity in the disabled condition.9
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the
condition.10 Additionally, the Board has held that a wage-earning capacity determination must
be based on a reasonably current medical evaluation.11
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position listed in the Department of Labor’s DOT or otherwise
available in the open market, that fits that employee’s capabilities with regard to his or her
physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service.12 Finally, application of
the principles set forth in Albert C. Shadrick,13 as codified in section 10.403 of OWCP
regulations,14 will result in the percentage of the employee’s loss of wage-earning capacity.15
7

James M. Frasher, 53 ECAB 794 (2002).

8

20 C.F.R. §§ 10.402 and 10.403; John D. Jackson, 55 ECAB 465 (2004).

9

5 U.S.C. § 8115; Id. at § 10.520; John D. Jackson, id.

10

William H. Woods, 51 ECAB 619 (2000).

11

John D. Jackson, supra note 8.

12

Supra note 7.

13

5 ECAB 376 (1953).

14

20 C.F.R. § 10.403.

15

Supra note 7.

6

In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.16
ANALYSIS -- ISSUE 1
OWCP based its July 7, 2015 wage-earning capacity decision on appellant’s capacity to
earn wages as a customer complaint clerk. It must initially determine a claimant’s medical
condition and work restrictions before selecting an appropriate position that reflects her wageearning capacity. The medical evidence upon which OWCP relies must provide a detailed
description of the condition.17 In a February 20, 2015 report, Dr. Ha-Eri noted his review of the
position description for the customer complaint clerk job and advised that appellant could
perform the job duties described. While he provided restrictions of no more than four hours
standing and walking, the position selected was sedentary, and its physical requirements were
within his restrictions. Moreover, they are also within the restrictions provided by Dr. Spina, an
attending physician, who advised on August 1, 2013 that appellant could work eight hours of
modified duty daily. Appellant, thus, has the physical capacity to perform the duties of the
selected position.18
The Board also finds that appellant had the necessary vocational and educational
preparation for the selected position of customer complaint clerk. Appellant successfully
completed computer and customer service training in March 2014, and has a substantial
employment history as a certified nursing assistant.
The vocational rehabilitation counselor advised that the position of customer complaint
clerk was reasonably available in the local labor market with an entry-level weekly wage of
$400.00.
The Board finds that OWCP considered the appropriate factors in determining that the
customer complaint clerk position represented appellant’s wage-earning capacity.19 These
factors included availability of suitable employment and her physical limitations, usual
employment, age and employment qualifications.20 The evidence established that appellant had
the requisite physical ability, skill, and experience to perform the position and that such a
position was reasonably available within the general labor market of her commuting area.
16

John D. Jackson, supra note 8.

17

Supra note 10.

18

Id.

19

John D. Jackson, supra note 8.

20

Id.

7

OWCP, therefore, properly determined that the position of customer complaint clerk reflected
her wage-earning capacity, and properly reduced her compensation to zero on July 7, 2015
because the pay rate of the selected position was greater than her date-of-injury salary.21
On appeal, appellant maintained that she was not informed that a February 2015 secondopinion evaluation would be determinative of her workers’ compensation rights. However, the
January 14, 2015 letter OWCP sent her notifying her of the examination clearly stated that “this
evaluation will provide us with additional evidence on the nature of your condition, the extent of
disability, and appropriate treatment.”
Regarding her assertion that she received insufficient vocational rehabilitation training,
appellant was referred to the vocational rehabilitation specialist in June 2013. A rehabilitation
plan for computer and customer service skills was approved on September 27, 2013. Appellant
began training on September 30, 2013 completed it successfully on March 27, 2014 and began
job development and search activity that continued until October 14, 2014 when rehabilitation
services were closed. The fact that a claimant is unable to secure employment does not establish
that the constructed position is not vocationally suitable.22
Finally, appellant’s insistence that she is entitled to continue to receive periodic wageloss compensation based on an OWCP letter is without merit. While the October 4, 2011 OWCP
letter advised that she would receive periodic wage-loss compensation payments for the period
from October 23, 2011 “until [appellant has] been placed in suitable modified work,” the letter
further states that “a partially disabled employee shall be paid compensation based on the
difference between the monthly pay and the employee’s wage-earning capacity, as determined
by the employee’s actual earnings or by OWCP.” In this case, as appellant had no actual
earnings, OWCP properly determined that the customer complaint clerk position reflected her
wage-earning capacity and properly reduced her compensation to zero on July 7, 2015 because
the pay rate of the selected position was greater than her date-of-injury salary.23
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.24 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meet at least one of the standards enumerated in section

21

James Smith, 53 ECAB 188 (2001).

22

Lawrence D. Price, 54 ECAB 590 (2003).

23

Supra note 21.

24

5 U.S.C. § 8128(a).

8

10.606(b)(3).25 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (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.26 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.27
ANALYSIS -- ISSUE 2
With her July 22, 2015, 2015 reconsideration request, appellant did not submit any
documentation, but merely checked on an OWCP form that she was requesting reconsideration.
She, therefore, did not show that OWCP erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant was not entitled to a review of the merits of the claim based on the first and second
above-noted requirements under section 10.606(b).28 As to the third above-noted requirement
under section 10.606(b)(2), she submitted no additional evidence.
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by OWCP, OWCP properly denied her reconsideration
request.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of customer complaint
clerk, and that OWCP properly denied her request for reconsideration pursuant to 5 U.S.C.
§ 8128(a).

25

20 C.F.R. § 10.608(a).

26

Id. at § 10.608(b)(3).

27

Id. at § 10.608(b).

28

Id. at § 10.606(b).

9

ORDER
IT IS HEREBY ORDERED THAT the August 14 and July 7, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, TOMS RIVER POST
OFFICE, Toms River, NJ, Employer
__________________________________________

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

Docket No. 10-1701
Issued: May 3, 2011

Case Submitted on the Record

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

JURISDICTION
On June 15, 2010 appellant, through her attorney, filed a timely appeal from a
February 9, 2010 nonmerit decision of the Office of Workers’ Compensation Programs denying
her request for reconsideration. As the last merit decision, May 8, 2009, was issued more than
180 days from the filing of the appeal, the Board lacks jurisdiction to review the merits of the
case, pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request to reopen her case for
further review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 23, 2007 appellant, then a 59-year-old rural carrier, injured her left knee,
neck and shoulder in a motor vehicle accident. The Office accepted the claim for a neck sprain,
a left knee contusion, right shoulder rotator cuff syndrome and right bicipital tenosynovitis.
Appellant stopped work on April 19, 2007.
On February 26, 2008 Dr. Saqib Rehman, an attending Board-certified orthopedic
surgeon, diagnosed rotator cuff tendinosis with a partial tear and bicipital tendinitis and found
that appellant was totally disabled. On March 4, 2008 Dr. Irvin D. Strouse, a Board-certified
orthopedic surgeon, diagnosed resolved cervical sprain and adhesive capsulitis of the right
shoulder. He found that appellant could work part time with restrictions.
The Office determined that a conflict in medical opinion arose between Dr. Rehman and
Dr. Strouse regarding appellant’s work capability. It referred her to Dr. Ian B. Fries, a Boardcertified orthopedic surgeon, for an impartial medical examination. On September 19, 2008
Dr. Fries diagnosed resolved neck sprain, degenerative cervical disc disease, right trapezius
myalgia, right rotator cuff and bicipital tendinitis, a partial tear of a degenerative cuff and
acromioclavicular and glenohumeral arthritis. In a work restriction evaluation, he found that she
could work eight hours per day with restrictions on reaching above her shoulder and pushing,
pulling and lifting less than 20 pounds. Dr. Fries stated:
“A relationship of [appellant’s] current symptoms and pathology to the
January 23, 2007 motor vehicle accident is not established. She confirms no
shoulder symptoms until three and a half weeks after the accident. Rotator cuff
tendinitis, partial tendon tears and acromioclavicular arthritis -- all MRI [magnetic
resonance imaging] [scan] findings -- are common degenerative conditions that
occur spontaneously, and are expected to advance.
“The Office has accepted the conditions of a neck sprain, left knee contusion
[fully resolved], right rotator cuff syndrome, and right bicipital tendinitis. I
disagree these right shoulder pathologies are causally related to the January 24,
2007 accident. However, if the Office determination stands, than limitations I
provided on the attached OWCP-5c should be considered due to the accident.”
By decision dated May 8, 2009, the Office terminated appellant’s compensation benefits
and authorization for medical treatment effective May 9, 2009. It found that the opinion of
Dr. Fries was entitled to special weight and established that she had no further employmentrelated disability or condition. The Office determined that the work restrictions provided by
Dr. Fries were due to a degenerative right shoulder condition unrelated to her work injury.
On November 10, 2009 appellant, through her attorney, requested reconsideration. He
noted that Dr. Strouse, the second opinion physician, diagnosed adhesive capsulitis of the rotator
cuff and found that she could not perform her usual employment. Counsel argued that Dr. Fries
supported that appellant was unable to return to her date-of-injury position. He asserted that
Dr. Fries’ opinion was inconsistent and he disagreed that the right rotator cuff syndrome and
right bicipital tendinitis were due to the employment injury but that “if the [O]ffice determination

2

stands, then limitations I provided on the attached OWCP-5 should be considered due to the
accident.” Counsel argued that the Office erred in terminating appellant’s compensation as the
medical evidence supported that she had residuals of her employment injury and was unable to
return to her usual employment.
By decision dated February 9, 2010, the Office denied appellant’s request for
reconsideration after finding that the arguments raised were insufficient to warrant reopening the
case for further merit review. It found that counsel’s argument that Dr. Fries found that she
could not resume her usual employment was not substantive as he found that her right shoulder
condition was degenerative in nature and unrelated to the January 23, 2007 work injury.
On appeal appellant’s attorney argues that the Office failed to meet its burden to
terminate compensation. He further contends that it erred in failing to reopen the case for further
review of the merits. Counsel asserts that both Dr. Strouse and Dr. Fries determined that
appellant was unable to return to her regular employment due to residuals of her work injury.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,2
the Office’s regulations provide that 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.3 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.4 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.5
In order to require merit review, it is not necessary that the new evidence be sufficient to
discharge appellant’s burden of proof. Instead, the requirement pertaining to the submission of
evidence in support of reconsideration only specifies that the evidence be relevant and pertinent
and not previously considered by the Office.6
ANALYSIS
The Office accepted that appellant sustained neck sprain, a contusion of the left knee,
right shoulder rotator cuff syndrome and right bicipital tenosynovitis as the result of a
2

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

See Donald T. Pippin, 54 ECAB 631 (2003); Mark H. Dever, 53 ECAB 710 (2002).

3

January 23, 2007 motor vehicle accident. It paid her compensation for total disability beginning
April 19, 2007. The Office terminated appellant’s compensation effective May 9, 2009 based on
its finding that the opinion of Dr. Fries, the impartial medical examiner, constituted the weight of
the medical evidence and established that she had no further employment-related disability or
condition. It noted that he provided some work restrictions for the right shoulder but found that
the restrictions were not employment related but instead due to a progressive, degenerative
shoulder condition.
On November 10, 2009 appellant’s attorney requested reconsideration. On appeal to the
Board and in his request for reconsideration to the Office, he argued that Dr. Fries’ opinion was
insufficient to support the termination of compensation and medical benefits as the report was
inconsistent regarding whether she remained disabled from employment due to her work injury.
Counsel noted that he provided restrictions for the right shoulder due to her right rotator cuff
syndrome and right bicipital tendinitis. While Dr. Fries indicated that he believed that these
conditions were not due to the motor vehicle accident, he further provided that, if the Office
accepted these conditions as work related, then his work limitations “should be considered due to
the accident.” Counsel’s argument is relevant, not previously considered and pertinent to the
issue of whether the Office properly terminated appellant’s compensation benefits based on the
opinion of Dr. Fries. As appellant has advanced a legal argument not previously considered by
the Office, she is entitled to a review of the merits of her claim under section 10.606(b) of the
Office’s regulations.7 The case will be remanded for this purpose.
CONCLUSION
The Board finds that the Office improperly denied appellant’s request to reopen her case
for further review of the merits of her claim under section 8128.

7

See L.T., Docket No. 09-1798 (issued August 5, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 3, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Columbia, SC, Employer
__________________________________________

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

Docket No. 13-1572
Issued: November 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 14, 20131 appellant filed a timely appeal of a December 17, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for an
occupational disease. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on December 17, 2012, the 180-day computation begins December 18, 2012. One hundred
eighty days from December 17, 2012 was June 17, 2013. Since using June 20, 2013, the date the appeal was
received by the Clerk of the Board, 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 June 14, 2013, which renders the appeal timely
filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease due to his federal employment duties.
FACTUAL HISTORY
On October 12, 2012 appellant, then a 62-year-old environmental work leader, filed a
occupational disease claim alleging degenerative arthritis due to his work requirements of
extensive walking, standing, bending, cleaning, moving and lifting. He first became aware of his
condition on September 4, 2010 and first attributed it to his employment on that date. Appellant
stated that he developed a knee condition in September 2010 and used sick leave from
February 10 through April 9, 2012 when he resigned.
Dr. Royce Zobell, a Board-certified radiologist, reviewed x-rays dated September 23,
2009 and found bilateral medial compartment osteoarthritis and femoral patellar osteoarthritis on
the left. On November 23, 2011 Dr. Catherine C. Sarbah, an internist, examined appellant and
noted his knee condition. She diagnosed bilateral knee arthritic pain left worse than right,
hypertension and mild hyperlipidemia. Dr. Sarbah reviewed appellant’s x-rays on November 25,
2011 and diagnosed degenerative arthritis of both bilateral knees.
Dr. Manisha Ashokkumar Patel, a physician Board-certified in physical medicine and
rehabilitation, examined appellant on January 20, 2012. He noted a history of chronic mild knee
pain over a two-year period, which progressively worsened denying the prior two months.
Dr. Patel found normal gait and crepitus in the left knee with medial joint line tenderness. He
diagnosed left knee degenerative joint disease. On February 27, 2012 Dr. Patel stated that
appellant had increased knee pain and that she advised that his job was making the pain worse.
He found crepitus in appellant’s left knee and diagnosed left knee degenerative joint disease.
On June 18, 2012 Dr. John R. Chu, a Board-certified orthopedic surgeon, diagnosed knee
arthralgia and osteoarthritis involving the knee. Appellant underwent a magnetic resonance
imaging (MRI) scan of his left knee on August 28, 2012. It demonstrated a moderate degree of
degenerative joint disease in the patellofemoral and femorotibial joint compartments of the left
knee and moderate-sized joint effusion.
In a letter dated November 5, 2012, OWCP requested that appellant submit a detailed
medical report addressing the dates of treatment, his symptoms, the results of tests and a
diagnosis as well as an opinion on the how work activities caused or contributed to his diagnosed
condition. It allowed him 30 days for a response.
By decision dated December 17, 2012, OWCP denied appellant’s claim, finding that he
did not submit sufficient medical evidence to establish that his knee condition was causally
related to his federal employment.

2

LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”3 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon a complete factual and medical background, addressing the causal
relationship between the claimed condition and identified factors. The belief of a claimant that a
condition was caused or aggravated by the employment is not sufficient to establish causal
relation.4
ANALYSIS
OWCP accepted that appellant performed employment duties that required extensive
walking. It found that he failed to submit sufficient medical evidence to establish the causal
relationship of his degenerative diagnosed condition due to his employment duties. OWCP
stated that appellant failed to submit any medical evidence.
The Board finds that appellant has performed extensive walking, standing, bending,
cleaning, moving and lifting. Appellant submitted medical evidence from Drs. Zobell, Sarbah,
Patel and Chu diagnosing bilateral osteoarthritis and degenerative joint disease of the left knee.
However, the Board finds that the physicians of record did not provide adequate medical opinion
to establish a causal relationship between the diagnosed knee condition and his accepted
employment duties.
Dr. Patel’s February 27, 2012 note stated that appellant believed that his job was making
his knee pain worse. This is the only medical evidence listing possible relationship between
appellant’s employment and his diagnosed left knee condition. This report failed to provide the
physician’s opinion addressing how appellant’s knee condition was related to his employment;
rather Dr. Patel merely restated appellant’s belief that his job had worsened his left knee
condition. The Board has held that the belief of a claimant that a condition was caused or
aggravated by his or her employment is not sufficient to establish causal relationship.5 There is
no medical opinion from a physician that explains the causal relationship between appellant’s
3

20 C.F.R. § 10.5(q).

4

Lourdes Harris, 45 ECAB 545, 547 (1994).

5

Luis M. Villanueva, 54 ECAB 666 (2003).

3

diagnosed left knee condition and his employment. Appellant failed to meet his burden of proof
to establish an occupational disease.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a causal relationship between his diagnosed condition and his implicated factors of
employment.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Columbus, NM, Employer
__________________________________________

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

Docket No. 21-1284
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an
occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due
to factors of his federal employment. He noted that he first became aware of his condition and
first realized its relationship to his federal employment on March 27, 2019. On the reverse side of
the claim form D.C., an assistant port director for the employing establishment, noted that
appellant retired, effective August 31, 2018.
In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical and factual evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary information.
In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing
establishment reporting that appellant’s position at the employing establishment was primarily a
supervisory and administrative position that did not require constant exposure to the elements. He
noted that the port area was surrounded by open desert with the associated dust and wind. D.C.
provided a position description for an assistant port director.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish the alleged factors of his employment. It
specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding
how his federal employment caused or contributed to his claimed condition. OWCP, therefore,
concluded that the requirements had not been met to establish an injury as defined by FECA.
On September 25, 2019 appellant requested reconsideration. By decision dated
October 29, 2019, OWCP denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
On April 8, 2020 appellant, through counsel, requested reconsideration.
In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history
of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a
3

Docket No. 20-1477 (issued March 25, 2021).

2

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema.
Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work
environment” since he did not have a history of smoking.
By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019
decision.
Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board
affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to
establish an injury in the performance of duty, as alleged. 5
On May 14, 2021 appellant, through counsel, requested reconsideration. 6
Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021.
He indicated that he believed he developed emphysema while working as a customs inspector from
1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound
from Mexico. He reported that he worked an average of 64 hours per day and inspected an average
of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car
exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He
indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes
and dust. Appellant explained that he first noticed his condition changing in early 2015 when his
stamina and endurance declined and he developed a persistent cough. He noted that, at that time,
doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally
diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.
In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

4

A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of
an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized
centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography
report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing
capacity.
5

Supra note 3.

6
Although appellant claimed to be filing a request for reconsideration from the Board’s March 25, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP
decision is the appropriate subject of possible modification by OWCP.
7

Id.

3

limitation of FECA, 8 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he developed emphysema due to factors of his federal
employment. OWCP initially denied his claim finding that he had failed to establish that the
employment factors occurred as alleged. It specifically noted that appellant failed to respond to
OWCP’s request for a detailed statement regarding how his federal employment caused or
contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the
denial of his claim.
Following the Board’s March 15, 2021 decision, appellant submitted his response to
OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema
while working as a customs inspector for the employing establishment from 1988 to 2018.
Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and
inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that
he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements.
OWCP’s procedures provide that a description of job duties will almost always be required
to adjudicate an occupational disease claim. 12 It further notes that a claimant should usually be
asked to describe the physical and environmental requirements of the job, and the supervisor or
injury compensation specialist should review that statement and provide comments if there is any
8

D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
10

C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2).
(June 2011)

4

disagreement. 13 While the employing establishment responded to OWCP’s July 19, 2019
development letter, the Board notes that it provided information regarding appellant’s employment
duties as an assistant port director and provided a position description for an assistant port director.
Appellant, however, has not attributed his pulmonary condition to his employment duties as an
assistant port director, but to his employment as a customs inspector from 1988 to 2018. The
Board notes that OWCP did not request further information, including his position description as
a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s
contentions that he was exposed to vehicle fumes and/or environmental conditions. For this
reason, the Board finds that the case must be remanded for further development of the factual
evidence.14
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment.15 OWCP has an obligation to see
that justice is done. 16
On remand OWCP should obtain a detailed statement from the employing establishment
indicating whether it concurred with appellant’s allegations and a position description for a
customs inspector. If the employing establishment fails to respond to a request for comments on
appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17
Following this and any such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.

14

See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing
establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see
also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from
the employing establishment addressing appellant’s allegations regarding harassment at work).
15

D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
16

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket
No. 17-1671 (issued November 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2021 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: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6