United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lexington, KY, Employer
__________________________________________

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

Docket No. 09-1730
Issued: September 10, 2010

Case Submitted on the Record

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

JURISDICTION
On June 18, 2009 appellant filed a timely appeal of the October 23, 2008 and March 24,
2009 merit decisions of the Office of Workers’ Compensation Programs denying his emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
On appeal, appellant contends that the evidence of record establishes that the employing
establishment reduced his work hours, changed his attending physician’s orders and harassed
him and that his emotional condition is causally related to these employment factors.
FACTUAL HISTORY
On April 8, 2003 appellant, then a 45-year-old mail handler, filed an occupational disease
claim (Form CA-2) assigned Office File No. xxxxxx201 alleging that on May 5, 1999 he first

realized that his generalized anxiety with panic attacks, severe and recurrent major depression
without psychotic features and somatoform disorder were caused by harassment from Ralph
Gray, a manager of distribution operations, who gave him dirty looks, postal inspectors who
were sent to his home and the failure of Michael V. Thompson, a manager of post office
operations, and Don Stewart, a supervisor, to ensure that Mr. Gray properly managed him. He
submitted medical evidence dated July 22 and August 19, 2002 which addressed his emotional
condition.
By letter dated May 7, 2003, the Office granted appellant’s May 5, 2003 request to
withdraw his claim.
In a July 13, 2003 letter, appellant’s mother advised the Office that she helped appellant
complete claim forms because his depression and panic attacks prevented him from doing it
alone. Appellant submitted medical evidence dated July 5, 2002 to June 1, 2006 which
addressed his emotional condition.
In a July 2, 2007 letter, appellant contended that, following a May 1999 employment
injury, and being placed on permanent restrictions and found to have six percent whole person
impairment by Dr. Gregory T. Snider, an attending Board-certified family practitioner, he was
harassed by the employing establishment. He was questioned about being a drug dealer and
alcoholic. Appellant stated that witnesses could verify this harassment. He submitted medical
evidence dated August 10, 2002 which addressed his emotional condition.
1

On October 11, 2007 appellant filed another Form CA-2 assigned Office File No.
xxxxxx195, the current claim, reiterating his prior allegations regarding the actions of Mr. Gray,
postal inspectors, Mr. Thompson and Mr. Stewart. In an October 11, 2007 letter, he alleged that
when he returned to work on May 5, 1999 after receiving medical treatment for an injury,
Mr. Gray held his legs up and made a sexually explicit comment regarding the cause of injury.
Appellant stated that this incident was witnessed by Tony Williams, an employee. He contended
that, following the May 5, 1999 incident, management became hostile towards him. Appellant
received dirty looks from Mr. Gray who always checked with appellant’s supervisors to make
sure he was in the proper place. Mr. Gray instructed Mrs. Durham, a supervisor, to keep
appellant off the floor public address system. Appellant contended that in January 2001
Mr. Stewart, Mr. Thompson and Mr. Gray refused to provide him with permanent modified work
duties based on his 1999 work-related injury and Dr. Snider’s recommendation, while other
injured employees were provided with such work. He described his psychological and physical
symptoms and medical treatment. Appellant retired on disability from the employing
establishment as of March 20, 2003. He was investigated by postal inspectors for allegedly
selling pain medication.
By decision dated November 8, 2007, the Office denied appellant’s claim, finding that it
was not timely filed under the three-year time limitation of section 8122 of the Federal
Employees’ Compensation Act. In a January 31, 2008 decision, an Office hearing representative

1

Appellant filed a traumatic injury claim (Form CA-1) assigned File No. xxxxxx077 for a back injury he
sustained at work on May 2, 1999.

2

set aside the November 8, 2007 decision and remanded the case to the Office for further
development regarding the timeliness of appellant’s occupational disease claim.
In a February 19, 2008 letter, Deborah E. Miller, an employing establishment health and
resource manager, controverted appellant’s claim on the grounds that the evidence failed to
establish that he sustained an emotional condition in the performance of duty. The evidence of
record failed to establish that the employing establishment committed error or abuse with regard
to appellant’s allegations. Ms. Miller contended that the medical evidence failed to establish that
his emotional condition was causally related to the alleged employment factors.
By decision dated May 1, 2008, the Office denied appellant’s claim, finding that it was
not timely filed pursuant to section 8122 of the Act. In an August 14, 2008 decision, an Office
hearing representative reversed the May 1, 2008 decision, finding that appellant’s claim was
timely filed. The hearing representative remanded the case to the Office for further development
to determine whether appellant sustained an emotional condition in the performance of duty.2
Medical records dated July 22, 1997 to June 24, 2008 addressed appellant’s back and
emotional conditions.
In a June 6, 1999 narrative statement, appellant contended that management failed to
complete its portion of a recurrence of disability claim (Form CA-2a) that he filed on
June 2, 1999. He stated that Judy Dean, an injury compensation specialist, became mad at him
when he asked her for the Form CA-2a on June 1, 1999. Appellant contended that on May 4,
1999 Mr. Gray denied his request for sick leave and to seek treatment from an employing
establishment physician for a hip injury he sustained three days earlier. Mr. Gray ordered him to
go to a hospital instead. Appellant alleged that, despite being instructed by an emergency room
physician to seek medical treatment from an employing establishment physician in one to two
days, management did not allow him to do so until eight days later. Appellant further contended
that Mr. Gray failed to advise him to complete a new traumatic injury claim for the injury.
In narrative statements dated September 6, 2008, appellant alleged that, from 2001 to
2003, Mr. Gray required him to lift tubs weighing nearly 50 pounds which exceeded the
25-pound lifting restriction related to his 1999 employment injury. He was only given six hours
per day to complete the same work that other employees were allowed to perform in eight hours.
Management jumped on appellant when he fell behind in his work performance. He was forced
to use his own personal time to undergo six months of physical therapy from Dr. Snider which
prevented him from getting sufficient sleep to work on the night shift. Appellant stated that
employees on the day shift were given administrative leave to undergo medical treatment.
Peter A. Popichak, a supervisor, refused to file a report regarding the emotional condition he
sustained as a result of nearly falling 30 feet in 1997. Appellant sustained an emotional
condition while taking a class in Norman, Oklahoma.3 He was questioned by postal inspectors at
2

On August 28, 2008 the Office combined the claim assigned File No. xxxxxx201 and the claim assigned File
No. xxxxxx195 into a master claim assigned File No. xxxxxx195.
3

On October 26, 1997 appellant filed a Form CA-1 assigned File No. xxxxxx726 for the emotional condition he
attributed to the training class.

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his home on May 22, 2001. On January 28, 2001 appellant requested that Lanny Miller, chief
inspector, charge Mr. Thompson and Mr. Gray with workers’ compensation fraud for failing to
provide him with eight hours of work within his restrictions. Mr. Miller responded by jumping
in his face and cursing at him. On August 25, 1999 Mr. Gray physically threatened appellant
when he refused to follow his instructions which required him to work outside his restrictions.
Appellant stated that this incident was witnessed by employees including, Byron Weddle. By
letter dated September 6, 2008, he provided a list of current and ex-employees who witnessed the
alleged incidents.
In undated narrative statements, Clarence E. Harp, a union representative, stated that he
attended a meeting with appellant, Mark A. Williams, a supervisor, Mr. Stewart, an unidentified
injury compensation specialist and Dr. Snider regarding appellant’s ability to work full time. He
and appellant were informed by Mr. Williams that Mr. Thompson, Mr. Stewart and Mr. Gray
were mistreating appellant. Mr. Williams also stated that management refused to allow appellant
to work in eight-hour positions that were available and within his restrictions. Mr. Harp stated
that on May 19, 1999 a city supervisor, related to him that Mr. Gray directed the alleged sexual
comment towards appellant but he thought Mr. Gray was joking.
In a June 3, 1999 routing slip, Ms. Dean stated that appellant’s request for continuation of
pay was denied on May 31, 1999 due to his refusal to return to work despite Dr. Snider’s medical
opinion that he could perform limited-duty work, eight hours per day. She related that he was
not required to stand the entire eight-hour work shift. Appellant could sit. Ms. Dean denied
instructing him not to file a Form CA-2a on June 1, 1999. She advised appellant that, since his
claim was still open, as he was receiving medical treatment, he did not need to file a Form
CA-2a. Ms. Dean offered to give him a Form CA-2a anyway but he declined to file one.
In a September 22, 2008 narrative statement, Mr. Thompson related that appellant was
removed from the 235 operation, which required mail handlers to lift heavy bags and boxes
throughout their shift. This operation was the most physically demanding position for a mail
handler on Tour 1. Appellant was moved to driving a tow motor/forklift which required almost
no lifting or pushing. He worked the 111 walk-off which required lifting items weighing only a
couple of pounds. Appellant also worked as a dock expeditor which required almost no lifting,
pushing or pulling. In a September 23, 2008 narrative statement, Mr. Thompson related that he
interviewed Mr. Gray and Tony Williams who denied that the incidents alleged by appellant
occurred. He was unable to locate any witnesses to corroborate appellant’s allegations.
In a September 23, 2008 letter, Mark Williams stated that appellant was not required to
work outside his restrictions. The employing establishment strictly complied with the rules and
regulations governing work-related injuries. It continuously updated appellant’s limited-duty job
requirements as his restrictions were updated. Mr. Williams stated that management was unable
to provide him with eight hours of work due to his restrictions and the type of work that needed
to be completed. Appellant was paid compensation for the two hours he did not work.
Mr. Williams found it hard to believe that he was ever jumped on for failing to perform his
normal work duties. He stated that no employee was ever authorized administrative time to
attend therapy or any other appointments. Mr. Williams helped appellant complete the necessary
paperwork for compensation when he had therapy appointments and was unable to work due to
lack of sleep. He stated that appellant was investigated because Dr. Snider advised the

4

employing establishment that he was using much more medication than deemed necessary.
Dr. Snider advised management that appellant had reached maximum medical improvement and
that further treatment was terminated. Mr. Williams stated that, as the injury compensation
specialist assigned to appellant’s case during his prior injuries, his well being was not taken
lightly. He personally kept close contact with the supervisors of all injured employees to ensure
strict compliance with all rules and regulations. Appellant had many complaints about his case
and came to Mr. Williams’ office almost daily. On several occasions he became irate and almost
uncontrollable. When Mr. Williams felt threatened, he had appellant’s supervisors preschedule
his appointments.
In a September 23, 2008 letter, Deborah E. Miller, a health and resource manager,
contended that the medical evidence did not establish that appellant sustained an emotional
condition. She contended that he was not required to work outside his restrictions. Appellant’s
job was adjusted to accommodate changes in his restrictions. He worked six hours per day based
on his medical restrictions and availability of work within the given restrictions. Ms. Miller
stated that the mail processing operation was a 24-hour operation in which mail flowed
continuously. There was no requirement that a mail processing employee complete a certain
level of mail processing within a given shift. Whatever mail was not processed on a shift was
processed by the next shift. This occurred whether an employee worked six or eight hours.
Ms. Miller contended that there was no evidence establishing that appellant was required to
accomplish more work than any other employee. She stated that no employees received
administrative pay for physical therapy or any other medical appointments. Ms. Miller stated
that appellant’s six-hour work shift allowed him to undergo physical therapy without loss of
sleep. She stated that contrary to appellant’s contention that he sustained a breakdown in 2003,
he was last paid for work during the period June 29 to July 5, 2002. According to postal
inspectors, there was no official investigation of appellant. There was no evidence of a
confrontation between him and Mr. Miller or his January 28, 2001 request for an investigation of
Mr. Thompson and Mr. Gray. Ms. Miller stated that Mr. Stewart advised appellant to file a
claim regarding his near fall in 1997 which was accepted by the Office in 1999. She denied that
he was not permitted to seek medical attention in June 1999. The Office paid for appellant’s
numerous medical appointments. Ms. Miller related that the employing establishment would not
prevent an employee from seeking medical treatment and could not prevent an employee from
doing so while off duty. She stated that appellant was not prevented from working within his
restrictions. The need to accommodate an employee was made on a case-by-case basis and was
not subject to comparison.
By decision dated October 23, 2008, the Office denied appellant’s claim, finding that he
did not sustain an emotional condition in the performance of duty. Appellant failed to submit
sufficient evidence to establish any compensable employment factors. On October 31, 2008 he
requested an oral hearing before an Office hearing representative.
In a March 24, 2009 decision, an Office hearing representative affirmed the October 23,
2008 decision, finding that the evidence failed to establish a compensable factor of employment.

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LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.4 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or 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.6 On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or his or her frustration from not being
permitted to work in a particular environment or to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.8 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.9
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.10
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
4

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

5

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

6

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

7

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

8

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
9

See William H. Fortner, 49 ECAB 324 (1998).

10

Ruth S. Johnson, 46 ECAB 237 (1994).

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providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant did not attribute his emotional condition to his regular or specially assigned
duties of being a mail handler. Rather, he attributes his emotional condition to several actions
taken by employing establishment management. Appellant contended that he was investigated
for allegedly selling pain medication and being an alcoholic. He further contended that his work
performance was monitored by Mr. Gray and Mrs. Durham. Appellant alleged that his
recurrence of disability and traumatic injury claims were not properly processed. He further
alleged that his requests for sick and administrative leave to primarily attend physical therapy
sessions were denied. Appellant also alleged that he was not provided with permanent modified
work based on his 1999 25-pound lifting restriction as he was required to lift tubs weighing 50
pounds. He contended that he was given six-hour work assignments while other employees were
given eight-hour work assignments. Appellant stated that on January 28, 2001 Lanny Miller,
chief inspector, denied his request to charge Mr. Thompson and Mr. Gray with workers’
compensation fraud for failing to provide him with eight hours of work within his restrictions.
The Board notes that appellant’s allegations pertain largely to the administrative actions
taken by management personnel at the employing establishment. It is well established that an
investigation,13 the monitoring of work,14 the processing of claims for compensation,15 the denial
of leave requests16 and assignment of work17 by the employing establishment relate to an
administrative function of the employer and are not compensable unless the employee establishes
error or abuse. Appellant submitted no evidence to support his allegation that Mr. Gray and
Mrs. Durham and other managers acted unreasonable in monitoring his work and processing his
recurrence of disability and traumatic injury claims. Mr. Gray denied that the incidents alleged
11

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

12

Id.

13

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

14

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

15

See David C. Lindsey, 56 ECAB 263 (2005) (although the handling of a compensation claim is generally
related to the employment, it is an administrative function of the employer and not a duty of the employee and thus,
not compensable absent evidence of error or abuse by the employer).
16

T.G., 58 ECAB 189 (2006) (actions of the employing establishment in matters involving the use of leave are
generally not considered compensable factors of employment as they are administrative functions of the employer
and not duties of the employee).
17

James W. Griffin, 45 ECAB 774 (1994).

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by appellant actually occurred. Mr. Thompson was unable to locate any witnesses to corroborate
appellant’s allegations. Mark Williams stated that the investigation of appellant’s alleged sale of
pain medication was initiated because Dr. Snider informed management that appellant was using
too much medication. He and Ms. Miller denied appellant’s allegations that other employees
were given administrative leave to attend medical appointments. Mr. Williams stated that
appellant was not given an eight-hour work assignment due to his restrictions and the type of
work that required completion at that time. He related that appellant was paid compensation for
the two hours he did not work. Mr. Williams helped appellant complete the necessary
paperwork to receive compensation when he attended his physical therapy appointments and
when he did not work due to lack of sleep. When he handled his case as an injury compensation
specialist, he considered his well being. Mr. Williams stated that appellant became irate and
almost uncontrollable when he came to his office on a daily basis to complain about his case.
When he felt threatened, he prescheduled appellant’s appointments. Ms. Miller stated that postal
inspectors advised her that there was no official investigation of appellant. She denied that
appellant was not allowed to seek medical attention noting, that the employing establishment
paid for his numerous medical appointments. Ms. Miller stated that appellant’s six-hour work
shift allowed him to undergo physical therapy without the loss of sleep. She further stated that
the employing establishment could not prevent any employee from seeking medical treatment on
and off duty. Ms. Dean denied advising appellant not to file a Form CA-2a on June 1, 1999 as
she offered the form to him which he refused.
Based on the statements of Mr. Gray, Mr. Thompson, Mark Williams, Ms. Miller and
Ms. Dean, the Board finds that appellant has failed to establish that the employing establishment
committed error or abuse in handling the above-noted administrative functions. Therefore,
appellant has failed to establish a compensable factor of employment.
Regarding appellant’s contention that he was made to work outside his restrictions, the
Board has held that being required to work beyond one’s physical limitations could constitute a
compensable employment factor if the record substantiated such activity.18 However, Ms. Dean,
Mr. Thompson, Mr. Williams and Ms. Miller denied that he worked outside his limitations.
Ms. Dean stated that appellant’s position not only allowed him to sit but also to stand during an
eight-hour work shift. Mr. Thompson related that appellant was assigned work based on his
physical restrictions. He was moved from the physically demanding 235 operation to less
physically demanding tow motor/forklift driver and dock expeditor positions. Mr. Williams
stated that the employing establishment strictly complied with rules and regulations governing
work-related injuries. He and Ms. Miller both stated that his limited-duty job requirements were
updated when his restrictions changed. They and Ms. Miller stated that he worked six hours per
day based on his restrictions and in positions available within those restrictions. Ms. Miller
noted that appellant was not required to process more mail than an employee on an eight-hour
shift. She explained that the mail processing operation was a 24-hour operation and that any
unprocessed mail on a shift was processed by the next shift. Although Mr. Harp stated that
Mr. Williams advised him and appellant, that Mr. Thompson, Mr. Stewart and Mr. Gray refused
to allow appellant to work in positions that were eight hours per day and within his restrictions,
the record does not contain a statement from Mr. Williams corroborating Mr. Harp’s allegation.
18

David C. Lindsey, Jr., supra note 15; Diane C. Bernard, 45 ECAB 223, 227 (1993).

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The Board finds that based on the statements of Ms. Dean, Mr. Thompson, Mr. Williams and
Ms. Miller, appellant has not established a factual basis for his allegation. Because appellant
failed to establish a compensable employment factor, the Office properly denied his occupational
disease claim.19
Appellant attributed his emotional condition to being harassed and verbally abused by
supervisors and postal inspectors. The Board notes that harassment or verbal abuse may give
rise to coverage under the Act. However, there must be evidence that harassment did, in fact,
occur. Mere perceptions of harassment or discrimination are not compensable under the Act. A
claimant must establish a factual basis for allegations that the claimed emotional condition was
caused by factors of employment.20 The Board notes that appellant’s allegations of harassment
and verbal abuse by the employing establishment primarily involve the above noted
administrative matters. He contended that Mr. Gray and Mrs. Durham harassed him by
monitoring his work activities. Appellant further contended that Mr. Thompson and Mr. Stewart
failed to ensure that Mr. Gray properly managed him. He stated that management reprimanded
him when he fell behind in his work performance. Appellant alleged that on June 1, 1999
Ms. Dean became angry with him when he asked her for a Form CA-2a. He also alleged that on
January 28, 2001 Mr. Miller used profane language towards him in response to his request for an
investigation of Mr. Thompson and Mr. Gray for workers’ compensation fraud. Appellant
contended that on August 25, 1999 Mr. Gray physically threatened him when he refused to work
outside his restrictions. As stated, the monitoring of work,21 the assignment of work,22 the
processing of claims for compensation23 and an investigation24 by the employing establishment
relate to administrative matters and appellant has not demonstrated error or abuse in these
instances. Further, as stated, appellant did not establish that he was required to work outside his
restrictions. The Board finds, therefore, that he has not established a compensable employment
factor.
Appellant contended that on May 5, 1999 he was harassed by Mr. Gray who made a
sexually explicit gesture with his legs and comment regarding the cause of his May 1999
employment injury and gave him dirty looks following the incident. Although he stated that
Tony Williams witnessed the May 5, 1999 incident, he did not submit a witness statement from
him establishing that the incident occurred as alleged. Moreover, the Board finds that
Mr. Harp’s statement that a city supervisor related to him that he heard Mr. Gray direct the
19

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).
20

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, supra note 5 (for harassment to give rise to
a compensable disability, there must be some evidence that harassment or discrimination did in fact occur);
Pamela R. Rice, supra note 4 (claimant failed to establish that the incidents or actions which she characterized as
harassment actually occurred).
21

See Brian H. Derrick, supra note 14.

22

James W. Griffin, supra note 17.

23

See David C. Lindsey, supra note 15.

24

Jimmy B. Copeland, supra note 13.

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sexual comment towards appellant is insufficient to establish harassment on the part of Mr. Gray.
Mr. Harp did not state that he heard Mr. Gray make the sexual comment. The Board finds that
appellant has not established a factual basis for his allegations that he was harassed and verbally
abused by the employing establishment. Therefore, he has failed to establish a compensable
factor of employment.25
Appellant failed to establish that his emotional condition was causally related to a
compensable factor of employment. Therefore, the Office properly denied his emotional
condition claim.26
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2009 and October 23, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 10, 2010
Washington, DC

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

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

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

25

James E. Norris, 52 ECAB 93 (2000).

26

See supra note 20 (in the absence of compensable factors of employment, there is no need to address the
medical evidence).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
EMERGENCY PREPAREDNESS &
RESPONSE, Denton, TX, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1796
Issued: September 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 31, 2015 appellant, through counsel, filed a timely appeal from a May 28,
2015 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 met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On May 29, 2013 appellant, then a 58-year-old natural hazards programs assistant, filed
an occupational disease claim (Form CA-2) alleging an emotional condition due to overwork and
harassment at work.3 She first became aware of her claimed condition on January 28, 2013 and
on April 1, 2013 realized that it was caused or aggravated by her employment. Appellant did not
stop work around the time she filed her Form CA-2.4
In a May 29, 2013 statement, appellant provided further details of the incidents and
conditions which she believed caused her to develop stress-related conditions. She reported that
she had worked for the employing establishment for 22 years and asserted that her current
position involved many duties and responsibilities that were not specifically outlined in her
position description. Appellant further asserted that she was required to perform overtime work
between November 2012 and February 2013 and that she was on-call 24 hours per day. She
indicated that she served as a team leader/manager and that overwork from her position had
taken a toll on her physical and mental health. Appellant asserted that, over the past year, she
had been sexually harassed, threatened, and bullied by coworkers. She advised that she had a
pending Equal Employment Opportunity (EEO) complaint regarding these matters. Appellant
noted that an attached document described additional claimed employment factors.
In an attached, unsigned, and undated document with the heading, “EEO Chain of
Events,” appellant reported that, beginning in November 2012, she was deployed to work for the
employing establishment in New York City. She listed incidents in January and February 2013
that she believed constituted sexual harassment by coworkers. Appellant asserted that, during an
employee party held on January 7, 2013, a coworker asked why she did not move to a hotel that
was closer to a coworker and suggested that she “do something” with the coworker. On
January 12, 2013 two coworkers encouraged appellant to have an affair with another coworker.
Appellant indicated that on January 13, 2013 a coworker asked her when she was going to do
laundry for the coworker with whom she was encouraged to have an affair. She claimed that, at
an employee party held on January 26, 2013, a coworker touched her inappropriately and made
an unwanted sexual comment to her. Appellant asserted that on three occasions (on February 8,
11, and 13, 2013) a coworker made derogatory comments to another coworker in her presence
which she believed were directed at her.5

3

Appellant alleged that she suffered from nightmares, lack of sleep, headaches, migraines, chronic body pains,
anxiety, mood swings, psychological distress, and palpitations.
4

On the same form, appellant’s supervisor indicated that appellant’s regular work hours were 8:00 a.m. to 5:00
p.m., Monday through Friday.
5

Appellant indicated that the coworker used Spanish words which would be translated into English as “bitch,”
“liar,” and “uglier than the devil.”

2

Appellant submitted an April 1, 2013 report in which Dr. Mahe T. Nadeem, an attending
Board-certified physical medicine and rehabilitation physician, diagnosed post-traumatic stress
disorder reaction.
In a June 17, 2013 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim. On June 17, 2013 it also requested additional
information from the employing establishment.6
In a July 10, 2013 letter, counsel argued that the factual and medical evidence of record
established the existence of work-related emotional conditions. In a response to OWCP’s
development letter, appellant answered various questions posed in that letter. She provided
additional details about each of the instances of sexual harassment she claimed in her prior
statements.
Appellant submitted copies of e-mails dated between January 30 and February 13, 2013.
In some of these e-mails, she discussed the incidents of harassment that she alleged in connection
with the present emotional condition claim. Appellant submitted additional medical evidence in
support of her claim, including an April 4, 2013 report of Dr. Sat K. Khalsa, an attending clinical
psychologist.
In a January 10, 2014 decision, OWCP denied appellant’s claim for a work-related
emotional condition because she had not established any compensable employment factors. It
found that she had not submitted probative evidence supporting her claims of harassment and
overwork.
Appellant submitted additional medical evidence including a May 9, 2014 report of
Dr. Nadeem.
In a January 6, 2015 letter, appellant, through counsel, requested reconsideration of her
claim. She submitted several witness statements in support of her claim. In a January 27, 2014
statement, a coworker asserted that she and appellant had been subjected to a pervasive hostile
work environment including sexual harassment by men against women. She indicated that
appellant was punished for reporting this harassment. In a February 2, 2014 statement, a friend
of appellant noted that appellant informed her that a coworker inappropriately touched her in late
2012 or early 2013. In a July 8, 2014 statement, a coworker described an incident on or about
December 3, 2012 when appellant fell to the ground while visiting an inspection site.
Appellant also submitted time and attendance sheets, certified by the employing
establishment, dated between November 2012 and February 2013 which showed that she worked
overtime for much of this period.7 She submitted additional medical evidence in support of her
claim, including a December 29, 2014 report of Dr. Anthony Moore, an attending Boardcertified psychiatrist.
6

OWCP received a July 8, 2013 letter advising that the employing establishment could not respond to the
development letter because appellant’s EEO claim was being considered at that time.
7

The records show that appellant routinely worked more than 40 hours per week during this period, including
working six-day workweeks of approximately 60 to 70 hours on several occasions.

3

By decision dated May 28, 2015, OWCP denied modification of its January 10, 2014
decision denying appellant’s emotional condition claim. It again found that she had not
established any compensable employment factors with respect to the claimed harassment and
overwork.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.8 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.9
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.10
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.11
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that appellant has
an emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to appellant’s condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to appellant’s stress-related condition.12
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
8

Lillian Cutler, 28 ECAB 125 (1976).

9

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

10

David W. Shirey, 42 ECAB 783, 795-96 (1991).

11

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

12

See Leslie C. Moore, 52 ECAB 132, 134 (2000).

13

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

4

employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.14
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the claimant’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
and accurate factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.15
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim as she had
not established any compensable employment factors. The Board must initially review whether
these alleged incidents and conditions of employment are covered employment factors under the
terms of FECA. The Board notes that some of appellant’s allegations pertain to her regular or
specially assigned duties, as under Cutler.16 She has also alleged harassment on the part of her
coworkers.
Appellant asserted that she was required to perform overtime work between
November 2012 and February 2013 and that she was on-call 24 hours per day. She indicated that
she served as a team leader/manager and that overwork from her position had taken a toll on her
physical and mental health. The Board finds that appellant submitted timesheets covering the
period between November 2012 and February 2013 which show that she worked overtime for
much of this period. The records show that appellant routinely worked more than 40 hours per
week during this period, including working six-day workweeks of approximately 60 to 70 hours
on several occasions. The employing establishment has not disputed this allegation. Therefore,
the Board finds that appellant has established a compensable factor of employment with respect to
working overtime between November 2012 and February 2013.17

14

Id.

15

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

16

See supra note 8.

17

See T.S., Docket No. 14-807 (issued June 10, 2015) (the Board found that working overtime is sufficiently
related to regular or specially assigned duties to constitute a compensable employment factor). The Board also finds
that appellant has not established her claims that she was on-call 24 hours per day or that she performed many duties
and responsibilities that were not specifically outlined in her position description.

5

Appellant claimed that her coworkers subjected her to harassment on numerous
occasions. For example, she asserted that on several occasions between January 7 and 13, 2013
coworkers encouraged her to have an affair with another coworker. Appellant claimed that on
January 26, 2013 a coworker touched her inappropriately and made an unwanted sexual
comment to her. She also alleged that on three occasions in February 2013 a coworker made
derogatory comments to another coworker in her presence which she believed were directed at
her. The Board finds that appellant has not submitted sufficient evidence to establish that she
was harassed as alleged.18 Appellant alleged that coworkers made statements and engaged in
actions which she believed constituted harassment, but she provided no corroborating evidence,
such as probative witness statements, to establish that the statements actually were made or that
the actions actually occurred.19 On appeal, counsel argued that appellant’s claims of harassment
were established by witness statements of record. In a January 27, 2014 statement, a coworker
asserted that she and appellant had been subjected to a pervasive hostile work environment
including sexual harassment by men against women. However, this vague statement is of limited
probative value because the witness did not identify any specific instances when such harassment
occurred.20 In a February 2, 2014 statement, a friend of appellant indicated that appellant
informed her that a coworker inappropriately touched her in late 2012 or early 2013. However,
the friend did not directly witness this claimed instance of harassment and her repeating of
appellant’s unsupported assertion lacks probative value.21 Appellant indicated that she filed an
EEO complaint with respect to some of these claimed incidents of harassment, but the record
does not contain the findings or results of any such claim. Thus, she has not established a
compensable employment factor under FECA with respect to the claimed harassment.
In the present case, appellant has established a compensable factor of employment with
respect to working overtime between November 2012 and February 2013. However, her burden of
proof is not discharged by the fact that she has established an employment factor which may give
rise to a compensable disability under FECA. To establish her occupational disease claim for an
emotional condition, appellant must also submit rationalized medical evidence establishing that she
has an emotional or psychiatric disorder and that such disorder is causally related to the accepted
compensable employment factor.22

18

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment with probative and reliable evidence).
19

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

20

The witness asserted that appellant was punished for reporting harassment, but she did not provide any
particular instances when such punishment was carried out.
21

In a July 8, 2014 statement, a coworker described an incident on or about December 3, 2012 when appellant fell
to the ground while visiting an inspection site. However, appellant has not alleged that she sustained an emotional
condition due to such an incident. She also submitted e-mails, dated in January and February 2013, in which she
discussed the incidents of harassment that she alleged in connection with the present emotional condition claim.
The Board notes that the statements in these e-mails have not been corroborated by any other evidence of record.
22

See M.D., 59 ECAB 211 (2007); supra note 19.

6

As OWCP found there were no compensable employment factors, it did not analyze or
develop the medical evidence. The case will be remanded to OWCP for this purpose.23 After
carrying out this development, OWCP shall issue a de novo decision regarding appellant’s
emotional condition claim.
CONCLUSION
The Board finds the case is remanded to OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

23

See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, NIAGARA FALLS
POST OFFICE, Niagara Falls, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Wandra E. Evans, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0243
Issued: January 6, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 14, 2020 appellant, through his representative, filed a timely appeal from an
October 22, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 22, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will n ot be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $17,560.49 intermittently from August 1, 2009
through June 22, 2019 for which he was without fault, as he concurrently received Social Security
Administration (SSA) age-related retirement benefits and FECA wage-loss compensation without
appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $1,2 50.00 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On January 30, 2009 appellant, then a 62-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that on that date he sustained injuries to his sacrum, spine, head, and wrists
when he slipped and fell in snow and slush when pulling a large snowblower while in the
performance of duty. OWCP initially accepted the claim for sprains of the neck, wrists, and lumbar
and thoracic regions of the back. It later expanded the acceptance of the claim to include lumbar
spinal stenosis and left hand osteoarthrosis. Appellant stopped work on January 31, 2009. OWCP
paid appellant wage-loss compensation on the supplemental rolls beginning March 18, 2009 and
on the periodic rolls beginning June 7, 2009.
On October 15 and November 16, 2012 OWCP forwarded to SSA Federal Employees
Retirement System (FERS)/SSA dual benefits calculation forms to obtain information regarding
appellant’s receipt of SSA age-related retirement benefits.
On November 21, 2012 SSA completed the dual benefits calculation form, which listed
appellant’s SSA age-related retirement benefit rates with and without a FERS offset from
August 2009 through December 2012. The form indicated that: beginning August 2009,
December 2009, and December 2010, appellant’s SSA rate with FERS was $1,229.40 and without
FERS was $885.70; beginning December 2011, his SSA rate with FERS was $1,273.70 and
without FERS was $917.50; and beginning December 2012, his SSA rate with FERS was
$1,295.30 and without FERS was $933.10.
On December 7, 2012 OWCP prepared a FERS offset overpayment calculation worksheet
wherein it noted the calculation of appellant’s SSA offset overpayment from August 1, 2009
through December 15, 2012. The total overpayment was determined to be $18,310.04. OWCP
found that appellant received an overpayment of compensation in the amount of $1,382.35 for the
period August 1 through November 30, 2009; $4,135.73 for the period December 1, 2009 through
November 30, 2010; $4,135.73 for the period December 1, 2010 through November 30, 2011;
$4,297.89 for the period December 1, 2011 through November 30, 2012; and $4,358.34 for the
period December 1 through 15, 2012.4
By letter dated December 11, 2012, OWCP notified appellant that, based on information
provided by SSA regarding the amount of his age-related retirement benefits attributable to his
federal service, it had adjusted his FECA wage-loss compensation and that he would receive a net
payment $2,275.26 every 28 days after the SSA offset. In a payment report for the period
December 16, 2012 through January 12, 2013, it was noted that a FERS/SSA offset in the amount
4

The number of days between December 1 and 15, 2012 was incorrectly noted as 365 days.

2

of $334.34 had been deducted from appellant’s compensation payments. Miscellaneous
deductions were noted as $376.58. The record reflects that appellant received a net payment of
$2,609.60 every 28 days up to December 15, 2012, and then $2,275.26 as of December 16, 2012.
The record reflects that appellant received two payments of $2,275.26 for the period December 16,
2012 to January 12, 2013. One payment was issued on the periodic rolls on January 12, 2013 and
the second payment was issued on the supplemental rolls on March 1, 2013. The record also
reflects that appellant received two payments of $2,268.28 for the period January 13 through
February 9, 2013. One payment was issued on the periodic rolls on February 9, 2013 and the
second payment was issued on the supplemental rolls on March 1, 2013.
On May 23, 2019 OWCP provided SSA with another FERS/SSA dual benefits calculation
form.
On May 30, 2019 SSA completed the dual benefits calculation form, which listed
appellant’s SSA age-related retirement benefit rates with a FERS offset and without a FERS offset
from August 2009 through December 2018. The SSA representative noted that appellant became
eligible to receive SSA age-related retirement benefits in August 2009. The form indicated that:
beginning August and December 2009 and December 2010, appellant’s SSA rate with FERS was
$1,229.40 and without FERS was $880.10; beginning December 2011, his SSA rate with FERS
was $1,273.70 and without FERS was $911.70; beginning December 2012, his SSA rate with
FERS was $1,295.30 and without FERS was $927.20; beginning December 2013, his SSA rate
with FERS was $1,314.70 and without FERS was $941.00; beginning December 2014 and
December 2015, his SSA rate with FERS was $1,337.00 and without FERS was $957.00;
beginning December 2016, his SSA rate with FERS was $1,341.00 and without FERS was
$959.90; beginning December 2017, his SSA rate with FERS was $1,367.80 and without FERS
was $979.10; and beginning December 2018, his SSA rate with FERS was $1,406.10 and without
FERS was $1,006.40.
In a payment report for the period May 26 through June 22, 2019, miscellaneous
deductions from appellant’s FECA wage-loss compensation in the amount of $25.28 were noted.
On June 24, 2019 OWCP prepared a FERS offset overpayment calculation worksheet
wherein it noted the calculation of appellant’s SSA offset overpayment from August 1, 2009
through June 22, 2019. The total overpayment was determined to be $44,213.68. OWCP found
that appellant received an overpayment of compensation in the amount of $1,404.88 for the period
August 1 through November 30, 2009; $4,203.12 for the period December 1, 2009 through
November 30, 2010; $4,203.12 for the period December 1, 2010 through November 30, 2011;
$4,367.87 for the period December 1, 2011 through November 30, 2012; $4,429.34 for the period
December 1, 2012 through November 30, 2013; $4,496.72 for the period December 1, 2013
through November 30, 2014; $4,572.53 for the period December 1, 2014 through November 30,
2015; $4,585.05 for the period December 1, 2015 through November 30, 2016; $4,585.76 for the
period December 1, 2016 through November 30, 2017; $4,677.21 for the period December 1, 2017
through November 30, 2018; and $2,688.09 for the period December 1, 2018 through
June 22, 2019.
By letter dated June 24, 2019, OWCP notified appellant that, based on information
provided by SSA regarding the amount of his SSA age-related retirement benefits attributable to
federal service, it had adjusted his FECA wage-loss compensation and that he would receive
$2,508.31 every 28 days after the SSA offset.
3

In a payment report for the period June 23 through July 20, 2019, miscellaneous deductions
from appellant’s FECA wage-loss compensation in the amount of $463.31 were noted.
On August 2, 2019 OWCP advised appellant of its preliminary overpayment determination
that he had received an overpayment of compensation in the amount of $44,213.68 for the period
August 1, 2009 through June 22, 2019 because he concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits without an appropriate offset. It included
a FERS offset calculation sheet setting forth the claimed basis of the overpayment. OWCP
determined that he was without fault in the creation of the overpayment. It requested that the
employee submit a completed overpayment recovery questionnaire (Form OWCP-20) to
determine a fair repayment method. OWCP requested financial information, including copies of
income tax returns, bank account statements, bills, pay slips, and any other records to support
income and expenses. It advised appellant that it would deny waiver if he failed to furnish the
requested financial information within 30 days. OWCP further provided him with an overpayment
action request form and notified him that within 30 days of the date of the letter he could request
a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
On August 14, 2019 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review. He contested the overpayment and submitted a
completed Form OWCP-20, which delineated his income, expenses, and assets. A hearing was
held on November 6, 2019.
By decision dated January14, 2020, the hearing representative found that appellant was
overpaid from August 1, 2009 through December 15, 2012. The hearing representative remanded
the case, however for OWCP to recalculate the amount of overpayment, as a review of appellant’s
compensation payments indicated that OWCP began deducting the FERS/SSA offset from
appellant’s payments effective December 16, 2012. The hearing representative noted that it
appeared that the offset continued from that date, and that on remand, OWCP should confirm that
each time appellant’s benefits were suspended, the offset continued to be applied and that OWCP
should properly determine any remaining offset and the correct overpayment amount.
On January 24, 2020 OWCP prepared a FERS offset overpayment calculation worksheet
wherein it explained its calculations of appellant’s SSA offset overpayment from August 1, 2009
through December 15, 2012. The total overpayment amount was determined to be $14,361.00.
OWCP found that appellant received an overpayment of compensation in the amount of $9,811.11
for the period August 1, 2009 through November 30, 2011, $4,367.87 for the period December 1,
2011 through November 30, 2012, and $182.03 for the period December 1 through 15, 2012.
On January 24, 2020 OWCP issued a de novo preliminary overpayment determination,
finding that an overpayment of compensation in the amount of $14,361.00 had been created for
the period August 1, 2009 through December 15, 2012 because he concurrently received FECA
wage-loss compensation and SSA age-related retirement benefits without an appropriate offset. It
included a copy of the FERS offset overpayment calculation worksheet setting forth the claimed
basis of the overpayment. OWCP determined that he was without fault in the creation of the
overpayment. It requested that the employee submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a fair repayment method. OWCP requested financial
information, including copies of income tax returns, bank account statements, bills, pay slips, and
any other records to support income and expenses. It advised appellant that it would deny waiver
if he failed to furnish the requested financial information within 30 days. OWCP further provided
4

him with an overpayment action request form and notified him that within 30 days of the date of
the letter he could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing.
On January 31, 2020 appellant requested a prerecoupment hearing before a representative
of OWCP’s Branch of Hearings and Review. He contested the overpayment and requested waiver
of recovery as he had been found without fault in the creation of the overpayment.
On April 6, 2020 a hearing representative found that the case was not in posture for a
prerecoupment hearing because, while the January 24, 2020 preliminary overpayment
determination of had found an overpayment for the period August 1, 2009 through December 15,
2012, it had not made determinations of any other periods of overpayment. The hearing
representative set aside the preliminary overpayment determination of January 24, 2020 and
remanded the case for recalculation of appellant’s full overpayment amount for the period
August 1, 2009 through June 22, 2019.
OWCP reviewed the record of appellant’s compensation payment history from
September 23, 2012 through June 22, 2019, which included a record of miscellaneous deductions
taken during that period.
On April 9, 2020 OWCP prepared a FERS offset overpayment calculation worksheet
wherein it noted the calculation of appellant’s SSA offset overpayment from August 1, 2009
through June 22, 2019. The total overpayment was determined to be $17,760.49. OWCP found
that appellant received an overpayment of compensation in the amount of $9,811.11 for the period
August 1, 2009 through November 30, 2011, $4,367.87 for the period December 1, 2011 through
June 30, 2012, $182.03 for the period December 1 through 15, 2012, $339.78 for the period
January 13 through February 9, 2013, $371.61 for the period November 2 through 30, 2018, and
$2,688.09 for the period December 1, 2018 through June 22, 2019.
On April 9, 2020 OWCP issued a preliminary overpayment determination finding that an
overpayment of compensation in the amount of $17,760.49 has been created because appellant
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits
based upon his federal service, without appropriate offset. It provided calculations for the
following periods of overpayment based on the FERS/SSA offset: August 1, 2009 through
November 30, 2011; December 1 through November 30, 2012; December 1 through 15, 2012;
January 13 through February 9, 2013; November 2 through 30, 2018; and December 1, 2018
through June 22, 2019. OWCP determined that he was without fault in the creation of the
overpayment. It requested that the employee submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a fair repayment method. OWCP requested financial
information, including copies of income tax returns, bank account statements, bills, pay slips, and
any other records to support income and expenses. It advised appellant that it would deny waiver
if he failed to furnish the requested financial information within 30 days. OWCP further provided
him with an overpayment action request form and notified him that within 30 days of the date of
the letter he could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing. On April 24, 2020 appellant requested a prerecoupment hearing
before a representative of OWCP’s Branch of Hearings and Review. He requested waiver of
recovery of the overpayment as he was without fault in the creation of the overpayment. By letter
dated August 7, 2020, appellant’s then-counsel requested that the hearing request be converted to
a request for review of the written record.
5

In a Form OWCP-20 dated August 25, 2020, appellant indicated that he had a total monthly
income of $5,067.98 and listed total monthly expenses of $3,177.08. He advised that he had
$150.00 in cash, a checking account balance of $61,615.83, a savings account balance of
$54,795.86, and a Thrift Savings Plan account balance of $199,755.42, for total funds of
$316,317.11. Appellant submitted financial documentation in support of his reported income,
expenses, and assets.
By decision dated October 22, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $17,560.49 because OWCP failed to offset his compensation
payments by the portion of his SSA age-related retirement benefits that were attributable to his
federal service for the following periods: August 1, 2009 through November 30, 2011;
December 1 through November 30, 2012; December 1 through 15, 2012; January 13 through
February 9, 2013; November 2 through 30, 2018; and December 1, 2018 through June 22, 2019.
The hearing representative further found that appellant was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because the evidence of record
failed to establish that recovery of the overpayment would defeat the purpose of FECA or would
be against equity and good conscience. The hearing representative noted that appellant’s monthly
discretionary income of over $1,800.00 and sufficient cash assets were sufficient to repay the debt
in full. The hearing representative found that OWCP would recover the overpayment by deducting
$1,250.00 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States. 6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation intermittently f rom August 1, 2009 through June 22, 2019 for which he was
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
8

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

6

without fault, as he concurrently received SSA age-related retirement benefits and FECA wageloss compensation without appropriate offset.
The record indicates that, while appellant was in receipt of wage-loss compensation under
FECA, he also intermittently received SSA age-related retirement benefits attributable to federal
service without appropriate offset. As previously noted, OWCP is required to reduce the amount
of compensation by the amount of any SSA age-related retirement benefits that are attributable to
the employee’s federal service. 9 Fact of overpayment has, therefore, been established.
The Board further finds, however, that the case is not in posture for decision with regard
to the amount of the overpayment. On remand from the April 6, 2020 hearing representative
decision OWCP recalculated the overpayment. The total overpayment was determined to be
$17,760.49. OWCP found that appellant received an overpayment of compensation in the amount
of $9,811.11 for the period August 1, 2009 through November 30, 2011, $4,367.87 for the period
December 1, 2011 through June 30, 2012, $182.03 for the period December 1 through 15, 2012,
$339.78 for the period January 13 through February 9, 2013, $371.61 for the period November 2
through 30, 2018, and $2,688.09 for the period December 1, 2018 through June 22, 2019.
However, it did not fully explain how it determined the intermittent periods and calculated the
amounts.
A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated. 10 The Board finds that the overpayment decision in this case does not provide
such an explanation. Therefore, the amount of overpayment has not been established.
On remand OWCP shall explain how it determined the intermittent periods and prepare
detailed calculations setting forth the corresponding amounts of overpayment. Following this and
other such further development as deemed necessary OWCP shall issue a de novo preliminary
overpayment determination.11
CONCLUSION
The Board finds that appellant received an overpayment of compensation , for which he
was without fault, as he concurrently received Social Security Administration (SSA) age -related
retirement benefits and FECA wage-loss compensation benefits without appropriate offset. The
Board further finds that the amount of the overpayment is not in posture for decision.

9

Id.; supra note 7.

10

See L.J., Docket No. 19-0800 (issued October 17, 2019); A.J., Docket No. 18-1152 (issued April 1, 2019); J.W.,
Docket No. 15-1163 (issued January 13, 2016); O.R., 59 ECAB 432 (2008) with respect to overpayment decisions,
OWCP must provide clear reasoning showing how the overpayment was calculated); see Jenny M. Drost, 56 ECAB
587 (2005) (to comply with OWCP’s overpayment procedures, an overpayment decision must contain a clearly
written explanation indicating how the overpayment was calculated).
11

In light of the Board’s disposition of Issue 1, Issues 2 and 3 rendered moot.

7

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part, and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: January 6, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Watford City, ND, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0681
Issued: May 18, 2021

Case Submitted on the Record

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

On March 15, 2021 appellant filed an appeal from an-October 18, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 21-0681.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.2
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180th day following the October 18, 2018 decision was April 16, 2019. As appellant
did not file an appeal with the Board until February 23, 2021, more than 180 days after the
1

The Board notes that appellant’s application for review (Form AB-1) requests an appeal from an August 24, 2020
decision. The case record as transmitted to the Board, however, does not contain a decision dated August 24, 2020.
The last decision of record is dated October 28, 2018.
2

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

3

Id. at § 501.3(e).

October 18, 2018 OWCP decision, the Board finds that the appeal docketed as No. 21-0681 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0681 is dismissed.
Issued: May 18, 2021
Washington, DC

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

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

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

4

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1341
Issued: March 24, 2022

Case Submitted on the Record

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

On September 8, 2021 appellant, through counsel, filed an appeal from a March 11, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1341.
The Board has duly considered the matter and notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 For final
adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority

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. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180 th day following the March 11, 2021 decision was September 7, 2021. As appellant
did not file an appeal with the Board until September 8, 2021, more than 180 days after the
March 11, 2021 OWCP decision, the Board finds that the appeal docketed as No. 21 -1341 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 21-1341, must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1341 is dismissed.
Issued: March 24, 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

3

Id. at § 501.3(e).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id.
at § 501.6(d).
4

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 17-1317
Issued: December 6, 2017

Case Submitted on the Record

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

JURISDICTION
On May 30, 2017 appellant filed a timely appeal from an April 25, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant has established greater than one percent permanent
impairment of each upper extremity due to accepted bilateral carpal tunnel syndrome, for which
he previously received schedule awards.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence accompanying his request for appeal. The Board’s review is limited to the
evidence that was before OWCP at the time of its final decision. Therefore, the Board lacks jurisdiction to review
this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that on or before February 21, 2002 appellant, then a 47-year-old
shipwright, sustained mild bilateral carpal tunnel syndrome due to heavy lifting, using heavy
power tools, repetitive grasping, and repetitive gripping in the performance of duty beginning in
1981.3
In September 2004 appellant changed jobs at the employing establishment to work as a
rigger. He sought treatment periodically for bilateral hand and wrist symptoms. In a
September 14, 2007 report, Dr. Brian K. Miller, an attending Board-certified family practitioner,
noted that appellant experienced increasing numbness and paresthesias in both hands beginning
in 2005.
On October 17, 2014 appellant filed an incomplete notice of recurrence of disability
(Form CA-2a). In an October 28, 2014 letter, OWCP notified him of the evidence needed to
establish his claim for a recurrence of disability, including his physician’s report documenting a
change or worsening in the accepted bilateral carpal tunnel syndrome. It afforded appellant 30
days to submit such evidence.
In response, appellant filed a second notice of recurrence of disability (Form CA-2a) on
November 3, 2014, alleging that his condition worsened in September 2014.4 He explained that
symptoms of bilateral carpal tunnel syndrome had been present continuously since his diagnosis
in 2002. Appellant requested that OWCP reopen his claim for medical treatment.
In December 2, 2014 reports, Dr. Michael S. McManus, an attending physician Boardcertified in occupational medicine, diagnosed carpal tunnel syndrome with bilaterally positive
Phalen’s signs, and bilateral grasp/thumb abduction and opposition weakness. He prescribed
wrist splints and released appellant to full duty.
Dr. Donna E. Moore, an attending Board-certified physiatrist, performed December 10,
2014 electromyography (EMG) and NCV testing demonstrating “very mild bilateral carpal
tunnel syndrome,” and “bilateral ulnar nerve slowing across the elbows at the cubital tunnel.”
She provided wave form diagrams of the median and ulnar motor and sensory nerve potentials
obtained. Dr. Moore also provided anti-sensory and motor summary tables identifying
conduction delays in the left ulnar sensory and motor nerves, and right ulnar motor nerve.5

3

February 27, 2002 nerve conduction velocity (NCV) testing showed mild bilateral carpal tunnel syndrome, with
mild prolongation of median motor and sensory distal latencies, and mild median sensory slowing at the cross wrist,
bilaterally.
Appellant provided a November 3, 2014 letter from supervisor A.L., which described appellant as a “dedicated,
hard-working and dependable rigger.” A.L. observed appellant’s inability to solidly grip items spontaneously
appear without an intervening incident or event. A.L. urged OWCP to evaluate his carpal tunnel syndrome “before
a[n] unrepairable accident occurs.”
4

5

Appellant participated in physical therapy in January 2015.

2

Dr. McManus maintained appellant at full duty on March 6, 2015. He submitted periodic
progress reports. On April 17, 2015 Dr. McManus diagnosed cervical spondylosis, facet arthritis
of the cervical region, and right-sided double crush syndrome in the C6-7 distribution.6
In an April 28, 2015 report, Dr. Christopher L. Olch, an attending physician Boardcertified in orthopedic surgery and hand surgery, diagnosed bilateral carpal tunnel syndrome and
bilateral cubital tunnel syndrome. On May 15, 2015 he performed a right open carpal tunnel
release. On May 29, 2015 Dr. Olch performed a left open carpal tunnel release. OWCP
authorized both procedures.
Dr. Olch held appellant off work through June 9, 2015. OWCP paid appellant wage-loss
compensation during his surgical recuperation. Appellant returned to limited duty on June 10,
2015 and to full duty on June 29, 2015. Dr. McManus maintained appellant on full duty through
September 24, 2015.
On September 24, 2015 appellant presented to Dr. McManus with symptoms of
intermittent aching in the right wrist, pain in the right wrist when gripping, pinching, or holding
objects, decreasing grip strength bilaterally, and increased fatigability of both hands. Right wrist
x-rays obtained on September 24, 2015 showed degenerative and long-standing post-traumatic
findings involving the distal radius, ulna, and radiocarpal joint. Dr. McManus diagnosed
bilateral cubital tunnel syndrome and status post bilateral carpal tunnel releases. A
November 16, 2015 left wrist x-rays demonstrated osteoarthritis of the first carpometacarpal
joint and distal radial ulnar joint, and widening between the scaphoid and lunate indicating a
possible ligamentous injury. Dr. McManus found appellant able to continue working full duty
with restrictions.
Appellant retired from the employing establishment, effective January 1, 2016.
On December 9, 2016 appellant claimed a schedule award (Form CA-7). He provided a
detailed chronology of repetitive upper extremity tasks during his employment as a shipwright
from 1981 through September 2004, and as a rigger from September 2004 through October 2014.
In a December 23, 2016 letter, OWCP notified appellant of the evidence needed to
establish his schedule award claim, including a report from his attending physician providing an
impairment rating calculated under the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).7 Appellant was afforded 30 days
to submit such evidence.
In response, appellant submitted reports from Dr. McManus dated from January 20 to
December 29, 2016 noting continued bilateral hand and wrist symptoms, greatest in the C7
6

In a May 13, 2015 letter, appellant requested that OWCP expand his claim to accept a cervical spine condition
due to working in confined spaces aboard ships for 34 years, with multiple head impacts. February 13, 2015
cervical spine x-rays demonstrated degenerative anterolisthesis at C3-4, left greater than right cervical facet
arthropathy and mild-to-moderate spondylosis at C5-6 and C6-7. A March 21, 2015 cervical magnetic resonance
imaging scan showed C-34 left-sided facet arthropathy, C4-5 mild bilateral facet arthropathy, effacement of the
anterior subarachnoid space at C5-6, and a left-sided osteophyte at C6-7.
7

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

3

dermatome. Dr. McManus provided an impairment rating in the December 29, 2016 report,
finding that appellant had attained maximum medical improvement (MMI). On examination of
the right hand and wrist, he found a well-healed surgical scar from the carpal tunnel release,
tenderness over the radial carpal joint and first carpometacarpal joint, a positive thumb
compression test at 20 seconds, decreased pinprick sensation in the median distribution, twopoint discrimination at 6 millimeter or less in all fingertips, diminished grip strength, and full
range of motion of the wrist, hand, and fingers. Dr. McManus observed the same findings in the
left hand and wrist, with the addition of a positive Tinel’s sign and a thumb compression test
positive at 10 seconds, a tender nodule on the flexor tendon of the middle finger, and intermittent
left triggering middle finger. He diagnosed bilateral carpal tunnel syndrome, and status post
bilateral open carpal tunnel releases.
Referring to the sixth edition of the A.M.A., Guides, he performed a diagnosis-based
impairment rating using Table 15-23.8 For both upper extremities, he found Class of Diagnosis
(CDX) of 1 for carpal tunnel syndrome, a grade modifier for Functional History (GMFH) of 1
due to mild intermittent symptoms, a grade modifier for Physical Examination (GMPE) of 3 for
grip weakness, and a grade modifier for Clinical Studies (GMCS) of 1 for conduction delay.
Applying the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or
(1-1) + (3-1) + (1-1), he calculated a grade modifier of “approximately 2,” resulting in 5 percent
permanent impairment of each upper extremity. Dr. McManus noted that there was no additional
modifier for a QuickDASH symptom score of 41.
An OWCP medical adviser reviewed the medical evidence of record and a statement of
accepted facts on April 18, 2017. He calculated one percent impairment of each arm using Table
15-2,9 with a class 1 diagnosis-based impairment CDX of nonspecific wrist pain with a default
midrange level of one percent. The medical adviser explained that Dr. McManus erred by
assigning a grade modifier of 1 for GMCS, even though electrodiagnostic testing did not reveal
ratable impairment. He noted, however, that if he could review Dr. Moore’s December 10, 2014
electrodiagnostic study, he would consider modifying the rating.
By decision dated April 25, 2017, OWCP issued appellant a schedule award for one
percent permanent impairment of the right upper extremity and one percent permanent
impairment of the left upper extremity. The period of the award, equivalent to 6.24 weeks, ran
from December 29, 2016 to February 10, 2017.
LEGAL PRECEDENT
The schedule award provisions of FECA10 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of the
Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is titled “Entrapment/Compression Neuropathy
Impairment.”
8

Table 15-2, page 392 of the sixth edition of the A.M.A., Guides is titled “Digit Regional Grid:
Impairments.”
9

10

5 U.S.C. § 8107.

4

Digit

OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.11 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.14 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
ANALYSIS
OWCP accepted that appellant sustained mild bilateral carpal tunnel syndrome in the
performance of duty on or before February 21, 2002. It authorized a right open carpal tunnel
release on May 15, 2015 and a left open carpal tunnel release on May 29, 2015.
Appellant claimed a schedule award on December 9, 2016. Dr. McManus, an attending
physician Board-certified in occupational medicine, found that appellant attained MMI as of
December 29, 2016. Referring to Table 15-23 of the sixth edition of the A.M.A., Guides, he
assessed a CDX of 1 for carpal tunnel syndrome, a GMFH of 1 due to mild intermittent
symptoms, a GMPE of 3 for grip weakness, and a GMCS of 1 for conduction delay. Applying
the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) +
(3-1) + (1-1), Dr. McManus calculated a grade modifier of approximately 2, resulting in 5
percent permanent impairment of each upper extremity.
An OWCP medical adviser reviewed the medical evidence of record on April 18, 2017.
He disagreed with Dr. McManus’ assignment of a GMCS of 1 for electrodiagnostic test results as
there was no ratable conduction delay based on Dr. Moore’s December 10, 2014 studies. The
medical adviser qualified this opinion, however, by noting that he had not actually reviewed
Dr. Moore’s report. He noted that if he was able to review the studies, that he may change his
impairment rating. The Board notes that Dr. Moore’s December 10, 2014 electrodiagnostic
study, including wave form diagrams and detailed summary tables, was imaged into the
electronic case record on January 9, 2015. It is therefore unclear as to why OWCP’s medical
adviser failed to review this report.

11

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
A.M.A., Guides (6th ed. 2009), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
13

14

Id. at 494-531.

5

Since the Board’s jurisdiction of a case is limited to reviewing the evidence which is
before OWCP at the time of its final decision,15 it is necessary that OWCP review all evidence
submitted by a claimant and received by OWCP prior to issuance of its final decision. As the
Board’s decisions are final as to the subject matter appealed,16 it is crucial that all evidence
relevant to that subject matter which was properly submitted to OWCP prior to the time of
issuance of its final decision be addressed.17
The Board finds that the opinion of OWCP’s medical adviser was based on an incomplete
review of the record and therefore requires clarification. The case will be remanded to OWCP to
obtain a supplemental report from the medical adviser, based on a review of the complete
medical evidence of record. Following this and any other development deemed necessary,
OWCP shall issue a de novo decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision.

15

See 20 C.F.R. § 501.2(c).

16

Id. at § 501.6(d).

17

See William A. Couch, 41 ECAB 548, 553 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2017 is set aside, and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: December 6, 2017
Washington, DC

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

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

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

7