United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, HEADQUARTERS,
Washington, DC, Employer
__________________________________________

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

Docket No. 16-1732
Issued: March 16, 2017

Case Submitted on the Record

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

JURISDICTION
On August 30, 2016 appellant, through counsel, filed a timely appeal of a June 14, 2016
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 to consider 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 his burden of proof to establish that his lower leg and
feet conditions were causally related to factors of his federal employment.
FACTUAL HISTORY
On August 20, 2014 appellant, then a 54-year-old construction analyst, filed an
occupational disease claim (Form CA-2) alleging that on July 7, 2014 he first became aware of
his lower leg irritation, leg infection/cellulitis, and severe feet blistering and related these
conditions to factors of his federal employment on July 18, 2014. He attributed his conditions to
8 to 10 hours of inspection per day, 3 to 5 times per week. Appellant stopped work on July 28,
2014 and has not returned.
Appellant, in support of his claim, appellant submitted prescription notes, discharge
instructions, and the following medical evidence.
In a July 28, 2014 Miami Valley Hospital emergency room report and discharge notes,
Dr. William R. Marriott, an examining Board-certified emergency room physician, diagnosed
left leg ulcer due to skin breakdown. In the discharge instructions, appellant was informed that
he had cellulitis, which was a skin infection.
A July 28, 2014 Ohio Bureau of Workers’ Compensation Physician’s Report was
completed by Dr. W.H. Sneeder, a family practitioner, who opined that appellant was disabled
from performing his usual work. He diagnosed left leg and ankle sprains.
In a July 29, 2014 statement, appellant related that a treating physician had advised that
his left leg, knee, and ankle problems were employment related. He provided a summary of
treatment provided and the recommendation that he be seen by a vascular specialist.
The record contains an August 19, 2014 duty status report (Form CA-17) and
September 23, 2014 nurse’s notes signed by Therese Leftier, a certified nurse practitioner. The
Form CA-17 contained a diagnosis of left ankle and knee sprain and provided work restrictions.
The September 23, 2014 nurse’s notes provided examination findings and diagnosed a left knee
condition.
By letter dated October 8, 2014, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. It advised him regarding the medical and factual evidence
required for acceptance of his claim. OWCP afforded him 30 days to submit the requested
information. No further evidence was submitted within the allotted time.
By decision dated December 9. 2014, OWCP denied appellant’s claim. It found the
evidence of record insufficient to establish that the diagnosed medical conditions were caused or
aggravated by the identified employment factors.
On December 26, 2014 appellant requested an oral hearing before an OWCP hearing
representative.

2

By letter dated May 15, 2015, counsel requested the oral hearing be changed to a
telephonic hearing, which was held on September 16, 2015.
By letter dated October 19, 2015, the employing establishing disputed appellant’s
statement that he was required to work up to 10 hours per day. It noted that his time and
attendance record showed that he averaged 7.5 hours daily, did not work more than 80 hours
biweekly, but rather averaged 59.1 hours biweekly. The employing establishment attached
copies of appellant’s time and attendance reports for the period December 13, 2013 through
June 2014 as evidence of the hours he actually worked during this period.
By decision dated November 23, 2015, the hearing representative affirmed the denial of
appellant’s claim. She found the record devoid of any medical evidence establishing how the
diagnosed medical conditions were caused or aggravated by the identified employment factors.
Thus, the hearing representative determined that appellant had failed to meet his burden of proof
to establish his occupational disease claim.
In a letter dated March 15, 2016, counsel requested reconsideration and submitted
additional evidence.
On a prescription noted dated October 20, 2014, Dr. Edward Erb, a treating Boardcertified vascular surgeon, opined that appellant was only capable of performing sedentary/desk
work.
In an October 22, 2014 report, Dr. Kevin J. Paley, a treating Board-certified orthopedic
surgeon, provided work restrictions due to multiple orthopedic conditions. The conditions
included bilateral knee osteoarthritis, a 2010 left shoulder rotator cuff repair surgery, and right
elbow distal biceps rupture.
In a December 4, 2014 report, Dr. Kevin F. Sunshein, a treating podiatrist, diagnosed
chronic orthopedic and vascular leg and feet problems. He recommended that appellant be
assigned to a sedentary position and provided work restrictions.
In a prescription note dated October 19, 2015,3 Dr. Erb diagnosed severe venous stasis
wounds which he opined may have been aggravated by the prolonged standing required by his
employment.
In a letter dated March 15, 2016, appellant disagreed with the employing establishment’s
October 19, 2015 letter claiming he provided an inaccurate work history. He contended that the
time and attendance reports supplied by the employing established failed to accurately reflect the
time he worked due to conflict with management. Appellant stated that working 10 to 12 hours
per day during the week was not unusual and at times he worked a 14-hour day.
By decision dated June 24, 2016, OWCP denied modification. It found that appellant
failed to submit medical evidence containing an accurate description of his employment

3

The date is unclear on the note. OWCP determined the date of the note to be October 19, 2015

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activities, as well as examination findings, medical history, and medical rationale detailing how
the diagnosed condition had been caused or aggravated by appellant’s employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant filed an occupational disease claim alleging that his lower leg irritation,
infection/cellulitis and severe feet blistering had been aggravated by his duties as a construction
4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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analyst. OWCP denied his claim finding that the medical evidence failed to establish a
diagnosed medical condition which had been caused or aggravated by his implicated
employment factors.
The Board finds that the medical evidence of record is insufficient to establish that the
claimed condition of cellulitis, leg and feet conditions were causally related to his duties as a
construction analyst. Thus, the Board finds that appellant has failed to meet his burden of proof.
The record is devoid of any medical evidence discussing how appellant’s employment as
a construction analyst caused or aggravated the diagnosed medical conditions. In support of his
claim, appellant submitted reports from Drs. Marriot, Paley, Sneeder, Sunshein and Erb. None
the medical reports from these physicians is sufficient to establish causal relationship for the
reasons set forth below.
On July 28, 2014 Dr. Marriott diagnosed a left leg ulcer, and cellulitis which he attributed
to a skin breakdown. No opinion was proffered as to the cause of the diagnosed condition.
Similarly, Dr. Sneeder, in a July 28, 2014 work capability report, offered no opinion as to the
cause of the conditions he diagnosed, left leg and ankle sprains. Drs. Sunshein and Paley also
offered no opinion as to causal relationship in their reports. Dr. Sunshein diagnosed chronic
orthopedic and vascular leg and feet problems while Dr. Paley diagnosed bilateral knee
osteoarthritis, right elbow distal biceps rupture, and 2010 left shoulder rotator cuff repair surgery.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.11 Thus,
the reports from Drs. Marriott, Paley, Sneeder, and Sunshein are insufficient to support
appellant’s burden of proof.
Dr. Erb is the only physician who addressed causal relationship. In an October 19, 2015
note, he diagnosed chronic vascular and orthopedic leg and feet problems, which he opined
might have been aggravated by appellant’s prolonged standing. The Board has long held that
medical opinions which are speculative and equivocal are of diminished probative value.12
Dr. Erb also did not provide an adequately detailed medical history or describe appellant’s
employment duties as a construction analyst. Medical reports without any medical rationale
explaining causal relationship are of diminished probative value and do not meet an employee’s
burden of proof.13 The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.14 For
these reasons, Dr. Erb’s opinion is insufficient to establish appellant’s claim.

11

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
12

Frank Luis Rembisz, 52 ECAB 147 (2000).

13

C.B., supra note 11; S.E., supra note 11; Richard A. Neidert, 57 ECAB 474 (2006)

14

Id.

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Appellant also submitted a Form CA-17 and nurse’s notes by Ms. Leftier, a certified
nurse practitioner. Medical opinion, in general, can only be given by a qualified physician.15
Nurse practitioners are not physicians under FECA.16 As such, Ms. Leftier’s opinion is of no
probative value.
The record before the Board lacks any rationalized medical evidence with a diagnosed
medical condition causally related to the accepted employment incident. OWCP advised
appellant that he must provide a comprehensive medical report which described his symptoms,
test results, diagnosis, treatment, and include a physician’s opinion on the cause of his condition.
Appellant failed to submit medical documentation in response to OWCP’s request. The Board
has held that the fact that a condition manifests itself during a period of employment does not
raise an inference of causal relationship.17 An award of compensation may not be based on
surmise, conjecture or speculation. Neither the fact that appellant’s condition became apparent
during a period of employment nor the belief that his condition was caused, precipitated, or
aggravated by his work as a construction analyst is sufficient to establish causal relationship.18
To establish a firm medical diagnosis and causal relationship, appellant must submit a
physician’s report that addresses how his employment duties of a construction analyst caused or
aggravated his lower leg irritation, leg infection, and severe feet blistering.19 As there is no
probative, rationalized medical evidence explaining how the diagnosed conditions were causally
related to his employment, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that lower
leg irritation, infection/cellulitis, and severe feet blistering were causally related to factors of his
federal employment as a construction analyst.

15

E.K., Docket No. 09-1827 (issued April 20, 2010); Allen C. Hundley, 53 ECAB 551 (2002).

16

Section 8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See B.B., Docket No. 09-1858 (issued April 16, 2010); Roy L. Humphrey, 57 ECAB 238 (2005).
17

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
18

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., id.; Robert Broome, 55 ECAB 339 (2004); Anna C.
Leanza, 48 ECAB 115 (1996).
19

Michael S. Mina, supra note 9; Michael E. Smith, 50 ECAB 313 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 14, 2016 is affirmed.
Issued: March 16, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

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IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, AIRMAIL FACILITY,
Seattle, WA, Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-231
Issued: July 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On November 22, 2011 appellant, through counsel, filed a timely appeal of an August 30,
2011 merit decision of the Office of Workers’ Compensation Programs, denying a claim for a
recurrence of disability. The appeal was docketed as No. 12-231.
On a prior appeal, the Board remanded the case for OWCP to refer appellant to a
physician Board-certified in the subspecialty of pain medicine.1 The Board noted that the
American Board of Medical Specialists (ABMS) recognizes a pain medicine subspecialty, and
there was no evidence the physician selected as a referee physician, Dr. Aleksandra Zietak, was
Board-certified in pain medicine.
OWCP did not refer appellant to another referee physician. The August 30, 2011
decision states that new “documentation” in the file establishes that Dr. Zietak is a pain
management specialist. The “documentation” includes a curriculum vitae from Dr. Zietak that
confirms the physician was Board-certified in general physical medicine and rehabilitation, as
was previously established. Dr. Zietak did not indicate, nor is there any evidence from ABMS,
that she was Board-certified in pain medicine. The remaining evidence consists of information

1

Docket No. 10-1559 (issued April 21, 2011).

from an internet web site that shows Dr. Zietak’s name in a list of pain management specialists in
the Seattle area. This evidence is of no probative value on the issue of Board-certification.
The case will be remanded to OWCP. The Board reiterates that a physician should be
selected, in accord with the established procedures for selecting a referee physician, who is
Board-certified in the subspecialty of pain medicine. After such further development as OWCP
deems necessary, it should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 30, 2011 is set aside and the case remanded for further
action consistent with this order of the Board.
Issued: July 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

2


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

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

Docket No. 07-1926
Issued: June 16, 2008

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from the June 28, 2007 decision of the
Office of Workers’ Compensation Programs denying his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained an emotional condition in the
performance of duty causally related to factors of his federal employment.
FACTUAL HISTORY
On April 30, 2007 appellant, then a 53-year-old supervisor of distribution operations,
filed a Form CA-2, occupational disease claim, alleging that he suffered work-related stress as a
result of “unreasonable demands of daily supervisory tasks and administrative workload brought
on by an immediate supervisor with no common sense, no people skills, and poor management
leadership.” He first realized he had the condition and that it was caused or aggravated by his
employment on April 12, 2007. Appellant stopped work that day and did not return. In a

separate statement, he alleged that he was overloaded with work daily, listing the following:
time and attendance issues; time card management; scheduling and staffing; holiday scheduling;
employee attendance issues; employee performance problems; equipment availability problems;
productivity problems; machine through-put issues; monitoring employee performance and
accountability in four different operational areas; employee training requirements; mandatory
powered truck inspections; unreasonable mandatory safety talks; unreasonable unit and
individual safety inspections; unreasonable mandatory service talks; mandatory aviation security
talks; anonymous mail talks; Hazmat or Hazwoper talks; predisciplinary meetings; grievance
activity; discipline writing; completion of 2608s; excessive logging and tracking of paperwork;
mechanical problems with machinery; work-hour budget submission; special reports submission;
Voice of Employee (VOE) surveys; clock ring error corrections; significant authorization of
employee overtime; last minute suspense item demands; extensive monitoring, weighing and
placard identification of mail; monitoring and tracking of mail dispatches; and paperwork
completion for employees filing traumatic injury and occupational injury claims. Appellant
additionally alleged that he was supervised by a manager with poor managerial leadership skills
and who was very vindictive and revengeful.
In support of his claim, appellant submitted two April 13, 2007 reports from Dr. Paul P.
Schorr, a Board-certified osteopath specializing in family practice, opined that the unreasonable
demands of daily supervisory tasks and administrative workload brought on by appellant’s
immediate supervisor, led to appellant’s stress levels and total disability.
In a letter dated April 30, 2007, appellant’s supervisor, Faith Ervin-Johnson, Tour III
manager of distribution operations, controverted appellant’s claim. She indicated that his daily
administrative duties were the same as those required of all 37 supervisors and acting
supervisors. Ms. Ervin-Johnson disagreed that all of the administrative tasks were performed
daily, indicating that appellant’s safety manager performed the safety talks; that general
grievance activity, grievance activity involving appellant’s pay location, and predisciplinary
meetings were performed only when they arose; the work-hour budget hours were performed
once a week; and the VOE survey was performed on a quarterly basis. She stated that the
correction of clock rings occurred because appellant did not mandate that his employees make
good clock rings and noted that appellant had completed only one accident package in the past
three years. Ms. Ervin-Johnson stated that appellant was paid to do such administrative work
and indicated that the bargaining unit work appellant performed was not part of his job duties,
but was something he voluntarily did. She further indicated that, upon her recommendation,
appellant had received a $1,000.00 award the previous October. Ms. Ervin-Johnson noted that
appellant did not monitor his operation, was upset when supervisor overtime was eliminated, and
that he wanted to manage himself and not have to answer to anyone. A copy of appellant’s job
description and e-mails related to his bargaining unit work were attached.
In letters dated May 17, 2007, the Office requested that both appellant and the employing
establishment provide additional information regarding the claim. In a response dated May 20,
2007, appellant reiterated his previous allegations and submitted duplicates of evidence
previously of record. In an April 22, 2007 report, Dr. Linus J. Miller, an osteopath and general
practitioner, advised that he had treated appellant since April 1999 and opined that appellant’s
hypertension and Type II diabetes mellitus had been made worse by additional demands to his
already heavy administrative workload. He advised that appellant was incapacitated.
2

In a June 18, 2007 statement, Ms. Ervin-Johnson reiterated her disagreement with
appellant’s assertion that he was required to do an unreasonable amount of supervisory work.
She stated that he had more time than other supervisors to do his duties as his unit required very
little supervision. Ms. Ervin-Johnson indicated that appellant has always been able to perform
his required duties and only complained about his work when he was angry. She noted that he
was angry over not having supervisor overtime, and because he was not recognized for job
performance, and wanted to work on Equal Employment Opportunity Commission and discipline
cases rather than performing his supervisory duties. Ms. Ervin-Johnson also indicated that
appellant had an attendance problem and became angry at her when she instructed him to spend
his time on the floor monitoring his operation.
By decision dated June 28, 2007, the Office denied appellant’s claim on the grounds that
he had failed to establish a compensable factor of employment.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.4 When an employee experiences
emotional stress in carrying out his employment duties, and the medical evidence establishes that
the disability resulted from his emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability results from his emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of his work.5
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
1

Ronald K. Jablanski, 56 ECAB 616 (2005).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 137 (1999).

5

Lillian Cutler, supra note 2.

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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.6 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.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 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.10
ANALYSIS
Appellant alleged that he sustained a stress-related condition as a result of a number of
conditions at work. By decision dated June 28, 2007, the Office denied his claim on the grounds
that he did not establish a compensable factor of employment. He alleged that being managed by
a supervisor with poor managerial skills who was vindictive and revengeful contributed to his
condition. An employee’s complaints about the manner in which supervisors perform
supervisory duties or the manner in which supervisors exercise supervisory discretion fall, as a
rule, outside the scope of coverage provided by the Act. This principle recognizes that a
supervisor must be allowed to perform his duties and that employees will at times dislike actions
taken.11 Furthermore, the Board has held that discussions of job performance by an employee’s
supervisor, and the monitoring and assignment of work are administrative functions that do not
fall under the coverage of the Act absent a showing of error or abuse.12 Appellant’s supervisor,
6

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

7

Id.

8

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

9

Kim Nguyen, 53 ECAB 127 (2001).

10

James E. Norris, 52 ECAB 93 (2000); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB
566 (1991).
11

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

12

See Donney T. Drennon-Gala, 56 ECAB 469 (2005).

4

Ms. Ervin-Johnson, advised that appellant became angry at her when she instructed him to spend
his time on the floor monitoring his operation, was angry that supervisory overtime was cut, and
did not want to be managed by anyone. Appellant provided no evidence showing that Ms. ErvinJohnson erred in the exercise of her supervisory duties. He therefore did not establish error or
abuse in this administrative matter.13 Appellant also alleged that Ms. Ervin-Johnson acted in a
vindictive and revengeful manner. To the extent that he is alleging harassment or retaliation by
his supervisor, for harassment or discrimination to give rise to a compensable disability, there
must be evidence which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Mere perceptions of harassment or discrimination are not compensable.14 While
here appellant made general allegations regarding his supervisor, he submitted nothing to
substantiate his claims. As the record lacks probative evidence supporting that he was harassed
by employing establishment, the Board finds that appellant has not established a compensable
employment factor with respect to the claimed harassment.15
The Board has held that an emotional reaction to situations in which an employee is
trying to meet his or her position requirements is compensable.16 In this case, appellant listed
numerous factors that he claimed contributed to his stress. In letters dated April 30 and June 18,
2007, Ms. Ervin-Johnson agreed that, several of these factors, such as performance targets,
productivity issues, mandatory inspections, Hazmat and Hazwoper talks, grievance activity, predisciplinary meetings 2608s, accident packages, authorization of overtime, correction of clock
ring errors, work hour budget hours and VOE surveys were regular duties of appellant’s position.
Given that these duties were part of appellant’s job requirements, the Board finds that he has
established these as compensable employment factors.
As appellant has established compensable employment factors, the Office must base its
decision on an analysis of the medical evidence. The case will therefore be remanded to the
Office to analyze and develop to medical evidence.17 After such further development deemed
necessary, the Office shall issue an appropriate decision on the merits of this claim.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established that he sustained an emotional condition in the performance of duty causally related
to factors of his federal employment.

13

Kim Nyuyen, supra note 9.

14

James E. Norris, supra note 10.

15

Id.

16

Tina D. Francis, 56 ECAB 180 (2004).

17

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: June 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL DISASTER MEDICAL
SERVICES, Bethesda, MD, Employer
__________________________________________

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

Docket No. 14-1994
Issued: June 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 16, 2014 appellant, through his attorney, filed a timely appeal of an
August 21, 2014 Office of Workers’ Compensation Programs’ (OWCP) nonmerit decision
denying further merit review. The most recent merit decision was issued by the Board on
April 24, 2014, which became final after 30 days of issuance and is not subject to further review.
The Board lacks jurisdiction to review the merits of appellant’s case, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d).
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. A review of the facts follows.
On July 31, 2011 appellant then a 64-year-old health technician/paramedic filed an occupational
disease claim alleging that he had developed necrotizing fasciitis, clostriudium septicum due to
factors of his federal employment. He stated that he returned from a two-week deployment in
Haiti on January 30, 2010 and was diagnosed with strep throat. Appellant stated that
periodically after that he developed multiple episodes of uncontrolled fevers and on July 2, 2011
received a diagnosis of necrotizing fasciitis.
In a report dated September 8, 2011, Dr. Robert E. Hruby, a Board-certified surgeon,
stated that he first examined appellant on July 2, 2011 with necrotizing fasciitis and myonecrosis
secondary to clostridium perfringens infection. He stated that appellant developed multisystem
organ failure and required treatment for respiratory failure, renal failure, and overwhelming
sepsis. Dr. Hruby opined, “From a clinical standpoint, the infectious etiology of his disease may
be related to his deployment to Haiti although deployment occurred months before. The medical
literature suggests that these types of unusual infections mainly remain dormant in the
gastrointestinal tract for extended periods of time.” Dr. Hruby examined appellant on July 3,
2011 and diagnosed necrotizing fasciitis with no clear source, possibly spontaneous, with
multisystem organ failure. On July 22, 2011 he diagnosed clostridium perfringens necrotizing
fasciitis involving the upper back, right flank, and right anterior abdominal wall.
By decision dated November 1, 2011, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish that his diagnosed condition was due to his
employment. The Board reviewed his appeal in a decision dated November 5, 2012 and reissued
on January 18, 20132 and found that Dr. Hruby did not explain how or why he believed that
appellant developed necrotizing fasciitis, and myonecrosis due to his deployment to Haiti. The
Board found that appellant had not submitted sufficient medical opinion evidence to establish his
occupational disease claim. The facts and circumstances of the case as set forth in the Board’s
prior decision are adopted herein by reference.
Counsel requested reconsideration on August 13, 2013. In a report dated December 1,
2011, Dr. Hruby opined that clostridium perfringens was the etiology of his necrotizing
myonecrosis. He stated that clostridium perfringens was endemic in Haiti. Dr. Hruby
concluded:
“The patient, after his deployment, developed an acute diarrheal illness followed
by fulminant sepsis, and necrotizing myonecrosis. As you are also aware, these
infections may lay dormant in carriers for extended periods of time. Based on
these criteria, it is probable that this unusual life threatening infection from which
[appellant] is recovering may be related to his deployment to Haiti.”

2

Docket No. 12-1169 (issued November 5, 2012). The Board issued an Order reissuing this decision on
January 18, 2013 due to nondelivery. See Docket No. 12-1169 (issued January 18, 2013).

2

By decision dated September 17, 2013, OWCP denied modification of its prior decisions.
It reviewed Dr. Hruby’s December 1, 2011 report and found that it continued to be speculative as
to the relationship between appellant’s condition and his employment. The Board reviewed this
decision on April 24, 20143 and found that appellant had not submitted the necessary medical
opinion evidence to establish his occupational disease claim.
Counsel requested reconsideration on June 6, 2014 and submitted a brief dated
April 24, 2014. In this brief, he argued that OWCP improperly relied on medical journal articles
in denying appellant’s claim. Counsel described the health situation in Haiti prior to and
following the earthquake on January 12, 2010. He opined that appellant was exposed to “an
infectious disease laboratory for tropical illnesses.” Counsel argued that appellant was hundreds
of times more likely to have contracted a severe clostridium infection in Haiti than in the United
States. He stated that the record previously lacked the information regarding the epidemiological
context of Haiti. Counsel also submitted medical publications regarding Haiti and the Haitian
earthquake as well as necrotizing fasciitis and clostridium difficile. He further submitted
diagnostic studies from July 2011.
By decision dated August 21, 2014, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found that the opinion on causal relationship between his
diagnosed condition and his employment exposure must be provided by a physician, rather than
by counsel. OWCP further found that the medical evidence submitted did not contain any
medical opinion evidence.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.4
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.5 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.6
ANALYSIS
In support of his request for reconsideration, counsel submitted a brief analyzing the
relative health situations in the United States and in Haiti at the time of appellant’s visit. He
3

Docket No. 14-203 (issued April 24, 2014).

4

5 U.S.C. §§ 8101-8193, 8128(a).

5

20 C.F.R. § 10.606.

6

Id. at § 10.608.

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opined that appellant was hundreds of times more likely to have developed his infections in Haiti
than in the United States. As noted by OWCP, in order to establish appellant’s occupational
disease claim, he must submit medical opinion evidence that his diagnosed conditions were the
result of employment exposures. The opinion of counsel does not constitute medical evidence7
and thus is not relevant to the reasons that appellant’s claim was denied, the lack of medical
reasoning explaining why and how an exposure to conditions in Haiti in January 2010 would
result in his diagnosed conditions of necrotizing fasciitis on July 2, 2011. This brief is not
relevant and pertinent new evidence. Furthermore, counsel’s brief does not offer arguments that
show that OWCP erroneously applied or interpreted a specific point of law nor does it advance a
relevant legal argument not previously considered by OWCP.
The Board further finds that the medical publications are not relevant to the issue for
which resulted in the denial of appellant’s claim. These publications are of general application
and not determinative regarding whether specific conditions are causally related to particular
employment factors in a claim.8 These publications were not reviewed by a physician and
therefore lack any opinion rendering them specific to appellant’s claim. Finally, the medical test
results do not contain any mention of the underlying cause of the conditions demonstrated and
are not relevant and pertinent new evidence supporting appellant’s occupational disease claim.
CONCLUSION
The Board finds that appellant has not met any of the criteria warranting a merit review.
OWCP, therefore, properly declined to reopen his claim for consideration of the merits.

7

A lay person is not competent to render a medical opinion. See James A. Long, 40 ECAB 538 (1989).

8

See P.J., Docket No. 14-498 (issued May 19, 2014); and Gaetan F. Valenza, 35 ECAB 763 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF THE ARMY, FORT SAM
HOUSTON, San Antonio, TX, Employer
__________________________________________

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

Docket No. 09-1051
Issued: January 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2009 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated January 12, 2009. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merit issues of this case.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment in
compensation in the amount of $1,226.92 had been created for the period November 12 through
22, 2008 because appellant continued to receive wage-loss compensation after her return to
work; and (2) whether it properly found that appellant was at fault in the creation of the
overpayment and therefore not subject to waiver. On appeal appellant asserted that she was not
at fault.1

1

Appellant also requested to review all papers associated with the case. On October 22, 2009 a complete copy of
the case record was forwarded to her.

FACTUAL HISTORY
On April 15, 2008 appellant, then a 56-year-old instructional systems specialist, sustained
employment-related contusions of multiple sites and a right wrist sprain when she fell on an
uneven sidewalk at work. She stopped work that day, was placed on the periodic rolls and
received compensation payments by check. Appellant returned to full-time limited duty on
November 12, 2008. She received and endorsed one additional compensation check in the
amount of $3,123.07, covering the period October 26 to November 22, 2008.
By letter dated December 11, 2008, the Office issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $1,226.92 for the period
November 12 through 22, 2008 because she continued to receive disability compensation during
a period in which she had returned to work. It found appellant at fault in the creation of the
overpayment because she should have known she was not entitled to wage-loss compensation
after her return to work. Appellant was provided an overpayment action request form and an
overpayment questionnaire. On December 19, 2008 she called the Office to inquire about setting
up a repayment plan.
On January 12, 2009 the Office finalized the preliminary determination that appellant
was at fault in creating the $1,226.92 overpayment because she continued to receive wage-loss
compensation after her return to work.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act2 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of her duty.3
Section 8116 of the Act defines the limitations on the right to receive compensation benefits.
This section of the Act provides that, while an employee is receiving compensation, he or she
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.4 Section 10.500 of the Office’s regulations provide that “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.”5 Office procedures provide that an overpayment in compensation is created when a
claimant returns to work and continues to receive compensation.6

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

5

20 C.F.R. § 10.500.

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).

2

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $1,226.92. The record supports that she returned to work on November 12, 2008 and
continued to receive wage-loss compensation through November 22, 2008. As noted, both the
Act and Office implementing federal regulations provide that a claimant may not receive wageloss compensation concurrently with a federal salary.7 A copy of an endorsed check shows that
appellant received and deposited compensation totaling $3,123.07 for the period October 26 to
November 22, 2008, and an overpayment worksheet indicates that appellant was entitled to
compensation of $1,896.15 for the period October 26 through November 11, 2008, yielding
an overpayment in compensation in the amount of $1,226.92 for the period November 12
through 22, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”8
Section 10.433(a) of the Office’s regulations provides:
“[The Office] may consider waiving an overpayment only if the individual to
whom it was made was not at fault in accepting or creating the overpayment.
Each recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives from [the Office] are proper.
The recipient must show good faith and exercise a high degree of care in reporting
events, which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault in creating an
overpayment:
(1) Made an incorrect statement as to a material fact, which he or she
knew or should have known to be incorrect;
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment, which he or she knew or should have known to
be incorrect. (This provision applies only to the overpaid individual).”9
In determining whether a claimant is at fault in creating an overpayment, the Office will
consider the circumstances surrounding the overpayment. The degree of care expected by a
7

5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

8

5 Id. at § 8129; see Joan Ross, 57 ECAB 694 (2006).

9

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

3

recipient of compensation may vary with the complexity of the circumstances and the
individual’s capacity to realize that he or she is being overpaid.10
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment because she
knew or should have known she was not entitled to wage-loss compensation for the period
November 12 through 22, 2008 when she also worked. Each recipient of compensation benefits
is responsible for taking all reasonable measures to ensure that payments he or she receives are
proper11 and the recipient must show good faith and exercise a high degree of care in reporting
events that may affect entitlement to or the amount of benefits.12
On appeal, appellant disputes the fault finding that she knew or should have known that
she was not entitled to the compensation. However, in a June 16, 2008 letter, in which the Office
notified her that her claim was accepted and in a June 27, 2008 letter, when the Office notified
her that she was placed on the periodic rolls, the Office clearly advised her that she was to
immediately inform the Office upon her return to work to avoid an overpayment in compensation
and that, if she worked during any period covered by a compensation payment, she had to return
the payment to the Office. Under these circumstances, appellant should have known that she
could not receive wage-loss compensation during any period that she worked.13 While the
Office was notified that appellant returned to work on November 12, 2008, she did not return the
compensation she received by check for the period October 26 through November 22, 2008. The
Board finds that she should have known at the time she returned to work that she was not entitled
to concurrently receive wage-loss compensation and had an obligation to return a payment that
she knew or should have known was incorrect.14 Under section 10.433(a) of the Office’s
regulations, appellant is at fault and is not entitled to waiver of the overpayment in
compensation.15
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where the Office seeks recovery from continuing compensation payments
under the Act.16
CONCLUSION
The Board finds that the Office properly found appellant at fault in the creation of an
overpayment in compensation in the amount of $1,226.92 for the period November 12
10

Id. at § 10.433(b); see Neill D. Dewald, 57 ECAB 451 (2006).

11

Danny E. Haley, supra note 4.

12

Sinclair L. Taylor, supra note 9.

13

Neill D. Dewald, supra note 10.

14

Id.

15

Id.

16

L.D., 59 ECAB ___ (Docket No. 08-678, issued August 7, 2008).

4

through 22, 2008 because she continued to receive wage-loss compensation after her return to
work. As appellant was at fault, she was not entitled to waiver.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2009 be affirmed.
Issued: January 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, GALLUP INDIAN MEDICAL
CENTER, Gallup, NM, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1662
Issued: December 2, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On August 3, 2015 appellant filed an application for review, from a May 19, 2015
decision of the Office of Workers’ Compensation Programs (OWCP) which rescinded
acceptance of her traumatic injury claim.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In William A. Couch,1 the Board held that, when
adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by
appellant and received before the final decision is issued. The Couch principle applies with
equal force when evidence is received by OWCP the same day a final decision is issued.2 In this
case, after OWCP accepted appellant’s traumatic injury claim for a right hand sprain, it advised
her on April 13, 2015 of its proposal to rescind the acceptance of her claim and terminate her
wage-loss compensation and medical benefits. OWCP found that the factual evidence had not
established that she actually experienced the incident or employment factor alleged to have
caused her injury and the medical evidence failed to establish a medical condition causally
1

41 ECAB 548 (1990).

2

Linda Johnson, 45 ECAB 439 (1994).

related to the mechanism of injury. Appellant was allowed 30 days to submit additional
evidence or argument. In response, she submitted medical records dated March 27 to June 20,
2014 and a December 22, 2014 letter, received by OWCP on May 19, 2015. In a May 19, 2015
decision, OWCP rescinded its acceptance of appellant’s claim and terminated her entitlement to
benefits effective February 4, 2015, finding that she had not submitted any factual or medical
evidence.
The Board finds that OWCP, in its May 19, 2015 rescission decision, did not review all
the evidence received in the case. In that submission, appellant provided factual and medical
information in response to OWCP’s notice of proposed rescission of her claim. Accordingly, the
case will be remanded to OWCP to enable it to properly consider all the evidence submitted at
the time of the May 19, 2015 decision. Following such further development as OWCP deems
necessary, it shall issue an appropriate merit decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the May 19, 2015 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to OWCP for further
proceedings consistent with this order.
Issued: December 2, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF DEFENSE, STEVENS
ELEMENTARY SCHOOL, Fort Benning, GA,
Employer
__________________________________________

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

Docket No. 10-513
Issued: November 1, 2010

Case Submitted on the Record

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

JURISDICTION
On December 14, 2009 appellant filed a timely appeal of the October 29, 2009 merit
decision of the Office of Workers’ Compensation Programs, which terminated her wage-loss
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
wage loss effective February 15, 2009 on the grounds that she no longer had any disability
causally related to her accepted employment-related injury; and (2) whether appellant had any
continuing employment-related disability after February 15, 2009.
FACTUAL HISTORY
On November 12, 2003 appellant sustained a traumatic injury to her back while rising
from a chair in the performance of duty. The Office accepted her claim for lumbar subluxation,

sacroiliitis and lumbar disc disorder without myelopathy and she was placed on the periodic
rolls. Appellant underwent an approved lumbar laminectomy on June 13, 2006.
Appellant was treated by Dr. Michael Gorum, a Board-certified neurologist. On
October 16, 2006 Dr. Gorum opined that she was unable to return to any meaningful
employment due to her spinal injury.
The Office referred appellant to Dr. Alexander Doman, a Board-certified orthopedic
surgeon, for an opinion as to whether residuals from the accepted injury precluded her return to
her date-of-injury position. In a September 28, 2007 report, Dr. Doman reviewed appellant’s
medical history and provided findings on examination. He found her reflexes in the upper and
lower extremities to be normal. Dr. Doman noted cogwheeling and voluntary giving way
weakness when strength testing the quadriceps, hamstrings and tibialis anterior muscles on the
right lower extremity. There were no signs of muscular atrophy. Sensation was intact.
Appellant complained of severe low back pain with flexion of the knees bilaterally while in the
prone position. X-rays of the lumbar spine showed evidence of a posterior lumbar interbody
fusion with a 25 percent spondylolisthesis at L4-5. An October 10, 2007 computerized
tomography (CT) scan revealed degenerative changes in the lumbar spine. Dr. Doman
diagnosed degenerative lumbar spinal stenosis with symptom exaggeration. He opined that any
present disability that appellant had was a combination of psychogenic complaints of pain from
symptom exaggeration and the natural progression of her underlying disorder of degenerative
spinal stenosis, in conjunction with her preexisting degenerative spondylolisthesis at L4-5.
Dr. Doman opined that appellant’s degenerative spondylolisthesis at L4-5 had resolved with
respect to the work injury. He stated:
“[Appellant] sustained a minor injury at work in 2003 and this would not have
resulted in the spondylolisthesis itself. It may have resulted in a temporary
aggravation of her underlying degenerative spondylolisthesis that would have
resolved within several months. The same applies to the accepted condition of the
lumbar intervertebral disc disorder and sacroiliitis. Any current residuals from the
present examination are due to the natural history of the underlying disorder.”
Dr. Doman opined that appellant was able to perform the duties of a teacher with respect
to the accepted injury, which had resolved. Any claimed residuals were due to a combination of
symptom exaggeration and the natural course of her preexisting degenerative spondylolisthesis.
Appellant submitted a January 28, 2008 report from Dr. Craig Dawson, a treating
physician, who diagnosed lumbar osteoarthritis, degeneration of the lumbar disc, cervical
spondylosis and lumbar stenosis. Dr. Dawson opined that appellant was disabled from
employment.
The Office found a conflict in the medical opinion between Dr. Dawson and Dr. Doman
as to whether appellant was disabled. In order to resolve the conflict, it referred appellant,
together with a statement of accepted facts, a job description for her date-of-injury teaching
position, the case record and a list of questions to be addressed, to Dr. Graham Howorth, a
Board-certified orthopedic surgeon, for an impartial medical examination.

2

In a July 22, 2008 report, based upon a March 14, 2008 examination and review of the
medical file and statement of accepted facts, Dr. Howorth found no objective evidence of
residuals directly attributable to the accepted employment injury. He stated that appellant had
nonanatomic and nondermatomal pain, indicating symptom magnification and exaggeration.
Physical examination demonstrated varying motor strength and cogwheeling, which Dr. Howorth
attributed to symptom magnification, her degenerative condition and the natural progression of
aging. He advised that the accepted conditions, which included lumbar subluxation, sacroiliitis
and lumbar intervertebral disc without myelopathy, were all preexisting degenerative conditions
and that the symptoms caused by the aggravation of these conditions should have resolved within
six to nine months of the accepted injury. Persistent pain or current residuals would be from the
natural history of this disorder. Dr. Howorth noted that appellant’s subjective complaints greatly
outweighed the objective physical findings and stated that “she may indeed have some type of
residual pain; however, this would not warrant continued disability.” He found that appellant
could work in a sedentary position that included some walking, standing and carrying light
objects and opined that she was able to return to her job as a teacher.
By letter dated December 4, 2008, the Office proposed to terminate appellant’s
compensation based on Dr. Howorth’s July 22, 2008 report, which established that she was no
longer disabled from performing the duties of her date-of-injury job. Based upon the fact that it
approved a lumbar laminectomy in June 2006, the Office accepted that the November 12, 2003
injury caused a permanent aggravation of appellant’s underlying degenerative spondylolisthesis.
Appellant was provided 30 days to submit additional evidence or argument in response to the
notice.
In a letter dated December 30, 2008, appellant contended that the Office erroneously
relied on Dr. Howorth’s report. She argued that Dr. Howorth’s examination was incomplete and
that Dr. Dawson’s report should carry more weight. In an undated letter, Dr. Dawson stated that
appellant remained physically disabled and unable to work in any capacity, noting that she
suffered radicular leg pain, lower back pain and intermittent leg weakness. He opined that she
would never be physically capable of gainful employment.
By decision dated January 26, 2009, the Office terminated appellant’s wage-loss
compensation benefits effective February 15, 2009. On February 3, 2009 appellant requested a
telephonic hearing.
Appellant submitted follow-up reports from Dr. Dawson from January 21 through
July 28, 2009 reflecting his opinion that she was disabled. On January 21, 2009 Dr. Dawson
diagnosed postlaminectomy syndrome, lumbar region, lumbar spinal stenosis, and costal
chondritis and stated that appellant had pain with any activity. On March 10, 2009 he stated that
appellant had excruciating bilateral leg pain. On April 22, 2009 Dr. Dawson diagnosed facet
arthropathy, foraminal stenosis at L4-5 with nerve impairment. On July 28, 2009 he
administered a lumbar epidural steroid injection.
At a May 15, 2009 hearing, appellant contended that she was disabled from her teaching
position. Counsel contended that Dr. Howorth’s report was not based on an accurate factual
background, because his report was written after the Office accepted the claim for permanent
aggravation of spondylolisthesis.

3

In an October 14, 2009 decision, an Office hearing representative determined that the
January 26, 2009 decision should be vacated. He found that Dr. Howorth’s report failed to
adequately explain why appellant’s ongoing disability was not causally related to 2003 injury or
the basis for his conclusion that the accepted aggravation had ceased. The case was set aside and
remanded for further development of the medical evidence and clarification of the accepted
conditions.
By decision dated October 29, 2009, the chief of the Branch of Hearing and Reviews
reopened the case on his own motion and vacated the October 14, 2009 decision. He noted that
the issue in question was not properly addressed on appeal.1 The chief of the Branch found that
Dr. Howorth’s report constituted the weight of the medical evidence, was well rationalized and
resolved the conflict in medical opinion. It established that appellant no longer had disability
related to the accepted conditions and was capable of performing the duties of her date-of-injury
position as a teacher. Accordingly, the January 26, 2009 decision was affirmed.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
If there is disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary of Labor shall appoint a third physician who shall
make an examination.5 Where a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.6

1

Under section 8128(a), the Office has the discretion to reopen a case for review on the merits, on its own motion
or on application by the claimant. It must exercise this discretion in accordance with section 10.138(b) of the
implementing federal regulations.
2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

4

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

5

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
6

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

4

ANALYSIS -- ISSUE 1
The Board finds that the Office properly terminated appellant’s wage-loss compensation
effective February 15, 2009.
The Office found that a conflict in medical opinion arose between Dr. Dawson, an
attending physician and Dr. Doman, an Office referral physician, as to whether appellant had any
disability causally related to her accepted conditions. In order to resolve the conflict, it referred
appellant, together with a statement of accepted facts and the medical record to Dr. Howorth for
an impartial medical examination. Based on Dr. Howorth’s review of the case record and
findings on examination, he found no objective evidence of residuals directly attributable to
appellant’s accepted employment injury. He stated that appellant’s subjective complaints greatly
outweighed the objective physical findings, stating that “she may indeed have some type of
residual pain; however, this would not warrant continued disability.” Dr. Howorth indicated that
her nonanatomic and nondermatomal pain was indicative of symptom magnification and
exaggeration and that the symptoms caused by the aggravation of her preexisting degenerative
conditions had resolved within six to nine months of the accepted injury. He opined that
appellant could work in a sedentary position that included some walking, standing and carrying
light objects and that she was able to return to her job as a teacher. The Board finds that
Dr. Howorth’s opinion is well rationalized and based on a proper factual and medical
background.
Appellant’s representative contended that Dr. Howorth’s opinion lacked probative value
because it was not based on an accurate statement of facts. Counsel argued that his conclusion
that appellant no longer had residuals from the accepted injury might have changed had he
known that the Office had accepted the condition of permanent aggravation of spondylolisthesis.
The Board notes, however, that the Office’s expansion of the claim to include permanent
aggravation of spondylolisthesis does not affect the outcome of this case. The issue in this case
is not whether appellant has residuals from her accepted injury, which would be relevant were
the Office attempting to terminate her medical benefits. Rather, the issue is whether she is
disabled from performing the duties of her date-of-injury teaching position.7 Dr. Howorth’s
report clearly establishes that appellant was capable of performing those duties.
Dr. Howorth’s well-rationalized report constitutes the special weight of the medical
opinion evidence afforded an impartial medical specialist and establishes that appellant is no
longer disabled due to residuals of her accepted conditions. The Board, therefore, finds that the
Office met its burden of proof to terminate appellant’s compensation benefits effective
February 15, 2009.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
7

See I.J., supra note 3.

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that she had an employment-related disability, which continued after termination of
compensation benefits.8
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.9
ANALYSIS -- ISSUE 2
After the Office properly terminated appellant’s wage-loss compensation benefits, she
had the burden to establish continuing employment-related disability.10 Dr. Dawson continued to
opine that appellant was disabled in follow-up reports for the period January 21 through
July 28, 2009. However, none of his reports contains an explanation as to how appellant was
disabled due to her accepted injury. Medical conclusions unsupported by rationale are of little
probative value.11 The Board finds that these reports are of limited probative value and are
insufficient to establish that appellant was disabled after February 15, 2009.
CONCLUSION
The Board finds that Office met its burden of proof to terminate appellant’s
compensation benefits effective February 15, 2009. The Board also finds that appellant has
failed to establish that she had any employment-related disability after February 15, 2009 due to
her accepted injury.

8

Id.

9

Id.; Victor J. Woodhams, 41 ECAB 345 (1989).

10

I.J., supra note 3

11

Willa M. Frazier, 55 ECAB 379 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the October 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Wilkes Barre, PA, Employer
__________________________________________

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Appearances:
Michael S. Miller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1231
Issued: September 18, 2014

Case Submitted on the Record

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

JURISDICTION
On May 5, 2014 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated November 6, 2013. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied continuation of pay for the period May 17
to 29, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 63-year-old nursing assistant, filed a Form CA-1 claim for benefits based on
a May 5, 2013 traumatic injury where he allegedly injured his chest and groin when he was
assaulted by a patient on May 4, 2013.
By letter to appellant dated May 7, 2013, OWCP advised him that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. It
asked him to submit a comprehensive medical report from his treating physician describing his
symptoms and a medical opinion explaining the cause of any diagnosed condition.
In a report dated May 4, 2013, received by OWCP on May 29, 2013, Dr. O’Neill J. Pyke,
a specialist in internal medicine, stated that appellant was admitted to the emergency room on
May 4, 2013 with chest contusion after having been hit in the chest and kicked in the groin. He
advised that appellant had tachycardia and was in atrial fibrillation while treated in the
emergency room. Appellant was admitted for cardiological observation.
In a May 14, 2013 report, Dr. Marie J. Adajar, a specialist in internal medicine, stated
that appellant was discharged from the hospital on May 6, 2013. She advised that a history of
atrial fibrillation had been diagnosed on May 4, 2013 and that he was referred to an
anticoagulation clinic. Dr. Adajar released appellant to return to full duty on May 14, 2013 and
advised that he could return to the employee health unit as needed.
A hospital emergency room report dated May 16, 2013 indicated that appellant was
admitted to the emergency room at approximately 3:00 p.m. that day. The report also noted that
he began to complain of irregular heart beat and elevated blood pressure; he was subsequently
treated for atrial fibrillation in the intensive care unit. Appellant was released after several days.
On May 17, 2013 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on May 17, 2013 which was causally related to his May 4,
2013 work injury. He stated on the form that he awakened on May 16, 2013 and felt his heart
racing and fluttering and that he experienced shortness of breath and weakness. Appellant
believed that these symptoms were related to his May 4, 2013 chest wall contusion.
In a statement dated June 10, 2013, appellant advised that, after he completed his 12:00
a.m. to 8:00 a.m. work shift on May 16, 2013, the symptoms he experienced on May 4, 2013
returned. He stated that he was admitted to the emergency room at the Veterans Administration
medical center on the afternoon of May 16, 2013.
On June 19, 2013 OWCP accepted appellant’s claim for contusion to the chest wall.
In a memorandum dated July 9, 2013, OWCP stated that appellant had received
continuation of pay from May 4 to 15, 2013. It further stated that he was hospitalized for several
nonwork-related conditions and was released to full duty on May 26, 2013; he took personal
leave for May 26, 2013 and returned to work on May 29, 2013.
On July 18, 2013 OWCP accepted appellant’s claim for recurrence of disability, for the
accepted condition of chest wall contusion, based on Dr. Adajar’s May 14, 2013 release to return
2

to full duty and her instructions to return to the Employee Health Unit as needed. It found that
his treatment at the emergency room on May 16, 2013 was work related; however, it stated that
his subsequent admission to the intensive care unit for atrial fibrillation treatment was not work
related.
In a November 6, 2013 decision, OWCP determined that appellant was not entitled to
continuation of pay for the period May 17 to 29, 2013 as his recurrent disability was not the
result of a traumatic injury; i.e., one occurring during one work shift. It stated that his May 16,
2013 recurrence of disability was for medical care at the emergency room only. OWCP found
that appellant’s subsequent hospital admission and days off from work were not work related.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the evidence.3 Under FECA, the term disability is
defined as an inability, due to an employment injury, to earn the wages the employee was
receiving at the time of injury, i.e., an impairment resulting in loss of wage-earning capacity.4
For each period of disability claimed, the employee has the burden of establishing that he or she
was disabled for work as a result of the accepted employment injury.5 Whether a particular
injury causes an employee to become disabled for work and the duration of that disability are
medical issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.6 The fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two.7 The Board will not require
OWCP to pay compensation for disability in the absence of medical evidence directly addressing
the specific dates of disability for which compensation is claimed. To do so would essentially
allow an employee to self-certify his disability and entitlement to compensation.8
Section 8118 of FECA provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
his immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of FECA.9 In order to establish entitlement to continuation of pay, an
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

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

6

Gary L. Watling, 52 ECAB 278 (2001).

7

Manual Garcia, 37 ECAB 767 (1986).

8

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

5 U.S.C. § 8118. A traumatic injury refers to injury caused by a specific event or incident or series of incidents
occurring within a single workday or work shift whereas an occupational disease refers to an injury produced by
employment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44
ECAB 343, 351 (1992).

3

employee must establish, on the basis of reliable, probative and substantial evidence, that he was
disabled as a result of a traumatic employment injury. As part of this burden, he must furnish
medical evidence from a qualified physician who, based on a complete and accurate history,
concludes that the employee’s disability for specific periods was causally related to such injury.10
FECA’s implementing regulations provide, in pertinent part, that to be eligible for
continuation of pay, a claimant must: (1) have a traumatic injury which is job related and the
cause of the disability and/or the cause of lost time due to the need for medical examination and
treatment; (2) file a Form CA-1 within 30 days of the date of injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.11
ANALYSIS
On May 5, 2013 appellant filed a Form CA-1 claim for benefits based on traumatic
injury, alleging that he injured his chest and groin when he was assaulted by a patient on
May 4, 2013. OWCP accepted his claim for chest wall contusion and awarded him continuation
of pay from May 4 to 15, 2013. On May 17, 2013 appellant filed a Form CA-2a claim for
benefits, alleging that he sustained a recurrence of disability on May 16, 2013 which was
causally related to his accepted chest wall contusion. OWCP accepted the claim on July 18,
2013, finding that his treatment at the emergency room on May 16, 2013 was work related, but
that appellant’s admission to the intensive care unit for atrial fibrillation treatment was not work
related. On November 16, 2013 OWCP denied continuation of pay, finding that he failed to
establish lost time from work due to a traumatic injury. It stated that appellant’s period of
recurrent disability from May 17 to 29, 2013 was not the result of a traumatic injury. OWCP
found that the recurrence of disability was accepted only for medical care at the emergency room
on May 16, 2013 and that his subsequent hospital admission and subsequent days off were for
treatment of atrial fibrillation and were not related to his accepted chest wall contusion. On
appeal appellant claims that his continuation of pay request should have been accepted because
chest wall contusions are “a known cause” of atrial fibrillation.
The Board finds that appellant did not meet the requirements for continuation of pay.
Although he gave written notice that he was claiming continuation of pay within 30 days of
being injured, appellant has not established that his disability was due to a work-related
traumatic injury.12 OWCP noted that he was treated at an emergency room for symptoms he
believed were causally related to his May 4, 2013 work injury for part of one day, May 16, 2013;
but the evidence did not establish that his subsequent hospitalization and time off from work
were due to the accepted chest wall contusion. The hospital records indicated that the
hospitalization was due to atrial fibrillation, a nonwork-related condition. The record therefore
contains no contemporaneous medical evidence supporting appellant’s claim that he was entitled
to continuation of pay for the period May 17 to 29, 2013.

10

Carol A. Dixon, 43 ECAB 1065 (1992).

11

20 C.F.R. § 10.205(a)(1)-(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

12

See W.W., 59 ECAB 533, 536 (2008).

4

OWCP properly denied continuation of pay for this period in its November 6, 2013
decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for continuation of pay
from May 17 to 29, 2013.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINSTRATION,
Westbury, NY, Employer
__________________________________________

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

Docket No. 16-0813
Issued: July 20, 2016

Case Submitted on the Record

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

JURISDICTION
On March 14, 2016 appellant filed a timely appeal from a September 29, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision of OWCP dated March 30, 2015 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that his attending physician’s report is sufficient to
establish the causal relationship between his emotional condition and an accepted work incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2014 appellant, then 36-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that he experienced mental trauma due to a loss of
separation on that date. He stopped work on the date of injury.
In an August 29, 2014 letter, OWCP advised appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries.
In an undated statement, appellant related that on August 17, 2014 he was sitting at his
radar scope working Newark arrival aircraft. He had several aircraft on his frequency and under
his control while also experiencing problems with his equipment. Appellant became distracted
by the equipment problems and coordination that was taking place behind him. He did not
notice that two aircraft under his control were getting too close to each other. When a conflict
alert activated, appellant realized that separation was lost between both aircraft. He immediately
reestablished standard separation while continuing to work several other aircraft on his
frequency. Appellant stated that this incident left him feeling very anxious, stressed, and
mentally unable to properly preform his air traffic controller duties.
In an August 18, 2014 duty status report (Form CA-17), Dr. Bruce S. Herman, Ph.D., an
attending clinical psychologist, noted August 17, 2014 as the date of injury and a history of
injury that appellant had a loss of separation. He diagnosed unspecified acute reaction to stress
due to the injury. Dr. Herman advised that appellant was unable to perform his regular work
duties.
In a September 30, 2014 decision, OWCP accepted that the August 17, 2014 incident
occurred as alleged. However, it denied appellant’s claim, finding that the medical evidence of
record did not contain a rationalized medical opinion to establish a causal relationship between
his emotional condition and the accepted employment incident.
Subsequently, OWCP received an authorization for examination and/or treatment (Form
CA-16) that was signed and issued by the employing establishment on August 17, 2014.
On January 14, 2015 appellant requested reconsideration.
In an August 18, 2014 narrative report and September 29, 2014 attending physician’s
report, Dr. Herman noted a history of the August 17, 2014 employment incident, provided
examination findings, reiterated his diagnosis of unspecified acute reaction to stress, and
addressed appellant’s work capacity. In the August 18, 2014 report, he noted that appellant
attributed his emotional condition, difficulty with sleeping, and inability to work to the accepted
work incident. In the September 29, 2014 form report, Dr. Herman indicated with an affirmative
mark that his diagnosis was caused or aggravated by the August 17, 2014 employment incident.
He concluded that appellant could return to his regular work.
By decision dated March 30, 2015, OWCP denied modification of the September 30,
2014 decision. It found that the medical evidence submitted did not contain a rationalized
medical opinion to establish a causal relationship between appellant’s emotional condition and
the accepted August 17, 2014 work incident.
2

In an August 15, 2015 letter and August 23, 2015 appeal request form, received on
August 27, 2015 appellant requested reconsideration of the March 30, 2015 decision. In his
August 15, 2015 letter, he contended that Dr. Herman’s August 18 and September 29, 2014
reports established a causal relationship between his emotional condition and the accepted
August 17, 2014 work incident.
Appellant resubmitted the second page of Dr. Herman’s August 18, 2014 report.
In a September 29, 2015 decision, OWCP denied further merit review of appellant’s
claim. It found that he had not submitted a relevant legal argument and that the medical
evidence submitted was duplicative and previously considered.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 Section 10.608(b) of the implementing regulations states that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with OWCP’s denial of his traumatic injury claim. He requested
reconsideration and asserted that his emotional condition was causally related to the accepted
August 17, 2014 employment-related incident. The underlying issue in this case is whether
appellant submitted medical evidence establishing that his emotional condition is causally related
to the accepted August 17, 2014 work incident. That is a medical issue which must be addressed
by relevant, new medical evidence.6
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a relevant legal
argument not previously considered or submit relevant an pertinent new evidence not previously
considered by OWCP. In his August 15, 2015 request for reconsideration and on appeal
2

Id. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

6

See Bobbie F. Cowart, 55 ECAB 746 (2004).

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appellant asserted that Dr. Herman’s August 18 and September 29, 2014 reports were sufficient
to establish the causal relationship between his emotional condition and the accepted work
incident. The Board finds that appellant’s assertion does not constitute medical evidence as he is
a lay person and is not competent to render a medical opinion.7
Appellant also resubmitted page two of Dr. Herman’s August 18, 2014 report. This
report was previously of record. The Board has held that evidence which repeats or duplicates
evidence already in the case record, however, has no evidentiary value and does not constitute a
basis for reopening a case.8
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
The Board notes that the employing establishment executed a Form CA-16 on August 17,
2014 authorizing medical treatment. The Board has held that where an employing establishment
properly executes a Form CA-16, which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.9 Although OWCP denied appellant’s claim for an injury, it did
not address whether he is entitled to reimbursement of medical expenses pursuant to the Form
CA-16. The Board finds that, upon return of the case record, this matter should be addressed.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

7

James A. Long, 40 ECAB 538, 542 (1989).

8

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

9

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300 and 10.304.

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ORDER
IT IS HEREBY ORDERED THAT the September 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2016
Washington, DC

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

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

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

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