United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
RESEARCH LABORATORY, Patuxent, MD,
Employer
__________________________________________

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Appearances:
Laurie Edgecomb, for the appellant
No Appearance, for the Director

Docket No. 12-8
Issued: June 7, 2012

Oral Argument April 18, 2010

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

JURISDICTION
On October 3, 2011 appellant, through his representative, filed a timely appeal of an
August 5, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying further review of his wage-earning capacity determination. Because over 180 days
elapsed from the most recent merit decision of June 7, 2010 to the filing of this appeal, 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) and 501.3.
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 April 18, 1989 appellant, then a
35-year-old aircraft mechanic, sustained injury to his back when he stepped through a missing
floor panel in an aircraft. OWCP accepted strains of the cervical spine and right shoulder with
major depression. It entered appellant on the periodic rolls and compensated him for total
disability. Appellant reported earnings as a store clerk. In a decision dated May 11, 1999,
OWCP determined that his actual earnings of $250.00 a week as a store clerk fairly and
reasonably represented his wage-earning capacity. It found that appellant had a loss of
wage-earning capacity of $345.35 per week and authorized compensation benefits in the amount
of $1,336.00 every four weeks. The Board reviewed this decision on August 14, 2002 and found
that his actual earnings as a store clerk fairly and reasonably represented his wage-earning
capacity.2 The Board found that appellant had earnings from November 7, 1997 through
March 9, 1998 at the rate of $6.25 per hour and that his position was not makeshift, part-time,
seasonal sporadic or temporary. The Board found that his work stoppage did not occur because
of any change in his injury-related condition affecting his ability to work, but rather because he
was terminated for inappropriate behavior. The Board determined that as appellant had worked
at this position successfully for more than 60 days, this position represented his wage-earning
capacity and that it was appropriate for OWCP to perform a retroactive wage-earning capacity
determination under the facts of the case. The facts and circumstances of the case as set out in
the Board’s prior decision are adopted herein by reference.
Appellant submitted a note dated September 4, 2002 from his treating physicians,
Dr. George J. Mathews, a Board-certified neurosurgeon, and Dr. Shoba Mathews, a neurologist.
They diagnosed chronic pain, panic attacks and fibromyalgia. Dr. G. Mathews opined that
appellant was totally disabled. On February 12, 2003 he diagnosed fibromyalgia, chronic pain
and lumbosacral disc disease. Dr. G. Mathews noted that appellant was able to do some wood
work at home, but found that he was totally disabled. In a note dated March 12, 2003, he listed
the diagnoses of chronic pain, fibromyalgia, depression, lumbosacral disc disease and tension
headaches. Dr. G. Mathews reported that appellant was working on a limited basis, but stated
that he remained totally disabled. On August 13, 2003 he stated that appellant had chronic pain
and remained disabled. On January 7, 2004 Dr. G. Mathews noted that appellant kept himself
busy by adding to and renovating his house.
Appellant underwent a magnetic resonance imaging (MRI) scan on March 7, 1996 which
demonstrated degenerative disc disease at L3-4 and grade 1 spondylolisthesis of L5. Dr. S.
Mathews completed a work capacity evaluation on July 6, 2006 and opined that he was totally
disabled due to physical and emotional conditions. She completed a note on October 25, 2006
and stated that appellant was staying active with “handyman stuff” for exercise as well as rental
properties, but found him totally disabled. On February 14, 2007 Dr. S. Mathews reiterated that
he was totally disabled. On August 13, 2007 appellant underwent a cervical MRI scan, which
demonstrated chronic multilevel degenerative disc changes and spondylosis with significant
multilevel foraminal stenosis. A lumbar MRI scan on the same date demonstrated grade 1
spondylolisthesis L5-S1 with bilateral L5 spondylolysis and mild bi-foraminal attenuation,
2

Docket No. 00-1848 (issued August 14, 2002).

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multilevel degenerative disc changes and spondylosis and straightening compatible with strain
and spasm. Dr. S. Mathews completed a work capacity evaluation on August 13, 2007 and
opined that appellant was totally and permanently disabled. She again found him totally disabled
on September 5 and October 3, 2007.
Dr. G. Mathews completed work capacity evaluation and found that appellant was totally
disabled on September 10, 2008. He responded to questions from OWCP and stated that
appellant was totally disabled. Dr. G. Mathews completed notes dated February 13 through
December 24, 2008 and stated that appellant was experiencing difficulty performing most
physical activities such as walking and standing. He continued to submit treatment notes
describing these difficulties. Dr. G. Mathews also found that appellant was totally disabled on a
work capacity evaluation dated July 2, 2009. In treatment notes dated July 8, August 5 and
September 2, 2009, he stated that appellant had pain in the low back with pain radiating into the
hip and knee. Dr. G. Mathews noted appellant’s difficulty with urination and with performing
most physical activities including standing and walking. In a telephone call on October 16, 2009
appellant’s claims examiner stated that the weight of the medical evidence supported total
disability and that he would adjust appellant’s wage-loss compensation accordingly. OWCP
accepted appellant’s claim for the additional conditions of thoracic/lumbar spondylosis with
complications on October 16, 2009.
Dr. S. Mathews completed a report on December 2, 1998 and stated that appellant was
temporarily totally disabled and incapable of work due to his April 18, 1989 employment injury.
In a letter received by OWCP on December 7, 2009 appellant related his history of injury
and treatment with Drs. G. Mathews and S. Mathews. He stated that he attempted to return to
work in February 1990 and July 1991, but that in October 1993 his condition deteriorated and he
stopped working in March 1994. Appellant noted that he worked in the private sector beginning
on November 7, 1997, but was fired in January 1998. He noted that his full compensation
benefits were reinstated on October 16, 2009 due to OWCP’s acceptance of the conditions of
thoracic and lumbar spondylosis with complications.
Appellant requested retroactive
compensation benefits beginning March 1998.
Appellant requested that OWCP reconsider reinstating full wage-loss benefits effective
March 1998. In a report dated November 17, 2009, Dr. G. Mathews stated that he and
Dr. S. Mathews had provided treatment for appellant since June 17, 1989. He stated that
appellant had continually been disabled, with a few attempts to return to light-duty work which
failed. Dr. G. Mathews stated that appellant’s condition had deteriorated requiring pain
management on a regular basis as well as treatment of emotional difficulties. He opined that
appellant was totally and permanently disabled and was not a candidate for surgery.
Dr. G. Mathews submitted notes dated November 4 and 25 and December 23, 2009
which, stated that appellant was totally and permanently disabled and noted his symptoms of low
back pain radiating into both legs.
OWCP informed appellant by letter dated March 10, 2010 that he was not entitled to
retroactive total disability compensation to May 11, 1999, the date of his wage-earning capacity
determination as the Board had upheld that decision. It noted that beginning July 2002

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Dr. S. Mathews started to prescribe strong pain medication suggesting that appellant’s condition
changed at that point. OWCP advised appellant of the basis for modifying a loss of
wage-earning capacity decision and requested a comprehensive narrative report addressing his
condition.
In notes dated January 20 to March 17, 2010, Dr. G. Mathews opined that appellant was
totally disabled and had low back pain radiating into his legs.
By decision dated June 7, 2010, OWCP denied appellant’s claim for a recurrence of
disability beginning in July 2002. It noted that he began receiving compensation for total
disability on October 25, 2009. The claims examiner further noted that appellant had a prior loss
of wage-earning capacity determination dated May 11, 1999.
Appellant requested reconsideration on February 9, 2011 and submitted a report dated
December 15, 2010 from Dr. G. Mathews noting that he had treated appellant for moderately
severe and constant pain in the neck, shoulders and arms with positive MRI scan findings of
multiple level disc disease in the neck and lumbar spine. Dr. G. Mathews stated that appellant’s
condition had worsened and his medication had increased and that he had always required pain
medication.
Appellant also resubmitted Dr. G. Mathews’ November 17, 2009 report. He requested
review of the wage-earning capacity determination and retroactive compensation. Appellant also
submitted notes dated January 19 through April 27, 2011 from Dr. G. Mathews stating that
appellant was totally and permanently disabled.
Appellant submitted a report from Dr. Mruthyunjaya Gonchigar, a Board-certified
anesthesiologist,3 dated March 29, 2011 diagnosing lumbosacral spondylosis, lumbar
radiculopathy, chronic pain syndrome, degenerated of cervical, thoracic and lumbar discs,
cervical spondylosis and cervical radiculopathy. He also submitted reports dated April 21 and
June 2 and 30, 2011 completed by Dr. Pauline N. Ignacio, a physician Board-certified in physical
medicine and rehabilitation, who noted that his history of injury was well as diagnosing his
current conditions of chronic cervical disc disease, chronic cervical radiculopathy, chronic
lumbar disc disease, bilateral carpal tunnel syndrome, anxiety and depression.
In a decision dated August 5, 2011, OWCP declined to reopen appellant’s claim for
consideration of the merits on the grounds that he failed to submit relevant new evidence in
support of his request for reconsideration.
LEGAL PRECEDENT
It is well established that either a claimant or OWCP may seek to modify a formal loss of
wage-earning capacity determination. One the wage-earning capacity of an injured employee is
determined, a modification of such determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee had been retrained

3

Dr. Gonchigar electronically signed this report on April 14, 2011.

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or otherwise vocationally rehabilitated or the original determination was, in fact, erroneous.4
The burden of proof is on the party attempting to show modification.5 There is no time limit for
appellant to submit a request for modification of a wage-earning capacity determination.6
ANALYSIS
OWCP issued a decision on May 11, 1999 finding that appellant had the capacity to earn
$250.00 a week based on his actual earnings in the private sector. The Board affirmed this
decision on August 14, 2002. On October 16, 2009 OWCP reinstated appellant’s compensation
benefits for total disability. Appellant contends that his wage-earning capacity determination
should be modified due to a change in the nature and extent of his injury-related condition. In a
letter dated March 10, 2010, OWCP noted that beginning in July 2002 the medical evidence
suggested that his employment-related condition could have changed, such that his wage-earning
determination should be modified. It requested that appellant submit a comprehensive narrative
medical report addressing when and how his medical condition changed in order to meet his
burden of proof to modify the existing wage-earning capacity determination. By decision dated
June 7, 2010, OWCP found that he had not submitted sufficient medical evidence and denied his
claim for compensation.
In a letter dated February 9, 2011, appellant again alleged that his wage-earning capacity
determination should be modified as the nature and extent of his injury-related condition had
changed before 2009. OWCP considered his February 9, 2011 letter as a request for
reconsideration of the prior wage-earning capacity determination under 5 U.S.C. § 8128(a). It
found that the request was insufficient to warrant further merit review.
While appellant used the term reconsideration he asserted that the wage-earning capacity
determination should be modified and that he was entitled to retroactive compensation. He
contended that his injury-related condition had worsened and submitted medical evidence. The
Board finds that the February 9, 2011 letter is a request for modification of OWCP’s May 11,
1999 wage-earning capacity determination. This request for modification is not a request for
review of OWCP’s June 7, 2010 decision under 5 U.S.C. § 8128(a). Therefore, OWCP
improperly adjudicated his February 9, 2011 letter as a request for reconsideration.7
As appellant has requested modification of the May 11, 1999 wage-earning capacity
determination, the specific requirements of OWCP’s regulations at section 10.6068 do not apply.
The case will be remanded to OWCP to adjudication his request for modification of the
wage-earning capacity determination and issue an appropriate decision in the case.
4

F.B., Docket No. 10-99 (issued June 21, 2010); Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement,
55 ECAB 552 (2004).
5

Darletha Coleman, 55 ECAB 143 (2003).

6

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

7

See F.B., Docket No.10-99 (issued June 21, 2010); M.J., Docket No. 08-2280 (issued July 7, 2009).

8

20 C.F.R. § 10.606.

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CONCLUSION
The Board finds that OWCP improperly denied appellant’s requested modification of the
May 11, 1999 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2011 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision.
Issued: June 7, 2012
Washington, DC

Alec J. Koromilas, 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
__________________________________________
W.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
Jackson, MS, Employer
__________________________________________

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

Docket No. 07-583
Issued: October 15, 2007

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 27, 2006 appellant filed a timely appeal from a March 23, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his request for
reimbursement of travel expenses and a September 22, 2006 hearing representative’s decision
affirming the March 23, 2006 decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office abused its discretion by denying appellant’s request for
reimbursement of travel expenses.
FACTUAL HISTORY
In April 1991 appellant, then a 39-year-old medical technician, filed an occupational
disease claim alleging that he sustained dysfunction of the immune system and chemical
hypersensitivity causally related to factors of his federal employment. He stopped work on

October 5, 1987 and did not return. The Office accepted the claim for a permanent aggravation
of chemical hypersensitivity.
On February 21, 2006 the Office requested that appellant submit, within 30 days, a
detailed medical report from his attending physician addressing his current condition and its
relationship to his federal employment. The Office noted that the last medical report submitted
was dated August 20, 1999.
On March 2, 2006 appellant requested additional time to submit medical information. He
indicated that he had scheduled an appointment with his attending physician, Dr. William J. Rea,
a Board-certified surgeon, located in Dallas, Texas. Appellant requested that the Office
authorize testing by Dr. Rea and travel expenses to go to Dallas. He stated, “The roundtrip will
be a minimum of 950 miles, plus local miles. I will be driving my own car. I need authorization
stating your office will pay for lodging, meals, travel expenses, and testing, including blood work
and other tests Dr. Rea feels are necessary.”
By decision dated March 23, 2006, the Office denied appellant’s request for travel
expenses to Dallas, Texas to see Dr. Rea. The Office indicated that it was his burden to submit
medical evidence to support continued disability and informed him that it would transfer his care
to another physician if he did not provide current medical evidence.
On April 19, 2006 appellant requested a review of the written record. He contended that
there was not a physician who specialized in multiple chemical sensitivity in his commuting
area. Appellant noted that the Office had scheduled second opinion examinations with nine
physicians from Hattiesburg, Mississippi, to Memphis, Tennessee, but that each physician
declined to evaluate him. He asserted that Dr. Rea was the most qualified physician in the
country to treat his condition and submitted Dr. Rea’s curriculum vitae. Appellant also noted
that the Office had approved travel and testing expenses when he went to see Dr. Rea in 1999.
He submitted copies of letters from the Office scheduling him for a second opinion examination.
By decision dated September 22, 2006, the Office hearing representative affirmed the
March 23, 2006 decision. He found that appellant lived only 40 to 45 miles from Jackson,
Mississippi, which had numerous hospitals and a medical school. The hearing representative
additionally found that Jackson had 232 Board-certified internists and 17 physicians Boardcertified in allergy and immunology. He determined the fact that second opinion examiners
refused to evaluate appellant did not show that he could not obtain treatment in the area. The
hearing representative concluded that it was not reasonable and necessary for appellant to travel
to Dallas for medical treatment and affirmed the denial of authorization of travel expenses.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act1 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office

1

5 U.S.C. §§ 8101-8193.

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considers likely to cure, give relief, reduce the degree of the period of disability or aid in
lessening the amount of monthly compensation.2
Section 10.315 of Title 20 of the Code of Federal Regulations provides, in relevant part:
“The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel, [the
Office] will consider the availability of services, the employee’s condition and the
means of transportation. Generally 25 miles from the place of injury, the work
site or the employee’s home, is considered a reasonable distance to travel. The
standard form designated for [f]ederal employees to claim travel expenses should
be used to seek reimbursement under this section.”3
As the only limitation on the Office’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from known facts.4 The
Board has long held that the Office has broad discretion in approving services provided under the
Act.5
ANALYSIS
The Office accepted that appellant sustained a permanent aggravation of chemical
hypersensitivity due to factors of his federal employment. On February 21, 2006 the Office
requested that he submit a current medical report addressing his condition and its relationship to
federal employment. Appellant asked that the Office authorize payment of his travel expenses to
Dallas, Texas, to see his attending physician, Dr. Rea. He also requested that the Office
authorize medical testing by Dr. Rea. In decisions dated March 23 and September 22, 2006, the
Office denied payment of travel expenses for appellant to attend an appointment with Dr. Rea in
Dallas as it found that the distance from his residence to the physician’s office was not
reasonable.
While the Office authorized medical treatment by Dr. Rea and previously paid
appellant’s expenses incurred in securing medical treatment by the physician in 1999, the issues
of authorization for medical treatment and reimbursement of travel expenses for medical
treatment are separate and distinct. The Office may authorize medical treatment but determine
that the travel expense incurred for such authorized treatment was unnecessary or unreasonable.6
2

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

3

20 C.F.R. § 10.315.

4

See William B. Webb, 56 ECAB ___ (Docket No. 04-1413, issued November 23, 2004); Lecil E. Stevens, 49
ECAB 673 (1998).
5

See Wanda L. Campbell, 44 ECAB 633 (1993).

6

See Dr. Mira R. Adams, 48 ECAB 504 (1997).

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Appellant requested that the Office authorize payment of travel expenses for his trip to
visit Dr. Rea, a drive of over 950 miles roundtrip. He is entitled to reimbursement for reasonable
and necessary travel expenses as provided in section 10.315. The regulation provides that a
reasonable distance to travel is generally 25 miles from the place of injury, the work site or the
employee’s home.7 In determining what constitutes a reasonable travel distance, the Office must
consider the availability of medical services in appellant’s area, his condition and the means of
transportation. The Office found that he did not reasonably need to seek medical treatment in
Dallas given the number of adequate specialists for his condition closer to his commuting area of
Jackson, Mississippi. The Office noted that 232 Board-certified internists and 17 physicians
Board-certified in allergy and immunology worked in the Jackson metropolitan area. Appellant
alleged that he was unable to obtain medical treatment in his area and submitted copies of letters
from the Office attempting to refer him for a second opinion examination. This is insufficient,
however, to establish that he is unable to obtain competent and appropriate medical care within
his commuting area given the number of available specialists.8
The Office has broad discretion in considering whether to reimburse or authorize travel
expenses. The Office properly considered the availability of services for appellant’s condition in
determining whether the distance was reasonable. As the only limitation on the Office’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deduction from known facts.9 The Office properly considered the factors
enumerated in section 10.315 and denied appellant’s request for authorization for travel expenses
to see a physician in Dallas. The Board finds that the Office did not abuse its discretion by
denying authorization of travel expenses.
CONCLUSION
The Board finds that the Office did not abuse its discretion by denying appellant’s request
for reimbursement of travel expenses.

7

20 C.F.R. § 10.315.

8

See Julia A. Strickland, 54 ECAB 649 (2003).

9

See William B. Webb, supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated September 22, 2006 and the March 23,
2006 decision of the Office are affirmed.
Issued: October 15, 2007
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
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Wilmington, NC,
Employer
__________________________________________

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

Docket No. 18-0657
Issued: February 26, 2020

Case Submitted on the Record

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

JURISDICTION
On February 5, 2018 appellant filed a timely appeal from a December 29, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 29, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish right carpal tunnel
syndrome and right cubital tunnel syndrome causally related to the accepted factors of her federal
employment.
FACTUAL HISTORY
On August 8, 2016 appellant, then a 46-year-old natural resources specialist, filed an
occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome due
to factors of her federal employment, including inputting geospatial data from deeds, drawing
parcels, and repetitive motion on the computer. She identified July 26, 2016 as the date she was
first aware of her condition and first realized her condition was employment related. Appellant
did not stop work.
In a report dated August 12, 2016, Dr. Steven R. Anderson, a Board-certified orthopedic
surgeon, noted that he had examined appellant for complaints of right wrist pain radiating to her
elbow and shoulder. Appellant explained that her pain worsened with the use of a keyboard and
mouse and that she had carpal tunnel symptoms 20 years prior without a carpal tunnel release. She
noted that her work required her to use a mouse by clicking and dragging to draw lines on
computerized maps and that this motion extended her wrist. On examination of the right hand and
wrist it was noted that there was a positive carpal tunnel compression test, a positive Tinel’s sign
over the median nerve, a negative Froment’s sign, and a negative Finkelstein’s test over the first
dorsal extensor compartment. Appellant’s right hand and wrist exhibited normal range of motion,
normal strength, and no tenderness to palpation. Dr. Anderson diagnosed right carpal tunnel
syndrome and recommended that she try a wrist brace at work and have diagnostic studies
performed.
In a statement dated August 18, 2016, appellant noted that from 1996 through 1999 she
worked as an office automation clerk. In 1996, she was diagnosed with carpal tunnel syndrome
due to typing a very large document in a short period of time. Appellant stated that, after the
amount of typing at her job returned to normal, the carpal tunnel syndrome resolved. From 1999
through 2002 she worked as a field office assistant which required five hours per day of repeated
hand motion of the wrist, including keyboarding. From 2002 through 2010 appellant worked as a
park ranger, a position which required very little repetitive hand or wrist motion. From 2010
through 2013 she worked as a supervisory natural resources specialist which required roughly four
to five hours of computer work per day, but not repetitively. Starting in 2014 appellant worked as
a natural resources specialist which required seven or more hours per day of computer work,
including typing. She indicated that she noticed some pain in her right wrist when performing her
duties prior to July 26, 2016, but that on that date, she noticed severe pain in her right wrist.
In a development letter dated August 25, 2016, OWCP advised appellant of the factual and
medical deficiencies of her claim. It informed her of the evidence necessary to establish her claim
and provided a questionnaire for her completion regarding the circumstances of the injury. OWCP
afforded appellant 30 days to respond.

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In a note dated November 10, 2016, Dr. Anderson indicated that appellant could return to
work on that date, but that she could not engage in geospatial or similar work for three months.
By decision dated November 16, 2016, OWCP denied appellant’s claim finding that she
had not submitted sufficient evidence to establish the factual component of her claim. It noted that
she had not responded to the inquiries in its development letter. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
In a note dated December 1, 2016, Dr. Anderson opined that appellant’s work, particularly
her geospatial work, had contributed to the diagnosed conditions of carpal tunnel and cubital tunnel
syndrome, dating back to July 26, 2016.
On November 29, 2016 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
An electromyography and nerve conduction velocity (EMG/NCV) study dated August 30,
2016 indicated mild right carpal tunnel syndrome, with slow, but asymptomatic conduction in the
distal right radial sensory nerve and slow conduction in the ulnar nerve of the right elbow.3
Appellant submitted physical therapy notes dated from October 7 through
November 21, 2016.
The hearing was held before an OWCP hearing representative on June 20, 2107. During
the hearing, appellant explained that the work duties alleged to have contributed to her condition
included geospatial work involving use of software to digitize paper maps into an electronic
format. The hearing representative left the case record open for 30 days for submission of
additional evidence.
By decision dated September 6, 2017, the hearing representative set aside OWCP’s
November 16, 2016 decision and directed further development of the case record by requiring
OWCP to schedule an appointment with a second opinion physician.
In a report dated September 21, 2017, Dr. Anderson diagnosed right carpal tunnel
syndrome and checked a box marked “yes” indicating that appellant’s condition had been caused
or aggravated by use of a computer mouse in her federal employment, explaining that the activity
involved wrist extensions.
OWCP scheduled appellant for a second opinion examination with Dr. Joseph Estwanik, a
Board-certified orthopedic surgeon, on December 1, 2017. In his report Dr. Estwanik noted that
appellant claimed that she injured her elbow and wrist due to repetitive motion, and that she had
previously been diagnosed with carpal tunnel syndrome in 1996. On examination, he noted
negative bilateral Spurling compression testing, full range of motion of the shoulders, the elbow,
and the wrists, and fully intact grip with full extension. Appellant had symmetric strength of the
biceps, triceps, and grip strength in both extremities. Dr. Estwanik observed that she had no visible
thenar, hypothenar, or intrinsic muscle atrophy of either hand. On direct light palpation, appellant
3

Dr. David M. Seales, a Board-certified neurologist, interpreted the August 30, 2016 EMG/NCV results.

3

had an intact sensory examination to all fingers and forearms. Tapping the anterior wrist or Tinel’s
sign produced tingling in the little finger, but Dr. Estwanik noted that this was not a positive Tinel’s
sign for carpal tunnel syndrome. Phalen’s signs were normal. Both wrists were held in full flexion
for 30 seconds without symptoms of carpal tunnel syndrome. Tinel’s tests created tingling in
appellant’s fourth and fifth fingers of the right upper extremity and on the left into the left medial
forearm area. Dr. Estwanik further noted that the reported right wrist pain radiating up appellant’s
arm was nonphysiologic and not associated with carpal tunnel syndrome. He pointed out that the
report of August 12, 2016 found “Tinel’s over cubital tunnel is positive over median nerve,” but
opined that there was no causal relationship based upon the physical examination to the cubital
tunnel and the median nerve, rendering this prior examination finding inaccurate. With regard to
the EMG/NCV study of August 30, 2016, Dr. Estwanik noted that the findings were compatible
with the known chronic carpal tunnel syndrome of over 20 years’ duration, unrelated to appellant’s
current job. He concluded that there were no significant objective findings relating her current
complaints and a 20-year history of carpal tunnel syndrome to her current job.
By decision dated December 29, 2017, OWCP denied appellant’s claim finding that she
had not established that her medical condition was causally related to the accepted factors of her
federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.8
4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

4

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.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 specific employment factors identified by the employee.10
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish right carpal
tunnel syndrome and right cubital tunnel syndrome causally related to the accepted factors of her
federal employment.
In a report August 12, 2016, Dr. Anderson noted appellant’s complaints of a repetitive
injury, reported the physical requirements of her employment, and provided physical examination
findings. He diagnosed right carpal tunnel syndrome and recommended that she try a wrist brace
at work and have diagnostic studies performed. In a November 10, 2016 report, Dr. Anderson
noted that appellant could return to work on that date, but restricted her work for three months.
These reports, however, did not provide an opinion on the issue of causal relationship. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.12 These reports, therefore,
are insufficient to establish appellant’s claim.
In a report dated September 21, 2017, Dr. Anderson diagnosed right carpal tunnel
syndrome and checked a box marked “yes” indicating that appellant’s condition had been caused
or aggravated by use of a computer mouse in her federal employment. The Board has held,
however, that when a physician’s opinion on causal relationship consists only of checking “yes”
to a form question, without explanation or rationale, that opinion is of limited probative value and
is insufficient to establish a claim.13
In a second opinion report dated December 1, 2017, Dr. Estwanik noted that appellant
claimed that she injured her elbow and wrist due to repetitive motion, and that she had previously
9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
10
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345, 352 (1989).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019)
12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 3234 (2003).

5

been diagnosed with carpal tunnel syndrome in 1996. On examination, Dr. Estwanik noted normal
tests and range of motion of appellant’s right hand and wrist. He noted that the report of August 12,
2016 found “Tinel’s over cubital tunnel is positive over median nerve,” and indicated that there
was no relationship based upon the physical examination to the cubital tunnel and the median
nerve, rendering this examination detail inaccurate. With regard to the NCV study of August 30,
2016, Dr. Estwanik noted that the findings were compatible with the known chronic carpal tunnel
syndrome of over 20 years’ duration, unrelated to appellant’s current job. He opined that there
were no significant objective findings relating her current complaints and a 20-year history of
carpal tunnel syndrome to her current job. The Board finds that Dr. Estwanik’s December 1, 2017
report contains findings on examination, notes inconsistencies in prior medical reports, observes
that appellant had preexisting carpal tunnel syndrome, and clearly opines that there were no
significant objective findings relating her current complaints and a 20-year history of carpal tunnel
syndrome to the accepted factors of her federal employment. Thus, his report negates a finding of
causal relationship between her claimed conditions and the accepted factors of her federal
employment.14
Finally, appellant submitted diagnostic testing reports including the August 30, 2016
EMG/NCV study which evinced mild right carpal tunnel syndrome. The Board has held, however,
that diagnostic studies lack probative value on the issue of causal relationship as they do not
address whether the employment factors caused the diagnosed conditions.15 The diagnostic testing
is thus insufficient to establish the claim.
As appellant has not submitted sufficient rationalized medical evidence to establish causal
relationship, the Board finds that she has not met her burden of proof to establish her occupational
disease claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right carpal
tunnel syndrome and right cubital tunnel syndrome causally related to the accepted factors of her
federal employment.

14

T.W., Docket No. 19-0677 (issued August 16, 2019).

15

K.G., Docket No. 18-1598 (issued January 7, 2020); J.P., Docket No. 19-0216 (issued December 13, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
McLean, VA, Employer
__________________________________________

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

Docket No. 16-0055
Issued: April 5, 2016

Case Submitted on the Record

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

JURISDICTION
On October 13, 2015 appellant filed a timely appeal from an August 5, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to a March 2, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after it rendered its August 5, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1).

FACTUAL HISTORY
On March 3, 2015 appellant, then a 61-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an ankle injury on March 2, 2015. He claimed that a
coworker hit his ankle with a piece of equipment causing him to fall. Appellant stopped work
that day.
In a March 2, 2015 duty status report (Form CA-17), Dr. Jong Hee Cho, a chiropractor,
advised that appellant was unable to return to work until March 23, 2015. In a March 2, 2015
prescription form, he advised that appellant sustained a right ankle injury, Achilles tendon sprain,
and contusion. Dr. Cho noted that an x-ray was unremarkable and recommended further
evaluation by a podiatrist.
By letter dated March 11, 2015, the employing establishment controverted appellant’s
claim because he failed to submit medical evidence from a qualified physician.
By letter dated March 11, 2015, OWCP advised appellant of the type of evidence needed
to establish his claim.
In a March 9, 2015 report, Dr. Joonhyun Yoon, a podiatric surgeon, advised that
appellant’s symptoms began a week earlier at work when a mail cart hit his right leg. He noted
that appellant indicated that the pain was improving, but increased with ambulation and activity.
On examination Dr. Yoon noted an antalgic gait on the right, resolving ecchymosis and swelling
on the posterior right distal leg, healing red granulation tissue on the posterior right leg, moderate
ankle tenderness, mild ankle swelling, and pain along the distal Achilles tendon and distal
posterior fibula with no crepitation. He assessed right tendinitis and right ankle fracture.
However, an x-ray of the right ankle and foot revealed no acute fracture. Dr. Yoon noted that
appellant had a work-related injury and was unable to perform his work. On March 17, 2015 he
prescribed physical therapy and acupuncture.
In a March 19, 2015 statement, appellant advised that he was pushing a mail hamper at
work when a coworker ran into his heel, ankle, and right hip with a large metal crate. He noted
that he sustained a laceration and fell to the ground landing on his right elbow and hip.
By decision dated April 14, 2015, OWCP denied appellant’s claim finding that the
evidence of record did not support that the claimed injury occurred as alleged.
On May 2, 2015 appellant requested reconsideration. He submitted a witness statement
supporting that he was accidentally struck by an all-purpose container pushed by a coworker.
Appellant also submitted additional medical evidence. In a March 2, 2015 report,
Dr. Cho advised that appellant was injured at work when a coworker hit his right foot with a
piece of equipment. He indicated that appellant related that he fell immediately and felt acute
pain on the right foot with bleeding. Dr. Cho noted that appellant could not stand or walk and
also felt pain in his right calf, thigh, hip, and low back. He assessed ankle injury, lumbago,
sciatica, and lumbar subluxation. Dr. Cho advised that a right ankle x-ray was unremarkable, but
there was a possibility of hairline fracture not shown on the plain x-ray film.

2

Several progress reports from Dr. Yoon were submitted. In a March 17, 2015 report,
Dr. Yoon advised that appellant was experiencing right ankle pain. He noted that he felt less
pain when wearing a fracture boot, but felt intermittent shooting pain to his posterior leg when he
tried to move his ankle. In an April 2, 2015 report, Dr. Yoon advised that appellant was
experiencing some improvement with chiropractic physical therapy. He assessed tendinitis and
ankle fracture. Dr. Yoon noted that appellant experienced a work-related injury and was unable
to work. In an April 13, 2015 report, he detailed appellant’s treatment history. Dr. Yoon noted
that appellant was doing better, but was still experiencing stiffness. Examination of the right
ankle revealed no tenderness, mild swelling, no erythema, and a slightly thickened distal Achilles
tendon. Dr. Yoon noted that appellant’s condition was work related and indicated that he
reached maximum medical improvement (MMI).
In an April 22, 2015 report, Dr. Chin Oh Kim, an internist, advised that appellant was
seen and diagnosed with an ankle injury on March 2, 2015. He noted that appellant needed to
see a foot and ankle specialist for his condition.
By decision dated August 5, 2015, OWCP modified its prior decision finding that the
factual basis for the claim was accepted, but that the medical evidence of record remained
insufficient to establish that the work incident caused or contributed to the claimed condition.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that the individual is an “employee” within the meaning of FECA and that
he or she filed a claim within the applicable time limitation.4 The employee must also establish
an injury in the performance of duty as alleged and that any disability for work was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

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

6

T.H., 59 ECAB 388 (2008).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
On March 2, 2015 appellant’s right ankle was hit by a piece of equipment. The evidence
supports that the claimed work incident occurred as alleged. However, the Board finds that the
medical evidence of record is insufficient to establish that the employment incident on March 2,
2015 caused a right ankle injury.
In his March 9, 2015 report, Dr. Yoon advised that appellant’s symptoms began when a
mail cart hit his right leg at work. He assessed right tendinitis and right ankle fracture; yet he
noted that an x ray of the right ankle and foot revealed no acute fracture. Dr. Yoon advised that
appellant had a work injury and could not perform his work. Although he attributed appellant’s
condition to the March 2, 2015 work incident, Dr. Yoon failed to explain how the incident
caused appellant’s tendinitis and right ankle fracture. The Board has long held that medical
opinions not containing rationale on causal relation are of diminished probative value and are
generally insufficient to meet appellant’s burden of proof.8 Dr. Yoon also failed to explain how
he determined that appellant had a right ankle fracture, despite the fact that an x-ray revealed no
acute fracture. Other reports by Dr. Yoon are also insufficient to discharge appellant’s burden of
proof. In his March 17, April 2, and 13, 2015 progress reports, Dr. Yoon described appellant’s
condition as work related. These reports are insufficient to discharge appellant’s burden of proof
as they also fail to provide adequate rationale explaining how the March 2, 2015 employment
incident caused tendinitis and right ankle fracture.
Reports from Dr. Cho including his March 2, 2015 report, which advised that appellant
was injured at work and assessed ankle injury, lumbago, sciatica, and lumbar subluxation, cannot
constitute competent medical evidence. Medical opinion evidence, in general, can only be given
by a qualified physician.9 As defined under FECA, a physician includes a chiropractor only to
the extent that his reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.10
Subluxation means an incomplete dislocation, off-centering, misalignment, fixation, or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.11 Dr. Cho diagnosed lumbar subluxation, but there was no indication in
the report that the chiropractor obtained or reviewed x-rays in rendering his diagnosis of
subluxation. As a result, he does not meet the statutory definition of physician, and his reports
lack probative value.12 Furthermore, appellant claimed an ankle injury, not a spine injury. The
7

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

8

Carolyn F. Allen, 47 ECAB 240 (1995).

9

Charley V.B. Harley, 2 ECAB 208, 211 (1949).

10

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

11

20 C.F.R. § 10.5(bb).

12

L.S., Docket No. 07-560 (issued June 22, 2007).

4

Board has held that even under the circumstances where a chiropractor is recognized as a
physician under FECA, the chiropractor is still not considered a physician in diagnosing or
evaluating disorders of the extremities, although those disorders may originate in the spine.13
The Board notes that appellant indicated that he sustained a laceration as a result of the
work injury. OWCP procedures will allow a minor injury to be accepted without a medical
report if the condition can be verified on visual inspection by a lay person, (e.g., burn, laceration,
insect sting or animal bite).14 This provision, however, is only applicable if no time is lost from
work due to disability. In the present case, appellant has indicated that he stopped work on
March 2, 2013.
Consequently, appellant has submitted insufficient medical evidence to establish his
claim. Causal relationship is a medical question that must be established by probative medical
opinion from a physician.15 The physician must accurately describe appellant’s work duties and
medically explain the pathophysiological process by which these duties would have caused or
aggravated his condition.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury causally related to a March 2, 2015 employment incident.

13

George E. Williams, 44 ECAB 530 (1993).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d)(1)
(January 2013).
15

Jennifer Atkerson, 55 ECAB 317 (2004).

16

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 5, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1029
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On April 14, 2020 appellant, through counsel, f iled a timely appeal from a March 12, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On February 16, 2018 appellant, then a 49-year-old management assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 12, 2018 she experienced stress, anxiety,
nausea, and depression while in the performance of duty when her second-line supervisor informed
her that she was referenced in “graphic sexual harassment material.” She noted that she had also
received a death threat in August 2017. Appellant stopped work on February 14, 2018.
In a development letter dated February 23, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. It also requested that she clarify whether she was claiming an occupational disease or
a traumatic injury. OWCP afforded appellant 30 days to respond.
In a March 23, 2018 response, appellant related that, in her position as secretary treasurer
of the local union, she had uncovered questionable financial actions taken by the union. 3 An
outside audit had revealed improprieties and the union had been placed under Trusteeship.
Appellant alleged that, when officials came to assume control over the union, the union president,
R.R., yelled that it was because appellant was “f**king” those higher-ups in rank and “sleeping
around with them.” R.R.’s associates, C.L., B.S., and E.C., agreed with him and began to spread
this rumor throughout the office. Employees who were angry about the audit posted falsified
minutes of union meetings and a photograph of appellant from Facebook on bulletin boards at
work. Appellant also alleged that they vandalized her vehicle at work. Coworkers that appellant
did not know approached her and asked if she was sleeping with the man who took over the union.
Appellant further asserted that on August 17, 2017 someone had placed a death threat on
her office desk threatening her and her family and accusing her of being a “snitch b***h.” Her
home was vandalized with shattered glass bottles. Appellant sold her house quickly at a reduced
price because she was afraid. She further asserted that on February 12, 2018 her second-line
supervisor, S.B., called her into his office and informed her that “some extremely vulgar/graphic
images of pornography” altered to resemble her had been placed in various locations at work.
Appellant’s cellphone number was next to the face on the image with instructions to call the
number for a “good time.”
Appellant related that she had filed an Equal Employment Opportunity (EEO) complaint
after receiving the death threat. The Criminal Investigation Division (CID) and military police
(MP) had investigated the threat. They found that some parts of her claim did not deal with
employing establishment issues.
In a March 29, 2018 statement, appellant advised that her claim was for an occupational
disease rather than a traumatic injury. She attributed her condition to harassment, sexual
3

Appellant also submitted medical evidence in support of her claim.

2

harassment, a hostile work environment, death threats, vandalism, slander, and defamation of
character.
Thereafter, OWCP received a September 14, 2017 closed investigation report from the CID
of the employing establishment. M.L., the investigator, advised that an individual had placed a
letter on appellant’s desk, noting that “snitches get stitches” and threatening her and her family.
The investigator indicated that appellant “believed [that] the letter and other harassing incidents
were due to [appellant’s] reporting the misuse of [u]nion [f]unds,” but did not know who had put
the letter on her desk. Appellant gave M.L. a flyer showing a social media post accusing her of
making false accusations about the union after partying with union members. M.L. noted that the
former union president had been interviewed about the letter, but could not provide any
information. The investigator advised that the investigation was closed as no “logical leads or
suspects have been discovered….”
In a witness statement dated September 28, 2017, L.P. related that, during a union meeting
on July 6, 2017, R.R. had used profanity and accused appellant of sleeping with another individual.
In a February 6, 2018 e-mail, P.K. confirmed that on July 6, 2017 R.R. had used profanity and
vulgarity regarding appellant.
In a January 11, 2018 interrogatory, appellant related that on July 5, 2017 the local union
had been put under trusteeship after she had requested an external audit that found a
misappropriation of funds. Affected individuals had spread lies about her and placed pictures on
a bulletin board on August 10, 2017. Appellant reported the incident to her supervisor, S.S., who
tried to ascertain whether cameras covered the area. The plant manager, C.S., advised her that it
was a union matter and ignored her concerns. On August 14, 2017 an employee appellant did not
know yelled at her and asked if she was “f**king” the new union leader. On August 17, 2017 at
the start of her work shift, she found a death threat saying that snitches get stitches, that she and
her family would pay, and that she should die because she was a “snitch b***h.” Appellant did
not know who had left the threatening letter on her desk. She immediately reported the incident
to her supervisors.
On February 13, 2018 M.P., the employing establishment commanding officer, partially
dismissed appellant’s September 28, 2017 discrimination complaint. He found that the employing
establishment was not the proper agency for the incidents that had occurred at union meetings on
July 6 and 18, 2017 as well as an August 8, 2017 occurrence when a union vice president had
yelled at her and used profanity outside the workplace as the matters arose out of union concerns.
M.P. also dismissed appellant’s claim that she had to sell her residence on January 10, 2018 due
to vandalism as she had not shown damages by the employing establishment. He noted that an
investigation was pending into the February 12, 2018 placement of a pornographic flyer at work
with her name and cellphone number.
In an undated statement received on April 2, 2018, appellant related that, when she started
work in 2010, G.S., a coworker, had spread rumors that she had worked as a stripper and was a
kind of prostitute of the former manager. G.S. and C.H. had complained about what she wore to
work and her supervisor sent her home to change clothes. In 2012, appellant had undergone
treatment for cancer and G.S. had asserted that she was disgusting and leaving hair in the restroom.
G.S. made a hurtful comment after the death of her brother. On May 3, 2017 appellant requested

3

her supervisor’s help processing a document. When she returned to the office, G.S. and others
thought that it was unfair that she was being trained to process documents accurately.
In an April 27, 2018 letter, OWCP advised appellant that it was adjudicating her claim as
an occupational disease claim. It again requested that she provide the evidence necessary to
establish her claim as set forth in its February 23, 2018 development letter.
In a June 12, 2018 development letter, OWCP requested that the employing establishment
provide comments from a knowledgeable supervisor regarding the accuracy of appellant’s
allegations and statements from the individuals referenced in the allegations, including G.S., R.R.,
C.L., B.S., and E.C. It further requested that it clarify whether she was on official time for the
July 6, 2017 union meeting or any of the other dates that involved union matters.
In a June 27, 2018 response, the employing establishment maintained that appellant’s
issues had begun over union matters and, thus, it had no authority to take corrective measures. It
noted that it was unaware of the findings of the CID, but that “no person was culpable in any
wrong-doing based on her allegations.” The employing establishment enclosed statements with
its response.
In a June 25, 2018 statement, C.L. advised that she was not at the July 6, 2017 union
meeting and had no knowledge of false union minutes posted on a bulletin board.
R.R. submitted a June 21, 2018 statement denying he was at the July 6, 2017 meeting and
advising that he had no knowledge of anyone placing union information on a bulletin board at
work. He indicated that he did not know whether appellant had used official time for the July 6,
2017 union meeting or other union activity.
In an undated statement, B.S. asserted that R.R. had not raised his voice or accused her of
sexual impropriety. He denied that anyone had posting false minutes of union meetings on the
bulletin board. B.S. also denied using vulgarity in reference to appellant.
In a June 28, 2018 statement, R.V. advised that on July 10, 2017 appellant had notified her
that “somebody had posted something bad about [appellant] on the bulletin board” and that R.R.
had stated inappropriate things about her at a union meeting. She did not want to file a complaint.
R.V. advised her to contact C.S., the plant manager. C.S. had informed her that he could
investigate who posted something on a bulletin board if she provided names, but that he had no
control over things that took place in union meetings. Appellant did not want to give the
individuals’ names.
By decision dated July 12, 2018, OWCP denied appellant’s emotional condition claim. It
found that she had not established any compensable employment factors.
On July 21, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an incident report dated September 18, 2018, appellant related that her coworker’s car,
which she had driven to work, had been vandalized in the parking lot. The officer noted that the

4

coworker believed that it had been vandalized because appellant had been driving it as she had
previously received threats due to whistleblowing in connection with union activity.
On December 7, 2018 appellant submitted a time and attendance screenshot, which she
asserted showed that she was in regular work status and not on leave or on official time on
August 17, 2017 and February 12, 2018.
A telephonic hearing was held on December 14, 2018. Appellant’s representative asserted
that she had experienced retaliation after reporting misconduct. He noted that on February 10,
2018 her supervisor told her that material “offensive to any person” had been found and distributed
to multiple locations throughout the base. Appellant also received death threats and had her car
vandalized. He related that she was at work and was not conducting union matters or on official
time when the harassment, death threat, and car vandalism had occurred. Appellant testified that,
on August 17, 2017 S.S., her first-line supervisor, had called security about the death threat. The
MPs arrived and turned the case over to the CID because it involved a death threat. Appellant had
not experienced problems prior to reporting the misappropriation of funds, so she believed that the
incidents were connected. The union vice-president made inappropriate comments to her on
August 8, 2017 after work hours, but on the premises of the employing establishment. Coworkers
heard rumors that appellant was sleeping around. A coworker’s car was vandalized in
August 2018 on base after she drove the vehicle. G.S., a coworker, spread rumors that appellant
had been a former manager’s private stripper. Appellant related that she saw R.R., the former
union president, every day because he worked in a nearby cubicle. She asserted that, when she
returned to work after being off due to stress, the pictures of her were still being passed around the
office.
Following the hearing, appellant submitted a copy of the threatening letter and the
pornographic photographs. She also submitted an August 17, 2017 e-mail from R.S.,4 the plant
manager, advising that on that date a note had been left on an employee’s computer threatening
the employee and family, and that information about the employee had also been placed on an
official bulletin board in violation of rules and policy. R.S. advised that an investigation was
currently being conducted to find the person or persons responsible.
On August 17, 2017 S.S. advised that on that date appellant had showed her a paper that
contained “clearly a written threat of harassment stating harm to [appellant] and her family.” She
had called the MPs and also emergency personnel because appellant required medical attention.
The MPs had contacted CID because the threat was “above what he is allowed to process.” The
CID agent had possession of a picture of appellant with a harassing caption from the union bulletin
board.
In a February 13, 2018 e-mail to the employing establishment, R.S. advised that
pornographic images of an employee had been placed at multiple locations throughout the
workstation. He indicated that the conduct would not be tolerated and was being investigated.

4

R.S. is also referred to in the record by his nickname, C.S.

5

By decision dated May 10, 2019, OWCP’s hearing representative affirmed the July 12,
2018 decision, finding that the events that appellant had established as factually occurring
pertained to union matters unrelated to the performance of her federal work duties.
On December 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated March 12, 2020, OWCP denied modification of the May 10, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, 6 including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability f or work for which he or she
claims compensation is causally related to that employment injury. 7 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.8
To establish an emotional condition in the performance of duty, a claimant must submit:
“(1) factual evidence identifying an employment factor or incident alleged to have
caused or contributed to his or her claimed emotional condition; (2) medical
evidence establishing that he or she has a diagnosed emotional o r psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the
accepted compensable employment factors are causally related to the diagnosed
emotional condition.”9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable. 10 However, disability is not compensable when it results from factors such as an

5

Supra note 2.

6

S.S., Docket No. 19-1021 (issued April 21, 2021); O.G., Docket No. 18-0359 (issued August 7, 2019); J.P., 59
ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
7

S.S., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

20 C.F.R. § 10.115; M.K., Docket No. 18-1623 (issued April 10, 2019); Michael E. Smith, 50 ECAB 313 (1999).

9

See S.K., Docket No. 18-1648 (issued March 14, 2019); Donna Faye Cardwell, 41 ECAB 730 (1990).

10

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).

6

employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur. 12
Mere perceptions of harassment are not compensable under FECA. 13
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 14 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 15
However, the Board has recognized an exception to this general rule when employees
performing representational functions, which entitle them to official time, are injured when in the
performance of duty. 16 The underlying rationale for this exception is that an activity undertaken
by an employee in the capacity of a union official may simultaneously serve the interest of the
employer.17 OWCP’s procedures indicate that representational functions include authorized
activities undertaken by employees on behalf of other employees pursuant to such employees’
right to representation under statute, regulation, executive order, or terms of a collective bargaining
agreement.18
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 19 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a

11

Lillian Cutler, id.

12

S.L., Docket No. 19-0387 (issued October 1, 2019); S.B., Docket No. 18-1113 (issued February 21, 2019).

13

Id.

14

R.L., Docket No. 18-1375 (issued May 1, 2019); Jimmy E. Norred, 36 ECAB 726 (1985).

15

R.L., id; J.G., Docket No. 17-1948 (issued September 13, 2018).

16

J.G., id.; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing activities
related to the internal business of a labor organization such as soliciting new members or collecting dues are not
considered to be in the performance of duty. The singular fact that one is on paid official time for union representation
is not enough to establish that every interaction during such official time is within the performance of duty).
17

J.G., id.; Marie Boylan, 45 ECAB 338 (1994).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16(b) (July 1997).

19

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., supra note 6.

7

compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence. 20
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has not attributed her condition to the performance of her regularly or specially
assigned duties under Cutler.21 Instead, she maintained that she experienced harassment at work
after she had reported financial impropriety by the union in her role as union secretary and
treasurer.
There is no dispute that on August 17, 2018 someone placed a threatening letter on
appellant’s work desk. Appellant’s supervisor confirmed that appellant had received the
threatening letter and called the MPs, who contacted the CID. The Board has held that verbal and
written threats, when sufficiently detailed by the claimant and suppo rted by evidence, may
constitute compensable employment factors. 22 Appellant has established with corroborating
evidence that she received written threats made against her and her family. The Board has
recognized the compensability of threats when the factual aspects of such claimed threats are
established. 23 The Board finds that the letter left on appellant’s desk, which threatened her with
death and also threatened her family, rises to the level of a credible bodily threat. 24 Consequently,
the Board finds that she has established a compensable employment factor with regard to the death
threat.25
Appellant also attributed her condition to the placement of pornographic pictures
purporting to be of her, noting her cellphone number, in multiple locations around her worksite on
February 12, 2018. Harassment and discrimination by supervisors and coworkers, if established
as occurring and arising from the performance of work duties, can constitute a compensable work
factor.26 A claimant, however, must substantiate allegations of harassment and discrimination with
probative and reliable evidence. 27
Appellant maintained that on February 12, 2018 her second-line supervisor, S.B., told her
that vulgar and graphic images altered to resemble her had been placed throughout the work
20

Id.

21

Supra note 11.

22

J.W., Docket No. 17-0999 (issued September 4, 2018).

23

See K.W., Docket No. 20-1504 (issued July 30, 2021); Z.S., Docket No. 16-1783 (issued August 16, 2018).

24

See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant
that he would be “among the nonliving” was a credible bodily threat directed at the claimant).
25

See J.Z., Docket No. 19-1156 (issued July 28, 2020).

26

See M.S., Docket No. 19-1589 (issued October 7, 2020).

27

See A.F., Docket No. 29-0525 (issued September 14, 2020); Robert Breeden, 57 ECAB 622 (2006).

8

location. In a February 13, 2018 e-mail to the employing establishment, R.S., the plant manager,
advised that pornographic pictures had been placed throughout work and asserted that the conduct
would not be tolerated. While appellant expressed her belief that the images were placed around
work as retaliation for union whistleblowing activities, there is no evide nce of record from the
employing establishment identifying the perpetrator. The incident occurred while appellant was
performing her employment duties rather than union activities and the images were placed
throughout the work location. The evidence factually supports that a coworker placed graphic and
vulgar images of a sexual nature purporting to be of appellant around her work location and, thus,
she has established a compensable work factor. 28
Appellant further attributed her condition to R.R. yelling at her and accusing her of sleeping
with the new union head at a July 6, 2017 union meeting. She related that she had uncovered
financial irregularities and had called for an outside audit of the union and , as a result, the union
had been placed under Trusteeship. When officials arrived to take control of the union, R.R. yelled
at her and used profanity. Appellant maintained that on August 10, 2017 union members angry
about the audit had posted false union minutes and photographs of her on the bulletin board at
work. She advised that R.R.’s friends spread rumors about her around the office. Appellant has
not alleged that she was performing representational functions or was on official union time at the
time of these incidents. As there is no connection between these incidents and her employment,
the actions taken by the union members in reaction to the investigation and audit did not occur in
the performance of duty and are not compensable under FECA. 29
Appellant maintained that on July 18, 2017 her car was scratched and that on
September 18, 2018 a coworker’s car that she had driven was vandalized. She also asserted that
her home was vandalized. Appellant, however, has not submitted any evidence establishing that
these incidents occurred as part of her employment duties or evidence that the vandalism was the
result of harassment by coworkers. 30 Thus, she has not established a compensable work factor.
Appellant also maintained that a coworker had approached her and asked her about rumors
of a sexual nature circulating about her and that after work on August 8, 2017 B.S. called her a
whore and liar. She further alleged that a coworker, G.S., had accused her of being a stripper, told
others that the hair in the restroom was from her and that she was disgusting, attacked her for
speaking with her supervisor for guidance, complained about her work clothes, and made an
unkind comment when her brother passed away. Appellant, however, has not provided any
evidence such as witness statements supporting her allegations of harassment by either of the
unknown coworkers, B.S. or G.S.31 Consequently, she has not established a compensable work
factor with respect to these allegations. 32

28

See I.D., Docket No. 16-0581 (issued December 12, 2016).

29

Id.

30

See J.B., Docket No. 070664 (issued September 13, 2007).

31

Id.

32

See L.S., Docket No. 18-1471 (issued February 26, 2020); S.B., Docket No. 11-0766 (issued October 20, 2011).

9

The case will, therefore, be remanded for an evaluation of the medical evidence to
determine whether appellant has established an emotional condition causally related to the
compensable employment factors. 33 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proc eedings
consistent with this decision of the Board.
Issued: March 18, 2022
Washington, DC

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

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

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

33

See D.B., Docket No. 19-1310 (issued July 21, 2020).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEW JERSEY HEALTH CARE SYSTEM,
East Orange, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1743
Issued: December 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2014 appellant filed a timely appeal of a June 20, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $9,348.29; (2) whether OWCP properly denied
waiver of recovery of the overpayment; and (3) whether OWCP properly required collection of
the overpayment by deducting $248.00 from appellant’s continuing compensation.
On appeal, appellant argues that the overpayment was not his fault; that he answered
everything truthfully and honestly; that OWCP representatives helped him complete the forms
1

5 U.S.C. § 8101 et seq.

over the telephone; that the mistake was made by OWCP; and that he is experiencing extreme
financial difficulties.
FACTUAL HISTORY
On April 20, 1999 appellant, then a 54-year-old housekeeping aid, filed a traumatic injury
claim alleging that on March 19, 1999 he injured his back while lifting chairs during the course
of his federal employment. He stopped work on the date of the injury. OWCP accepted
appellant’s claim for sprain of the lumbar region of the back and nontraumatic hematoma of soft
tissue. It paid compensation and medical benefits.
By letter to appellant dated February 16, 2010, the Social Security Administration (SSA)
advised that beginning December 2009 his full monthly benefit before deductions was $1,070.80
per month, and that, after deduction for medical insurance premiums of $96.00, his regular
monthly SSA payment was $974.00. It further indicated that appellant’s SSA benefits with
Federal Employees Retirement System (FERS) were $1,070.80 and without FERS were $790.40.
In an OWCP EN-1032 form completed by appellant on July 22, 2011, appellant stated
that he received no benefits from SSA as part of an annuity for federal service. In an EN-1032
form completed on July 22, 2012, he did not answer the question with regard to his receipt of
SSA benefits.
By letter dated December 26, 2012, OWCP informed appellant that SSA had confirmed
receipt of SSA benefits attributed to his federal service, and that the difference between
appellant’s SSA income with benefits with federal service and without federal service was
$290.50, and that this difference must be offset against his compensation benefits. It noted that
when the $290.50 monthly difference was adjusted to the 28-day cycle for OWCP benefits,
appellant’s compensation should be adjusted in the amount of $268.15, and that this will
commence with his first payment on January 12, 2013.
In a September 16, 2013 EN-1032 form, appellant indicated that he did not receive
benefits from SSA as part of an annuity for federal service.
In an April 22, 2014 preliminary determination, OWCP indicated that appellant was
overpaid benefits in the amount of $9,348.29 for the period July 1, 2010 through December 15,
2012 because he received retirement benefits from SSA that were attributable to his federal
service at the same time that he received full compensation benefits from OWCP.2 It also made
2

In attached calculations sheet, OWCP noted that for the period July 1 to November 30, 2010, the offset amount
was $1,511.67; for the period December 1, 2010 through November 30, 2011, the offset was $3,606.28; for
December 1, 2011 through November 30, 2012, the offset was $3,746.47; for the period December 1, 2012 through
November 30, 2013, the offset was $3,800.01; for the period December 1, 2013 through April 5, 2014, the offset
was $1,331.72. Accordingly, the total offset for the difference between appellant’s SSA with FERS and without
FERS for the period July 1, 2010 through April 5, 2014 is $13,996.16. However, starting with the pay period
beginning December 16, 2012, OWCP started making deductions to offset appellant’s retirement income from SSA.
The total of these offsets from December 16, 2012 through April 5, 2014 amounted to $4,647.87. The difference
between $13,996.16 that should have been deducted from appellant’s compensation payments for this period and the
$4,647.87 that was deducted is $9,348.29, the amount of the overpayment.

2

a preliminary determination that appellant was at fault in the creation of the overpayment.
Appellant was given instructions as to how to contest the overpayment and fault determination
and was provided financial forms to complete with regard to the collection of the overpayment.
OWCP informed him that failure to submit the requested information within 30 days would
result in the denial of waiver. Appellant was also advised that the completed financial form
would assist OWCP in determining a fair repayment amount.
By decision dated June 20, 2014, OWCP finalized its determination that appellant
received an overpayment of compensation in the amount of $9,348.29. It noted that he failed to
respond to the preliminary determination. OWCP determined that appellant knew or should have
known that the payments he received were incorrect and was therefore at fault in the creation of
the overpayment and not entitled to waiver of recovery of the overpayment. It determined that it
would collect the overpayment by deducting $248.00 from each continuing compensation
payment until the overpayment was absorbed on or about July 25, 2017.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits that are attributable to federal service and that, if an employee receives SSA
benefits based on federal service, his or her compensation benefits shall be reduced by the
amount of SSA benefits attributable to his or her federal service.3
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.4 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
in the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.5
ANALYSIS -- ISSUE 1
Appellant received wage-loss compensation under FECA and SSA benefits from July 1,
2010 through April 5, 2014. As previously stated, the portion of the SSA benefits appellant
3

5 U.S.C. § 8116(d). See D.S., Docket No. 12-689 (issued October 10, 2012); G.B., Docket No. 11-1568 (issued
February 15, 2012); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000.4(e)(2) (February 1995); and Chapter 2.1000.11 (February 1995). OWCP does not require an
election between FECA benefits and SSA benefits except when they are attributable to the employee’s federal
service. See also R.C., Docket No. 09-2131 (issued April 2, 2010).
5

FECA Bulletin No. 97-09 (issued February 3, 1997).

3

received as a federal employee as part of his FERS retirement package concurrently with the
benefits he received under FECA is a prohibited dual benefit.6 OWCP requested and SSA
provided information regarding appellant’s applicable SSA rates and their effective dates. Based
on these rates, OWCP determined that the prohibited dual benefits appellant received from
July 1, 2010 through April 5, 2014 created an overpayment of compensation in the amount of
$9,346.29.
The Board has reviewed OWCP’s calculations of benefits appellant received for the
period July 1, 2010 through April 5, 2014 and finds that OWCP properly determined that
appellant received dual benefits totaling $9,348.29 for this period, thus creating an overpayment
of compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
Pursuant to section 8129(a) of FECA, adjustment or recovery shall be made under
regulations prescribed by the Secretary of Labor when an overpayment of compensation was
made because of an error of fact or law. The only exception to this requirement is when an
incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or be against equity and good conscience.7 No
waiver of payment is possible if appellant is with fault in helping to create the overpayment.8 In
determining whether an individual is with fault, section 10.433(a) of OWCP regulations provide
that an individual is with fault in the creation of an overpayment who: (1) made an incorrect
statement as to a material fact which he or she knew or should have known to be incorrect; or
(2) failed to provide information which he or she knew or should have known to be material; or
(3) accepted a payment which he or she knew or should have known to be incorrect.9
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment because he
made an incorrect statement as to a material fact that he knew or should have known to be
incorrect. In his EN-1032 forms completed on July 22, 2011 and September 16, 2013, appellant
indicated that he did not receive benefits from SSA as part of an annuity for federal service. This
was not an accurate statement as appellant was clearly receiving SSA benefits for his federal
employment at these times. Appellant did not respond to the question with regard to SSA
benefits on the EN-1032 form he completed on July 22, 2012.
The Board finds that appellant was aware that he received SSA and FECA benefits
simultaneously. Appellant either failed to inform OWCP that he was receiving SSA benefits or
inaccurately indicated that he did not receive SSA benefits on the EN-1032 forms he completed.
Based on the clear language of the forms which appellant knowingly signed, appellant made an
6

See P.G., Docket No. 13-589 (issued July 9, 2013); FECA Bulletin No. 97-9 (issued February 3, 1997).

7

5 U.S.C. § 8129(b).

8

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

9

20 C.F.R. § 10.433(a).

4

incorrect statement as to a material fact. The Board finds that appellant was at fault in the
creation of the overpayment and is therefore precluded from receiving a waiver.10
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP regulations provide that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.11
ANALYSIS -- ISSUE 3
OWCP determined that $248.00 would be withheld from each of appellant’s continuing
compensation payments until the overpayment was recovered. In making this determination, it
noted that appellant failed to submit supporting financial documentation. Because appellant
failed to submit the requested financial documentation, OWCP did not abuse its discretion when
it ordered withholding $248.00 from each of appellant’s continuing compensation benefits. The
Board will affirm OWCP’s decision on rate of recovery.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $9,348.29, properly denied waiver of recovery of the
overpayment and acted within its discretion when it required that appellant repay the
overpayment by deducting $248.00 from appellant’s continuing compensation.

10

See R.L., Docket No. 13-713 (issued August 15, 2013).

11

The Board has jurisdiction to review the issue of recovery of an overpayment in those cases where OWCP
seeks recovery from continuing compensation benefits. See Desiderio Martinez, 55 ECAB 245, 251 (2004); see
also J.M., Docket No. 10-1913 (issued July 11, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2014 is affirmed.
Issued: December 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6