United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-834
Issued: February 25, 2013

Case Submitted on the Record

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 5, 2012 appellant, through her attorney, timely filed an application for review
from the November 1, 2011 merit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for modification of an OWCP wage-earning capacity determination
dated November 16, 2006. The Board assigned Docket No. 12-834.
OWCP accepted that on February 3, 2004 appellant, then a 48-year-old customer service
supervisor, sustained a herniated cervical disc at C6-7 after pushing large metal containers
containing parcels. At the time of her February 3, 2004 work injury, appellant was working on a
full-time basis for the employing establishment.
On April 4, 2005 appellant returned to light-duty work as a modified customer service
supervisor for the employing establishment, working four hours per day for a total of 20 hours
per week. In a September 6, 2005 decision, OWCP reduced appellant’s compensation based on
its finding that her actual earnings fairly and reasonably represented her wage-earning capacity.
Appellant stopped work on September 29 and October 13, 2005. On November 3, 2005 OWCP
accepted that appellant sustained a recurrence of disability on September 29 and
October 13, 2005. On October 14, 2005 appellant returned to light-duty work as a modified
customer service supervisor for the employing establishment, working four hours per day for a

total of 20 hours per week. Appellant stopped work on June 8, 2006 and claimed recurrence of
disability.1 In a November 16, 2006 decision, OWCP reduced appellant’s compensation based
on its determination that her actual earnings as a modified customer service supervisor fairly and
reasonably represented her wage-earning capacity. In decisions dated May 3 and November 13,
2007, August 7 and November 21, 2008, July 2, 2009, January 15 and August 9, 2010 and
November 1, 2011, OWCP denied appellant’s request for modification of its November 16, 2006
wage-earning capacity determination.
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.2 Section 8115(a) of FECA provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his or her actual earnings if his or her actual earnings fairly and reasonably
represent his or her wage-earning capacity.3 Compensation payments are based on the wageearning capacity determination and it remains undisturbed until properly modified.4
Once 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 has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.5 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.6
OWCP’s procedures provide that the factors to be considered in determining whether the
claimant’s work fairly and reasonably represented her wage-earning capacity include the kind of
appointment and the tour of duty. The manual states that reemployment may not be considered
suitable when the actual earning job is part time, unless the claimant was a part-time worker at
the time of injury.7
OWCP found that appellant’s actual earnings in part-time reemployment for 20 hours per
week fairly and reasonably represented her wage-earning capacity. Appellant was a full-time
worker at the time of her February 3, 2004 work injury. As the above-noted procedure makes
clear, the Director of OWCP has determined that when the tour of duty is not at least equivalent
1

On October 23, 2006 OWCP denied the claim for recurrence of disability.

2

See Katherine T. Kreger, 55 ECAB 633 (2004); 5 U.S.C. § 8115 (regarding determination of wage-earning
capacity).
3

See 5 U.S.C. § 8115.

4

See 5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

5

Sharon C. Clement, 55 ECAB 552 (2004).

6

T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).

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to that of the job held at the time of injury, OWCP will not consider the reemployment suitable
for a wage-earning capacity determination. The Board finds, therefore, that OWCP abused its
discretion in determining appellant’s wage-earning capacity based on a part-time position.8 The
Board will reverse OWCP’s November 1, 2011 decision.
IT IS HEREBY ORDERED THAT the November 1, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8

O.V., Docket No. 11-98 (issued September 30, 2011); S.M., Docket No. 10-2382 (issued September 28, 2011).

3


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

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

Docket No. 10-1271
Issued: February 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2010 appellant filed a timely appeal from a January 14, 2010 merit decision
of the Office of Workers’ Compensation Programs finding that she received an overpayment of
compensation and that she was at fault in its creation. Pursuant to 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 appellant received an overpayment of $2,929.82 because she
received compensation for total disability from April 1 through May 9, 2009 after she returned to
work; and (2) whether she was at fault in creating the overpayment.
FACTUAL HISTORY
On April 24, 2008 appellant, then a 30-year-old border patrol agent trainee, filed a claim
for an injury to her left side, back and rib cage when she was kicked by another student. The
Office accepted her claim for a contusion of the left chest wall, a thoracic strain and lumbar
strain. It paid appellant compensation for total disability by electronic funds transfer (EFT)
beginning May 25, 2008 and placed her on the periodic rolls beginning July 6, 2008. On

April 11, 2009 the Office paid compensation by EFT for the period March 15 through
April 11, 2009. On May 9, 2009 it paid appellant compensation by EFT from April 12 through
May 9, 2009.
On April 13, 2009 appellant informed the Office that she was working as an investigator
with the Office of Personnel Management (OPM). She stated, “I get paid per investigation.
There is no set salary I will receive and it will vary each week depending on how many
investigations I am able to complete. This first paycheck I received was on April 10, 2009 in the
amount of $662.50. This will vary each week and there is no set amount.”
On April 15, 2009 appellant informed the Office by telephone that she was working as a
contractor for the Federal Government. She telephoned the Office again on April 30, 2009 to
report that she received income of $260.00 on April 17, 2009, $333.00 on April 24, 2009 and
$1,525.00 on May 1, 2009. In a May 11, 2009 (Form EN1032), appellant related that she earned
$4,472.63 with no benefits working as a background investigator from April 1 to May 8, 2009.
In a May 26, 2009 fiscal payment worksheet, the Office multiplied appellant’s daily
compensation of $75.12 by 39, the number of days that she received pay for work performed, to
find an overpayment of $2,929.82.
On June 3, 2009 the Office advised appellant of its preliminary determination that she
received an overpayment of $2,929.82 because she returned to work on March 15, 2009 but
received wage-loss compensation through May 9, 2009. It informed her of its preliminary
finding that she was at fault in creating the overpayment as she knew or should have known that
“there was no entitlement to wage-loss benefits after returning to full-time work.” The Office
requested that appellant complete the enclosed overpayment recovery questionnaire and submit
supporting financial documents. Additionally, it notified her that, within 30 days of the date of
the letter, she could request a telephone conference, a final decision based on the written
evidence or a prerecoupment hearing.
On June 16, 2009 appellant requested a prerecoupment hearing. She noted that, after she
received a paycheck on April 10, 2009, she advised the Office that she was earning income. In
an accompanying overpayment recovery questionnaire, appellant argued that she did not believe
that she was paid erroneously. She notified the Office by writing and by telephone when she
received her first paycheck.
By letter dated June 16, 2009, appellant related that she began unpaid training as an
investigator with a contractor for OPM on March 15, 2009. She began work on April 12, 2009
and subsequently informed the Office of her return to work. Appellant inquired if the Office
could stop paying her pending resolution of the issues created by her return to work. She
received various amounts of pay depending on her investigations. Appellant disagreed that the
overpayment was her fault and stated, “I especially do not agree that I owe $2,929.82 because I
was not even getting paid for my training of my new job in March.” Her hours varied each week
and she had to rest between work hours due to her injury.
A telephonic hearing was held on October 7, 2009. Appellant related that she started
training on March 15, 2009 and began receiving payments on April 10, 2009 for work beginning
April 1, 2009. She challenged the period of the overpayment.

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By decision dated January 14, 2010, an Office hearing representative found that appellant
received an overpayment of $2,929.82 because she received compensation for wage-loss benefits
and total disability from April 1 to May 9, 2009.1 She noted that the Office calculated the
overpayment for 39 days from April 1 to May 9, 2009. The hearing representative determined
that appellant was not without fault in creating the overpayment and could pay $50.00 a month to
recover the overpayment.
On appeal, appellant argues that she is not at fault for the overpayment. She also notes
that she is unable to perform her regular employment due to her injury.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act2 provides that the United
States shall pay compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.3 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.4
A claimant is not entitled to receive total disability compensation and actual earnings for
the same period. Office procedures provide that an overpayment in compensation is created
when a claimant returns to work but continues to receive wage-loss compensation.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a contusion of the left chest wall, thoracic
strain and lumbar strain and paid her compensation for total disability beginning May 25, 2008.
On April 1, 2009 appellant began working for a private contractor as a background investigator.
She related that she was in unpaid training for the position from March 15 to 31, 2009.
Appellant received her first paycheck on April 10, 2009 for work performed as of April 1, 2009.
The Office paid her compensation for total disability through May 9, 2009. When an employee
has earnings from employment, she is not entitled to receive total disability benefits and actual
earnings for the same time period.6 Consequently, she received an overpayment of
compensation.

1

On November 30, 2009 the Office began paying appellant based on an informal loss of wage-earning capacity
determination.
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102.

4

Id. at § 8129(a).

5

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).
6

Daniel Renard, 51 ECAB 466 (2000); 20 C.F.R. § 10.403(c).

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The Office calculated the overpayment by multiplying appellant’s daily wages by 39, the
number of days that she received compensation for disability from April 1 to May 9, 2009.
While it initially indicated that the period of the overpayment was March 15 to May 9, 2009, it
properly calculated the overpayment using only the period in which she received income. As
discussed, when an employee has earnings from employment, she is not entitled to receive
temporary total disability benefits and actual earnings for the same time period.7 Under these
circumstances, the Office offsets actual earnings pursuant to the Shadrick formula.8 If a
reduction of benefits based upon actual earnings is not accompanied by a determination that the
actual earnings “fairly and reasonably” represent wage-earning capacity, an informal reduction
of benefits utilizing the Shadrick formula is proper rather than a formal loss of wage-earning
capacity determination.9 The Office did not apply the Shadrick formula to compute appellant’s
entitlement to earnings for the period in question but instead determined that the entire amount
was an overpayment. The case, consequently, will be remanded for the Office to recalculate the
amount of compensation that arose because she received compensation for total disability when
she had earnings from employment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act10 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations11
provides that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. 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.”
The Board has held that an employee who receives payments from the Office in the form
of direct deposit may not be at fault the first time incorrect funds are deposited into her account,
as the acceptance of the resulting overpayment lacks the requisite knowledge.12 The Board has
also held in cases involving a series of incorrect payments, where the requisite knowledge is
established by a letter or telephone call from the Office or simply with the passage of time and a
7

Id.

8

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403.

9

See D.C., 61 ECAB __ (Docket No. 09-1460, issued April 19, 2010).

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.433.

12

W.P., 59 ECAB 514 (2008); Tammy Craven, 57 ECAB 689 (2006).

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greater opportunity for discovery, the claimant will be at fault for accepting the payments
subsequently deposited.13 Previous cases have held that receiving one or two erroneous direct
deposit payments does not necessarily create the requisite knowledge to find that a claimant was
at fault in the creation of the overpayment.14 The Board has found fault in cases where incorrect
payments were made over longer periods of time or for substantially greater amounts than
previously received.15
ANALYSIS -- ISSUE 2
On April 1, 2009 appellant began earning wages in nonfederal employment. She advised
the Office on April 13, 2009 of her return to work. From April 1 through May 9, 2009, appellant
received compensation for total disability from the Office after she returned to nonfederal
employment. In finding her at fault for the creation of the overpayment for this period, the
Office determined that she accepted payments through direct deposit that she knew or should
have known to be incorrect.
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments are incorrect.16 It is generally not appropriate,
however, to make a finding that a claimant has accepted an overpayment by direct deposit until
such time as a reasonable person would have been aware that this overpayment had occurred.
This awareness could be established either through documentation such as a bank statement or
notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.17
Appellant received compensation by direct deposit for total disability from the time she
resumed work on April 1 to May 9, 2009. Since Office regulations define fault by what the
claimant knew or should have known at the time of acceptance, one of the consequences of EFT
is that in many cases the claimant will not be at fault for accepting the first incorrect payment
because the requisite knowledge is lacking at the time of deposit and the Board so finds in this
case as there is no evidence that appellant was aware of the period included in the direct deposits
covering April 1 to May 9, 2009.18 Appellant had no reason to know at the time the Office
deposited the overpayment into her checking account that the Office had issued an incorrect
payment given that there was only one full incorrect payment made by the Office.19 As the funds
were deposited directly into her bank account, she was not in a position to immediately decline
acceptance of the amount paid by the Office. The Board finds that appellant is without fault in
13

Tammy Craven, id.

14

Id. at n. 6.

15

Id. at n. 7.

16

Karen K. Dixon, 56 ECAB 145 (2004).

17

See K.H., Docket No. 06-191 (issued October 30, 2006).

18

See Karen K. Dixon, supra note 15.

19

Tammy Craven, supra note 11.

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creating the overpayment. A finding that appellant is without fault does not mean, however, that
the claimant may keep the money, but rather that the Office must consider her eligibility for
waiver for this period. On remand, the Office should consider whether she is entitled to waiver
of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation but that the
case is not in posture for decision on the amount of overpayment. It further finds that she is not
at fault in creating the overpayment. On remand, the Office should determine whether waiver of
recovery of the overpayment is warranted.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 14, 2010 is affirmed in part, set aside in part and reversed
in part. The case is remanded for further proceedings consistent with this opinion of the Board.
Issued: February 3, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Maria, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1605
Issued: May 28, 2020

Case Submitted on the Record

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

On July 23, 2019 appellant, through counsel, filed a timely appeal from a June 19, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the
Appellate Boards docketed the appeal as No. 19-1605.
On January 31, 1998 appellant, then a 30-year-old carrier, filed an occupational disease
claim (Form CA-2) attributing her lower back, hip, knee, and ankle pain to sorting and carrying
mail. OWCP accepted the claim for right knee medial meniscus tear, left knee lateral meniscus
tear, bilateral hips and knee sprain, and greater trochanteric bursitis. Appellant had periods of
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

The Board notes that, following the June 19, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

intermittent disability before stopping work on July 31, 2004. OWCP paid appellant wage-loss
compensation on the periodic rolls for temporary total disability effective August 7, 2005.
Appellant returned to modified work for four hours per day on March 16, 2016 and OWCP paid
wage-loss compensation on the supplemental rolls commencing that date. On April 6, 2016
appellant reduced her work hours to three hours per day, four days per week.
On January 20, 2017 the employing establishment offered appellant a limited-duty position
as a modified city letter carrier. Appellant refused the job offer that day indicating that it did not
accommodate her work restrictions.
On April 29, 2017 appellant filed a claim for intermittent compensation (Form CA-7)
requesting wage-loss compensation from March 6 through April 28, 2017. The employing
establishment advised that work was available within her restrictions for eight hours per day. It
requested medical verification for the reduced work hours prior to payment.
In a letter dated May 15, 2017, OWCP informed appellant that the record established that
she had declined to accept an offered position. It informed her that under 20 C.F.R. § 10.500(a)
compensation or total wage-loss compensation was not payable to claimants who declined an
offered position within their work restrictions for the duration of the assignment. OWCP informed
appellant that she was expected to accept the position and report for work. It afforded appellant
30 days to report to the assigned position or show that her refusal was justified.
A supplemental rolls payment record dated May 15, 2017 reflects that OWCP authorized
payment of intermittent wage-loss compensation for the period March 6 through April 28, 2017.
On July 11, 2017 appellant filed a claim for intermittent wage-loss compensation (Form
CA-7) for the period May 1 through June 23, 2017. The employing establishment advised that
work was available within her restrictions for eight hours per day. It requested medical verification
for the reduced work hours prior to payment.
By decision dated July 24, 2017, OWCP denied appellant’s April 29, 2017 claim for
intermittent wage-loss compensation for the period March 6 through April 28, 2017.3 It noted that
she had declined an offer of temporary light duty, which it found to be suitable as it accommodated
her work restrictions.
On December 20, 2017 counsel requested reconsideration.
By decision dated
December 28, 2017, OWCP denied reconsideration finding the evidence insufficient to warrant a
merit review.
On February 22, 2018 appellant, through counsel, requested reconsideration and submitted
a February 9, 2018 report from her treating physician.
On March 20, 2019 OWCP referred appellant for impartial medical examination with
Dr. Mitchel Silverman, a Board-certified orthopedic surgeon, to resolve the conflict in the medical
3
Following the July 24, 2017 decision, appellant continued to submit Form CA-7s claiming intermittent
compensation.

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opinion evidence between a second opinion physician and her treating physician regarding her
work restrictions and work capacity. In a May 13, 2019 report, Dr. Silverman concluded that
appellant was capable of work eight hours per day with restrictions and opined that the January 20,
2017 modified temporary light-duty job offer was within her work restrictions.
By decision dated June 19, 2019, OWCP denied modification of the July 24, 2017 decision.
It noted that the July 24, 2017 decision terminated appellant’s wage-loss compensation pursuant
to 20 C.F.R. § 10.500(a) as it found the January 20, 2017 modified temporary job offer
accommodated her work restrictions. OWCP found that Dr. Silverman’s opinion constituted the
special weight of the evidence regarding her work restrictions and ability to perform the
January 20, 2017 temporary job offer.
Having duly reviewed the case record submitted by OWCP, the Board finds that this case
is not in posture for a decision as OWCP, in its June 19, 2019 decision, failed to correctly identify
the underlying issue presented in the July 24, 2017 decision, which was the denial of appellant’s
claim for intermittent wage-loss compensation from March 6 through April 28, 2017.
OWCP’s regulation at 20 C.F.R. § 10.500(a) specifically provides that an employee is not
entitled to compensation for any wage-loss claimed on a Form CA-7 to the extent that evidence
contemporaneous with the period claimed on a Form CA-7 establishes that an employee had
medical work restrictions in place, that light duty within those work restrictions was available, and
that the employee was previously notified in writing that such light duty was available.
In its July 24, 2017 decision, OWCP denied appellant’s claim for intermittent wage-loss
compensation for the period March 6 through April 28, 2017. At the time of the July 24, 2017
decision, appellant was not on the periodic rolls for temporary total disability, she filed Form
CA-7s claiming wage-loss compensation for intermittent periods of disability for the period
March 6 through June 23, 2017, and had been receiving intermittent wage-loss compensation on
the supplemental rolls. Furthermore, on May 15, 2017 the record reflects that OWCP authorized
payment of intermittent wage-loss compensation for the period March 6 through April 28, 2017.
OWCP phrased the underlying issue as whether it had properly terminated wage-loss
compensation under section 10.500(a). As noted above, OWCP did not terminate appellant’s
wage-loss compensation under section 10.500(a), but instead denied her claim for intermittent
wage-loss compensation for the period March 6 through April 28, 2017 because appellant had not
accepted the offered temporary position for eight hours of work per day with restrictions.
In deciding matters pertaining to a given claimant’s entitlement to compensation benefits,
OWCP is required by statute and regulation to make proper findings of fact.4 Its procedure further
specifies that a final decision of OWCP should be clear and detailed so that the reader understands

4

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall
contain findings of fact and a statement of reasons.

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the reasons for the disallowance of the benefit.5 These requirements are upheld by Board
precedent.6
Accordingly, the Board will set aside the June 19, 2019 decision and remand the case for
OWCP to make findings of facts and provide reasons for its decision pursuant to the standards
set forth in 20 C.F.R. §§ 10.500(a) and 10.126. After such further development as OWCP deems
necessary it shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the June 19, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: May 28, 2020
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

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

6
See James D. Boller, Jr., 12 ECAB 45, 46 (1960); see also J.N., Docket No. 17-1408 (issued December 11, 2017);
R.B., Docket No. 16-1696 (issued September 7, 2017).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Alameda, CA, Employer
__________________________________________

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

Docket No. 11-1796
Issued: March 23, 2012

Case Submitted on the Record

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

JURISDICTION
On August 1, 2011 appellant filed a timely appeal from the June 29, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) determining his wage-earning
capacity. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective July 3,
2011 based on his capacity to earn wages as a truck terminal manager.
On appeal, appellant contends that there were errors in the way OWCP arrived at his
wage-earning capacity, including illegal and improper surveillance, and that he should have been
permitted to pursue self-employment. He also asserts that he was entitled to reimbursement for
his last semester at San Francisco State University pursuant to the vocational rehabilitation plan.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a March 21, 2008 decision, the Board
set aside OWCP’s September 10, 2007 nonmerit decision denying appellant’s request for
reconsideration as untimely and failing to show clear evidence of error, and remanded the case
for a determination as to whether the evidence established that a modification of a February 1,
2000 wage-earning capacity determination was warranted.2 In a decision dated June 23, 2010,
the Board reversed OWCP’s February 10, 2009 decision reducing appellant’s compensation
based on his capacity to earn wages as a truck terminal manager. The Board found that OWCP’s
February 1, 2000 loss of wage-earning capacity (LWEC) determination was erroneous because it
was based on a stale medical report.3 The facts and the law contained in those Board decisions
are incorporated herein by reference. Relevant facts are included below.
OWCP accepted appellant’s July 20, 1993 traumatic injury claim for neck contusion,
cervical sprain and disc dislocation/bulge at C5-6 and placed him on the periodic rolls.
Appellant was referred for vocational rehabilitation services and received funds to complete his
bachelor’s degree at San Francisco State University. As he had previously accumulated college
credits and had also obtained an associate degree, his undergraduate degree requirements were
projected to be satisfied within three semesters; however, he did not complete the degree
program during the period of vocational rehabilitation. OWCP directed the rehabilitation
counselor to initiate placement services in June 1998. The rehabilitation specialist identified the
position of assistant manager, truck terminal. Although appellant received more than 90 days of
placement assistance, he failed to secure employment.
The rehabilitation specialist identified the position of assistant manager, truck terminal
(Department of Labor’s Dictionary of Occupational Titles No. 184.1670110) as vocationally
suitable and reasonably available in appellant’s commuting area, based upon a local labor market
survey. The specialist found the job vocationally suitable in light of appellant’s educational
background and more than 10 years of trucking industry experience, and medically suitable,
based upon a May 1994 report from appellant’s treating physician, Dr. Eugene Mar.
In a decision dated February 1, 2000, OWCP reduced appellant’s compensation to reflect
his wage-earning capacity as an assistant manager, truck terminal, finding that the constructed
position fairly and reasonably represented his wage-earning capacity based on Dr. Mar’s
May 1994 restrictions. In a decision dated September 10, 2007, it denied appellant’s May 3,
2007 request for reconsideration as untimely and failing to show clear evidence of error. On
March 21, 2008 the Board set aside the September 10, 2007 decision and remanded the case for a
determination as to whether the evidence established that a modification of the February 1, 2000
wage-earning capacity determination was warranted.
In a decision dated June 5, 2008, OWCP denied modification of the February 1, 2000
wage-earning capacity determination. On February 10, 2009 an OWCP hearing representative
affirmed the June 5, 2008 decision finding that a modification of the February 1, 2000 wage2

Docket No. 08-73 (issued March 21, 2008).

3

Docket No. 09-1887 (issued June 23, 2010).

2

earning capacity was not warranted. As noted, on June 23, 2010 the Board reversed OWCP’s
February 10, 2009 decision on the grounds that the February 1, 2000 loss of wage-earning
capacity determination was erroneous because it was based on a stale medical report.
On June 30, 2010 OWCP referred appellant to Dr. Juon-Kin K. Fong, a Board-certified
orthopedic surgeon, for a second opinion examination. Dr. Fong was asked to provide an
opinion as to whether appellant was capable of returning to work in his date-of-injury job or of
performing the duties of sales/marketing manager or assistant manager truck terminal. He was
also asked whether appellant had residuals from his accepted injury.
In an August 11, 2010 report, Dr. Fong provided a history of injury and treatment and
noted that appellant was running his own business as a contractor. He related appellant’s
complaints of constant neck and right shoulder pain. Cervical examination revealed: extension
-- 20 degrees; flexion -- 50 degrees, lateral rotation -- 60 degrees to the right, 70 degrees to the
left; lateral tilt -- 20 degrees bilaterally. Motion was slow and guarded. There was chronic
muscle tightness of the paracervical muscles but no trapezial tightness. Palpation of the neck
somewhat replicated his pain. Shoulder examination revealed a positive arc and impingement
sign with an equivocal drop test; crepitus on palpation; and pain on palpation of the
supraspinatus fossa and subacromial space. A 2003 magnetic resonance imaging (MRI) scan of
the right shoulder showed advanced degenerative joint disease (DJD) of the glenohumeral joint
along with supraspinatus tendinosis and a downsloping acromion that might predispose to
impingement. A 2003 MRI scan of the cervical spine showed multilevel spondylosis with
multiple small disc bulges but primarily neuroforaminal encroachment at various levels as
previously discussed. Dr. Fong diagnosed cervical spondylosis with a history of radiculitis and
right shoulder internal derangement with DJD and possible impingement.
Dr. Fong opined that appellant continued to experience residuals of the accepted injury
and was not capable of returning to work as a motor vehicle operator. He opined, however, that
appellant was capable of working as a sales/marketing manager providing walking and standing
were minimal and reaching, pushing and pulling of objects was avoided. Dr. Fong opined that
appellant was capable of working as an assistant manager, truck terminal provided that he should
not be exposed to noise and vibration, in addition to the aforementioned restrictions. In an
accompanying work capacity evaluation, he restricted appellant from driving, reaching or
twisting, or lifting, pushing or pulling more than 15 pounds. Appellant was to perform minimal
walking and standing, and squatting, kneeling and climbing were prohibited.
In a letter dated August 25, 2010, Dr. James H. Rhee, a Board-certified physiatrist,
opined that Dr. Fong’s restrictions pertained to appellant’s shoulder condition, rather than to his
cervical condition, and that walking, standing, squatting, kneeling and climbing would not
impact his cervical condition. In an October 18, 2010 work capacity evaluation, Dr. Rhee
indicated that he was uncertain whether appellant could perform the duties of his date-of-injury
job.
OWCP found a conflict in medical opinion between Dr. Rhee and Dr. Fong regarding
appellant’s work capacity and referred appellant to Dr. Arthur Auerbach, a Board-certified
orthopedic surgeon, to resolve the conflict. Dr. Auerbach was asked whether appellant had

3

residuals of the accepted condition and whether he was capable of performing the duties of his
date-of-injury job as a motor vehicle operator.
In a December 28, 2010 report, Dr. Auerbach provided a history of injury and treatment
and examination findings. Although appellant alleged that he sustained a shoulder injury at the
time of the accepted incident, the claim was accepted only for a cervical condition. He informed
Dr. Auerbach that he had never had a shoulder condition prior to the 1993 employment incident
and that his right shoulder pain had increased in intensity over the years since the incident.
Appellant also had a preexisting right knee condition secondary to a 1997 nonindustrial injury,
and intermittent low back pain resulting from a fall from a ladder in 2000.
Cervical range of motion testing revealed flexion -- 30 degrees; extension -- 5 degrees
right and left; rotation -- 5 degrees right, 0 degrees left; side bending -- 5 degrees right, 0 degrees
left. Range of motion testing of the shoulders, right versus left, revealed: forward flexion -- 90
degrees right, 150 degrees left; abduction -- 90 degrees, right, 180 degrees left; extension -- 40
degrees right, 50 degrees left; internal rotation -- 30 degrees right, 50 degrees left; external
rotation -- 60 degrees right, 90 degrees left. Grasping the right Jamar Dynamometer caused right
shoulder pain. An April 5, 2010 MRI scan of the right knee revealed severe narrowing of the
lateral compartment, mild joint effusion and disrupted anterior cruciate ligament. Dr. Auerbach
stated that appellant had constant right knee pain and intermittent swelling and noted that he was
unable to squat or walk on uneven ground. He opined that appellant had “a right knee degree of
nonindustrial impairment adding to his total impairment.”
Dr. Auerbach diagnosed preexisting mild cervical spondylosis and degenerative disease,
aggravated by the accepted 2003 injury and mild C6-7 radiculopathy; multilevel disc
degeneration with C5-6 right foraminal stenosis and left foraminal stenosis at C4-5; right
shoulder impingement syndrome and possible rotator cuff tear; chronic low back pain due to
possible L3-4 inferior foramina and lateral disc protrusion and right knee effusion. Restrictions
precluded using the right shoulder at and above shoulder level, or pushing, pulling or lifting
greater than five pounds with the right shoulder above shoulder level. Dr. Auerbach stated that
these restrictions were “possibly the responsibility of the nonindustrial right shoulder and partly
the responsibility of the industrial neck.” Appellant was also restricted from kneeling, squatting,
climbing and walking over uneven ground due to his right knee condition. Restrictions relating
solely to his cervical condition included no repetitive motions of the neck, no power grasping, no
repetitive simple grasping with the right wrist and hand and no lifting, pulling or pushing more
than 25 pounds with the right upper extremity.
Dr. Auerbach opined that appellant continued to suffer from the residuals of the original
neck injury of July 16, 1993 and was unable to perform the duties of motor vehicle operator. In
an attached work capacity evaluation, he indicated that appellant was permanently restricted
from repetitive neck motion and from lifting or carrying more than 10 pounds.
At OWCP’s request, the rehabilitation counselor conducted a labor market survey in for
the position of manager, truck terminal (DOT No. 184.167-110). The position was classified as
sedentary, which provides a 10-pound lifting limit. A manager, truck terminal is responsible for
directing and coordinating activities of the terminal as intermediate freight distributor and may

4

provide garage services for trucks. Duties include checking incoming and outgoing shipments
against bills of lading. The vocational counselor determined that appellant had the physical
capacity to perform the duties of the manager, truck terminal position and that the job was being
performed in sufficient numbers as to make it reasonably available to appellant within his
commuting area.
On May 10, 2011 OWCP notified appellant that it proposed to reduce his compensation
for wage loss on the grounds that the medical and factual evidence established that he was no
longer totally disabled for work, but rather was capable of earning wages as a manager, truck
terminal. It allowed him 30 days to submit additional evidence or argument regarding his
capacity to earn wages in the described position.
In a decision dated June 29, 2011, OWCP reduced appellant’s compensation for wage
loss to zero effective July 3, 2011. It found that the position of manager, truck terminal was
medically and vocationally suitable and represented his wage-earning capacity.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.5
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.6
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.7 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.8 In determining wage-earning capacity based on a constructed
position, consideration is given to the residuals of the employment injury and the effects of
conditions which preexisted the employment injury.9
4

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

7

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

8

Id.

9

See Jess D. Todd, 34 ECAB 798, 804 (1983).

5

When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to a wage-earning capacity specialist for selection of a position, listed in the
Department of Labor, Dictionary of Occupational Titles or otherwise available in the open labor
market, that fits that employee’s capabilities with regard to his physical limitations, education,
age and prior experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in the Shadrick
decision will result in the percentage of the employee’s loss of wage-earning capacity.10
OWCP must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity. The
Board has stated that the medical evidence upon which OWCP relies must provide a detailed
description of appellant’s condition.11 Additionally, the Board has held that a wage-earning
capacity determination must be based on a reasonably current medical evaluation.12
ANALYSIS
The June 29, 2011 wage-earning capacity determination was premised on appellant’s
ability to work full time as a truck terminal manager. The Board finds that OWCP failed to
establish that the constructed truck terminal manager position fairly and reasonably represented
his wage-earning capacity. Therefore, OWCP failed to meet its burden of proof and the June 29,
2011 decision must be reversed.
In its June 25, 2010 decision, the Board found that OWCP’s February 1, 2000 LWEC
determination that the constructed position of manager, truck terminal was medically suitable
was erroneous because it was based on a stale medical report. Following the Board’s decision,
OWCP sought a second opinion regarding appellant’s work capacity from Dr. Fong, who opined
that appellant’s residuals from the accepted injury would impact his ability to walk, bend, stoop,
drive stand, twist, push, pull, lift, carry, reach above shoulder level and drive long distances.
Dr. Rhee, appellant’s treating physician, disagreed that walking and standing would negatively
impact appellant’s cervical condition and opined that Dr. Fong’s pushing and pulling restrictions
probably related to his unaccepted shoulder condition. OWCP properly found a conflict in
medical opinion between Dr. Fong and Dr. Rhee regarding appellant’s work limitations and
referred him to Dr. Auerbach for an impartial medical opinion. The Board finds, however, that

10

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
11

See William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28
ECAB 43 (1976).
12

See M.A., 59 ECAB 624 (2008). See Carl C. Green, Jr., 47 ECAB 737, 746 (1996) (six-month-old medical
reports are reasonably current for purposes of wage-earning capacity determination); Cf. Keith Hanselman, 42
ECAB 680 (1991) (two-year-old medical report and year-old work restriction evaluation forms were not reasonably
current for wage-earning capacity determination); Anthony Pestana, 39 ECAB 980 (1988) (three-year-old medical
evaluation is not reasonably current for wage-earning capacity determination).

6

Dr. Auerbach’s December 28, 2010 report is insufficient to resolve the conflict or to establish
that appellant is physically capable of performing the duties of the constructed position.
Dr. Auerbach’s opinion is vague, speculative and internally inconsistent. On the one
hand, he provided restrictions precluding the use of the right shoulder at and above shoulder
level, or pushing, pulling or lifting greater than five pounds with the right shoulder above
shoulder level, stating that these restrictions were “possibly the responsibility of the
nonindustrial right shoulder and partly the responsibility of the industrial neck.” Later in his
report, he indicated that appellant should be restricted from repetitive motions of the neck, no
power grasping, no repetitive simple grasping with the right wrist and hand and no lifting,
pulling or pushing more than 25 pounds with the right upper extremity. In a separate paragraph,
Dr. Auerbach stated that appellant could probably push, pull and lift 10 pounds with the right
upper extremity. His failure to provide clear restrictions and definitive diagnoses reduces the
probative value of his report and renders it insufficient to resolve the conflict in medical opinion.
In response to OWCP’s questions, Dr. Auerbach opined that appellant continued to suffer
from the residuals of the original neck injury of July 16, 1993 and was unable to perform the
duties of motor vehicle operator. He was not asked, however, to review requirements for the
manager, truck terminal position and, therefore did not provide an opinion as to whether
appellant was capable of performing the duties of the position. The Board notes that the
constructed position has a 10-pound lifting limit and includes duties that would require repetitive
movements of the neck, such as checking incoming and outgoing shipments against bills of
lading. Absent rationalized medical evidence addressing the relevant issue, the Board is unable
to determine whether appellant is capable of performing the duties of the manager, truck terminal
position.
On appeal, appellant contends that he was entitled to reimbursement for his last semester
at San Francisco State University, which he completed after the conclusion of vocational
rehabilitation. As OWCP did not issue a final decision on appellant’s request, the issue is not
properly before the Board.13
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation effective
July 3, 2011 based on his capacity to earn wages as a truck terminal manager.14
13

Section 8104(a) of FECA provides for the furnishing of vocational rehabilitation services. 5 U.S.C. § 8104(a).
OWCP has discretionary authority with respect to vocational rehabilitation and the Board has held that an OWCP
decision involving the exercise of this discretion will not be disturbed unless it is clearly in error. Pursuant to the
vocational rehabilitation plan, appellant received funds to complete his bachelor’s degree at San Francisco State
University. As he had previously accumulated college credits and had also obtained an associate degree, his
undergraduate degree requirements were projected to be satisfied within three semesters; however, he did not
complete the degree program during the period of vocational rehabilitation. The Board notes that appellant has not
alleged that OWCP’s denial of his request for reimbursement for tuition was an abuse of discretion.
14

The Board notes that appellant’s arguments on appeal regarding alleged improper surveillance and entitlement
to reimbursement for his last semester at San Francisco State University are beyond the scope of this appeal.

7

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 23, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
Evans City, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1887
Issued: January 25, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 2, 2006 merit decision concerning her entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
an eight percent permanent impairment of her right arm.
FACTUAL HISTORY
On January 18, 2003 appellant, then a 48-year-old quality inspection specialist, filed an
occupational disease claim alleging that she sustained tendinitis in both hands, including the
thumb joints and a chronic sprain of her right hand due to the repetitive wrist, hand and finger
motions she was required to perform while inspecting hundreds of gas masks per day.

The Office accepted that appellant sustained bilateral hand tendinitis.
In a report dated May 4, 2006, Dr. Michael J. Platto, an attending physician Boardcertified in physical medicine and rehabilitation, provided an assessment of the permanent
impairment of appellant’s right arm. He indicated that appellant complained of pain
predominantly at the base of the right thumb which went into the thumb without proximal
radiation and that she described very mild pain in the left thumb. Dr. Platto stated that on
examination appellant exhibited full active range of motion of both shoulders, elbows and the
left wrist, that there was no tenderness in the left wrist, hand and fingers and that motor strength
was 5/5 in both extremities except for 4/5 right finger abduction, which was thought to be
secondary to pain. He stated that appellant was tender to palpation over the right radial head,
radial snuff box area, extensor pollicis longus area and abductor pollicis longus area, but there
was no inflammation in these areas. Dr. Platto indicated that appellant had full range of motion
of the left wrist including 65 degrees of extension, 90 degrees of flexion and full range of motion
of the thumb and fingers. The right thumb showed 18 degrees of extension, 30 degrees of
flexion and 40 degrees of radial abduction and lacked 4 centimeters (cm) of adduction and 4 cm
in opposition. Dr. Platto observed that appellant had full range of motion of the distal
interphalangeal and proximal interphalangeal joints of the right hand and noted that, for the right
wrist, she had 50 degrees of extension, 90 degrees of flexion, 50 degrees of ulnar deviation and
30 degrees of radial deviation. He diagnosed tendinitis of both hands and wrist but noted that
appellant was almost completely asymptomatic on the left side. Regarding appellant’s
permanent impairment under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001), Dr. Platto stated:
“According to Figure 16-15, 30 [degrees] flexion of the right thumb would
convert to a 3 percent impairment. According to Table 16-8A, radial abduction of
40 degrees would be a 2 percent impairment rating. According to Table 16-8B, a
[four] cm lack of adduction would be a [four] percent impairment rating.
According to Table 16-9, lack of [four] cm opposition would be [nine] percent
impairment. According to Figure 16-28, wrist extension to 50 degrees would be
2 percent impairment, although wrist flexion to 90 degrees would be 0 percent.
“I used Figure 16-1A, page 436 … to come up with a total digit impairment
percentage of 18 percent, which converts to a 7 percent hand impairment rating.
Using Figure 16-1B, page 437, wrist impairment is 2 percent. [Two] percent for
wrist plus [seven] percent for hand converts to total upper extremity impairment
of [nine] percent. Using Table 16-3, conversion would be [five] percent of whole
person.”1

1

Dr. Platto stated that appellant might have an ulnar neuropathy at both elbows as noted by positive Tinel’s signs,
but he indicated that this condition had not been formally diagnosed and that appellant was not symptomatic in the
ulnar nerve distributions in her hands.

2

On June 5, 2006 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon who served
as an Office district medical adviser, evaluated the findings of Dr. Platto to determine that
appellant had an eight percent permanent impairment of her right arm. He indicated that the date
of maximum medical improvement was May 4, 2006 and stated:
“According to the A.M.A., Guides, fifth edition, Figure 16-15, 30 degrees of
flexion of the right thumb would result in a 3 percent impairment to the right
thumb. According to Table 16-8A, page 459, …, radial abduction of 40 degrees
would be a 2 percent impairment rating. According to Table 16-9, …, [four] cm
of opposition is equal to [nine] percent impairment of the right thumb.
“Therefore, the total impairment to the thumb is 18 percent impairment to the
right thumb. This converts to [seven] percent impairment to the right hand, based
upon Table 16-1, [c]onversion of [i]mpairment of the [d]igits to [i]mpairment of
the [h]and. Using Table 16-2, [c]onversion of [i]mpairment of the [h]and to
[i]mpairment of the [u]pper [e]xtremity, [seven] percent impairment of the hand
equals [six] percent of the upper extremity.
“According to Figure 16-28, pie chart of upper extremity motion impairment due
to lack of flexion and extension of the wrist joint, 50 degrees of extension would
be 2 percent impairment, 90 degrees is 0 percent impairment. This [two] percent
impairment is converted using the [C]ombined [V]alue [C]hart, page 604 and
[six] percent plus [two] percent equals [eight] percent.
“Dr. Platto incorrectly converted the percent of hand to upper extremity on
[Table] 16-2. This represents the discrepancy in our two recommended schedule
awards.”
By decision dated August 2, 2006, the Office granted appellant a schedule award for an
eight percent permanent impairment of her right arm.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

3

The Board has held that where the residuals of an injury to a member of the body specified
in the schedule award provisions of the Act extend into an adjoining area of a member also
enumerated in the schedule, such as an injury of the finger into the hand, of a hand into the arm or
of a foot into the leg, the schedule award should be made on the basis of the percentage of loss of
use of the larger member.5
ANALYSIS
The Office accepted that appellant sustained bilateral hand tendinitis and on August 2,
2006 it granted her a schedule award for an eight percent permanent impairment of her right arm.
The Office based the schedule award on the June 5, 2006 report of Dr. Berman, a Board-certified
orthopedic surgeon who served as an Office district medical adviser. Dr. Berman reached his
opinion regarding appellant’s right arm impairment by evaluating the findings of Dr. Platto, an
attending physician Board-certified in physical medicine and rehabilitation.
The Board finds that Dr. Berman properly determined that appellant had an eight percent
impairment of her right arm. He correctly determined that Dr. Platto had provided proper
calculations for the following impairment ratings involving appellant’s right thumb: 3 percent
for 30 degrees of flexion of the right thumb under Figure 16-15 of the fifth edition of the
A.M.A., Guides, 2 percent for 40 degrees of radial abduction under Table 16-8a; 4 percent for a
4 cm lack of adduction under Table 16-8b and 9 percent for a 4 cm lack of opposition under
Table 16-9.6 Dr. Berman then properly determined that under Figure 16-1A appellant had a total
digit impairment rating of 18 percent,7 which under Tables 16-1 and 16-2 converted to a
6 percent impairment rating of the right arm.8 He found that appellant’s 50 degrees of right wrist
extension equaled 2 percent impairment of the right wrist under Figure 16-28.9 Dr. Berman then
used the Combined Values Chart to combine the six percent impairment rating (derived
originally from the thumb deficits) with the two percent rating (derived from the wrist deficits)
and concluded that appellant had an eight percent impairment of her right arm.10

5

See Tonya D. Bell, 43 ECAB 845, 849 (1992).

6

A.M.A., Guides 457, 59-60, Figure 16-15, Tables 16-8a, 16-8b and 16-9.

7

Id. at 436, Figure 16-1a. Dr. Berman did not mention the four percent rating for a four cm lack of adduction, but
his inclusion of this value in the total impairment rating for all digits shows that his failure to mention it was
inadvertent.
8

Id. at 438-39, Figures 16-1, 16-2.

9

Id. at 467, Figures 16-28. Dr. Berman properly concluded that appellant’s other digit and wrist findings did not
warrant impairment ratings. He also properly found that the findings on examination did not show entitlement to
ratings for strength or sensory loss. See generally A.M.A., Guides. at 480-510.
10

Id. at 604-05, Combined Values Chart.

4

The Board notes that the only difference between the evaluations of Dr. Platto and
Dr. Berman is that Dr. Platto did not convert appellant’s hand impairment into an arm impairment.
It was appropriate for Dr. Berman to covert appellant’s hand impairment into an arm impairment
because the permanent impairment due to his employment injury extended from his hand into his
wrist.11
As the report of the Dr. Berman provided the only evaluation which conformed to the
A.M.A., Guides, it constitutes the weight of the medical evidence.12 Therefore, the Office
properly granted appellant a schedule award for an eight percent impairment of her right arm.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than an eight percent permanent impairment of her right arm.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 2, 2006 decision is affirmed.
Issued: January 25, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

See supra note 5 and accompanying text. The medical evidence of record reveals that appellant’s employmentrelated tendinitis affected both his hands and wrists.
12

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1328
Issued: January 11, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 27, 2009 appellant filed a timely appeal from the April 15, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of his
left lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On March 4, 2002 appellant, then a 53-year-old mail handler, filed an occupational
disease claim alleging a left knee condition arising in the performance of duty. He first became
aware of his condition and its relation to his work on February 10, 2002. Appellant stopped
work on February 13, 2002. Initial medical reports diagnosed arthritic swelling of the left knee
secondary to repeated trauma and noted decreased range of motion. The Office accepted
appellant’s claim for aggravation of osteoarthritis of the left knee. Appellant received wage-loss
compensation benefits. He subsequently filed a claim for a schedule award.

In a report dated February 19, 2009, Dr. Nicholas Diamond, a Board-certified osteopath
and treating physician, reviewed appellant’s history of injury and treatment. He rated
impairment using the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (5th ed. 2001), hereinafter A.M.A., Guides. Regarding appellant’s activities of daily
living, Dr. Diamond noted difficulty with household chores, mowing the lawn and personal
hygiene. He determined that appellant could stand comfortably for 10 minutes, but had difficulty
with walking one block and used a cane or walker for ambulation. Dr. Diamond also advised
that appellant had difficulty with climbing stairs, driving and could no longer kneel, squat, bowl,
or play basketball or tennis. On examination, he reported that appellant had effusion and
peripatellar tenderness over the medial joint line and medial joint space and medial femoral
condyle, the lateral joint line, lateral joint space and lateral femoral condyle. Dr. Diamond also
indicated that appellant had crepitance in both the medial and lateral joint compartment. He
advised that manual muscle strength testing of the lower extremities revealed the gastrocnemius
and quadriceps warranted a grade of 4/5 on the left. Dr. Diamond indicated that the
circumference of the gastrocnemius was 40 centimeters on the right versus 38.5 centimeters on
the left. He measured the quadriceps and advised that the circumference was 51.5 centimeters on
the right versus 52 centimeters on the left. Dr. Diamond diagnosed cumulative and repetitive
trauma disorder, degenerative joint disease to the left knee and severe osteoarthritis to the left
knee. Regarding range of motion, he determined that appellant had flexion-extension of 0 to 95
degrees. Dr. Diamond referred to Table 17-10 and opined that flexion of less than 110 degrees
would result in 10 percent impairment.1 He also referred to Figure 18-12 and rated pain-related
impairment of 3 percent or a total impairment of 13 percent to the left lower extremity.
Dr. Diamond opined that appellant reached maximum medical improvement on
February 19, 2009.
On April 4, 2009 Dr. Arnold T. Berman, an Office medical adviser, reviewed
Dr. Diamond’s February 19, 2009 report and the A.M.A., Guides. He noted that appellant had
decreased range of motion but did not undergo surgery. The left knee range of motion
measurements provided by Dr. Diamond, the only ratable loss was flexion to 95 degrees.
Dr. Diamond referred to Table 17-10 which provides that a range of motion of less than 110
degrees is 10 percent impairment to the lower extremity. The Office medical adviser noted that
Dr. Diamond had also provided an additional three percent impairment for pain, but explained
that section 18.3a of the A.M.A., Guides provides that a pain-related impairment can be rated
when there is excess pain in the context of a verifiable medical condition that causes pain wellestablished pain syndromes without significant identifiable organ dysfunction to explain the pain
and when there are other associated pain syndromes.3 Under section 18.3(b) of the A.M.A.,
Guides, “examiners should not use this chapter to rate pain[-]related impairments for any
condition that can be adequately rated on the basis of the body and organ impairment systems
given in other chapters of the guides.”4 The Office medical adviser found that appellant’s
clinical picture did not warrant the additional three percent pain award. He concluded that

1

A.M.A., Guides 537.

2

Id. at 574.

3

Id. at 570.

4

Id. at 571, section 18.3b.

2

appellant had 10 percent impairment of the left lower extremity. The Office medical adviser
opined that appellant was at maximum medical improvement on February 19, 2009.
On April 15, 2009 the Office granted appellant a schedule award for 10 percent
permanent impairment of the left lower extremity. The award covered a period of 28.80 weeks
from February 19 to September 8, 2009.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.6 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.7 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.8
ANALYSIS
The Board notes that Dr. Diamond and the Office medical adviser were in agreement that
appellant has 10 percent impairment of the left lower extremity due to loss of range of motion.
Dr. Diamond found on examination that appellant had left knee flexion of 95 degrees. The
Board notes that Table 17-109 of the A.M.A., Guides provides flexion-extension of 95 degrees is
10 percent impairment to the left lower extremity.
Dr. Diamond also rated an additional three percent for pain-related impairment based on
Figure 18-1,10 however, the Office medical adviser properly noted that Dr. Diamond did not
explain how the additional three percent conformed to the protocols set out in section 18.3a11
The textual material at section 18.3(b) of the A.M.A., Guides, provides that examiners should not
use this chapter to rate pain-related impairments for any condition that can be adequately rated
on the basis of the body and organ impairment systems given in other chapters of the A.M.A.,
Guides.12 Office procedures and Board precedent provide that Chapter 18 is not to be used in
combination with other methods to measure impairment due to sensory pain.13 The examining
5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8107.

7

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

8

20 C.F.R. § 10.404.

9

A.M.A., Guides 537.

10

Id. at 574, Figure 18-1.

11

Id. at 570.

12

See supra note 4.

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003);
Philip A. Norulak, 55 ECAB 690 (2004).

3

physician is to provide a written explanation to support the application of Chapter 18 when the
other rating protocols cannot be applied. Dr. Diamond did not do so in this case.
On appeal, appellant’s representative argues that appellant should receive impairment for
his pain and the measurements for the calf muscle. As noted, Dr. Diamond did not explain how
the additional three percent impairment rating conformed to the A.M.A., Guides. He also did not
rate impairment under the A.M.A., Guides, other than for loss of knee flexion under Table 17-10
and pain-related impairment under Chapter 18 of the A.M.A., Guides. In Table 17-2 of the
A.M.A., Guides, the cross-usage chart provides that it is not appropriate to combine range-ofmotion impairment with diagnosis-based estimates, atrophy and loss of muscle strength.14 Thus,
appellant would not be entitled to additional impairment for atrophy in the circumstance
presented here as his impairment was based on loss of range of motion.
CONCLUSION
The Board finds that appellant has not established that he has more than 10 percent
permanent impairment of his left lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2009 is affirmed.
Issued: January 11, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

A.M.A., Guides 526.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Boulder City, NV,
Employer
__________________________________________

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Appearances:
Lonnie Boylan, for the appellant
Office of Solicitor, for the Director

Docket No. 15-12
Issued: June 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2014 appellant, through her representative, filed a timely appeal from a
September 16, 2014 decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her stress
conditions are causally related to an August 2, 2013 employment incident, as alleged.
On appeal, appellant’s representative contends that the medical evidence submitted is
sufficient to establish that appellant sustained post-traumatic stress disorder as a result of being
trapped alone in a dark disabled elevator with no means of communication with the outside
world. He requests that OWCP’s decision be set aside and the case remanded for further
1

5 U.S.C. § 8101 et seq.

development until such time as it is in posture for a de novo decision in regards to appellant’s
claim.
FACTUAL HISTORY
On August 2, 2013 appellant, then a 52-year-old administrative support assistant, filed a
traumatic injury claim (Form CA-1) alleging that her stress level and blood pressure rose as a
result of being trapped in a disabled elevator for 20 minutes while in the performance of duty
that day.
An OWCP Form CA-16, authorization for examination, was issued by the employing
establishment on August 2, 2013. Appellant was authorized to visit Boulder City Hospital in
Boulder City, Nevada. She submitted hospital records dated August 2, 2013 from her visit to the
emergency department at Boulder City Hospital.
In an August 27, 2013 letter, OWCP indicated that, when appellant’s claim was received,
it appeared to be a minor injury that resulted in minimal or no lost time from work and, based on
these criteria and because the employing establishment did not controvert continuation of pay or
challenge the case, payment of a limited amount of medical expenses was administratively
approved. It indicated that it had reopened the claim for consideration because it had received an
indication that she had not returned to work in a full-time capacity. OWCP requested additional
evidence and afforded appellant 30 days to respond to its inquiries.
Appellant submitted reports dated August 5 and 15, 2013 from Dr. Irfan Tahir, a Boardcertified internist, who diagnosed anxiety and benign essential hypertension. Dr. Tahir indicated
that appellant complained of stress and anxiety at work and also had high blood pressure.
In reports dated August 22 and September 11, 2013, Dr. Kristina Shurtleff, a Boardcertified family practitioner, diagnosed generalized anxiety disorder, benign essential
hypertension, chest pain, and pain in joint, multiple sites. She indicated that appellant was seen
at the emergency room on August 2, 2013, was given medicine to drop her blood pressure, and
then released after two hours when she felt better. Dr. Shurtleff stated that appellant was having
chest pains and cried for no reason with the stress from her work.
By decision dated October 4, 2013, OWCP denied appellant’s claim on the basis that the
medical evidence failed to establish a causal relationship between his conditions and the
August 2, 2013 employment incident.
On June 18, 2014 appellant, through her representative, requested reconsideration and
submitted a May 1, 2014 report from Dr. Daniel Shiode, appellant’s clinical psychologist, who
diagnosed post-traumatic stress disorder. Dr. Shiode indicated that appellant was trapped in an
elevator at work on August 2, 2013. Appellant perceived the incident as being potentially life
threatening and was terrified by what occurred. Dr. Shiode indicated that appellant developed
several signs and symptoms indicative of post-traumatic stress disorder, including exposure to an
extreme stressor that involved actual or threatened death or injury, response involving intense
fear, helplessness or horror, and symptoms including intrusive flashbacks, avoidance behaviors,
and increased arousal symptoms. He opined that appellant met “all of these criteria with

2

reference to the elevator incident” and noted that there was “no indication of preexisting
psychological condition, or any prior history of trauma that would account for the development
of her symptoms.”
By decision dated September 16, 2014, OWCP denied modification of the October 4,
2013 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.6

2

Id.

3

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

Id. See Gary J. Watling, 52 ECAB 278 (2001).

3

ANALYSIS
OWCP has accepted that the employment incident of August 2, 2013 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s stress-related emotional
conditions resulted from the August 2, 2013 employment incident. The Board finds that
appellant did not meet her burden of proof to establish a causal relationship between the
conditions for which compensation is claimed and the employment incident.
In a report dated May 1, 2014, Dr. Shiode diagnosed post-traumatic stress disorder. He
indicated that appellant was trapped in an elevator at work on August 2, 2013. Appellant
perceived the incident as life threatening and was terrified by what occurred. Dr. Shiode
indicated that appellant developed several signs and symptoms indicative of post-traumatic stress
disorder, including exposure to an extreme stressor that involved actual or threatened death or
injury, a response involving intense fear, helplessness or horror. He identified symptoms
including intrusive flashbacks, avoidance behaviors, and increased arousal symptoms.
Dr. Shiode opined that appellant met “all of these criteria with reference to the elevator incident”
and noted that there was “no indication of preexisting psychological condition, or any prior
history of trauma that would account for the development of her symptoms.”
Dr. Shiode’s report did not contain medical rationale explaining the mechanism of how
appellant’s post-traumatic stress disorder was caused or aggravated by being trapped in a
disabled elevator for 20 minutes. Although he noted that her condition occurred after being
trapped in an elevator at work, such generalized statements do not establish causal relationship
because they merely repeat appellant’s allegations and are otherwise unsupported by adequate
medical rationale explaining how this physical activity actually caused the diagnosed
conditions.7 Thus, the Board finds that the report from Dr. Shiode is insufficient to establish that
appellant sustained an employment-related injury in the performance of duty on August 2, 2013.
In her reports, Dr. Shurtleff diagnosed generalized anxiety disorder, benign essential
hypertension, chest pain, and pain in joint, multiple sites. She indicated that appellant was seen
at the emergency room on August 2, 2013, was given medicine to drop her blood pressure, and
then released after two hours when she felt better. Dr. Shurtleff stated that appellant experienced
chest pains and cried for no reason with the stress from her work. The Board finds that
Dr. Shurtleff did not provide medical rationale establishing that being trapped in a disabled
elevator for 20 minutes on August 2, 2013 caused or aggravated the diagnosed conditions. Thus,
the Board finds Dr. Shurtleff’s reports are of limited probative value and fail to establish
appellant’s claim.
In his reports, Dr. Tahir diagnosed anxiety and benign essential hypertension and
indicated that appellant complained of stress and anxiety at work. The report did not contain an
opinion from him about whether appellant’s complaints were work related. The Board has held
that medical evidence that does not offer any opinion regarding the cause of an employee’s

7

See K.W., Docket No. 10-98 (issued September 10, 2010).

4

condition is of limited probative value on the issue of causal relationship.8 Thus, appellant has
not met her burden of proof with this submission.
In support of her claim, appellant submitted hospital records dated August 2, 2013 from
her visit to the emergency department at Boulder City Hospital. These documents are not
competent medical opinion evidence because they do not contain rationale by a physician
relating appellant’s injury to her employment.9 The Board finds that appellant did not meet her
burden of proof with these submissions.
Because appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the August 2, 2013 employment
incident, she has failed to meet her burden of proof to establish a claim.
On appeal, appellant’s representative contends that the medical evidence submitted is
sufficient to establish that appellant sustained post-traumatic stress disorder as a result of being
trapped alone in a dark disabled elevator with no means of communication with the outside
world. He requests that OWCP’s decision be set aside and the case remanded for further
development until such time as it is in posture for a de novo decision on appellant’s claim. As
noted, appellant bears the burden of proof to establish that her conditions are causally related to
the employment incident.10 Based on the findings and reasons stated above, the Board finds the
representative’s arguments are not substantiated.
The Board also notes that the employing establishment issued appellant a Form CA-16 on
August 2, 2013 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.11 Although OWCP denied appellant’s claim for an injury, it did
not address whether she is entitled to reimbursement of medical expenses pursuant to the Form
CA-16. Upon return of the case record, OWCP should further address this issue.
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.

8

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

9

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
10

See supra note 3-7.

11

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

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her stress
conditions are causally related to an August 2, 2013 employment incident, as alleged. On return
of the record, OWCP should consider the Form CA-16 issued in this case.
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2015
Washington, DC

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

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

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

6