United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
U.S. POSTAL SERVICE, ORLANDO
PROCESSING & DISTRIBUTION CENTER,
Orlando, FL, Employer
__________________________________________

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

Docket No. 12-1333
Issued: December 28, 2012

Case Submitted on the Record

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

JURISDICTION
On June 6, 2012 appellant filed a timely appeal of the May 24, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying his emotional condition claim.
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 established that he sustained an emotional condition in the
performance of duty.
On appeal, appellant contends that the evidence of record establishes that he sustained an
emotional condition due to being charged absent without leave (AWOL) and an investigative
interview which occurred during his hours of employment and while carrying out his assigned
duties.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 28, 2011 appellant, then a 41-year-old distribution operations manager, filed a
traumatic injury claim alleging that on that date he experienced acute stress after a plant manager
called him a liar during an investigative interview and charged him with two weeks of AWOL
while on approved annual leave. He stopped work on the date of injury.
In an April 4, 2011 medical report, Dr. Erik C. Walker, a Board-certified family
practitioner, advised that appellant developed multiple physical symptoms due to acute stress at
work commencing March 28, 2011.
He was incapacitated from March 28 through
April 18, 2011.
By letter dated April 12, 2011, Linda J. Mungin, an acting senior distribution operations
manager, controverted the claim. She stated that the March 28, 2011 investigative interview was
conducted by a plant manager due to appellant’s failure to submit approved documentation for
annual leave. Ms. Mungin stated that he took annual leave at the end of his detail at the North
Metro Processing and Distribution Center in Atlanta, Georgia prior to his return to work at the
Orlando Processing and Distribution Center. She contended that appellant failed to submit a
Form 3971 (request for notification of absence) prior to or during his annual leave. During the
interview, appellant stated that his leave was approved, but failed to provide the documentation
needed to verify his absence. He stated it was at the location of his detail position. Ms. Mungin
stated that the documentation was not found at that location. Appellant was informed that he
would be charged AWOL. After the interview, he went home sick and did not return to work.
Ms. Mungin noted that appellant had worked at the employing establishment since 1993 and had
been a supervisor for several years. She addressed the employing establishment’s leave
procedures and contended that he was well aware of the rules and enforced them on a daily basis
as a manager. Ms. Mungin stated that appellant was charged AWOL because he failed to submit
proper documentation to support his annual leave request; he took leave without prior approval
or submit the documentation during his absence from work.
By letter dated April 18, 2011, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It addressed the factual and medical evidence he needed to
submit to establish his claim. OWCP also requested that the employing establishment submit
medical evidence in response to appellant’s claim.
In an undated narrative statement, appellant contended that he was scheduled to be off
work on December 14, 2011, but he was forced to report to work. He did not report to work.
Appellant explained to Donna Jewett, a plant manager, that he had scheduled other managers to
work on December 14, 2011. He worked the requisite number of days that week, yet he was still
charged AWOL. As a result, on February 2, 2011 appellant was given a letter of warning in lieu
of time off suspension for seven days for which he sought mediation. On March 7, 2011 Scott
Raymond, an acting plant manager at the North Metro Plant, advised appellant that his detail
would expire on March 11, 2011 and that he could request annual leave before returning to work
in Orlando. Appellant stated that Mr. Raymond informed Ms. Jewett about the last day of his
detail assignment and leave request. She responded “okay” and only wanted to know how much
leave he would be using. On March 10, 2011 Mr. Raymond approved appellant’s e-mail request
for two weeks of annual leave. Appellant contended that Ms. Jewett never mentioned that he

2

was being charged AWOL when they met on March 25, 2011 or during their prior telephone
conversation. During the March 28, 2011 interview he explained to Ms. Jewett that he was on
approved annual leave and there must have been a miscommunication between her and
Mr. Raymond. Appellant stated that he copied her on his e-mail to Mr. Raymond requesting
annual leave. Ms. Jewett responded that she did not receive any e-mail. She accused appellant
of lying and falsifying documents. Appellant asked Ms. Jewett to call Mr. Raymond to verify his
leave request, but she refused to do so. Ms. Jewett informed appellant that the one week of
annual leave he used in January 2011 was not charged properly. She accused him of falsifying
documentation. Appellant explained to Ms. Jewett that he left off per-diem during his detail
assignment and did not review the pay stub since it was mailed directly to his home address. He
stated that his wife handled the bills and he did not pay attention to his pay stub. Appellant
contended that Ms. Jewett accused him of lying and did not bother to listen to his response or
give him an opportunity to explain the situation.
The record contained a December 16, 2011 list of questions asked of appellant by the
employing establishment. Appellant stated that he did not report to work or call in on
December 14, 2011 because he did not want the employing establishment to know that he was
sick. He knew it would not believe him. Appellant did not return the employing establishment’s
telephone calls or e-mails because he was in bed and did not hear the telephone ring.
In reports dated April 22 to May 9, 2011, Dr. Walker advised that appellant had acute
anxiety and depression secondary to being accused of displaying bad behavior at work. He was
unable to work from April 4 through 26, 2011.
In e-mails dated December 1, 2010 to March 29, 2011, appellant, Ms. Jewett,
Mr. Raymond, Fred Blyden and Juan L. Byrd addressed appellant’s failure to report to work on
December 14, 2010, to submit leave slips, AWOL charges and the investigative interview. In a
December 1, 2011 email, Ms. Jewett stated that effective December 4, 2011 all distribution
operations managers had to work six days a week. In a May 2, 2011 e-mail, she related that
appellant told her that his manager had approved his request for one week of leave in
January 2011. He did not submit a leave slip and was paid for this time period. Appellant stated
that he did not notice that he had not been charged leave because he never looked at his pay
check. Ms. Jewett found this hard to believe because she had signed a pay adjustment for him
during the same month. Appellant stated that he did not remember submitting the pay
adjustment. Ms. Jewett noted that following his return to work, he changed his work schedule
without approval. Appellant failed to submit a leave slip for two weeks of annual leave he used
following the end of his detail assignment as requested on several occasions by Mr. Raymond.
Ms. Jewett denied receiving appellant’s e-mail regarding a request. She noted that Mr. Raymond
copied her on his e-mail instructing appellant to submit a leave slip for his request. Ms. Jewett
contended that on March 24, 2011 Mr. Blyden, an acting distribution operations manager,
informed appellant that he was being charged AWOL. He instructed Mr. Blyden to change it to
annual leave. In e-mails dated March 25, 2011, Mr. Blyden explained to Ms. Jewett that he
changed the time she had input for appellant’s two-week absence from AWOL to annual leave
based on appellant’s request. She informed Mr. Blyden that she changed the leave status back to
AWOL. In e-mails dated March 29, 2011, Mr. Raymond and Juan L. Byrd, an employee, stated
that appellant did not provide them any leave slip for two weeks of annual leave. Mr. Raymond
instructed Mr. Byrd to get the leave slip that he supposedly signed from appellant.

3

In a May 23, 2011 decision, OWCP denied appellant’s emotional condition claim on the
grounds that he failed to establish any compensable employment factors.
On June 15, 2011 appellant requested a review of the written record by an OWCP hearing
representative.
In reports dated May 23 and June 13, 2011, Dr. Walker advised that appellant sustained a
compensable emotional condition as his acute stress was directly related to a supervisor who
called him a liar, wrote him up for offenses and generally disrespected his skill and talent.
In a September 29, 2011 decision, an OWCP hearing representative affirmed the May 23,
2011 decision, finding that being charged AWOL and the investigative interview were
administrative matters. The hearing representative found no evidence of agency error or abuse in
handling these matters.
By letter dated April 15, 2012, appellant requested reconsideration. He contended that on
December 1, 2011 the plant manager sent an e-mail regarding schedule changes for all managers
of distribution operations within the plant for the month, but no specific day off was assigned
individually. According to TACS and the work schedule, he worked his sixth day that week and
was asked to work a seventh day the night prior to his only day off work. Appellant planned to
work the seventh day, but he became sick. He was not aware of a call-in policy for the seventh
day of work. Appellant stated that the AWOL charge was subsequently removed and an
adjustment was made to correct his pay. He contended that he did not change the work schedule
and reported to work as scheduled. Appellant further contended that the plant manager was
aware of his leave request because an e-mail from him and Mr. Raymond regarding his request
clearly indicated that she was on the distribution list.
In a May 24, 2012 decision, OWCP denied modification of the September 29, 2011
decision. It found that appellant failed to establish agency error or abuse in charging him AWOL
and conducting the investigative interview. OWCP stated that his emotional condition appeared
to have been self-generated.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.2 To establish that she sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that she has an emotional or psychiatric disorder;
and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.3

2

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

3

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

4

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
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.9 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 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.10
ANALYSIS
Although appellant initially filed a traumatic injury claim for an incident at work on
March 28, 2011, he subsequently alleged that he sustained an emotional condition as a result of
4

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

5

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

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
7

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

8

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

9

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

10

Id.

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multiple work incidents and conditions leading up to the March 28, 2011 incident. OWCP
denied his emotional condition claim on the grounds that he did not establish any compensable
employment factors. The Board must initially review whether the alleged incidents and
conditions of employment are established as compensable employment factors under the terms of
FECA.
Appellant alleged that he was improperly charged with AWOL by his supervisor,
Ms. Jewett, for not reporting to work or calling in on December 14, 2011 and an unexcused twoweek absence in March 2011 following the end of his detail assignment. Regarding the
December 14, 2011 incident, he stated that he worked the requisite six days and although he was
entitled to be off work on the seventh day and had scheduled managers to work on that date he
planned to work, but he became sick. Appellant stated that he was in bed and did not hear the
telephone ring when the employing establishment tried to reach him on that date. He related that
he was not aware of a call-in policy for not working on the seventh day. Regarding the
March 2011 incident, appellant submitted a leave slip to Mr. Raymond, an acting plant manager
who, on March 10, 2011, approved his request. Mr. Raymond advised appellant that Ms. Jewett
was okay with his request and she just wanted to know how much leave he planned to use during
his absence. Appellant contended that he copied her on his e-mail leave request to
Mr. Raymond. He further contended that Ms. Jewett called him a liar and accused him of
falsifying documentation during the March 28, 2011 investigative interview which pertained to
his two-week absence from work. Appellant stated that she did not believe that he copied her on
his e-mail to Mr. Raymond and denied his request that she call Mr. Raymond to verify his leave
request. He contended that Ms. Jewett accused him of lying and falsifying documentation when
his use of annual leave for one week in January 2011 during his detail assignment was not
properly charged to him. Ms. Jewett did not believe appellant’s statement that he did not
discover this mistake on his pay stub because he did not review it since it was mailed to his home
address. He stated that on February 2, 2011 he was given a letter of warning in lieu of time off
suspension for seven days regarding this matter.
Appellant’s allegations regarding leave,11 investigations and issuance of a disciplinary
letter are administrative matters and not compensable absent a showing of error or abuse on the
part of the employing establishment. Although he has alleged error by management, he did not
submit any probative evidence establishing error or abuse regarding the above-noted
administrative matters. Contrary to appellant’s statement that he gave Mr. Raymond a leave slip
for two weeks of annual leave, Mr. Raymond, Ms. Mungin, an acting senor distribution
operations manager, Ms. Jewett and Mr. Byrd, an employee, stated that he did not submit any
leave slip for his absence from work in January and March 2011. Mr. Raymond stated that he
did not have appellant’s leave slip for two weeks of annual leave and instructed Mr. Byrd to
obtain it from him. Ms. Mungin stated that she tried to obtain his leave slip, but it was not found.
Because appellant failed to submit proper documentation for his leave request and took the leave
without prior approval, he was charged AWOL. Ms. Jewett stated that she did not receive
12

11

See C.S., 58 ECAB 137 (2006); Lori A. Facey, 55 ECAB 217 (2004).

12

C.F., Docket No. 08-1102 (issued October 10, 2008); See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy
Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB
1260, 1266-67 (1988).

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appellant’s e-mail requesting two weeks of annual leave. Instead, Mr. Raymond copied her on
his e-mail response to appellant instructing him to submit a leave slip for this period. Ms. Jewett
disputed appellant’s assertion that he did not notice that he was not charged for one week of
leave in January 2011 because he did not look at his pay check because she had signed a pay
adjustment for him during the same month. While appellant stated that the January 2011 AWOL
charge was removed from his record and his pay was correctly adjusted, there is no evidence that
the employing establishment either erred or acted abusively. The mere fact that a personnel
action is subsequently modified or rescinded does not, by itself, establish error or abuse on the
part of the employing establishment.13 The Board finds that based on the statements of
Mr. Raymond, Ms. Mungin, Ms. Jewett and Mr. Byrd appellant has not established that the
employing establishment committed error or abuse in the above-stated administrative matters
and he has not established a compensable work factor.
Appellant alleged that during the March 28, 2011 investigative interview, Ms. Jewett
accused him of falsifying documents and called him a liar regarding his submission of leave slips
for time off work in January and March 2011. The Board has recognized the compensability of
verbal abuse in certain circumstances. This does not imply, however, that every statement
uttered in the workplace will give rise to coverage under FECA.14 The Board finds that the facts
of the case do not support any specific incidents of verbal abuse. Appellant provided no
corroborating evidence, or witness statements to establish the interaction alleged on
March 28, 2011.15 There is no corroborating evidence to support that any verbal interaction with
appellant by Ms. Jewett rises to the level of a compensable employment factor.16 While the
medical evidence, such as reports from Dr. Walker, found that appellant’s incidents of being
accused of bad behavior and lying, written up for offenses, and having his skill and talent
generally disrespected by a supervisor caused his emotional conditions, the physician did not
witness these incidents. He merely provided a history of injury as presented by appellant.
However, assuming arguendo that the alleged statements were made, the Board finds that they
do not constitute verbal abuse or harassment. While the statements may have engendered
offensive feelings, they did not sufficiently affect the conditions of employment to constitute a
compensable factor.17 Consequently, the Board finds that appellant has not established a
compensable employment factor under FECA with respect to the claimed verbal abuse.
Since appellant has not established a compensable work factor, the Board will not address
the medical evidence on the issue of causal relationship.18

13

Paul L. Stewart, 54 ECAB 824, 829 (2003).

14

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

15

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
16

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).
17

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

18

Karen K. Levene, 54 ECAB 671 (2003).

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On appeal, appellant contended that the evidence of record establishes that he sustained
an emotional condition due to being charged AWOL and subjected to the March 28, 2011
investigative interview which occurred in the performance of duty. For reasons noted, the Board
finds that appellant did not establish a compensable factor of his employment.
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 failed to establish that he sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2012
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Muscle Shoals, AL, Employer
__________________________________________

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

Docket No. 07-277
Issued: March 26, 2007

Case Submitted on the Record

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

JURISDICTION
On October 24, 2006 appellant timely appealed the September 18, 2006 merit decision of
the Office of Workers’ Compensation Programs, which denied his claim for an employmentrelated traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
July 21, 2006.
FACTUAL HISTORY
On August 1, 2006 appellant, a 31-year-old environmental technician, filed a traumatic
injury claim for whiplash and back spasms. He attributed his claimed condition to a July 21,
2006 motor vehicle accident. Appellant stated that he was stopped at a signal-controlled
intersection when another motor vehicle rear-ended the employing establishment vehicle he was

operating.1 He did not miss any time from work as a result of the July 21, 2006 motor vehicle
accident. While the claim form indicated that appellant sought medical treatment on July 21,
2006, no medical evidence accompanied the claim.
On August 9, 2006 the Office advised appellant by letter that the information received
was insufficient to establish that he sustained an injury on July 21, 2006. The Office requested
that appellant submit a physician’s report that included a history of injury, dates of examination
and any treatment, a detailed description of findings, results of x-rays and any laboratory tests
and a specific diagnosis of the injury. The Office further advised that the physician’s opinion
should be supported by a medical explanation of how the reported work incident caused or
aggravated the claimed employment injury. It afforded appellant 30 days to submit the requested
information.
The Office subsequently received emergency room treatment records for July 21, 2006.2
Appellant’s chief complaint was mid and low back pain following a motor vehicle collision. He
had a prior history of back injury when serving in Iraq. Appellant reported wearing a seat belt at
the time he was struck from behind. The collision did not result in air bags being deployed.
Appellant complained of a little bit of pain on the side of his neck and shoulders, but principally
in his mid to lower back, worse on the left. His neurological examination was normal and x-rays
of the lumbar and thoracic spine were negative for acute findings. Dr. Evelyn W. Young, a
Board-certified family practitioner, noted tenderness in the cervical paraspinous muscles and
across the shoulders. She also noted minimal tenderness in the lower thoracic spine and
tenderness in the lumbar spine and paraspinous muscles. Dr. Young’s assessment was “motor
vehicle collision with strains.” She prescribed pain and anti-inflammatory medication and
instructed appellant to apply ice and heat.
In a decision dated September 18, 2006, the Office denied appellant’s traumatic injury
claim. The Office accepted that the July 21, 2006 motor vehicle accident occurred as alleged.
However, the Office found that Dr. Young’s finding of “motor vehicle collision with strains”
was not a specific diagnosis of injury.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as

1

The employing establishment confirmed that appellant was operating a government-owned vehicle on July 21,
2006 when he was involved in a motor vehicle accident in Little Rock, AR. Police records also confirmed the
incident.
2

Appellant was seen at Baptist Health Medical Center-Little Rock.

3

5 U.S.C. § 8101 et seq.

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alleged and that any specific condition or disability claimed is causally related to the
employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.5 The second component is whether the employment
incident caused a personal injury.6
ANALYSIS
The July 21, 2006 emergency room treatment records indicate that appellant suffered
“strains” as a consequence of a motor vehicle collision. The only noted physical findings were
varying degrees of tenderness in the cervical, thoracic and lumbar spine and surrounding
musculature as well as tenderness across the shoulders bilaterally. The remainder of appellant’s
examination, including x-rays, was unremarkable. While it is apparent that appellant complained
of neck, shoulder and back pain, Dr. Young’s assessment of “strains” is not specific to a
particular body part or region of the spine. Because the record did not include a specific
diagnosis attributable to the July 21, 2006 motor vehicle accident, the Office properly denied
appellant’s traumatic injury claim.
CONCLUSION
Appellant failed to establish that he sustained an injury as a result of the July 21, 2006
employment-related motor vehicle accident.

4

20 C.F.R. § 10.115(e), (f) (2006); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty, and
must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factors. Id.
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

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ORDER
IT IS HEREBY ORDERED THAT the September 18, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Miami, FL, Employer
__________________________________________

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

Docket No. 17-1029
Issued: July 12, 2017

Case Submitted on the Record

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

JURISDICTION
On April 10, 2017 appellant filed a timely appeal from a February 16, 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
ISSUE
The issue is whether appellant met her burden of proof to establish that her right shoulder
conditions are causally related to the accepted August 17, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the February 16, 2017 decision
was issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its
final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 22, 2016 appellant, then a 51-year-old correctional supervisor, filed a
traumatic injury claim (Form CA-1) alleging a right shoulder and upper arm strain occurred on
August 17, 2016 while restraining an inmate. She explained that, after responding to a body
alarm, she and another correctional officer were restraining an inmate. When the other officer let
go of the inmate, appellant attempted to place both of her arms on the inmate and in the process,
she overextended her right arm. She stopped work on August 17, 2016. Appellant did not
submit any medical evidence with her Form CA-1.
In a September 6, 2016 letter, OWCP advised appellant of the need to submit medical
evidence in support of her traumatic injury claim. It afforded her 30 days to submit the requested
factual and medical documentation.
In response, appellant submitted hospital reports dated August 20, 2016 from
Dr. Robert G. Brennan, a Board-certified internist and emergency medicine specialist, who noted
that she had presented to the emergency department with right shoulder pain ongoing for the past
three days. She reported that she “may have injured it when she was holding back an inmate
during an altercation at work.” The hospital reports included an August 20, 2016 right shoulder
x-ray which demonstrated no acute fracture or dislocation, but multiple-rounded fluffy
calcifications adjacent to the greater tuberosity of the humeral head compatible with calcific
tendinopathy. Dr. Brennan diagnosed acute right shoulder pain and took appellant off work until
August 23, 2016.
OWCP also received a September 8, 2016 note from Dr. Jason Sanders, a Board-certified
orthopedic surgeon, who indicated that appellant had been evaluated on September 7, 2016 and
that she could return to work without restrictions.
By decision dated October 11, 2016, OWCP found that the August 17, 2016 employment
incident occurred as alleged. However, it denied the claim because appellant failed to establish
the medical component of fact of injury. OWCP noted that the medical evidence referenced
“shoulder pain,” which was a symptom, not a specific medical diagnosis. Consequently, it found
that appellant failed to establish that a medical condition had been diagnosed in connection with
the August 17, 2016 employment incident.
On November 9, 2016 appellant requested reconsideration.
She submitted a
September 7, 2016 right shoulder x-ray that revealed calcific tendinitis. Appellant also
submitted a September 7, 2016 narrative report from Dr. Sanders who noted that she reported an
injury to the right shoulder on August 17, 2016 when she hyperextended her right shoulder while
escorting an inmate at work. She denied any prior injury to the right shoulder and denied any
previous symptoms in the right shoulder. Dr. Sanders reviewed appellant’s September 7, 2016
right shoulder x-ray and noted a calcific density in the subacromial space that was consistent
with calcific tendinitis. His physical examination findings included positive Neer’s and
Hawkin’s signs, but a negative O’Brien’s sign. There was no pain with shoulder abduction
against resistance and no pain with shoulder external rotation against resistance with the shoulder
at 90 degrees flexion. Dr. Sanders diagnosed right shoulder calcific tendinitis and impingement
syndrome.

2

By decision dated February 16, 2017, OWCP modified its prior decision to find that
appellant had established both the factual and medical components of fact of injury. However, it
continued to deny her traumatic injury claim because she failed to meet her burden of proof to
establish that the diagnosed right shoulder conditions were causally related to the August 17,
2016 employment incident. OWCP explained that, while Dr. Sanders’ September 7, 2016 report
was sufficient to establish the medical component of fact of injury, it was insufficient to establish
causal relationship because other than noting appellant’s reported history of injury, he did not
offer his own opinion as to how the diagnosed right shoulder conditions were either caused or
aggravated/worsened by the August 17, 2016 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
ANALYSIS
OWCP accepted that the August 17, 2016 employment incident occurred as alleged, and
also accepted that there were medical diagnoses in connection with the employment incident.
However, it denied appellant’s traumatic injury claim because the medical evidence of record
was insufficient to establish causal relationship between the diagnosed conditions and the
accepted employment incident. The issue on appeal is whether appellant’s right shoulder
3

Supra note 1.

4

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

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

conditions are causally related to the August 17, 2016 employment incident. The Board finds
that she did not meet her burden of proof to establish causal relationship.
The Board finds that Dr. Brennan’s August 20, 2016 finding of acute right shoulder pain
is a description of a symptom rather than a clear diagnosis of a medical condition.8 Moreover,
the Board has held that the mere fact that appellant’s symptoms arise during a period of
employment or produce symptoms revelatory of an underlying condition does not establish
causal relationship between her conditions and her employment factors.9
Therefore,
Dr. Brennan’s August 20, 2016 opinion is insufficient to establish that she sustained
employment-related right shoulder conditions.
In his September 7, 2016 narrative report, Dr. Sanders diagnosed right shoulder calcific
tendinitis and impingement syndrome. He noted that appellant had reported an injury to the right
shoulder on August 17, 2016 when she hyperextended her right shoulder while escorting an
inmate at work. Dr. Sanders reported that she denied any prior injury to the right shoulder and
denied any previous symptoms in the right shoulder, but other than noting her reported history of
injury, he did not specifically address whether the diagnosed right shoulder conditions were
causally related to the August 17, 2016 employment incident.10 Therefore, the Board finds that
the evidence from him is insufficient to establish that appellant’s diagnosed right shoulder
conditions are causally related to the August 17, 2016 work incident.
The fact that a condition manifests itself during a period of employment is not sufficient
to establish causal relationship.11 Temporal relationship alone will not suffice.12 As appellant
has not submitted any rationalized medical evidence to support her claim that she sustained right
shoulder conditions causally related to the August 17, 2016 employment incident, she has failed
to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
shoulder conditions are causally related to the accepted August 17, 2016 employment incident.

8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
9

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. See M.W., Docket No. 17-0097 (issued April 11, 2017);
Willie M. Miller, 53 ECAB 697 (2002).
11

20 C.F.R. § 10.115(e).

12

See D.I., 59 ECAB 158, 162 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the February 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2017
Washington, DC

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

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

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

5


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

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1915
Issued: September 16, 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 19, 2013 appellant, through counsel, filed a timely appeal from a
July 25, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition in the performance of his federal duties on June 22, 2010.
FACTUAL HISTORY
This case was previously before the Board. By decision dated September 13, 2012, the
Board affirmed a May 13, 2011 OWCP decision, as modified, finding that appellant failed to
establish that he sustained an emotional condition causally related to factors of his federal
1

5 U.S.C. § 8101 et seq.

employment.2 The findings of fact and conclusions of law from the prior decision and order are
hereby incorporated by reference.
By letter dated April 22, 2013, appellant through counsel, requested reconsideration by
OWCP. Counsel argued that appellant was engaged in a representative function during his
attendance at the National Association of Postal Supervisors (NAPS)3 Branch 164 meeting and
thus was in the performance of duty when he was assaulted by Rudy Marinacci, a coworker. He
referenced a March 7, 2013 statement from Jeff Goldman, President of NAPS Branch 164, as
evidence that appellant was engaged in a representative function. Counsel noted appellant’s
specific activities during the meeting which included sharing information from postal service
headquarters and the measures the postal service must take to reduce expenses and increase
productivity. He further argued that appellant was engaged in a representative function because
he was serving the mutual benefit of both employees of the postal service, as well as the postal
service itself. Counsel stated that the objective of the association is to create a mutual benefit
between the employing establishment and its employees and thus, establishes that appellant was
in the performance of duty at the time of the June 22, 2010 assault.
In support of the arguments made, appellant submitted Mr. Goldman’s March 7, 2013
statement, which referred to sections from the NAPS Branch 164 Constitution and bylaws.
Article II of the constitution stated that, “The objects of this [a]ssociation shall be to cooperate
with the [p]ostal [s]ervice to improve the [p]ostal [s]ervice and the welfare of its employees; to
raise the standard of efficiency in the [p]ostal [s]ervice; to assist in establishing uniform and
equitable salary rates; uniform and economical business methods; [and] widen the field of
opportunity for worthy employees who make the business of the [p]ostal [s]ervice their life
work.”
Mr. Goldman stated that appellant served on the Branch’s executive board with him as
the vice-president of customer service in 2010. In May 2010, appellant and the executive vice
president accompanied Mr. Goldman to an NAPS state convention. Information was brought
forth from postal service headquarters and discussion topics included the financial stability of the
postal service, reduction in expenses and increased productivity. The state convention stressed
the importance of the employing establishment and NAPS working together to find ways to
improve the efficiency of the postal service and address coming changes.
Mr. Goldman explained that at the June 22, 2010 NAPS Branch meeting, appellant and
the other executive board members were to report to membership what had transpired at the state
convention. Appellant informed branch membership of information he received at the state
convention concerning financial difficulties and what each supervisor could do to ease this
burden. He stressed the importance of filling out reports correctly and shared what was expected
of supervisors. Supervisors were asked to pass this information on to their peers and employees
as a reduction-in-force was expected to transpire. Appellant and the other executive board
members then responded to questions and concerns from the membership.
2

Docket No. 11-1608 (issued September 13, 2012).

3

NAPS is a management association which is composed of managers, supervisors and postmasters working for
all supervisory personnel in the U.S. Postal Service. Membership is voluntary.

2

By letter dated June 20, 2013, the employing establishment controverted the claim. It
stated that the June 22, 2010 altercation between appellant and Mr. Marinacci occurred at
6:30 p.m. outside of a Veterans of Foreign Wars parking lot. The altercation did not occur at or
during the NAPS Branch meeting, which was scheduled to start one-hour later at 7:30 p.m. The
employing establishment further stated that appellant was not on official time when the
altercation occurred. It noted that NAPS is an employee organization whose meetings are held
off postal premises and membership is strictly voluntary. The employing establishment has no
control over NAPS Branch meetings and does not sponsor them. It further noted that appellant
was harassing Mr. Marinacci on June 16, 2010 and failed to follow proper protocol procedures
before entering another facility to perform his NAPS duties. The employing establishment
provided witness statements previously of record in support of the arguments made.
By letter dated July 18, 2013, appellant, through counsel, responded to the employing
establishment’s June 20, 2013 letter. Counsel argued that, though the NAPS Branch meeting
may have started at 7:30 p.m. on June 22, 2010, it was scheduled to begin at 7:00 p.m. As an
officer, appellant was required to attend the meeting 30 minutes early at 6:30 p.m. Counsel
further argued that it was irrelevant that appellant was not on official time as attendance at the
branch meeting pertained to the mutual benefit of NAPS members and the postal service.
Appellant provided a May 4, 2011 “letter of decision” from the employing establishment
which gave Mr. Marinacci a letter of warning as a result of the June 22, 2010 incident. The
employing establishment noted that as a manager, Mr. Marinacci was held to a higher standard
and was required to act in a professional manner both on and off duty.
By decision dated July 25, 2013, OWCP denied modification finding that the evidence of
record failed to establish that appellant suffered an emotional condition in the performance of
duty. It noted that the evidence did not establish the specific benefits derived by the employing
establishment.
LEGAL PRECEDENT
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of FECA.4
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.5 The phrase while in the
performance of duty has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of arising out of and in the course of
4

Lillian Cutler, 28 ECAB 125 (1976).

5

See 5 U.S.C. § 8102(a).

3

employment. “Arising in the course of employment” relates to the elements of time, place and
work activity”6
In the compensation field, to occur in the course of employment, in general, an injury
must occur: (1) at a time when the employee may reasonably be said to be engaged in his or her
master’s business; (2) at a place where he or she may reasonably be expected to be in connection
with the employment; and (3) while he or she was reasonably fulfilling the duties of his or her
employment or engaged in doing something incidental thereto.7 An employee seeking benefits
under FECA8 has the burden of proof to establish by reliable, probative and substantial evidence
the essential elements of his case.9
ANALYSIS
In the prior decision, the Board found that appellant failed to establish that his
June 15 and 16, 2010 interactions with Mr. Marinacci rose to the level of a verbal altercation or
harassment which would be covered as a compensable factor of employment.10 The Board also
found that, while he established that he was assaulted in a parking lot by Mr. Marinacci on
June 22, 2010 prior to an NAPS Branch meeting, he had not established that he was in the
performance of duty at the time of his assault on June 22, 2010. It was from this finding that
appellant requested further reconsideration before OWCP. By decision dated July 25, 2013,
OWCP denied modification.
The Board affirms OWCP’s finding that appellant failed to meet his burden of proof to
establish an employment-related emotional condition in the performance of duty on
June 22, 2010.
Appellant’s injury did not occur at a place where one could reasonably expect him to be
in connection with his employment. At the time of injury, he was off duty and on his way to an
NAPS Branch meeting. Appellant had a fixed place of work: Whitestone Post Office. The
injury took place off the premises of the employing establishment, in the Veterans of Foreign
Wars parking lot. The employing establishment explained that it did not own, lease, maintain or
control the parking lot where the incident occurred.11 The NAPS Branch meeting was not held
by the employing establishment, nor did it require attendance by its employees. The Board finds
6

Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp
(Joseph L. Barenkamp), 5 ECAB 228 (1952).
7

See Vincent A. Rosenquist, 54 ECAB 166, 168 (2002); James E. Chadden, Sr., 40 ECAB 312 (1988).

8

5 U.S.C. §§ 8101-8193.

9

John S. Steber, 5 ECAB 93 (1952).

10

With respect to the Board’s findings regarding these claimed employment factors, it is noted that in the absence
of further review by OWCP on an issue addressed by a Board decision, the subject matter reviewed is res judicata
and is not subject to further consideration by the Board. 5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49 ECAB
476 (1998).
11

C.B., Docket No. 12-1849 (issued January 13, 2014).

4

that the evidence is insufficient to establish that the Veterans of Foreign Wars parking lot should
be considered part of the premises of the employing establishment as it was not within its
control.12
Moreover, appellant’s injury did not occur at a time when one could reasonably say he
was engaged in the employing establishment business. As a customer service supervisor, he had
fixed hours of work. On June 22, 2010 appellant was off the clock when he was assaulted by
Mr. Marinacci. He was not in duty status and the employing establishment had not granted him
official time to attend the NAPS Branch meeting; attendance at the meeting was voluntary and
not a requirement of his employment.13 The record establishes that appellant was not in duty
status nor granted official time by the employing establishment to attend the meeting.14
Time and place are the two overt physical indicia of the term “in the course of
employment.”15 Both these elements of work connection are missing from appellant’s case. As
explained in the Lason treatise on workers’ compensation law, this places a heavy burden on the
third element of course of employment:
When seeking for a link by which to connect an activity with the employment,
one has gone a long way as soon as one has placed the activity physically in
contact with the employment environment and even further when one has
associated the time of the activity somehow with the employment. This done, the
exact nature and purpose of the activity itself does not have to bear the whole load
of establishing work connection and consequently the employment-connection of
that nature and purpose does not have to be as conspicuous as it otherwise might.
Conversely, if the [activity] takes place on some distant vacant lot, several hours
after the day’s work has ceased, some independently convincing association with
the employment must be built up to overcome the initial presumption of
disassociation with the employment established by the time and place factors.16
Based on the evidence, appellant’s injury did not occur while he was reasonably fulfilling
the duties of his employment or engaged in doing something incidental thereto.17 He was off
duty. Appellant was attending the NAPS Branch meeting for personal reasons when
Mr. Marinacci assaulted him in the parking lot. He has not been instructed by the employing
establishment to attend this meeting or to speak with membership.18 Mr. Goldman’s statements
12

Michael Hazzard, Docket 05-1514 (issued November 4, 2005).

13

Paula G. Johnson, 53 ECAB 722 (2002); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Performance of Duty, Chapter 2.804.16(c) (March 1994).
14

Bernard Redmond, 45 ECAB 298 (1993).

15

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 22.04.

16

Id. at § 22.03(1).

17

S.B., Docket No. 06-978 (issued March 5, 2007).

18

C.f., Kelly Y. Simpson, Docket No. 04-1809 (issued October 26, 2005).

5

do not establish that appellant was fulfilling the duties of his employment by attending the
meeting. To be compensable the nature and purpose of the activity when appellant was injured
must conspicuously and convincingly establish a work connection.19
Appellant was off duty, off postal premises and not required to attend the NAPS Branch
meeting. The record does not support that his attendance at the meeting, half an hour before the
start of the meeting, furthered his master’s business or provided a substantial benefit to the
employing establishment.20
On appeal, counsel argues that appellant was engaged in a representational function when
attending the June 22, 2010 NAPS Branch meeting which was for the mutual benefit of the
employer and employee. The Board notes that NAPS is a management association and not a
union as noted by counsel, and by the Board’s in its prior decision.21 Appellant has failed to
present the necessary evidence to establish that he was in the course of employment when the
incident occurred. Thus, as he has failed to submit sufficient probative evidence to establish a
compensable factor of employment, the Board finds that he failed to establish an emotional
condition in the performance of duty.
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 did not meet his burden of proof to establish an emotional
condition causally related to factors of his federal employment as a customer service supervisor.

19

Supra note 17.

20

M.L., Docket No.07-1620 (issued December 17, 2007).

21

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

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 25, 2013 is affirmed.
Issued: September 16, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Peekskill, NY, Employer
__________________________________________

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

Docket No. 11-557
Issued: September 22, 2011

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 January 3, 2011 appellant filed a timely appeal from the December 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 sustained a traumatic injury while in the performance of
duty on January 23, 2010.
FACTUAL HISTORY
On February 12, 2010 appellant, a 57-year-old clerk, filed a traumatic injury claim
alleging that, on January 23, 2010, she sustained an injury to her right knee in the performance of

1

5 U.S.C. § 8101 et seq.

duty when the folding table at which she was working collapsed. She stated that she was forced
to use her right knee to support the falling table, which was covered with mail.
The employing establishment controverted the claim. Supervisor Amber Kaiser stated
that, on the date in question, she witnessed appellant holding the work table up by her right hand
while indicating that it was collapsing. Coworker Linda Aldl and Ms. Kaiser grabbed and
adjusted the table to a locked position. The supervisor reportedly did not see the table touching
appellant’s leg, nor did appellant indicate that the table touched or injured her knee.
In a January 30, 2010 emergency room report, Dr. Dulayak Santikul, a treating physician,
diagnosed right knee pain. He indicated that appellant had experienced knee pain and swelling
for three weeks. Dr. Santikul noted her belief that her right knee pain resulted from
compensating for her chronic left ankle pain.
In a February 1, 2010 report of a workers’ compensation injury from the Crystal Run
HealthCare, appellant stated that her right knee was swollen and painful, noting that a table had
collapsed and she was holding it with her right hand and leg.
Appellant was treated by Dr. Christopher Inzerillo, of Crystal Run Healthcare. On
March 15, 2010 Dr. Inzerillo indicated that she sustained a right knee injury when a heavy table
fell on her at work and she twisted her knee. He assessed acute knee pain and low back pain. In
a March 18, 2010 attending physician’s report, Dr. Inzerillo diagnosed sciatica, possible
meniscal tear and knee effusion. His history of injury reflected that a heavy table fell on
appellant’s leg at work on January 23, 2010 and indicated by placing a checkmark in the “yes”
box his belief that the diagnosed condition was due to the employment activity. The record
contains disability notes dated February 1 and March 22, 2010.
On April 2, 2010 OWCP notified appellant that the evidence submitted was insufficient
to establish her claim and advised her to provide, within 30 days, additional documentation,
including a firm diagnosis and a physician’s opinion as to how her injury resulted in the
diagnosed condition. It specifically asked her to provide a detailed description as to how the
injury occurred, including the cause of the injury; statements from any witnesses or other
documentation supporting her claim; and the reason she delayed seeking medical treatment.
In an April 16, 2010 statement, appellant indicated that, at the time of the claimed injury,
her workstation was covered with the entire day’s mail and packages, including a large box and a
computer. When the table collapsed, she had to press down with her right foot (on her toes),
lifting her right leg in order to support it. Appellant reportedly yelled that she was serious and
needed help. She indicated that she did not know if her coworker could see her leg pressed
under the table because her coworker never came around behind her.
On April 26, 2010 Dr. Inzerillo diagnosed acute knee pain and sciatica and opined that
appellant’s pain was causally related to her work injury.
In a merit decision dated May 10, 2010, OWCP denied appellant’s claim. It found that
the evidence was insufficient to establish that she sustained an injury in the performance of duty.
On May 13, 2010 appellant requested an oral hearing.
2

Appellant submitted reports dated June 8 through October 14, 2010 from Dr. Inzerillo.
On June 8, 2010 Dr. Inzerillo stated that she twisted her knee when a heavy table fell on her at
work. On October 14, 2010 he indicated that appellant had been under his care since
February 2010, when a heavy table fell on her leg at work and she injured her knee and back.
At an October 22, 2010 hearing, appellant testified that, at the time of the claimed
incident, she did not report that the table was on her leg. She stated that Dr. Santikul incorrectly
reported that she had been experiencing right knee pain for three weeks at the time of her
January 30, 2010 visit.
On November 19, 2010 the employing establishment challenged appellant’s claim on the
grounds that she had failed to establish the fact of injury, noting her delay both in filing her claim
and seeking medical treatment, as well as her failure to report any leg injury to witnesses at the
time of the claimed incident. According to employing establishment records, appellant had
undergone two previous surgeries on her right knee following a motor vehicle accident and for
preexisting chronic knee condition and chondromalacia. The employing establishment noted that
she had claimed eight injuries since 2001, namely: November 20, 2001 (accepted right knee and
leg sprain); September 7, 2004 (traumatic injury to foot, no lost time); May 12, 2008 (accepted
contusion of ankle and tarsal tunnel syndrome); August 19, 2008 (contusion of left foot and
ankle); and the instant claim.
In a December 3, 2010 statement, appellant stated that her delay in filing her claim was
due to her employer’s failure to respond to her request for action. She explained that she did not
report an injury to her leg at the time of the claimed incident because she was not immediately
aware of an injury in her leg.
The record contains a properly completed Form CA-16, dated February 1, 2010,
authorizing emergency examination and treatment by Dr. Inzerillo for a January 23, 2010 right
leg injury.
By decision dated December 20, 2010, an OWCP hearing representative affirmed the
May 10, 2010 decision on the grounds that the evidence of record failed to establish that the
claimed event occurred as alleged.
LEGAL PRECEDENT
FECA2 provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage

2

Id.

3

Id. at § 8102(a).

3

formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”4
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” namely, he
must submit sufficient evidence to establish that he experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged and that such event, incident or
exposure caused an injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither, the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
5

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Paul Foster, 56 ECAB 208 (2004). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith,
54 ECAB 174 (2002). The term “injury” as defined by FECA, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
7

See Betty J. Smith, id.

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
she sustained a traumatic injury to her right knee on January 23, 2010. Appellant’s presentation
of the facts is not supported by the evidence of record and does not establish her allegation that a
specific event occurred which caused an injury on the date in question.11 Moreover, there are
inconsistencies in the evidence which cast serious doubt on the validity of her claim.
Appellant initially reported on her February 10, 2010 Form CA-1 that she used her right
knee to support her work table when it collapsed. However, her allegations are vague and do not
relate with specificity the circumstances or the exact and immediate consequences, of the injury,
such as whether she experienced pain or whether her knee was bleeding or bruised.
Appellant’s subsequent course of action also fails to support her claim. She admittedly
did not seek medical treatment for a week following the alleged incident. Appellant stated that
she yelled to her coworker that the table was collapsing. She testified, however, that she did not
tell anyone that the table was on her knee or that her knee was injured. The employing
establishment denied appellant’s allegation and provided a witness statement averring that she
was holding the table up with her hand. Appellant provided no statements to corroborate her
claim from anyone who either witnessed or to whom she immediately reported the incident.
Appellant’s claim is further undermined by inconsistencies in the evidence. In her CA-1
form, she alleged that she was forced to use her right knee to support the falling table. However,
on April 16, 2010 appellant stated that, when the table collapsed, she had to press down with her
right foot (on her toes), lifting her right leg in order to support it. She contended that her right
knee pain was caused by the January 23, 2010 work-related incident. However, on January 30,
2010 Dr. Santikul stated that appellant had been experiencing knee pain and swelling for three
weeks prior and noted her belief that her right knee pain resulted from compensating for her
chronic left ankle pain. On March 15, 2010 Dr. Inzerillo stated that she sustained a right knee
injury when a heavy table fell on her at work and she twisted her knee. On October 14, 2010 he
indicated that a heavy table fell on appellant’s leg at work in February 2010 and she injured her
knee and back.
The Board finds that appellant has failed to establish the fact of injury: she did not
submit sufficient evidence to establish that she actually experienced an employment incident at

10

John W. Montoya, 54 ECAB 306 (2003).

11

See Dennis M. Mascarenas, supra note 9.

5

the time, place and in the manner alleged.12 The inconsistencies in both appellant’s allegations
and the medical evidence of record cast serious doubt on the validity of her claim.13 Appellant
provided no evidence to corroborate any version of alleged facts. Due to these deficiencies the
Board finds that she has failed to establish her claim.14
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury to her right knee in the performance of duty on January 23, 2010.15

12

See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, supra note 6. 5 U.S.C. § 8101(5). See 20
C.F.R. § 10.5(ee).
13

See Betty J. Smith, id.

14

See Caroline Thomas, 51 ECAB 451, 455 (2000).

15

The Board notes that OWCP issued a CA-16 form. A properly executed CA-16 form 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. See Elaine M. Kreymborg, 41 ECAB 256 (1989). The CA-16 form issued to
appellant authorized examination and treatment and was therefore properly executed. Although OWCP adjudicated
and denied appellant’s claim of injury, it did not adjudicate the issue of reimbursement.

6

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.16
Issued: September 22, 2011
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

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.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Brecksville, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Victor Gadson, for the appellant
Office of Solicitor, for the Director

Docket No. 06-2021
Issued: April 24, 2007

Oral Argument April 12, 2007

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

JURISDICTION
On August 30, 2006 appellant filed a timely appeal from the May 31, 2006 merit decision
of the Office of Workers’ Compensation Programs, which denied her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
appellant’s claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
February 26, 2003.
FACTUAL HISTORY
On March 3, 2003 appellant, then a 47-year-old pharmacy technician, alleged that she
sustained an injury in the performance of duty that day: “I bent down to change the paper in the
ATC machine and when I straightened up, there was a pain that went [blank].” She described
the nature of her injury as lower back and right leg.

On January 16, 2004 Dr. Karen E. Kea, appellant’s attending internist, addressed the
issue of causal relationship:
“[Appellant] suffered her initial injury to her lower back and neck on January 13,
2002 when a cart she was moving tipped over jerking her, causing immediate
back and neck pain. She had some partial improvement in pain until February 26,
2003 when she bent over to change paper in an ATM [sic] machine exacerbating
her back pain. I saw [appellant] the following day at which time she had very
tender back muscles in the lumbar area. She also demonstrated nerve irritation
radiating into her right leg.
“It was established after the first injury that [appellant] had degenerative changes
of her lumbar and cervical spine with disc protrusion at L5-S1. After evaluation
in the spine clinic on August 2002, it was recommended that she limit lifting over
20 pounds and avoid many positional changes. [Appellant’s] injury of
February 26, 2003 occurred while bending and carrying at the job putting a load
on her lower spine and this reaggravating her pain. Since that time, she has had
limited improvement in her symptoms.”
On March 1, 2004 Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon and
Office referral physician, offered a different view. He reported current objective findings related
to pain behavior and symptom magnification, findings that could not be explained on a
physiological basis, findings indicating nonorganic complaints. Dr. Ghanma stated: “The
February 26, 2003 incident could not have caused any significant injury since all she did was
bend down and straighten up.” He added:
“I spent a considerable amount of time trying to understand how [appellant] might
have been injured in the January 13, 2002 incident, but I could not arrive at the
conclusion that any injury occurred.
“[Appellant’s] current examination is full of nonorganic findings and symptom
magnification, thereby, suggesting nonorganic and nonphysical causes for her
symptoms.
“Her complaints far outweigh the symptoms expected with the condition
diagnosed by her physician. The mechanism of injury described both in the
January 13, 2002 incident and the February 26, 2003 incident are highly unlikely
to have caused these conditions (low back pain, lumbar disc disease, neck sprain
and cervical spondylosis) to occur, nor is there any medical evidence to
substantiate that they were worsened by her work incidents.”
In a decision dated May 31, 2006, the Office denied appellant’s claim for compensation.
The Office found that the weight of the medical evidence rested with the opinion of Dr. Ghanma,
who reported that the work incident appellant described could not have caused the diagnosed
condition.

2

LEGAL PRECEDENT
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Office shall appoint a third physician who shall
make an examination.1
ANALYSIS
A conflict in medical opinion exists between appellant’s attending physician and the Office
second opinion physician. Dr. Kea, appellant’s internist, supported an injury on February 26, 2003
when the accepted employment activity placed a load on her previously injured lower spine,
reaggravating her pain. Dr. Ghanma, the referral orthopedic surgeon, disagreed. It was his opinion
that the mechanism of injury described in the February 26, 2003 incident was highly unlikely to
have caused or aggravated any of appellant’s conditions.
To resolve this conflict, the Office must refer appellant, together with the medical record
and a statement of accepted facts, to an appropriate impartial specialist for an opinion on whether
the February 26, 2003 incident at work caused an injury or aggravated a preexisting medical
condition. After such further development of the evidence as may be necessary, the Office shall
issue an appropriate final decision on appellant’s claim for compensation.
CONCLUSION
The Board finds that this case is not in posture for decision. There is a conflict in medical
opinion necessitating referral to an impartial medical specialist pursuant to 5 U.S.C. § 8123(a).
Further development of the evidence is warranted.

1

5 U.S.C. § 8123(a).

3

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: April 24, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.P., Appellant
and
U.S. POSTAL SERVICE, CANAL STREET
STATION, New York, NY, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1799
Issued: January 11, 2016

Case Submitted on the Record

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

JURISDICTION
On August 31, 2015 appellant, through counsel, filed a timely appeal from an August 4,
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 the case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount $11,317.50 for the period May 20, 2013 through February 7, 2015 because she elected to
receive retirement benefits from the Office of Personnel Management (OPM) while receiving
FECA benefits; and (2) whether OWCP properly found her at fault and thus not entitled to
waiver.
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant has a second appeal pending before the Board, Docket No. 15-1580, that will be
adjudicated separately.

On appeal counsel asserts that because appellant was in a serious motor vehicle accident
in Florida on June 17, 2015 in which she suffered serious injuries and was hospitalized for
approximately one month, he was unable to timely request a prerecoupment hearing on
appellant’s behalf, and OWCP prematurely issued its final overpayment decision.
FACTUAL HISTORY
OWCP accepted that on March 28, 1996 appellant, then a 31-year-old letter carrier,
incurred a right hand sprain, right and left knee sprains, and lumbosacral sprain. She stopped
work on April 29, 1996 and was placed on the periodic compensation rolls.
In June 2003 appellant accepted a modified position for six hours a day. She continued
to receive two hours of daily FECA compensation. Appellant continued the part-time modified
position until December 21, 2010 until she incurred a second employment injury and received
additional compensation under that claim.3
While appellant was in receipt of wage-loss compensation, she signed annual
certifications acknowledging the need to immediately report changes in income from federallyassisted disability or benefit programs. This included a February 5, 2013 OWCP letter, which
noted that other federal benefits could affect her FECA benefits and advised her that she must
report any income or change in income from federally-assisted disability or benefit programs.
On September 3, 2014 counsel informed OWCP that appellant was awarded disability
retirement by the Office of Personnel Management (OPM) and that she wished to elect to receive
Federal Employee Retirement Service (FERS) benefits, effective May 20, 2013.
In
correspondence dated October 9, 2014, OWCP notified appellant that her current four-week
compensation was $542.00. Appellant was informed that receipt of retirement benefits and
FECA compensation for the same period was a prohibited dual benefit. OWCP forwarded an
election form to appellant with a copy to counsel. On January 8, 2015 appellant submitted the
election form to OWCP in which she elected FERS retirement benefits, effective May 20, 2013.
On January 7, 2015 counsel forwarded the election form to OPM, asked that appellant’s
retirement be processed, and that OWCP be reimbursed for back pay.
On February 5, 2015 appellant’s partial wage-loss compensation for the March 28, 1996
claim was terminated, effective February 7, 2015. On February 5, 2015 OWCP also informed
OPM that, in lieu of FECA compensation, she had elected to receive FERS retirement benefits
effective May 20, 2013. It asked that OPM commence monthly annuity payments effective
May 20, 2013 and reimburse OWCP $11,317.50 for FECA compensation benefits which had
been paid from May 20, 2013 to February 7, 2015. There is no evidence in the record to
establish that OPM reimbursed OWCP.
On June 26, 2015 OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $11,317.50 had been created. It explained that appellant had
elected FERS retirement benefits retroactive to May 20, 2013, but had continued to receive
3

Id. Appellant’s wage-loss compensation and medical benefits under this claim were terminated on
May 20, 2013.

2

FECA compensation for that same period May 20, 2013 through February 7, 2015. OWCP
found appellant at fault because she knew or should have known that she was in receipt of
compensation to which she was not entitled. The preliminary decision provided an explanation
of the calculation of the overpayment. Appellant was provided an overpayment action request
and an overpayment questionnaire (Form CA-20). She was informed of the actions she could
take and was afforded 30 days to respond. A copy of the preliminary determination was
forwarded to counsel.
The record includes a computer print-out indicating that appellant received $11,317.50 in
compensation for the period May 20, 2013 to February 7, 2015. As she had elected FERS
retirement benefits for the same period, OWCP found that the entire amount was an
overpayment.
In correspondence dated July 28, 2015, counsel disagreed with the June 26, 2015
preliminary determination. He requested a stay of collection to allow appellant an opportunity to
complete an overpayment questionnaire, reporting that she had been in a serious motor vehicle
accident in Florida on June 17, 2015 with multiple injuries and had just been discharged.
Counsel maintained that OPM should have reimbursed OWCP, and disagreed that an
overpayment occurred and that appellant was with fault.
By decision dated August 4, 2015, OWCP finalized the preliminary finding that appellant
was at fault in the creation of an overpayment of $11,317.50 for the period May 20, 2013
through February 7, 2015 because she accepted dual benefits that she knew or should have
known was incorrect.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8116 of FECA defines the limitations on the right to receive
compensation benefits.5 Section 8116(a) provides that, while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being
compensated for under FECA.6 Section 10.421(a) of OWCP’s implementing regulations provide
that a beneficiary may not receive wage-loss compensation concurrently with a federal

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8116(a).

3

retirement or survivor annuity.7 The beneficiary must elect the benefit that he or she wishes to
receive.8
ANALYSIS -- ISSUE 1
Counsel notified OWCP on September 3, 2014 that appellant had been awarded OPM
disability retirement benefits. In an election form received by OWCP on January 8, 2015,
appellant elected OPM retirement benefits, retroactive to May 20, 2013. As noted above, FECA
and OWCP regulations provide that a beneficiary may not receive wage-loss compensation
concurrently with a federal retirement or survivor annuity.9 The record indicates that appellant
received FECA wage-loss compensation totaling $11,317.50 for the period May 20, 2013 until
her compensation was terminated on February 7, 2015.
As appellant elected FERS retirement benefits retroactive to a period already covered by
FECA compensation payments, the Board finds that she did in fact receive an overpayment of
compensation for the entire amount. Her election of retirement annuity benefits from OPM,
retroactive to May 20, 2013, created a prohibited dual benefit under section 8116 of FECA. The
record supports that appellant received wage-loss compensation in the amount of $11,317.50 for
the period May 20, 2013 until her compensation was terminated on February 7, 2015. The Board
will therefore affirm OWCP’s August 4, 2015 decision on the issue of fact and amount of
overpayment.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”11
Section 10.433(a) of OWCP regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits.... A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
7

20 C.F.R. § 10.421(a).

8

Id.

9

Id. at § 10.421(a).

10

5 U.S.C. § 8116; see B.G., Docket No. 14-2002 (issued August 13, 2015).

11

Supra notes 6 and 7.

4

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. (This provision applies only to the
overpaid individual).”12
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.13
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in creating the overpayment under the third standard, that
she accepted a payment she knew or should have known to be incorrect.
The Board finds appellant at fault under this standard. Counsel noted on September 3,
2014 that appellant had been awarded FERS disability retirement benefits. In January 2015 she
elected to receive those retirement benefits retroactive to May 20, 2013. Because appellant had
already received FECA compensation for the period May 20, 2013 through February 7, 2015,
when her wage-loss compensation was terminated, her election of retirement benefits beginning
May 20, 2013 was, in effect, an election to receive a prohibited dual benefit under section 8116
of FECA.
Whether an individual is at fault with respect to the creation of an overpayment depends
on the circumstances of the overpayment. The circumstances in this case support OWCP’s
finding. OWCP notified appellant in October 2014 that receipt of retirement benefits and FECA
compensation for the same period was a prohibited dual benefit. Appellant nonetheless chose to
receive both FERS disability retirement benefits and FECA benefits for the period May 20, 2013
through February 7, 2015. The Board will therefore affirm OWCP’s August 4, 2015 decision as
appellant knew or should have known she would be receiving a prohibited dual payment.14
As to counsel’s assertion on appeal that appellant was in an automobile accident in
June 2015 and could not timely respond to the preliminary overpayment determination, he
submitted no evidence to substantiate the accident to support his claim of extenuating
circumstances. Furthermore, counsel received a copy of the June 26, 2015 preliminary
determination and did not timely respond.
As appellant was at fault in creating the overpayment, she is not eligible for waiver. With
respect to recovery of the overpayment in compensation, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits
12

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

13

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

14

See B.G., supra note 10.

5

under FECA.15 As appellant is no longer receiving wage-loss compensation, the Board does not
have jurisdiction with respect to the recovery of the overpayment under the Debt Collection
Act.16
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
$11,317.50 for the period May 20, 2013 through February 7, 2015 because she elected to receive
retirement benefits from OPM while receiving FECA benefits. The Board also finds that OWCP
properly found appellant at fault and thus not entitled to waiver.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

Cheryl Thomas, 55 ECAB 610 (2004).

16

Id.

6