United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF JUSTICE, U.S.
ATTORNEYS OFFICE, Newport News, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0107
Issued: May 4, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 2, 2020 appellant filed a timely appeal from a May 12, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of his oral argument request, appellant asserted that oral argument should be granted because it would aid in
explaining how OWCP’s decision was erroneous and contrary to law. The Board, in exercising its discretion, denies
appellant’s request for oral argument because the arguments on appeal can adequately be addressed in a decision based
on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not
serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as
submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he filed a timely
claim for compensation pursuant to 5 U.S.C. § 8122(a).
FACTUAL HISTORY
On July 28, 2019 appellant, then a 61-year-old Assistant United States Attorney, filed an
occupational disease claim (Form CA-2) alleging that he developed Meniere’s disease due to
factors of his federal employment. He explained that Meniere’s disease was an inner ear disorder,
which was caused by stress and other factors, and that his work was stressful. Appellant indicated
that he first became aware of his condition and its relation to his federal employment on
November 16, 2007. On the reverse side of the claim form, appellant’s supervisor, H.Z., asserted
that appellant first reported his condition on November 16, 2007, but was unaware that appellant’s
condition was caused by his federal employment. It was also noted that appellant had retired
effective November 30, 2013.
In support of his claim, appellant attached a statement alleging that he experienced sudden
vertigo and hearing loss, primarily in his left ear, beginning in November 2007. He was diagnosed
with Meniere’s disease, an inner ear disorder substantially caused by stress and other factors.
Appellant also stated that, in November 2007, he was assigned violent crimes and narcotics cases
at work; however, due to his medical condition, his supervisor assigned another attorney to assist
him and later assigned him to work on less stressful cases. In November 2010, he underwent
surgery, which eliminated his vertigo, but did not restore his hearing loss. Appellant assumed a
new position handling forfeiture cases in November 2010 in order to further reduce his stress. In
November 2013, he accepted early retirement. Appellant alleged that his supervisor, H.Z., had
actual, contemporaneous knowledge of his disease and took steps to accommodate him.
Appellant submitted an audiogram dated December 28, 2018, which revealed a slight drop
in hearing at 250 Hertz (Hz) in the left ear.
In a development letter dated August 19, 2019, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It requested that he submit a
narrative medical report from his attending physician, which explained how a diagnosed medical
condition was causally related to the alleged employment incident. OWCP also noted that the
evidence of record was insufficient to establish that he provided timely notice of his employment
injury. It provided a questionnaire for his completion and afforded him 30 days to respond. In a
separate development letter of even date to the employing establishment, OWCP requested a
supervisory statement and additional information regarding the accuracy of appellant’s alleged
federal employment factors. It also afforded the employing establishment 30 days to respond.
In response, appellant submitted a report dated November 16, 2007 from Dr. Michael J.
Jacobson, a Board-certified otolaryngologist. Dr. Jacobson noted appellant’s complaints of
diminished hearing with pressure and static noise in his left ear. Appellant indicated that his
hearing problem started in both ears with a buzzing noise that was intermittent at first, but then
became constant. There was no lightheadedness or vertigo. Dr. Jacobson’s impression was sudden

2

hearing loss, which he indicated was “all sensorineural with unclear etiology,” tinnitus, and
allergic rhinitis.
OWCP received a report from Dr. Jacobson dated March 16, 2011, which was a six-month
follow-up appointment for appellant’s Meniere’s disease. Appellant reported no complaints.
Dr. Jacobson noted that appellant’s hearing was affected in the high pitches, and that appellant’s
endolymphatic shunt helped his vertigo to the extent that he had no attacks for approximately a
year. Dr. Jacobson indicated that appellant was to continue with maintenance allergy shots and
return for follow up in six months.
Appellant responded to OWCP’s questionnaire by an undated letter received
September 19, 2019, explaining that he was diagnosed with Meniere’s disease, an inner ear
disorder substantially caused by stress and other factors. He again reiterated that his Meniere’s
disease was triggered by stress related to his federal employment. Appellant alleged that his
supervisor had actual, contemporaneous knowledge of his Meniere’s disease and took steps to
accommodate him.
By decision dated October 21, 2019, OWCP denied appellant’s claim, finding that it was
untimely filed.
On October 26, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on March 11, 2020. During the hearing,
appellant testified that, while his supervisor, H.Z., had admitted that he knew of appellant’s
Meniere disease diagnosis, H.Z. had denied knowing of the cause of appellant’s condition.
OWCP subsequently received a letter dated April 9, 2020, the employing establishment
controverted appellant’s claim. It did not contest that appellant’s supervisor became aware that he
had a medical condition; however, the employing establishment stated that his supervisor was not
aware that this was a direct result of his federal employment.
In a letter dated May 5, 2020, appellant responded that the employing establishment’s
representative did not know him, nor did she have any personal knowledge of the facts. He also
asserted that his supervisor admitted that his claim was timely. Appellant explained that he
accepted early retirement only because it was an opportunity to reduce his stress level and manage
his Meniere’s disease.
By decision dated May 12, 2020, the hearing representative affirmed the October 12, 2019
decision, finding that appellant had not established that he filed a timely claim for compensation.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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

3

Supra note 2.

3

time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
The issue is whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.7 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation for disability or
death must be filed within three years after the injury or death.8
In an occupational disease claim, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his or her condition and his or her federal employment. Such awareness is competent to
start the limitation period even though the employee does not know the precise nature or the
impairment or whether the ultimate result of such affect would be temporary or permanent.9 Where
the employee continues in the same employment after he or she reasonably should have been aware
that he or she has a condition, which has been adversely affected by factors of federal employment,
the time limitation begins to run on the date of the last exposure to the implicated factors.10 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware, or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.11 It is the
employee’s burden of proof to establish that a claim is timely filed.12
Even if a claim is not filed within the three-year period of limitation, it would still be
regarded as timely under section 8122(a)(1) if the immediate superior had actual knowledge of his
or her alleged employment-related injury within 30 days or written notice of the injury was

4

M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

M.B., Docket No. 20-0066 (issued July 2, 2020); Charles W. Bishop, 6 ECAB 571 (1954).

8

5 U.S.C. § 8122(a); F.F., Docket No. 19-1594 (issued March 12, 2020); W.L., 59 ECAB 362 (2008).

9

See A.M., Docket No. 19-1345 (issued January 28, 2020); Larry E. Young, 52 ECAB 264 (2001).

10

S.O., Docket No. 19-0917 (issued December 19, 2019); Larry E. Young, id.

11

5 U.S.C. § 8122(b).

12

D.D., Docket No. 19-0548 (issued December 16, 2019); Gerald A. Preston, 57 ECAB 270 (2005).

4

provided within 30 days pursuant to section 8119.13 The knowledge must be such as to put the
immediate superior reasonably on notice of an on-the-job injury or death.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he filed a
timely claim for compensation pursuant to 5 U.S.C. § 8122(a).
Appellant submitted an occupational disease claim on July 28, 2019 alleging that he
developed Meniere’s disease, which he realized was caused or aggravated by his employment on
November 16, 2007. The claim was, therefore, not filed within three years of appellant’s
awareness of the possible relationship between the condition and his federal employment.15 Where
an employee continues in the same employment after he or she reasonably should have been aware
that he or she has a condition, which has been adversely affected by factors of his federal
employment, the time limitation begins to run on the date of the last exposure to the implicated
factors.16 The date of last exposure in the present case was November 30, 2013, the date appellant
retired from federal employment. As such, the Board finds that appellant’s July 28, 2019 claim
was untimely filed under the three-year requirement of 5 U.S.C. § 8122(a).
Appellant’s claim would still be regarded as timely under FECA if his immediate
supervisor had actual knowledge of his injury and any possible relation to his federal employment
within 30 days, or if written notice of injury was given to his immediate supervisor within 30 days
of injury.17 In the present case, the Board finds that there is no evidence of record that appellant’s
immediate supervisor had actual knowledge, of the injury and its possible relation to his federal
employment within 30 days of the alleged injury, or that appellant provided written notice of injury
within 30 days of the injury. On the reverse side of the claim form, appellant’s supervisor, H.Z.,
asserted that appellant first reported his condition on November 16, 2007, but was unaware that
appellant’s condition was caused by his federal employment. In his statements, appellant asserted
that his supervisor assigned another attorney to help him, assigned him cases that were less
stressful, and transferred him to a new division in order to accommodate his occupational disease.
However, the case record does not contain any evidence documenting that an immediate superior
either had actual knowledge of or received written or verbal notification about his conditions and
the possible relation to his employment within 30 days of its occurrence. The Board has previously
explained that knowledge merely of an employee’s illness is insufficient to establish actual
knowledge for the purpose of establishing timeliness. It must be shown that the circumstances

13

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, supra note 9.

14

S.O., supra note 10; B.H., Docket No. 15-0970 (issued August 17, 2015); Willis E. Bailey, 49 ECAB 511 (1998).

15

Supra, note 8.

16

M.B., Docket No. 20-0066 (issued July 2, 2020); S.O., supra note 14.

17

L.H., Docket No. 19-0818 (issued December 9, 2019); C.S., Docket No. 18-0009 (issued March 22, 2018).

5

were such as to put the supervisor on notice that the alleged injury was related to the employment
or that the employee attributed it thereto within 30 days of its occurrence.18
As evidence of record is insufficient to establish actual knowledge by appellant’s
supervisor of a work-related injury within 30 days the Board finds that he has not established a
timely claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he filed a
timely claim for compensation pursuant to 5 U.S.C. § 8122(a).
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

C.S., Docket No. 18-0009 (issued March 22, 2018).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, BAYAMON BRANCH
OFFICE, Bayamon, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1984
Issued: March 25, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 9, 2008 appellant filed a timely appeal from a nonmerit decision of the Office of
Workers’ Compensation Programs dated June 16, 2008 and a May 8, 2008 merit decision
denying his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of this claim.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty on February 16, 2008, as alleged; and (2) whether the Office, pursuant to
5 U.S.C. § 8128(a), properly declined to reopen appellant’s case for further review of the merits
of his claim.
FACTUAL HISTORY
On March 15, 2008 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim alleging that on February 16, 2008 he sustained an emotional condition due to his
supervisor requiring him to leave keys, scanners and registered mail at the employing

establishment in an unsecured area.
claim.

The employing establishment controverted appellant’s

In support of his claim, appellant submitted a February 29, 2008 disability note by
Dr. Jaime Del Toro, a treating physician; appellant’s February 16, 2008 statement; a
February 19, 2008 statement by Carmelo Alvarado, his father; and a February 19, 2008
certification of health care provider.1 Dr. Del Toro opined that appellant was receiving
psychiatric treatment and totally disabled due from working in the February 29, 2008 disability
note. In his statement, appellant related that Andrew Zelsky, Brenda D. Rios Berrio and Junior
Perez, managers at the employing establishment, ordered him to leave correspondence in an
unsecured area while aware there was a cease and desist order from his attorney due to his
mental condition and continuous harassment at work. In the February 19, 2008 statement,
Mr. Alvarado noted that appellant constantly telephoned him regarding problems while at work
and complained of work problems when at home. Appellant was diagnosed with adjustment
disorder, which began August 1992 and was currently totally disabled from working in the
February 27, 2008 health care certification form.
By letter dated April 4, 2008, the Office advised appellant that additional factual
and medical evidence was needed to support his claim. Appellant was requested to provide a
fuller description of the incident he alleged that caused his emotional condition. In addition, the
Office informed appellant that the employing establishment controverted his claim as they stated
that they were unaware of his psychiatric condition and any alleged cease and desist order. It
explained that a physician’s opinion on causal relation was crucial to his claim and allotted
30 days to submit the requested information.
On May 6, 2008 the Office received factual and medical evidence including appellant’s
May 2, 2008 statement detailing alleged harassment and discrimination from 2000 to 2008;
statements from various witness dated 1991 through 2007; an April 7, 2008 certification of
health care provider; a February 7, 2007 statement; a February 17, 2007 letter from the
employing establishment regarding appellant’s discrimination claim; a February 7, 2008 witness
statement from an unidentified person; a January 30, 2008 information for a precomplaint
counseling; a January 10, 2008 voluntary statement to postal police; a February 15, 2008
informational letter regarding appellant’s leave request under the Family and Medical Leave Act;
and an April 17, 2008 report and multiple disability notes during the period April 24, 2007
through February 12, 2008 by Dr. Del Toro. In an April 17, 2008 report, Dr. Del Toro diagnosed
schizoaffective disorder. He reported that appellant related being discriminated against at work.
Appellant also informed Dr. Del Toro that he had been subjected to harassment and retaliation at
his workplace. In concluding, Dr. Del Toro opined that appellant was disabled from performing
his usual work duties due to “the severity of this patient’s emotional symptoms.” He opined that
appellant was unable to perform his usual work duties “due to the degrading and discriminatory
working atmosphere” at the employing establishment.

1

The signature of the psychiatrist is illegible.

2

By decision dated May 8, 2008, the Office denied appellant’s claim on the grounds that
he failed to establish any compensable factors of employment.2
On May 28, 2008 appellant requested reconsideration. In support of his request, he
submitted his February 2, 2008 statement; a February 15, 2008 Family and Medical Leave Act
application; certifications of health care provider dated a February 19 and April 7, 2008; and an
April 17, 2008 report by Dr. Del Toro. In his February 2, 2008 statement, appellant noted an
accident occurred, which destroyed approximately 10 to 14 mail receptacles and detailed
instructions given by Mr. Perez, a supervisor. He also alleged that there was a cease and desist
order which the employing establishment violated by harassing him.
By decision dated June 16, 2008, the Office denied appellant’s request for
reconsideration of the merits of his claim.3
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.4 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.5 Where the disability results from an
employee’s emotional reaction to his regular or specially assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.6 On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or his frustration from not being permitted
to work in a particular environment or to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Federal Employees’

2

The Office adjudicated appellant’s claim as a traumatic injury based on his claim form and initial allegation. A
traumatic injury refers to injury caused by a specific event or incident or series of incidents occurring within a single
workday or work shift whereas an occupational disease refers to an injury produced by employment factors, which
occur or are present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5(ee), (q); Brady L.
Fowler, 44 ECAB 343, 351 (1992). The Board notes that appellant submitted evidence regarding his Equal
Employment Opportunity claim of age and sex discrimination, which occurred over more than one day. Appellant is
not precluded from filing an occupational disease claim based on his allegations of discrimination and harassment.
3

The Board notes that, following the June 16, 2008 decision, the Office received additional evidence. Appellant
also submitted additional evidence with his appeal. However, the Board may not consider new evidence on appeal.
See 20 C.F.R. § 501.2(c); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

L.D., 58 ECAB ___ (Docket No. 06-1627, issued February 8, 2007).

5

A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006).

6

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

7

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008); Gregorio E. Conde, 52 ECAB 410 (2001).

3

Compensation Act.8 However, the Board has held that where the evidence establishes error or
abuse on the part of the employing establishment in what would otherwise be an administrative
matter, coverage will be afforded.9 In determining whether the employing establishment has
erred or acted abusively, the Board will examine the factual evidence of record to determine
whether the employing establishment acted reasonably.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor.12 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.13
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an emotional condition on February 16, 2008 as a
result of his supervisor requiring him to leave keys, scanners and registered mail at the
employing establishment in an unsecured area and harassment by his supervisor in refusing to
follow a cease and desist order. The Office denied his claim on the grounds that he did not
establish any compensable employment factors. The Board must, review whether these alleged
incidents and conditions of employment are covered employment factors under the terms of the
Federal Employees’ Compensation Act.
An employee’s complaints about the manner in which supervisors perform supervisory
duties or the manner in which supervisors exercise supervisory discretion fall, as a rule, outside
the scope of coverage provided by the Federal Employees’ Compensation Act. This principle
recognizes that a supervisor must be allowed to perform his duties and that employees will at
times dislike actions taken.14 Furthermore, the Board has held that discussions of job
8

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); Matilda R. Wyatt, 52 ECAB 421
(2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
9

See M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007); William H. Fortner, 49 ECAB
324 (1998).
10

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

11

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

12

K.W., supra note 8.

13

Robert Breeden, 57 ECAB 622 (2006).

14

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); Linda J. Edwards-Delgado, 55 ECAB
401 (2004).

4

performance by an employee’s supervisor and the monitoring and assignment of work are
administrative functions that do not fall under the coverage of the Federal Employees’
Compensation Act absent a showing of error or abuse.15 For harassment or discrimination to
give rise to a compensable disability, there must be evidence which establishes that the acts
alleged or implicated by the employee did, in fact, occur. Mere perceptions of harassment or
discrimination are not compensable.16
Although appellant alleged that supervisor required him to leave keys, scanners and
registered mail at the employing establishment in an unsecured area on February 16, 2008, he
submitted no evidence to establish that Ms. Rios Berrio erred in the exercise of her supervisory
duties in instructing him where to leave the items he mentioned. He did not submit any
evidence, such as a witness statement to support his version of what happened on
March 21, 2007. Appellant therefore did not establish error or abuse in this administrative
matter. 12
Appellant premised his claim based on an incident of February 16, 2008 involving
Mr. Zelsky, Ms. Rios Berrio and Mr. Perez. As such, his claim is traumatic in nature as it was
attributed to a single workday or shift.17 The various witness statements appellant submitted
predate the alleged February 16, 2008 incident and are of limited probative value as they do not
address it. In addition, appellant’s May 2, 2008 statement alleged various incidents of
discrimination, but does not discuss the February 16, 2008 incident. These statements do not
establish any harassment on the part of Mr. Zelsky, Ms. Rios Berrio and Mr. Perez with respect
to the alleged February 16, 2008 incident. Appellant submitted no other evidence to establish his
allegations. He therefore failed to establish a factual basis for his claim of harassment by his
supervisors on February 16, 2008.18 The Board finds that the record is not sufficient to establish
harassment and suggests that appellant’s feelings are self-generated and not compensable under
the Federal Employees’ Compensation Act.19
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act20 provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.21 The employee shall exercise this right through a request to the district Office. The

15

See L.C., 58 ECAB ___ (Docket No. 06-1263, issued May 3, 2007); Donney T. Drennon-Gala, 56 ECAB
469 (2005).
16

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

17

See 20 C.F.R. § 10.5(ee).

18

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

See Gregorio E. Conde, supra note 7.

20

5 U.S.C. § 8101 et seq.

21

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

5

request, along with the supporting statements and evidence, is called the application for
reconsideration.22
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.23
An application for reconsideration must be sent within one year of the date of the Office
decision, for which review is sought.24 A timely request for reconsideration may be granted if
the Office determines that the employee has presented evidence or argument that meets at least
one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, the Office will deny the application for reconsideration without reopening the case for
a review on the merits.25
ANALYSIS -- ISSUE 2
In connection with his May 28, 2008 reconsideration request, appellant submitted his
February 2, 2008 statement and resubmitted a February 15, 2008 Family and Medical Leave Act
application; certifications of health care provider dated a February 19 and April 7, 2008; and an
April 17, 2008 report by Dr. Del Toro.
However, the submission of this evidence does not require reopening of appellant’s claim
for merit review because he resubmitted medical evidence previously considered. The Board has
held that evidence that repeats or duplicates that already of record does not constitute a basis for
reopening a claim for merit review.26 In addition, while appellant’s February 2, 2008 statement
is new, it is not relevant to his allegation regarding the events of February 16, 2008.

22

20 C.F.R. § 10.605.

23

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

24

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

25

Id. at §10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

26

See L.H., 59 ECAB ___ (Docket No. 07-1191, issued December 10, 2007); James E. Norris, 52 ECAB
93 (2000).

6

Appellant has not submitted any relevant and pertinent new evidence, advanced a legal
argument not previously considered by the Office, nor argued that the Office erroneously
interpreted a specific point of law. Thus, he has not met the criteria to have the Office reopen his
case for review on the merits.27
CONCLUSION
The Board finds that appellant failed to establish that he sustained an emotional condition
in the performance of duty on February 16, 2008, as alleged. The Board further finds that the
Office properly denied appellant’s request for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 16 and May 8, 2008 are affirmed.
Issued: March 25, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

27

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007) (when an application for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on the merits).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, Fort Worth, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1216
Issued: December 2, 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 May 23, 2016 appellant, through counsel, filed a timely appeal from an April 1, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his right leg warranting a schedule award.
FACTUAL HISTORY
On June 2, 1986 appellant, then a 24-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) under File No. xxxxxx926 alleging that he sustained a left knee injury on
that date when he lost his footing and landed on his left knee. In a September 29, 1986 decision,
OWCP denied the claim as it had not received medical evidence to establish a left knee condition
causally related to the established June 2, 1986 employment incident.
Following OWCP’s decision, additional medical evidence was received into the record.
On June 2, 1986 appellant was seen by Dr. Christian J. Renna, an osteopath specializing in neuro
musculoskeletal and preventive medicine. He was seen again by Dr. Renna the next day, June 3,
1986, after x-rays had been taken and a fibula head fracture with peroneal nerve contusion had
been diagnosed. Appellant was placed in a full cast on that date and asked to return for removal
of the cast in two weeks, with no weight bearing during the two-week period.
On June 27, 1986 Dr. Renna completed a request for examination and/or treatment (Form
CA-16). He noted having examined appellant the day after the initial injury and having put
appellant into a full leg cast.3 Dr. Renna reexamined appellant and reported tenderness in the
right fibula, numbness, and slight stiffness after he had slipped on water and fell while walking
in a tunnelway. He diagnosed a right fibula fracture and checked a box marked “yes” indicating
that the diagnosed condition was caused or aggravated by the employment activity described.
In a September 23, 1986 report, Dr. Renna noted a history that appellant fell at work on
June 2, 1986 and complained about right knee pain. He reported examination findings which
included a right knee x-ray that revealed a fibula head fracture with a peroneal nerve contusion.
Dr. Renna found that appellant’s fracture had healed satisfactorily and he was released to return
to work on June 29, 1986.
Thereafter, the claim was essentially dormant until 2013. By letter dated June 27, 2013,
appellant requested reconsideration of the September 29, 1986 decision. He explained that his
supervisor had completed his Form CA-1 and incorrectly stated that he had injured his left knee
rather than his right knee.
In a July 11, 2013 decision, OWCP vacated the September 29, 1986 decision and found
that appellant had sustained a right knee condition causally related to his June 2, 1986
employment incident, based on Dr. Renna’s reports. By letter of the same date, it accepted his
3

Appellant had returned to Dr. Renna on June 6, 2016 and explained that he had fallen over an ant hill and ants
had gotten into the cast and were biting him. He then took a tin snips and removed the cast himself, but he noted
that he had remained on crutches nonetheless. Dr. Renna replaced the full leg cast at that time. However, on
June 16, 1986 appellant again returned with the cast having been broken due to unbearable itching. The cast was
completely removed and appellant was placed into a knee immobilizer.

2

claim for right closed fracture of the upper end tibia and fibula and injury to the right peroneal
nerve.4
On September 5, 2013 appellant filed a claim for a schedule award (Form CA-7) for his
right knee.
In a May 1, 2013 report, Dr. John W. Ellis, a family practitioner, provided a history of the
June 2, 1986 employment incident and reviewed appellant’s medical records. He noted
appellant’s complaints of continued pain, instability, and grittiness in his right knee. Dr. Ellis
reported findings on examination of appellant’s left shoulder, elbow, wrist, and knee, right knee,
and emotional conditions. The right knee had a scar over the distal patella, which resulted from
a fall in 1982 during his military service. It was a small laceration that was treated topically with
no sutures and caused only a mild cosmetic deformity. On the lateral aspect of the right knee,
there was a scar at the lateral distal femur from where the fracture of the fibula occurred on
June 2, 1986. There was crepitation on movement of the right knee. There was 115 degrees of
flexion and full extension. There was also mild laxity of the medial collateral ligament. There
were hyperpigmented and reddish birthmarks on the anterior right knee, tibial tuberosity, lateral,
and slightly anterior right calf. Dr. Ellis diagnosed a fractured right fibula and internal
derangement, traumatic arthritis and chondromalacia, and laxity of the medial collateral ligament
of the right knee. He opined that appellant’s employment contributed to, aggravated and/or
caused his injuries, disabilities, and impairments. Dr. Ellis concluded that appellant had been
temporarily totally disabled for 45 days while his right leg was in a cast.
By decision dated September 9, 2013, OWCP denied appellant’s claim for a schedule
award. It found that his right knee conditions had not reached maximum medical improvement
(MMI) based on Dr. Ellis’ May 1, 2013 report. In addition, Dr. Ellis’ report presented clear
evidence of a new work injury in the form of occupational factors affecting the right knee. Thus,
OWCP recommended that appellant file an occupational disease claim with supporting medical
evidence.
On December 17, 2014 appellant filed another Form CA-7 claim for a schedule award.
In an October 27, 2014 report, Dr. Ellis provided a history of appellant’s claims for
compensation, reviewed his medical records, and reported findings on physical examination. He
diagnosed a closed fracture of the upper end tibia and fibula and injury to the peroneal nerve.
Dr. Ellis reiterated his diagnoses of traumatic arthritis and chondromalacia and medial collateral
ligament laxity of the right knee. He also reiterated his opinion that appellant’s conditions,
impairment, and disability were caused by his employment. Dr. Ellis advised that appellant may
need right knee surgery in the future. He noted that appellant had reached MMI as of the date of
his examination. Utilizing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Ellis found that appellant had 14

4

Prior to this claim, OWCP, under File No. xxxxxx772, had accepted that appellant sustained lumbar disc
displacement on February 19, 1993. In decisions dated May 30 and December 23, 2014, it denied his claim for a
schedule award for the lumbar condition. Under File No. xxxxxx408, OWCP had accepted that appellant sustained
a left shoulder tear on September 6, 2003. It subsequently issued schedule award decisions reflecting that he had 18
percent permanent impairment of the left arm. These other claims are not before the Board on the present appeal.

3

percent permanent impairment of the right lower extremity due to mild laxity of the medial
collateral ligament and a peroneal nerve injury.
On February 10, 2015 appellant requested reconsideration of the September 9, 2013
decision.
On May 22, 2015 OWCP forwarded the file to Dr. Morley Slutsky, a Board-certified
occupational medicine physician and district medical adviser (DMA), for a review of the medical
record and an impairment rating. Dr. Slutsky responded on that same date noting that he had not
received all of the medical evidence which Dr. Ellis had reviewed in making his impairment
rating.
Dr. Slutsky again asked OWCP on July 6, 2015 that a complete medical record be
provided to him in order to complete the impairment rating. OWCP provide him with the
additional medical records.
OWCP received Dr. Slutsky’s report on July 24, 2015 in which he found that appellant
had no right lower extremity impairment and that he had reached MMI. Dr. Slutsky explained
that there were no diagnostic test findings or physical examination findings of a peroneal nerve
injury, closed fracture of the upper end tibia and fibula, or impairment due to these conditions
under File Nos. xxxxxx926 or xxxxxx772. He noted that Dr. Renna had found that the closed
fracture of the upper end tibia and fibula had healed and released appellant to return to work.
Dr. Slutsky advised that Dr. Ellis’ findings of laxity of the medial collateral ligament, crepitation,
and loss of range of motion (ROM) were inconsistent with the other providers’ findings and,
thus, were unrelated to the accepted fracture which had healed in 1986 without significant
residual findings.
On December 14, 2015 OWCP referred appellant to Dr. Mysore S. Shivaram, a Boardcertified orthopedic surgeon, for a second opinion.
In a January 12, 2016 report, Dr. Shivaram reviewed a statement of accepted facts and
appellant’s medical records. He noted appellant’s chief complaints regarding his left foot and
calf. Appellant had no particular complaints regarding his right leg. On examination of the right
lower extremity, Dr. Shivaram reported no evidence of swelling or deformity. Appellant’s gait
was normal and he was able to perform heel and toe gait. A right knee examination revealed no
obvious swelling or deformity. Skin condition was normal. There was no evidence of intraarticular effusion. ROM was normal. Extension was 0 degrees and flexion was 135 degrees.
The knee was stable for valgus. There was varus stress with the knee in extension and flexion.
Appellant was able to dorsiflex, invert, and evert the ankle without any difficulty. There
was no evidence of tingling or numbness in the peroneal nerve distribution. Appellant
complained about periodic numbness in his right fifth toe. He had intact sensation in this toe.
The dorsalis pedis and posterior tibial pulse were 2+. Right foot sensory examination was
normal. Appellant had relatively normal right hip ROM. However, he complained about right
knee pain when his hips and knees were flexed. There was no evidence of right knee instability.
A Lachman test and anterior drawer sign were negative. There was no evidence of laxity of the
medial collateral ligament as indicated by Dr. Ellis. X-rays of the right knee and proximal tibia

4

and fibula were normal. There was no evidence of deformity of the right proximal fibula.
Dr. Shivaram advised that overall appellant had excellent healing of the previously reported
fracture of the head of the fibula. He found “absolutely no evidence of peroneal nerve injury to
the right leg.”
Dr. Shivaram diagnosed a normal right knee examination and advised that appellant had
reached MMI on December 2, 1986 approximately six months following his nondisplaced
fractured head of the fibula. He noted that he had no preexisting permanent impairment.
Dr. Shivaram found no evidence of permanent disability. He noted that “[appellant] had
overreaction to pain and there was significant symptom magnification during the proceedings.”
Utilizing Table 16-3, page 510 of the sixth edition of the A.M.A., Guides, Dr. Shivaram
determined that a tibial plateau fracture would most closely match appellant’s injury. He found a
class 0 impairment for nondisplaced fracture with no significant objective abnormal findings at
MMI. This resulted in no impairment. Dr. Shivaram also found a class 0 impairment for
peroneal nerve injury under Table 16-12, page 535 as there were no objective sensory or motor
deficits. This resulted in no impairment. Dr. Shivaram noted that while Dr. Ellis’ clinical right
knee examination revealed crepitation on movement, mild laxity of the medial collateral
ligament, and -6 degrees to 104 degrees of ROM, his examination did not reveal any of these
findings. He reiterated his findings of no instability of the knee, no chondromalacia as described
by Dr. Ellis, and no clinical indication of an injury to the peroneal nerve. A review of the
medical records indicated that there was only a fracture of the head of the fibula and not a closed
fracture of the tibia and fibula. There was no indication that appellant required further right knee
surgery. Based on the above findings, Dr. Shivaram concluded that there was no evidence of
right knee disability or permanent impairment.
On March 23, 2016 Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon and
DMA, reviewed the medical record and agreed with Dr. Shivaram’s January 12, 2016 opinion
that appellant had no right lower extremity impairment under the sixth edition of the A.M.A.,
Guides. He advised that Dr. Ellis’ October 27, 2014 findings were suspect as no other examiner
who came in contact with appellant observed Dr. Ellis’ findings on physical examination of the
right lower extremity. Dr. Orenstein noted that almost every response in a pain disability
questionnaire was a 9 or 10, which was consistent with Dr. Shivaram’s observation that appellant
had overreacted to pain.
In an April 1, 2016 decision, OWCP denied appellant’s claim for a schedule award. It
found that the weight of the medical evidence rested with the opinions of Drs. Shivaram and
Orenstein who determined that appellant had no impairment of the right leg.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
5

5 U.S.C. § 8107.

5

function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards.8 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.9
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member as a result of any employment injury.10 OWCP procedures
provide that, to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this date occurred (date of MMI), describe the impairment in sufficient detail so that it
can be visualized on review and computes the percentage of impairment in accordance with the
A.M.A., Guides.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.12
ANALYSIS
The Board finds that appellant has not established ratable right leg permanent
impairment. OWCP accepted his claim for right closed fracture of the upper end tibia and fibula
and injury to the right peroneal nerve. The Board finds that the weight of the medical evidence
rests with the opinions of Dr. Shivaram, an OWCP referral physician, and Dr. Orenstein, the
DMA, who properly applied the sixth edition of the A.M.A., Guides.
In an October 27, 2014 report, Dr. Ellis, appellant’s treating physician, examined
appellant and found that he had 14 percent permanent impairment of the right leg under the sixth
6

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

7

Id.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also id., Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
9

See Dale B. Larson, 41 ECAB 481, 490 (1990); id. at Chapter 3.700.3.a.3 (January 2010). This portion of
OWCP procedures provides that the impairment rating of a given scheduled member should include any preexisting
permanent impairment of the same member or function.
10

Tammy L. Meehan, 53 ECAB 229 (2001).

11

Supra note 7 at Chapter 2.808.5 (February 2013).

12

Id. at Chapter 2.808.6(f) (February 2013).

6

edition of the A.M.A., Guides due to the diagnosed mild laxity of the medial collateral ligament
and a peroneal nerve injury.
Dr. Slutsky, a DMA, reviewed Dr. Ellis’ findings on July 2, 2015 and disagreed with his
impairment rating and date of MMI. He found that appellant had no right lower extremity
impairment under the sixth edition of the A.M.A., Guides and that appellant had reached MMI.
Dr. Slutsky reasoned that there were no diagnostic or physical examination findings of a
peroneal nerve injury, closed fracture of the upper end tibia and fibula, or impairment due to
these conditions. He noted Dr. Renna’s finding that the closed fracture of the upper end tibia and
fibula had healed and that appellant could return to work. Dr. Slutsky concluded that Dr. Ellis’
findings of laxity of the medial collateral ligament, crepitation, and loss of ROM were
inconsistent with the other providers’ findings and, thus, were not related to the accepted
fracture, which had healed in 1986 without significant residual findings.
In a January 12, 2016 report, Dr. Shivaram, a second opinion physician, reviewed the
medical record and reported essentially normal findings on examination with the exception of
varus stress with the right knee in extension and flexion and appellant’s complaint of right knee
pain when his hips and knees were flexed. He reported normal right knee x-rays. Dr. Shivaram
diagnosed a normal right knee examination and advised that appellant’s fracture of the head of
the fibula had healed excellently. He determined that appellant had reached MMI on
December 2, 1986. Dr. Shivaram found that appellant had overacted to pain and exhibited
significant symptom magnification during his examination. He utilized Table 16-3, page 510 of
the sixth edition of the A.M.A., Guides and determined that a diagnosis of tibial plateau fracture
closely matched appellant’s injury and resulted in a class 0 impairment for nondisplaced fracture
with no significant objective abnormal findings at MMI. Dr. Shivaram found that this
represented zero percent impairment. He noted that unlike Dr. Ellis’ examination of the right
knee, his examination did not reveal crepitation on movement, mild laxity of the medial
collateral ligament, -6 degrees to 104 degrees of ROM, and chondromalacia. Dr. Shivaram also
found no instability of the knee. He related that his review of the medical records only indicated
a fracture of the head of the fibula and not a closed fracture of the tibia and fibula. He advised
that there was no indication that appellant required further right knee surgery. Dr. Shivaram
concluded that there was no evidence of permanent impairment based on his findings. On
March 23, 2016 Dr. Orenstein, a DMA, reviewed Dr. Shivaram’s January 12, 2016 report and
agreed with his impairment rating.
The Board finds that the weight of the medical evidence is represented by the reports of
Drs. Shivaram and Orenstein who reviewed the findings on examination and properly applied the
A.M.A., Guides. These physicians agreed that appellant has no permanent impairment of his
right lower extremity due to his accepted right closed facture of the upper end tibia and fibula
and right injury to the peroneal nerve. There is no current medical evidence of record, in
conformance with the A.M.A., Guides, which supports greater impairment.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds that counsel’s contentions are not substantiated.

7

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his right leg warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 2, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINASTRATION MEDICAL
CENTER, Sheridan, WY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1306
Issued: December 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 30, 2012 appellant filed a timely appeal from a February 9, 2012 merit decision
of the Office Workers’ Compensation Programs (OWCP) concerning a loss of wage-earning
capacity determination. 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 OWCP met its burden of proof to reduce appellant’s compensation
effective June 8, 2011 based on her actual earnings.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received new evidence following the February 9, 2012 decision. Appellant has
also submitted new evidence with her appeal. However, the Board may only review evidence that was in the record
at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued
September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal, appellant contends that she is permanently and totally disabled from working
in any capacity.
FACTUAL HISTORY
This case has previously been before the Board. On March 15, 2011 the Board set aside
a November 4, 2009 nonmerit OWCP decision and remanded the case for consideration of the
merits.3 In a November 4, 2009 decision, OWCP denied appellant’s request for reconsideration
of an October 18, 2007 decision terminating her wage-loss benefits pursuant 5 U.S.C. § 8106(c)
on the grounds that she abandoned suitable work. The Board found that she raised a relevant
legal argument not previously considered. The facts as set forth in the Board’s decision are
incorporated by reference.4
On remand, OWCP requested that appellant provide information regarding her private
sector employment with RENEW. It noted that her rationale for abandoning/refusing the job
offer from the employing establishment was that RENEW paid her at a higher salary beginning
September 5, 2007.
In response to OWCP’s request for information, appellant stated that she began
employment with RENEW on September 5, 2007 at an hourly rate of $12.00. She left the
position on March 12, 2008 because of her back condition and that she had not worked in any
capacity since July 15, 2009.
By decision dated June 8, 2011, OWCP issued a loss of wage-earning capacity
determination based on appellant’s actual wages. It found that her actual earnings exceeded the
wages in her date-of-injury position and reduced her wage-loss compensation to zero.
On July 14, 2011 OWCP received appellant’s undated reconsideration request.
By decision dated February 9, 2012, OWCP denied modification of the June 8, 2011 loss
of wage-earning capacity decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wage3

Docket No. 10-758 (issued March 15, 2011).

4

On January 30, 207 appellant, then a 34-year-old temporary nursing assistant, filed an occupational disease
claim alleging that she sustained an L5-S1 herniated disc as a result of employment duties. OWCP accepted the
claim for aggravated L5-S1 herniated disc, aggravation of lumbar herniated disc and urinary incontinence and
authorized the February 6, 2007 surgical intervention. The February 6, 2007 surgery was for a complete
laminectomy, facetectomy and foraminotomy bilaterally at L5-S1 with instrumentation.
5

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).

2

earning capacity.6 Under section 8115(a) of FECA, wage-earning capacity is determined by the
actual wages received by an employee if such earnings fairly and reasonably represent her
wage-earning capacity.7 Generally, wages actually earned are the best measure of a
wage-earning capacity and, in the absence of evidence showing that they do not fairly and
reasonably represent the injured employee’s wage-earning capacity, will be accepted as such
measure.8
When an employee cannot return to the date-of-injury job because of disability due to
work-related injury or disease, but does return to alternative employment with an actual wage
loss, OWCP must determine whether the earnings in the alternative employment fairly and
reasonably represent the employee’s wage-earning capacity.9 The Board has held that
reemployment may not be suitable if the job is part time, seasonal or of a temporary nature.10
After the employee has worked for 60 days, OWCP will determine whether his or her actual
earnings represent his or her wage-earning capacity. In doing so, OWCP will apply the Shadrick
formula in determining the claimant’s monetary entitlement.11
The Federal (FECA) Procedure Manual provides that OWCP may make a retroactive
wage-earning capacity determination if an employee has worked in the position for at least 60
days, the position fairly and reasonably represented his or her wage-earning capacity and the
work stoppage did not occur because of any change in the injury-related condition affecting the
ability to work.12
ANALYSIS
The Board finds that OWCP did not properly determine appellant’s loss of wage-earning
capacity. When OWCP learns that an employee has returned to alternative work more than 60
days after the fact, the claims examiner may consider a retroactive loss of wage-earning
determination. Such a determination is generally appropriate where a recipient of compensation
held private employment and had substantial earnings, which were not reported to OWCP or
were otherwise not used in adjusting entitlement.13

6

20 C.F.R. §§ 10.402, 10.403.

7

M.A., 59 ECAB 624 (2008); Sherman Preston, 56 ECAB 607 (2005). See 5 U.S.C. § 8115(a).

8

S.B., 59 ECAB 482 (2008); Lottie M. Williams, 56 ECAB 302 (2005).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (October 2009).
10

Id. See Connie L. Potratz-Watson, 56 ECAB 316 (2005).

11

Id. See Albert C. Shadrick, 5 ECAB 376 (1953). This has been codified by regulation at 20 C.F.R. § 10.403.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(e) (October 2009)
13

Id.

3

The June 8, 2011 OWCP decision constitutes a retroactive wage-earning capacity
determination. Appellant began work with RENEW on September 5, 2007 and worked until
March 12, 2008. She informed OWCP of this employment in an October 1, 2009 letter
requesting reconsideration of the termination of her compensation benefits pursuant to 5 U.S.C.
§ 8106(c) for abandoning suitable work. Appellant informed OWCP that her job at RENEW
ended on March 12, 2008 and that she has not worked in any capacity since July 15, 2009.
OWCP reduced her compensation in its June 8, 2011 decision finding that her actual earnings
with RENEW represented her wage-earning capacity as she held the position for more than 60
days. It found only that the position was suitable because appellant had demonstrated her ability
to perform the duties for at least two months. OWCP did not address how such employment
fairly or reasonably represented her wage-earning capacity or whether her subsequent work
stoppage on March 12, 2008 was due to her injury-related condition, as required by its
procedures.14 It did not address the medical evidence submitted by appellant. There was no
consideration of the October 18, 2007 termination decision on her claim for monetary
compensation. Accordingly, OWCP did not fully consider all criteria for making a retroactive
wage-earning capacity determination.
CONCLUSION
The Board finds that OWCP improperly determined appellant’s loss of wage-earning
capacity. OWCP did not follow its procedures in making a retroactive loss of wage-earning
capacity decision.

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 9, 2012 is reversed.
Issued: December 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, SHARED SERVICE
CENTER, Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-274
Issued: June 2, 2008

Case Submitted on the Record

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

JURISDICTION
On November 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 4, 2007 denying her traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a traumatic injury while in the performance of
duty on January 15, 2003.
FACTUAL HISTORY
This case is before the Board for the second time. Appellant, a 44-year-old casual mail
carrier, alleged that she sustained a traumatic injury to her wrists on January 15, 2003. On
May 11, 2005 the Office denied her March 26, 2003 traumatic injury claim. It accepted that two
bundles fell on appellant’s hands on January 15, 2003 but found that she failed to establish that
her wrist condition was due to the accepted incident. Appellant sought review by the Board. By

decision dated December 9, 2005, the Board remanded the case to the Office for further
development of the medical evidence.1 The facts contained in that decision are incorporated
herein by reference.
On remand, the Office referred appellant, together with a statement of accepted facts and
the medical record, to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon. It requested
an opinion as to whether appellant developed a medical condition involving her wrists as a result
of the accepted January 15, 2003 incident, when bundles of mail fell on her hands. In a report
dated February 27, 2006, Dr. Hanley diagnosed “lateral hand pain and electrodiagnostic evidence
of median nerve slowing at the wrist.” He stated that there did not appear to be a well-defined
carpal tunnel syndrome. On examination, appellant was able to close her fingers fully, but
showed diminished grip strength. Dr. Hanley found no evidence of soft tissue swelling, and
surface markings were intact. Appellant had good function of the intrinsic muscles without
atrophy. There was no focal loss of sensation in the median distribution. Tinel’s sign was
atypical, causing radiation up the arm, a condition not typically seen in carpal tunnel syndrome.
Dr. Hanley stated, “As far as the incident of bundles falling on her hands, I believe that this was
a nonincident. I do not believe it led to any injury whatsoever, as the patient did not seek any
medical attention initially.” Dr. Hanley further stated, “I do not believe that [appellant] has a
symptomatic carpal tunnel syndrome due to cumulative exposure and therefore it is my belief
that she did not sustain an injury at the workplace.” In an accompanying work capacity
evaluation, he opined that appellant was capable of performing her usual job without restrictions.
By decision dated October 25, 2006, the Office affirmed its denial of appellant’s claim.
The Office found that the weight of the medical evidence was represented by Dr. Hanley’s report
and failed to support that her wrist condition was causally related to the established work-related
incident.2
On October 25, 2006 appellant, through her representative, submitted a request for an
oral hearing.
Appellant submitted reports dated October 11 and December 5, 2006 from her treating
physician, Dr. Arnold S. Lincow, a Board-certified family practitioner. On October 11, 2006
Dr. Lincow opined that appellant’s bilateral carpal tunnel syndrome was solely related to the
January 15, 2003 work-related incident. He noted that November 2003 and December 2, 2004
electromyogram (EMG) and nerve conduction studies revealed a chronic denervation pattern of
the bilateral median innervated muscles, which was consistent with carpal tunnel syndrome. On
December 5, 2006 Dr. Lincow related the history of injury and treatment, noting that appellant
1

Docket No. 05-1949 (issued December 9, 2005). The record that was before the Board in the first appeal,
contains numerous reports for the period May 23, 2003 through February 23, 2005 from appellant’s treating
physician, Dr. Arnold S. Lincow, a Board-certified family practitioner, who opined that appellant’s wrist condition
was causally related to the January 15, 2003 employment incident.
2

The Board notes that appellant filed an occupational disease claim (No. 032038342) on March 5, 2005, alleging
that she developed carpal tunnel syndrome as a result of repetitive employment duties. By decision dated March 20,
2007, the Board affirmed the Office’s March 31, 2006 denial of appellant’s claim, finding that she failed to establish
that she developed carpal tunnel syndrome as a result of her federal employment duties. Docket No. 07-218 (issued
March 20, 2007).

2

sustained a severe wrist injury on January 15, 2003 when bundles of mail fell on her hands and
wrists. Noting that appellant had experienced problems prior to this incident, he stated that the
January 15, 2003 event precipitated and worsened her carpal tunnel syndrome. Dr. Lincow
opined that appellant’s injury was directly and causally related to her January 15, 2003 severe
trauma, which accelerated her hand condition, and was “the straw that broke the camel’s back.”
Appellant also submitted a December 2, 2004 electromyogram (EMG) and nerve conduction
study, signed by Dr. Martin Weaver, a Board-certified physiatrist, who stated, “This is an
abnormal study, indicating a bilateral carpal tunnel syndrome.”
At the February 22, 2007 hearing, appellant’s representative contended that Dr. Hanley’s
report was insufficient to carry the weight of the medical evidence. He argued that Dr. Lincow’s
report was well rationalized or was sufficient to create a conflict in medical opinion.
By decision dated June 4, 2007, the Office hearing representative affirmed the
October 26, 2006 decision, finding that the evidence failed establish that appellant sustained an
injury or condition causally related to the January 15, 2003 work incident.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”5
An employee seeking benefits under the Act 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 the Act, that the claim was timely filed within the
applicable time limitation period of the Act, 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.6 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the “fact of injury,” namely, she
must submit sufficient evidence to establish that she experienced a specific event, incident or

3

5 U.S.C. § 8101 et seq.

4

Id. at § 8102(a).

5

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).
6

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989). See also 5 U.S.C.
§ 8101(5) (“injury” defined); 20 C.F.R. § 10.5(q) and (ee) (2000) (“Occupational disease or illness means a
condition produced by the work environment over a period longer than a single workday or shift.”) (“Traumatic
injury means a condition of the body caused by a specific event or incident, or a series of events or incidents, within
a single workday or shift.”)

3

exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.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
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
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.11 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.12 Where there exist opposing medical reports of virtually equal weight and rationale
and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.13

7

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term “injury” as
defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
8

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

9

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

10

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

11

5 U.S.C. § 8123(a).

12

20 C.F.R. § 10.321.

13

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

4

ANALYSIS
Appellant alleged that she developed bilateral carpal tunnel syndrome as a result of a
January 15, 2003 incident in which bundles of mail fell on her wrists. Her treating physician
opined that her carpal tunnel condition was caused by the employment incident. The Office
accepted that the incident occurred as alleged, but denied appellant’s claim, finding the evidence
insufficient to establish a causal relationship between her wrist condition and the accepted
incident. In its December 9, 2005 decision, the Board remanded the case to the Office for further
development of the medical evidence. Pursuant to the Board’s instruction, the Office obtained a
second opinion examination by Dr. Hanley, who concluded that appellant’s wrist condition was
not work related. The Board finds that there is a conflict in medical opinion between appellant’s
treating physician and the Office’s referral physician.
Dr. Lincow opined that appellant’s bilateral carpal tunnel syndrome was solely related to
the January 15, 2003 work-related incident. On October 11, 2006 he reiterated his opinion and
noted that November 2003 and December 2, 2004 EMG and nerve conduction studies revealed a
chronic denervation pattern of the bilateral median innervated muscles, which was consistent
with carpal tunnel syndrome. On December 5, 2006, noting that appellant had experienced
problems prior to the accepted incident, Dr. Lincow stated that the January 15, 2003 event
precipitated and worsened the carpal tunnel syndrome. He opined that appellant’s condition was
directly and causally related to her January 15, 2003 severe trauma, which accelerated her hand
condition, and was “the straw that broke the camel’s back.”
Dr. Hanley opined that there was no causal relationship between appellant’s diagnosed
wrist condition and her job duties. Based upon his examination, he stated that there did not
appear to be a well-defined carpal tunnel syndrome. On examination, appellant was able to close
her fingers fully, but showed diminished grip strength. Dr. Hanley found no evidence of soft
tissue swelling and surface markings were intact. Appellant had good function of the intrinsic
muscles without atrophy. There was no focal loss of sensation in the median distribution.
Tinel’s sign was atypical, causing radiation up the arm, a condition not typically seen in carpal
tunnel syndrome. Dr. Hanley stated, “As far as the incident of bundles falling on her hands, I
believe that this was a nonincident. I do not believe it led to any injury whatsoever, as the
patient did not seek any medical attention initially.”
The Board finds that there is a conflict between the opinions of Dr. Lincow and
Dr. Hanley. The Board notes that, while the Office found that Dr. Hanley’s report constituted
the weight of the medical evidence, he did not explain his opinion in light of the results of EMG
and nerve conduction studies, which were consistent with carpal tunnel syndrome. Dr. Hanley
did not address Dr. Lincow’s opinion that the January 15, 2003 accepted incident precipitated
and exacerbated appellant’s carpal tunnel syndrome.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.14 The case will be remanded to the Office to resolve
14

Id.

5

the conflict. On remand, the Office shall prepare an updated statement of accepted facts and
refer it, the medical record and appellant to an appropriate specialist to obtain an impartial
medical opinion as to whether there exists a causal relationship between her wrist condition and
the January 15, 2003 incident. Following other development as deemed necessary, the Office
shall issue an appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision due to a conflict of medical
opinion.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 4, 2007 decision be set aside and remanded for action consistent with this decision of the
Board.
Issued: June 2, 2008
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1284
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an
occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due
to factors of his federal employment. He noted that he first became aware of his condition and
first realized its relationship to his federal employment on March 27, 2019. On the reverse side of
the claim form D.C., an assistant port director for the employing establishment, noted that
appellant retired, effective August 31, 2018.
In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical and factual evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary information.
In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing
establishment reporting that appellant’s position at the employing establishment was primarily a
supervisory and administrative position that did not require constant exposure to the elements. He
noted that the port area was surrounded by open desert with the associated dust and wind. D.C.
provided a position description for an assistant port director.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish the alleged factors of his employment. It
specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding
how his federal employment caused or contributed to his claimed condition. OWCP, therefore,
concluded that the requirements had not been met to establish an injury as defined by FECA.
On September 25, 2019 appellant requested reconsideration. By decision dated
October 29, 2019, OWCP denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
On April 8, 2020 appellant, through counsel, requested reconsideration.
In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history
of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a
3

Docket No. 20-1477 (issued March 25, 2021).

2

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema.
Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work
environment” since he did not have a history of smoking.
By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019
decision.
Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board
affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to
establish an injury in the performance of duty, as alleged. 5
On May 14, 2021 appellant, through counsel, requested reconsideration. 6
Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021.
He indicated that he believed he developed emphysema while working as a customs inspector from
1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound
from Mexico. He reported that he worked an average of 64 hours per day and inspected an average
of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car
exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He
indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes
and dust. Appellant explained that he first noticed his condition changing in early 2015 when his
stamina and endurance declined and he developed a persistent cough. He noted that, at that time,
doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally
diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.
In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

4

A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of
an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized
centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography
report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing
capacity.
5

Supra note 3.

6
Although appellant claimed to be filing a request for reconsideration from the Board’s March 25, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP
decision is the appropriate subject of possible modification by OWCP.
7

Id.

3

limitation of FECA, 8 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he developed emphysema due to factors of his federal
employment. OWCP initially denied his claim finding that he had failed to establish that the
employment factors occurred as alleged. It specifically noted that appellant failed to respond to
OWCP’s request for a detailed statement regarding how his federal employment caused or
contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the
denial of his claim.
Following the Board’s March 15, 2021 decision, appellant submitted his response to
OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema
while working as a customs inspector for the employing establishment from 1988 to 2018.
Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and
inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that
he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements.
OWCP’s procedures provide that a description of job duties will almost always be required
to adjudicate an occupational disease claim. 12 It further notes that a claimant should usually be
asked to describe the physical and environmental requirements of the job, and the supervisor or
injury compensation specialist should review that statement and provide comments if there is any
8

D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
10

C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2).
(June 2011)

4

disagreement. 13 While the employing establishment responded to OWCP’s July 19, 2019
development letter, the Board notes that it provided information regarding appellant’s employment
duties as an assistant port director and provided a position description for an assistant port director.
Appellant, however, has not attributed his pulmonary condition to his employment duties as an
assistant port director, but to his employment as a customs inspector from 1988 to 2018. The
Board notes that OWCP did not request further information, including his position description as
a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s
contentions that he was exposed to vehicle fumes and/or environmental conditions. For this
reason, the Board finds that the case must be remanded for further development of the factual
evidence.14
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment.15 OWCP has an obligation to see
that justice is done. 16
On remand OWCP should obtain a detailed statement from the employing establishment
indicating whether it concurred with appellant’s allegations and a position description for a
customs inspector. If the employing establishment fails to respond to a request for comments on
appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17
Following this and any such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.

14

See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing
establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see
also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from
the employing establishment addressing appellant’s allegations regarding harassment at work).
15

D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
16

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket
No. 17-1671 (issued November 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6